CARLOS A. PEREZ vs. STATE RACING COMMISSION.

CUTTER, J. Perez on January 11, 1986, held an assistant trainer's license issued to him by the State Racing Commission

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(the Commission). He was employed then by Anthony Manzo, at Ogden Suffolk Downs Race Track (the track) and was engaged in his duties in Manzo's barn on premises at and owned by the track. He was taken into custody there by a State trooper and others. They led him to a "tack room". There he was searched and was accused by employees of the track and the State police of selling drugs.

The foregoing circumstances are set forth (a) on the basis of allegations in Perez's substitute complaint in the Superior Court filed March 5, 1986, to which no answer until April 7, 1986, appears on the Superior Court docket, [Note 1] and (b) on various affidavits filed by Perez. The present proceeding before this court is on a petition for interlocutory relief under G. L. c. 231, Section 118, first par. and for an injunction under Mass.R.A.P. 6(a), as appearing in 378 Mass. 930 (1979). See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 612-618 (1980). That petition recites that on February 27, 1986, a Superior Court judge denied Perez's prayer for a preliminary injunction restraining the Commission from interfering with his "right to earn a living as an assistant trainer pending the resolution of the . . . action on the merits" and, alternatively, pending appeal. [Note 2]

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The petition to this court essentially incorporates by reference Perez's substitute complaint in the Superior Court and an affidavit of Perez, dated merely "this day of February, 1986." Little information is afforded (in addition to that stated in the first paragraph of this opinion), except that the substitute complaint alleges (par. 12) that among Perez's "effects seized . . . was a list of names with dollar amounts next to . . . [the] names" and (par. 13) that "[o]n the basis of . . . [that] list of names" he "was permanently ejected from the grounds of the . . . [t]rack, without a hearing, by an order of the . . . State Police acting under the authority of [t]he Commission." The petition to this court further recites that Perez claimed an appeal to the Commission for the track's order of ejectment, that the Commission denied his appeal, that, by way of the substitute complaint, Perez sought judicial review in the Superior Court of the Commission's order and a preliminary injunction, and that the Superior Court motion judge denied a preliminary injunction. See also note 2, supra.

The petition now before us then proceeds somewhat vaguely to allege that it was error not to grant the preliminary injunction because the Commission's decision (a) was based on illegally seized evidence which should have been suppressed, (b) was unsupported by substantial evidence, and (c) "was based upon unlawful procedure as [t]he Commission was the only available body" to hear both the motion to suppress and the case on the merits. The substitute complaint also asserts that a regulation promulgated by the Commission (see note 5, infra) is unconstitutional.

1. Pertinent Statutes and Regulations.

General Laws c. 128A provides for strict regulation of horse and dog racing in Massachusetts. The original 1934 statute (St.

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1934, c. 374, Section 3) was revised considerably by St. 1978, c. 494. See Catrone v. State Racing Commn., 17 Mass. App. Ct. 484, 486-487 & n.3 (1984), in which is quoted the strong declaration of policy [Note 3] set out in Section 1 of the 1978 revision. The revision substantially strengthened the Commission's power and ability to control horse racing in the public interest. [Note 4]

Chapter 128A, Section 9, has, since 1934, given to the Commission "full power to prescribe rules, regulations and conditions under which all horse . . . races at horse . . . racing meetings shall be conducted." Section 9 also provides that "any person violating any . . . regulation shall, upon a complaint brought by the commission, be punished by a fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or both." Other provisions affecting regulations are set out in Sections 9A and 9B.

The Commission has promulgated a regulation, 205 Code Mass. Regs. Section 4.17(27) (1985), which is set out in the margin. [Note 5]

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2. The Statutory Policy.

The broad aspects of the public interest which support close regulation of horse racing with pari-mutuel betting were stated in Colella v. State Racing Commn., 360 Mass. 152, 159 (1971): "The Legislature recognized the existence of . . . dangers [`inherent in any gambling operation of such proportions'] unless the racing meetings were strictly governed and controlled by rules covering the many details which the statute did not cover. It contemplated that the Commission would be best equipped to supervise the racing operations, and it gave the Commission the very broad powers necessary to accomplish the purpose." In Fioravanti v. State Racing Commn. 6 Mass. App. Ct. 299, 305 (1978), it was said, "In testing the constitutionality of a [Commission] regulation . . ., all rational presumptions are made in favor of the validity of the regulation. It will be struck down only if it `cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it.' . . . Horse racing accompanied by gambling is particularly susceptible to fraud and corruption. The Legislature has recognized these dangers and has given broad powers to the commission to control racing operations strictly."

Regulations of the Commission [Note 6] have been sustained in a variety of circumstances. In the Colella case, 360 Mass. at 155-159, a rule regulating the fees paid to jockeys in the absence of special agreement was sustained. In the Fioravanti case, 6 Mass. App. Ct. at 302-305, this court sustained a rule making

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a horse trainer "responsible for the presence of prohibited articles [there drugs for horses] . . . without regard to his knowledge of their presence." Id. at 302. In the Catrone case, 17 Mass. App. Ct. at 491, the same race track involved in this case was sustained in excluding (as a matter of business judgment) under the Commission's statutes and regulations, a licensed trainer from racing because he "had been at or dangerously near situations which reasonably could be thought to have been detrimental to good racing standards."

