Bresnik v. Beulah Park Ltd. Partnership, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Bresnik, Appellee, v. Beulah Park Limited Partnership, Inc.
et al., Appellants
[Cite as Bresnik v. Beulah Park Ltd. Partnership, Inc.
(1993), Ohio St.3d .]
Horse racing -- R.C. Chapter 3769 and its accompanying
regulations do not abolish common-law right of proprietors to
exclude individuals form their property.
R.C. Chapter 3769 and its accompanying regulations do not
abolish the common-law right of proprietors to exclude
individuals from their property.
(No. 92-1130 -- Submitted May 26, 1993 -- Decided September 15,
1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-1068.
This case arises from a dispute over the right of an owner
of a private racetrack to exclude a state licensee from its
premises. The facts stated below are as alleged in the
complaint. Appellee, Edward Bresnik, held a valid license as a
jockey agent from the Ohio State Racing Commission. This
license allowed appellee to represent jockeys in their racing
arrangements at state-licensed horse racing tracks. Appellee
had oral contracts to represent two jockeys, Luis Gonzalez and
Robert McWhorter.
Appellants, Beulah Park Limited Partnership, Inc., Buckeye
Turf Club, Inc. and Capital Racing Club, Inc. ("Beulah Park")
operate a thoroughbred racetrack pursuant to a permit issued by
the Ohio Sate Racing Commission.
On February 3, 1991, appellee was informed by a security
officer that he was no longer permitted on the grounds of
Beulah Park.
Due to this exclusion, the appellee, on February 25, 1991,
filed a complaint in the Court of Common Pleas of Franklin
County, alleging tortious interference with a business
relationship. The appellee also requested a temporary
restraining order and a preliminary injuction to prevent Beulah
Park from barring his entry into the race park. Beulah Park
filed a motion to dismiss the complaint for failure to state a
claim, which the trial court granted.

Appellee then appealed to the Court of Appeals for
Franklin County. The court of appeals reversed the trial
court's judgment, and remanded the case for further
proceedings. Beulah Park then filed a notice of appeal with
the Ohio Supreme Court. The cause is now before this court
pursuant to the allowance of a motion to certify the record.

Mary Joseph Maxwell, for appellee.
Wiles, Doucher, Van Buren & Boyle Co., L.P.A., James M.
Wiles and Jay B. Eggspuehler; and Timothy P. McCarthy, for
appellants.
Bricker & Eckler and Catherine M. Ballard, urging
affirmance for amicus curiae, Horseman's Benevolent and
Protective Association.
Berry & Shoemaker, John F. Berry and D. Lewis Clark, Jr.,
urging affirmance for amicus curiae, Daniel A. Frasher.
Chester, Hoffman, Willcox & Saxbe, John J. Chester,
Roderick H. Willcox and Donald C. Brey, urging reversal for
amici curae, Scioto Downs, Inc. and Mid-America Racing
Association, Inc.
Arter & Hadden, John B. Lewis and Lois J. Cole, urging
reversal for amici curiae, Thistledown Racing Club, Inc.,
Randall Racing Club, Inc., Summit Racing Club, Inc. and
Cranwood Racing Club, Inc.
Carter, Ledyard & Milburn, Jack Kaplan and Robert C.
Malaby; and H. Bruce Talbott, urging reversal for amicus
curiae, Thoroughbred Racing Protective Bureau.

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.
A. William Sweeney, J., dissenting. While at first
blush the underlying theme of the majority's position appears
unassailable, i.e., that racetrack operators should be
permitted to control whoever is on their premises so long as
such control is not motivated by discrimination on grounds of
race, color, religion, etc., I believe a closer examination of
the Revised Code and related Administrative Code provisions
compels a different result. Since I believe the court of
appeals below correctly analyzed the statutory language and
manifest intent of the General Assembly in this realm, I must
respectfully dissent from the majority opinion.
The majority asserts that appellant Beulah Park has a
"common-law right to exclude whomsoever it pleases," since
racetracks qualify as "places of amusement and entertainment."
First of all, however, the case upon which the majority relies
for this proposition, Fletcher v. Coney Island, Inc. (1956),
165 Ohio St. 150, 59 O.O. 212, 134 N.E. 371, paragraph one of
the syllabus, is readily distinguishable from the cause sub
judice. Fletcher dealt with the exclusion of mere patrons of
amusement facilities, whereas the appellee herein was on the
racetrack grounds engaged in his employment by virtue of his
license, which is authorized and regulated by the Ohio State
Racing Commission. Second, assuming, arguendo, that racetracks
qualify as the type of place characterized by the majority, a
review of the pertinent statutes and regulations reveals that
racetracks are a highly regulated industry in this state,

