843 A.2d 450
March 1, 2004
Bocachica was a licensed jockey who was ejected from Philadelphia Park Racetrack
after he admitted to using a battery on horses in the past at other tracks.
The Racing Commission upheld the ejection on the ground that
plaintiff’s continued racing was detrimental to the interests of the sport.
this opinion, the Commonwealth Court upholds that decision.
Even through the battery uses admitted by plaintiff were remote in time
and place from the Philadelphia track, the Commission still acted reasonably in
concluding that those events made his continued participation in racing
detrimental to the sport.
Bocachica (Bocachica), a horse racing jockey, petitions for review of an order
of the Commonwealth of Pennsylvania, State Horse Racing Commission (Commission)
which, by adjudication and order dated July 23, 2003, upheld Bocachica's
ejection from Philadelphia Park Racetrack (Philadelphia Park) by the Bensalem
Racing Association. We affirm.
his Petition for Review, Bocachica alleges that after the 10th race on June 17,
2003, the jockeys who rode in the race were surrounded by representatives of the
Commission and Philadelphia Park. The jockeys were searched for a device known
as a "machine" or "battery" (hereinafter
"battery") which is used to shock a horse and make it go faster. No
battery was found on any of the jockeys. Later, however, a battery was found
discarded in the search area.
June 23, 2003, Bocachica was forced to give an interview by a joint operation of
the Commission and Philadelphia Park. Bocachica, who has a 9th grade education
and a limited command of the English language, was asked questions in both
English and Spanish. He was informed that he could lose his license if he failed
to cooperate. Bocachica was questioned for two hours. During this questioning,
Bocachica asked if he could leave to take his pregnant wife to an appointment
with her doctor. However, Bocachica was not allowed to leave. Bocachica further
alleges that, in a misguided effort to appease his questioners so that they
would let him leave, he admitted to using a battery "in the mornings"
over two years ago in New Jersey and Puerto Rico but never in a race and never
at Philadelphia Park. He was then given a written confession to confirm his
admissions. On June 26, 2003, his racing license was seized and he was ejected
from Philadelphia Park, making it impossible for him to race. This ejection is
being recognized by other parks, effectively ending his career. Bocachica then
appealed this ejection to the Commission. On July 9, 2003, Bocachica recanted
his earlier confession under oath at a Commission hearing. He also stated that
he did not know what he was signing and that he was never read his
its adjudication, the Commission set forth in Findings of Fact that: Lance
Morell, an agent with the Thoroughbred Racing Protective Bureau (TRPB) and the
Director of Security for Philadelphia Park, received an anonymous letter that
someone was selling batteries at Philadelphia Park and named several jockeys,
including Bocachica, who had supposedly purchased batteries. In addition, the
TRPB received an anonymous tip on their telephone hotline that Bocachica was
using batteries at Philadelphia Park. Based on this information, the jockeys
were searched after the 10th race on June 17, 2003. No battery was found, but
one was found in the search area. Mr. Morell took a photograph of this device.
On June 23, 2003, Bocachica was interviewed by Philadelphia Park and the
Commission. Cesar Valdez, the Director of Enforcement for the Commission, speaks
fluent Spanish and assisted in the questioning of Bocachica.
the July 9, 2003 Commission hearing, Mr. Valdez and Mr. Morell testified that
during the June 23, 2003 interview they informed Bocachica that the battery that
was found during the search had been sent to the FBI for fingerprints and that
it was possible that a federal criminal case could proceed against the person or
persons whose fingerprints might be a match. Upon questioning, Bocachica did not
admit to using the battery found during the search. However, he did admit to
using batteries at Monmouth Park in New Jersey five or six times but stopped
after a Panamanian outrider threatened to turn him in. Also, he admitted to
using a battery so many times during practice that he could not state a specific
number of times he had used a battery. In addition, he provided details about
his use of the battery and stated that he placed it in his left glove and that
he used the battery on the neck of the horse. At the end of the interview,
Bocachica signed a written statement that he had previously used a battery in
Puerto Rico and Monmouth Park, but only in the morning, not during races.
