Bresnik v. Beulah Park Ltd. Partnership, Inc.

617 N.E.2d 1096, 67 Ohio St. 3d 302

Opinions

Pfeifer, J.

Beulah Park has a common-law right to exclude persons from its business premises absent specific legislative language to the contrary. The Revised Code contains no such language.

Appellee contends that R.C. Chapter 3769, which empowers the Ohio State Racing Commission with the right to exclude jockey agents from racetracks, abrogates any common-law rights of racetrack owners to exclude jockey agents from their premises. Appellee also argues that Ohio Adm. Code 3769-2-05 and 3769-4-22(B) authorize racing stewards to exclude jockey agents from a racetrack, and, thus, abolish Beulah Park’s common-law right. We disagree.

As the late Justice Thurgood Marshall noted, the common-law right to exclude has long been a fundamental tenet of real property law:

“The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419, 435, 102 S.Ct. 3164, 3176, 73 L.Ed.2d 868, 882.

Proprietors of private enterprises, such as Beulah Park, possess this right. Fletcher v. Coney Island, Inc. (1956), 165 Ohio St. 150, 59 O.O. 212, 134 N.E.2d 371. In Fletcher, this court held at paragraph one of the syllabus that:

“At common law, proprietors of private enterprises such as places of amusement and entertainment can admit or exclude whomsoever they please, and their common-law right continues until changed by legislative enactment.”

Because horse racing tracks certainly qualify as “places of amusement and entertainment,” Beulah Park possesses the common-law right to exclude whomsoever it pleases, provided the General Assembly has not abolished that right.

Contrary to appellee’s assertion, R.C. Chapter 3769 and its accompanying regulations do not abolish the common-law right of proprietors to exclude individuals from their property. Not every statute is to be read as an abrogation of the common law. “Statutes are to be read and construed in the light of and with reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.” (Emphasis added.) State v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus.

The rules and statute cited by the appellee provide a right to exclude to the racing commission and racing stewards, who are not addressed by the common law. This does not mean that racetrack owners who possessed this right at common law have lost that right due to rules and statutes providing the same right to others. R.C. Chapter 3769 and its accompanying regulations supplement the common law by providing the racing commission and stewards with a right to exclude jockey agents from a racetrack in addition to the right to exclude held by the proprietors of the track. Thus, the decision of the court of appeals is reversed.

Judgment reversed.

Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur. A.W. Sweeney and Wright, JJ., dissent.