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decided: October 5, 1988.


Appeal from the Order of the Pennsylvania State Horse Racing Commission, in case of In Re: John B. Luzzi, Jr. v. Pennsylvania State Horse Racing Commission, No. 86-083 PP.


Robert P. Fulton, for petitioner.

John B. Hannum, Jr., for respondent.

Judges Barry, Palladino and McGinley, sitting as a panel of three. Opinion by Judge Palladino. Judge Barry concurs in the result only. This decision was reached prior to the resignation of Judge MacPhail.

Author: Palladino

[ 120 Pa. Commw. Page 217]

John B. Luzzi, Jr. (Petitioner) appeals from two orders of the State Horse Racing Commission (Commission) issued on April 21, 1987.*fn1 One order affirmed Petitioner's ejection by the Philadelphia Park Race Track (Race Track) from its grounds. The second order affirmed the decision of the Board of Stewards (Stewards) to suspend Petitioner's apprentice jockey license but permitted relicensure to be sought upon satisfactory

[ 120 Pa. Commw. Page 218]

    completion of a rehabilitation program approved by the Commission. We affirm both orders.

Petitioner was licensed as an apprentice jockey by the Commission. On October 31, 1986, he was searched, while on the Race Track grounds, by personnel from the Thoroughbred Racing Protective Bureau (TRPB), who were acting on order of the Stewards. During the search, Petitioner removed two straws from his right rear pocket which were placed in a ziplock plastic bag and sent to the Pennsylvania State Horse Testing Laboratory (Lab). On November 2, 1986, at the request of the Stewards, Petitioner submitted to a physical exam by the Race Track's physician, Dr. McKill, who determined that Petitioner, at that time, was not under the influence of drugs and fit to ride. Petitioner also provided a urine sample on that date which was placed into a sealed container in Petitioner's presence and then sent to the Lab.

Lab tests performed on the material in the straws showed that material to be cocaine. Tests performed on the urine disclosed the presence of benzoylecgonine, the primary metabolite of cocaine, which indicates past usage of cocaine.

As a result of the test showing cocaine in the straws, Petitioner was ejected by the Race Track from its grounds on November 8, 1986. His ejection was pursuant to section 215(c) of the Act of December 17, 1981 (Act), P.L. 435, as amended, 4 P.S. § 325.215(c). Section 215(c) states, in pertinent part:

A licensed corporation may . . . eject from the enclosure of the race track operated by the corporation, any person licensed by the [Commission], employed at this occupation at the race track, whose presence there is deemed detrimental to the best interests of horse racing, citing the reasons for that determination.

[ 120 Pa. Commw. Page 219]

The reason given for Petitioner's ejection was possession of cocaine.

Petitioner filed with the Commission a demand for a hearing on his ejection within 48 hours as required by 58 Pa. Code § 165.231(c).*fn2 Petitioner was not permitted to ride at the Race Track after November 8 as a result of his ejection.

The Stewards, upon receipt of the results of the tests from the Lab, notified Petitioner that a hearing would be held December 11, 1986 to determine if his jockey license should be suspended.*fn3 On December 15, 1986, the Stewards issued a decision in which they suspended Petitioner's license for violating 58 Pa. Code §§ 163.8(1) (under the influence of liquor or drugs while on racetrack grounds), 163.8(2) (possession of illegal drugs), 163.58 (experience, character, or general fitness inconsistent with public interest or best interests of racing),

[ 120 Pa. Commw. Page 220163]

.471*fn4 and section 213(f)(2) of the Act*fn5 as a result of his possession and use of cocaine. Petitioner appealed this decision to the Commission.

De novo hearings on the ejectment and suspension were held by the Commission on January 13, 1987. The record made in the ejectment hearing, which dealt primarily with the discovery of the straws and their contents, was incorporated, by stipulation, into the record made in the suspension hearing. Commission regulations require the Commission to issue a written order within 30 days of a hearing. 58 Pa. Code § 165.184(a). During the hearing, the hearing examiner requested

[ 120 Pa. Commw. Page 221]

Petitioner's leave to extend this period. Petitioner refused. On February 10, 1987, the Commission issued an order stating that it would not be issuing an adjudication until later because it had yet to receive the notes of testimony. The Commission issued an adjudication in both matters on April 21, 1987. The ejection was affirmed. The suspension of Petitioner's license was affirmed with a modification that he would be eligible for relicensure upon successful completion of a rehabilitation program approved by the Commission.

On appeal to this court,*fn6 Petitioner raises the following issues: (1) was the suspension "prior to a hearing, argument and a determination by the reviewing entity" a violation of the Pennsylvania and U.S. Constitutions' guarantees of due process; (2) were the Act and the regulations issued pursuant to it violated by the delay in holding a Commission hearing and issuing an adjudication on the ejection and on the suspension; (3) was the search which disclosed the straws an illegal search and seizure, violative of the Pennsylvania and U.S. Constitutions, because it was done without a warrant; (4) does the use of the Lab, established to do tests on horses, to perform the tests on Petitioner's urine and the material in the straws invalidate the test results; (5) was the "chain of custody" of the straws established; (6) was the evidence sufficient to sustain the suspension. Because Petitioner has raised and preserved these issues before the Stewards, the Board and this court, we will address each issue separately.

[ 120 Pa. Commw. Page 222]

    did not hold hearings on his ejectment and suspension nor issue its adjudications on the ejection and suspension within the time limits established by the Act and the regulations. Examination of those sections of the Act and the regulations cited by Petitioner shows that they were not violated.

A. Ejection

An individual who has been ejected from the facilities of a race track has a right to a hearing if he demands one within 48 hours of receiving notice of his ejection. 58 Pa. Code § 165.231(c). If such a demand is made, "the hearing shall be scheduled within 48 hours of the time of receipt of the demand or as soon thereafter as possible." Id. (Emphasis added.) Petitioner was ejected on November 8, 1986 at 12:50 PM and filed his demand for a hearing on November 10, 1986 at 8:37 AM. A hearing on his ejection was held by the Commission on January 13, 1987.

Petitioner argues that 58 Pa. Code § 165.231 requires a hearing to be held within 48 hours. As the above-quoted language clearly shows, the Commission need not hold a hearing within 48 hours but rather must schedule a hearing as soon as possible. This court has held that delay by the Commission in holding a hearing does not require dismissal*fn9 unless the party asserting error by the delay can demonstrate that he was prejudiced by the delay. Delaney v. State Horse Racing Commission, 112 Pa. Commonwealth Ct. 407, 535 A.2d 719 (1988); Worthington v. Department of Agriculture, 100 Pa. Commonwealth Ct. 183, 514 A.2d 311 (1986). The prejudice which Petitioner asserts he

[ 120 Pa. Commw. Page 224]

    suffered by the delay was the inability to practice his vocation as a jockey. However, Petitioner's ejection applied only to the Race Track. It did not prohibit him from practicing his vocation at other racetracks, and Petitioner does not allege that any other racetrack denied him access to their grounds. We conclude that Petitioner was not prejudiced by the delay between his ejection and the Commission's hearing.

B. Suspension

Petitioner's assertion that the Commission's hearing on his suspension was untimely because it was not held within ten days of the suspension as required by section 213(h) of the Act, 4 P.S. § 325.2(h), is based on a misconception. Section 213(h) pertains to situations in which the Commission suspends a license prior to a hearing. Petitioner's hearing before the Commission in this case was held in response to Petitioner's appeal from the Stewards' decision to suspend his license, a decision made after a hearing. The procedure governing appeals to the Commission from Stewards' decisions is ...

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