Bocachica also testified at the Commission hearing. However,
he testified that he has never used a battery, has never seen anyone use a
battery and has never seen a device like the one photographed by Mr. Morell that
was found at the search site. In addition, he testified that he felt a lot of
pressure during the interview and that he admitted to using a battery in the
mornings because he wanted to leave to go to the hospital with his pregnant
wife, who delivered the baby a few days later. Also, he testified that he did
not know what he was signing.
considering the evidence, the Commission accepted the testimony of Mr. Valdez
and Mr. Morell as credible and rejected the testimony of Bocachica as not
credible. In its adjudication, the Commission explained that it rejected the
testimony of Bocachica as not credible because his categorical denial to ever
using a battery conflicted with the written statement that he signed and the
testimony of Mr. Valdez and Mr. Morell. Additionally, Bocachica admitted during
his interview that the only reason why he stopped using a battery at Monmouth
Park was because another rider threatened to report him. The Commission also
explained that "[e]ngaging in that type of prohibited conduct most
certainly undermines the integrity of the sport." The Commission also noted
that "the safety and health of the horses is a major concern." The
Commission also explained that Bocachica "may have wanted and perhaps
needed to leave the interview to be with his wife. That he would falsely admit
to using an illegal device as a means to do so is simply implausible."
Therefore, the Commission concluded that the Bensalem Racing Association's June
26, 2003 decision to eject Bocachica from Philadelphia Park was based on a
reasoned determination that his presence at Philadelphia Park would be
detrimental to the best interests of horse racing. Accordingly, by adjudication
and order dated July 23, 2003, the commission upheld Bocachica's ejection from
Philadelphia Park by the Bensalem Racing Association. On July 28, 2003,
Bocachica filed a Petition for Review with this Court.
appeal, Bocachica argues that: 1) the agents of the Commission and the TRPB who
questioned him should be deemed to be state actors/law enforcement officers for
purposes of considering the application of the United States Supreme Court's
decision in Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1996). Therefore, his
"confession" was illegally obtained because he was not read his
Miranda rights by the Commission and TRPB agents regarding his Fifth
Amendment protection against self‑incrimination and 2) even if
Miranda does not apply and his statement is taken as true, his actions are
too remote in time and place to have a detrimental impact on the public's
perception of horse racing in Pennsylvania and the Commission's decision was
arbitrary, capricious and unreasonable.
we address Bocachica's argument that his "confession" was illegally
obtained because he was not given his
Miranda warning regarding his Fifth Amendment protection against
self‑incrimination. The Commission and Philadelphia Park argue that
Bocachica was not entitled to be advised of his
Miranda rights because is not a defendant nor has he ever been made to be a
witness against himself in a criminal case. We agree with the Commission and
Regarding the scope of Fifth Amendment Rights, our United
States Supreme Court has stated that:
privilege against selfincrimination guaranteed by the Fifth Amendment is a
fundamental trial right of criminal
defendants. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653
(1964). Although conduct by law enforcement officials prior to trial may
ultimately impair that right, a
constitutional violation occurs only at trial. Kastigar v. United States,
406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972).
States v. Verdugo-Urquidez,
494 U.S. 259, 264, 110 S.Ct. 1056, 1060, 108 L.Ed.2d 222 (1990) (emphasis
added). Because Bocachica's ejectment from Philadelphia Park by the Bensalem
Racing Association was not a criminal proceeding, nor has he ever been subjected
to a criminal proceeding because of his "confession", Bocachica's
Fifth Amendment right to protection against self-incrimination was not
implicated in this case. Accordingly, the Commission and TRPB agents were not
required to read him his Miranda
we address Bocachica's argument that even if
Miranda does not apply and if his statement is taken as true, his actions
are too remote in time and place to have a detrimental impact on the public's
perception of horse racing in Pennsylvania and that the Commission's decision
was arbitrary, capricious and unreasonable.