3. Effect of Licensee's Conduct on Public Interest.

We approach this case with recognition that the Legislature for a long time has tried to ensure that horse racing will be conducted lawfully and in a manner which will encourage public confidence. The Commission and any licensed private entity engaged in running a race track (see the Catrone case, 17 Mass. App. Ct. at 490-493) reasonably could conclude, as a matter of business judgment, that the unlawful distribution of drugs (either for human use, or for use on horses, see, 128A, Section 13B) by licensees working at a race track inevitably would be highly detrimental to racing. In other jurisdictions, race track stewards or other officials have been upheld in enforcing comparable rules or regulations designed to prevent harmful conduct by licensees. See Shoemaker v. Handel, 795 F.2d 1136, 1142-1144 (3d Cir. 1986, breathalyzer and other testing of jockeys, and random selection of trainers for other tests); Pullin v. Louisiana State Racing Commn., 477 So.2d 683 (La. 1985), S.C., somewhat revised, 484 So.2d 105 (La. 1986); Delguidice v. New Jersey Racing Commn., 100 N.J. 79 (1985); Peterson v. Pennsylvania State Horse Racing Commn., 68 Pa. Commw. 353 (1982). See also Lanchester v. Pennsylvania State Horse Racing Commn., 16 Pa. Commw. Ct. 85, 93 (1974).

4. Aspects of the Request for Preliminary Injunction.

Perez, on the basis of allegations in his substitute complaint and affidavits, seeks an injunction under the first paragraph of G. L. c. 231, Section 118, a matter essentially discretionary. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 612-618. That case states standards for action by a trial judge (or

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a single justice of this court) in deciding whether preliminary injunctive relief should be afforded. Such a judge should consider, among other matters, whether the grant or denial of preliminary relief, if warranted at all, is more likely to cause irreparable harm to one or the other of the contending parties. Perez here has not established a record making it appropriate for us to hold that it was an abuse of discretion for the trial judge (and the single justice) to deny a preliminary injunction.

Perez, in effect, makes a general attack on 205 Code Mass. Regs. Section 4.17(27) (1985) as inherently violating constitutional restraints on searches of individual persons. Enough has been said above to make it plain that horse racing (when conducted with pari-mutuel betting) is a strictly and pervasively regulated occupation. An administrative search in a closely regulated occupation (there the drug industry and the sale of drugs) was dealt with in Commonwealth v. Lipomi, 385 Mass. 370, 375-385 (1982). For that case, apparently on a full record of proceedings in the Superior Court and during the administrative search (at 371-372, 376-377, especially nn.3-5), the court (with two Justices dissenting) affirmed the suppression of items seized in the search. What is said in the majority opinion shows that every purported broad authority to conduct warrantless searches (there G. L. c. 13, Section 25) is likely to be scrutinized with great care in its application to any particular case.

The Lipomi decision (at 378-380) reviewed pertinent decisions of the Supreme Court of the United States, especially Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), United States v. Biswell, 406 U.S. 311 (1972), and Donovan v. Dewey, 452 U.S. 594 (1981). It was concluded [Note 7]

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that the combined effect of these and other Federal decisions was that "a warrant may not be constitutionally required when [the Legislature] has reasonably determined that warrantless searches are necessary to further a regulatory scheme." Commonwealth v. Lipomi, 385 Mass. at 380, quoting from Donovan v. Dewey, 452 U.S. at 600.

Perez contends that Section 4.17(27) does not meet the requirements of the Lipomi case (see the quotation in note 7, supra) and the Supreme Court cases just mentioned (a) because it is a regulation and not a statute, [Note 8] and (b) because it imposes, as a condition of being a licensee of the Commission, an unconstitutional requirement of consent to any search permissible under Section 4.17(27). [Note 9] A further and related contention by Perez's counsel is that Section 4.17(27) and c. 128A as a whole do not sufficiently limit the time, place, and scope of warrantless searches. See the discussion in the Lipomi case, 385 Mass. at 382-383. [Note 10]

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All the contentions advanced in behalf of Perez, however, fall far short of showing abuse of discretion on the part of the trial judge and the single justice in denying preliminary injunctive relief. The problems are discussed by Perez's counsel in a vacuum (without any detailed record of underlying facts and without the complete administrative record before the Commission, see, e.g,. note 1, supra) on the basis of the pleadings and affidavits in large measure stated as conclusions. [Note 11] The record does not furnish the facts to make possible (a) a determination of the extent (if at all) Section 14.17(27) was employed, or (b) any interpretation of the regulation to bring it within limits suggested by the decided cases.

The record does show that Perez was a high school graduate (and thus potentially employable in a number of occupations), but the judges who denied preliminary injunctive relief were given little other information concerning the hardship to Perez likely to result from denial of that relief. They were warranted fully in recognizing the substantial countervailing public interest considerations, e.g., the importance to the racing industry and to public confidence in its avoiding any suspicion or any appearance of participation by Perez, a licensee, in unlawful drug distribution.

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We hold that, in the absence of a substantially more complete record, Perez has not shown an abuse of discretion by the trial judge or by the single justice in denying a preliminary injunction. They were amply justified in deciding that (even if the record's deficiencies may be cured at a trial on the merits) they should not consider, at a preliminary stage and on an inadequate record, important issues possibly of constitutional dimension.

Order denying preliminary injunctive relief affirmed.