unlike ordinary places of amusement or entertainment.
R.C. 3769.03 provides as follows:
"The state racing commission shall prescribe the rules and
conditions under which horse racing may be conducted ***.
"***
"The state racing commission may issue, deny, suspend, or
revoke licenses to such persons engaged in racing and to such
employees of permit holders as is in the public interest for
the purpose of maintaining a proper control over horse-racing
meetings. The commission may also, as is in the public
interest for the purpose of maintaining proper control over
horse-racing meetings, rule any person off a permit holder's
premises. ***
"***
"With respect to the issuance, denial, suspension, or
revocation of a license to a participant in horse racing, the
action of the commission shall be subject to Chapter 119. of
the Revised Code. ***" (Emphasis added.)
As I see it, the foregoing statutory language gives the
State Racing Commission plenary power over the regulation of
horse racing, including the power to determine who may be ruled
off a permit holder's premises.
In the exercise of the regulatory power granted by the
legislature, the State Racing Commission promulgated Ohio Adm.
Code 3769-2-05, which provides:
"All thoroughbred racing in Ohio over which the commission
has jurisdiction and supervision shall be conducted under the
rules and regulations which the commission has set forth for
such racing. If any case occurs which is not provided for in
the rules of the Ohio state racing commission, the matter shall
be determined by the stewards or by the commission as the case
may be."
Additionally, Ohio Adm. Code 3769-4-22(B) appears to grant
all power to the race stewards with regard to matters
concerning licensees of the commission:
"The stewards *** shall determine all questions with
regard to racing arising during the meeting *** and in such
questions their orders shall supersede the orders of the other
officials of the permit holder."
Furthermore, stewards "have general supervision over all
other persons licensed by the Ohio state racing commission
while such persons are on the premises of a permit holder."
Ohio Adm. Code 3769-4-26(B). Among the licensed persons
subject to supervision by the steward are the track's general
manager and head of security. Ohio Adm. Code 3769-2-24.
In my view, R.C. Chapter 3769 and the supporting
Administrative Code rules clearly restrict a racetrack
operator's power to control persons on its property, because
persons involved in racing cannot enter the racetrack grounds
unless they are licensed by the commission. Ohio Adm. Code
3769-2-27(A). Assuming, arguendo, that racetrack operators had
a common-law right to exclude whomever they please from their
premises, I believe that such prior right was clearly and
substantially altered by R.C. Chapter 3769 in its scheme of
licensing and regulation by the State Racing Commission.
Given the extensive regulatory scheme with respect to
horse racing, I believe that a licensee, such as plaintiff,

excluded by a track operator deserves the type of due process
that the statutes and rules allow when a steward or an agent of
the State Racing Commission excludes a licensee from a permit
holder's premises. However, by adopting the position of
appellants, the majority holds that a licensee must prove
illegal discrimination in order to obtain any relief for a
wrongful exclusion. In essence, the majority decision herein
grants permit holders the power to exclude anyone for any other
reason. However, such a position, and the reasoning behind it,
should not be countenanced by this court, especially in light
of several illuminating examples provided by amicus curiae,
Horseman's Benevolent and Protective Association, in support of
appellee:
"For example, the Permit Holder could arbitrarily exclude
a licensed trainer from the racetrack premises because the
trainer has objected to the safety of the racetrack surface.
The Permit Holder could also arbitrarily exclude a licensed
owner from the racetrack premises because the owner brought
suit against the Permit Holder due to injuries sustained as a
result of such unsafe conditions. The unfettered ability of
the Permit Holder to act arbitrarily in excluding these
licensed individuals from the racetrack premises would have the
[e]ffect of not only barring such individuals from earning a
livelihood in the horse racing industry, but could also be used
as an unfair business practice which imposed unsafe or
hazardous working conditions upon both licensed horsemen and
their horses.
"Clearly, the Ohio legislature envisioned that this
heavily regulated industry would be governed by the State in a
fair and impartial manner rather than by private individuals
whose actions would be without recourse for those affected."
However, under the sweeping language of the majority
opinion herein, a racetrack operator is judge, jury and
executioner to anyone who enters its grounds, regardless of
whether such person is licensed to be there by the State Racing
Commission. Clearly, this is not what the General Assembly
intended when it enacted R.C. Chapter 3769. Nevertheless,
under today's majority opinion, the power of the State Racing
Commission is subject to the whim and caprice of the individual
racetrack operators.
The better view, in my opinion, was cogently expressed by
the court of appeals in its unanimous decision below:
"The state has issued a license authorizing plaintiff to
act as a jockey agent at the racetrack in question, which
necessarily requires him to enter the permit holder's premises
in order to make mandatory reports. Under such circumstances,
the apparent arbitrary exclusion of plaintiff by defendants
from the permit premises is in conflict with the regulations
and statutes. As to access to the premises by persons licensed
by the commission to engage in racing upon the premises, the
common law power of the permit holder over his premises has
been altered. By applying for and accepting a permit to
conduct horse racing, defendants have surrendered a substantial
portion of the power and control they otherwise would have over
the permit premises and expressly agree to abide by the rules
and regulations of the commission and the regulations and
orders of the stewards.

"Although there is no express provision in the regulations
requiring a permit holder to admit the holder of a license
issued by the commission to engage in some aspect of racing on
the permit premises, it is a necessary corollary to the
issuance of the license, which necessarily requires the person
for the proper utilization of that license to enter upon the
permit premises."
Based on all of the foregoing, I would affirm the judgment
of the court of appeals below.
Wright, J., concurs in the foregoing dissenting opinion.