Foxboro Harness, Inc. v. State Racing Commission

674 N.E.2d 1322, 42 Mass. App. Ct. 82, 1997 Mass. App. LEXIS 17
Massachusetts Appeals Court·Decided January 23, 1997·No. No. 95-P-982·Published·Cited by 18 cases

Opinion

Warner, CJ.

This is an appeal by Foxboro Harness, Inc. (Foxboro), from a judgment of the Superior Court in a judicial review under G. L. c. 30A, § 14, affirming a decision of the State Racing Commission (commission). Foxboro is a racetrack licensed by the commission to conduct harness horse racing meetings. The commission determined that Foxboro had arbitrarily excluded the horses of Robert Beauregard, a licensed trainer, and directed Foxboro to accept Beauregard’s entries. A judge in the Superior Court denied Foxboro’s mo[83] tion for summary judgment and affirmed the commission’s decision. We affirm.

We summarize the significant facts appearing in the administrative record. Beauregard, who was first licensed in Massachusetts in 1983 and was also licensed in New York, New Jersey, and Pennsylvania, had raced horses at Foxboro throughout 1992 and again from May through September, 1993. On April 26, 1994, Larry Miller, the Foxboro racing secretary, told Beauregard that Foxboro would be accepting his entries for upcoming races. On April 27, 1994, an affidavit Beauregard had executed was introduced in a deposition in a civil lawsuit involving Foxboro. Representatives of Foxboro were present at the deposition and were aware of the contents of the statement. On April 28, 1994, Miller informed Beauregard that Foxboro would no longer accept his entries as a result of a “management” decision and that Beauregard could no longer race at Foxboro.

Beauregard sent a letter to the commission on May 9, 1994, in which he claimed that Foxboro had refused to accept his entries in retaliation for his having given a statement in the civil lawsuit involving Foxboro. He requested a hearing. The commission notified Beauregard and Foxboro management in a letter dated May 20, 1994, that it had scheduled a hearing on Beauregard’s complaint for June 8, 1994.

Richard P. Dalton, president of Foxboro, testified for Fox-boro at the hearing. He denied knowing about Beauregard’s affidavit at the time he decided to exclude him. He had excluded Beauregard in part, he testified, because Beauregard’s reputation could undermine public confidence in Fox-boro’s integrity and in part because of Beauregard’s United States Trotting Association (USTA) record. Dalton could not recall any specific items in Beauregard’s USTA record that he had found objectionable.

Dalton further testified that he had serious questions about Beauregard’s integrity because several sources had reported to him that a horse of Beauregard’s had broken loose from its stall with an extension cord taped to its neck. Dalton suggested that Beauregard had “prodded” the animal. He could neither recall who had told him about the alleged incident, when he had been told about it, or when it had allegedly occurred. Beauregard denied any involvement in such an incident. Counsel for Foxboro suggested that Beauregard had [84] been involved with illegal hypodermic needles. He presented no evidence to support this suggestion, and Beauregard denied any involvement with illegal drugs or needles.

Beauregard’s USTA record contained five rule violations. Two occurred in Massachusetts: in 1993, he was fined fifty dollars for failing to have the owner of a horse he trained properly licensed; that same year he was fined twenty-five dollars for being on the racetrack after being called off. Three rule violations occurred in Maine: a three-day suspension for scratching a horse from a race without the judges’ permission; a fifteen-day suspension for racing a horse without a prescribed medication; and a ten-day suspension for a medication violation.

Dalton’s recollection was refreshed as to the nature of the violations, and he conceded that three of them — the two infractions that occurred in Massachusetts and the scratching of a horse from a race without the judges’ permission in Maine — did not threaten the integrity of racing or the reputation of Foxboro. He did not know the nature of the medication violation. Beauregard testified that his sanction for racing a horse without prescribed medication resulted from his failure to file the proper paperwork.

The commission found that Foxboro had produced no evidence to support the alleged incident involving the electrical cord or to support the insinuation that Beauregard had been involved with illegal drugs or needles; that Foxboro had provided no testimony or evidence that anyone actually had a negative perception of Beauregard; and that Beauregard’s racing record contained only minor violations, which would not have precluded the commission from issuing him a trainer’s license.

The commission concluded that Foxboro had failed to substantiate its allegations sufficiently to justify Beauregard’s exclusion based on “the reasonable discretionary business judgment standard set forth in Catrone v. State Racing Commn., 17 Mass. App. Ct. 484 [(1984)].”2 It found that Foxboro’s decision had not been based upon sound business [85] judgment, but was arbitrary and capricious. The commission ordered Foxboro to admit Beauregard to its grounds and to accept entries of his horses in accordance with its usual methods of doing so.

Foxboro contends that the commission improperly impinged on the racetrack’s common law rights to decide with whom it wishes to do business, arbitrarily imposing a new standard of review which was not in accord with reasonable procedures set out in its regulations. Foxboro further argues that the commission’s decision was not supported by substantial evidence.

1. The commission’s standard of review. The commission required that Foxboro’s decision to refrain from dealing with Beauregard be based on a reasonable business judgment. During the hearing, both the chairman of the commission and an associate commissioner explicitly articulated that standard of review. Foxboro did not object to the commission’s use of this standard. Rather, it took the position that it had complied with the standard. Neither did Foxboro object to the procedures the commission followed in conducting its review.3

“A party is not entitled to raise arguments on appeal that he could have raised, but did not raise, before the administrative agency . . . .” Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983), citing Shamrock Liquors, Inc. v. Alcoholic Bevs. Control Commn., 7 Mass. App. Ct. 333, 335 (1979). See Boston Neighborhood Taxi Assn. v. Department of Pub. Util., 410 Mass. 686, 693 (1991); Seagram Distillers Co. v. Alcoholic Bevs. Control Commn., 401 Mass. 713, 724 (1988); Fioravanti v. State Racing Commn., 6 Mass. App. Ct. 299, 302, 304 (1978). We decline to consider arguments not made before the commission.4

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Foxboro Harness, Inc. v. State Racing Commission, 674 N.E.2d 1322, 42 Mass. App. Ct. 82, 1997 Mass. App. LEXIS 17 (Mass. Ct. App. 1997).

674 N.E.2d 1322 (Foxboro Harness, Inc. v. State Racing Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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