215(c) of the Race Horse Industry Reform Act (Act), Act of December 17, 1981,
P.L. 435, as amended, provides that:
A licensed corporation may refuse admission to and eject from the enclosure of
the race track operated by the corporation, any person licensed by the
commissions under section 213, employed at his occupation at the race track,
whose presence there is deemed detrimental to the best interests of horse
racing, citing the reasons for that determination. The action of the corporation
in refusing the person admission to or ejecting him from a race meeting ground
or enclosure shall have immediate effect. The person refused admission or
ejected shall receive a hearing before the appropriate commission, if requested,
pursuant to rules and regulations adopted for that purpose by the appropriate
commission and a decision rendered following that hearing.
P.S. § 325.215(c) (emphasis added). In
Boyce v. Pennsylvania State Horse Racing Commission, 651 A.2d 656, 658
(Pa.Cmwlth.1994), this Court reiterated its standard of review of Commission
orders which eject jockeys from racetracks:
reviewing the Commission's decision to eject a licensed employee from the race
track, we note that the Commission does not require that "allegations of
impropriety be proven but [only] that
the track's determination be reasonable,"
that is, based upon a "reasoned determination" that the employee's
presence there would be "detrimental" to the public perception of
horse racing as a sport. Kulick v.
Pennsylvania State Horse Racing Commission, 115 Pa.Commonwealth Ct. 408,
412, 540 A.2d 620, 622, petition for
allowance of appeal denied, 520 Pa. 620, 554 A.2d 512 (1988). As to the
precise conduct warranting such a determination, this Court in
Kulick further clarified that
proscribed conduct 'need not be criminal in nature nor proved beyond a
reasonable doubt. It is sufficient that the complained-of conduct and its
attending circumstances be such as to reflect negatively on the sport.' Id. [Dale v. Pennsylvania
State Horse Races Comm., 38 Pa.Cmwlth. 77] at 81, 391 A.2d  at 1134 [
(1978) ] (citation omitted).
at 658. Furthermore, "questions of evidentiary weight and resolution of
evidentiary conflicts are for the Commission, not the reviewing court.
Id. at 659. We are required to affirm an order of the Commission unless it
is not in accordance with the law or is an arbitrary, capricious or unreasonable
determination lacking substantial evidence in support of its findings."
Kulick v. Pennsylvania State Harness Racing Commission, 115 Pa.Cmwlth. 408,
540 A.2d 620, 623 (Pa.Cmwlth.1988). See
also Martinez v. Pennsylvania State Horse Racing Commission, 81 Pa.Cmwlth.
1, 472 A.2d 1180 (Pa.Cmwlth.1984). As such, the question before this Court is
whether the Commission's determination that the Bensalem Racing Association's
decision to eject Bocachica from Philadelphia Park was based upon a
"reasoned determination" that his presence would be detrimental to the
public's perception of horse racing as a sport is supported by substantial
evidence and whether that decision was in accordance with the law and not
arbitrary, capricious or unreasonable.
this case, the Commission rejected as not credible Bocachica's testimony that
his earlier confession to using a battery was not truthful. Thus, the Commission
has evidence that Bocachica has used a battery in the past. This is a
credibility determination that this Court does not have the power to overturn.
As such, this Court must accept it as a fact that Bocachica has used a battery
in the past. The Commission thought that this type of conduct is detrimental to
the public's perception of horse racing as a sport, and this Court agrees. Even
though Bocachica did not admit to using the battery during any race at
Philadelphia Park or during a race anywhere else and the conduct he admitted to
occurred years ago, he did admit to conduct that is greatly looked down upon by
the public due to its detrimental effect on the horse and the supposed effect
that this conduct can have on the outcome of a race to the detriment of those
who have bet money on the outcome of that race. Bocachica's claim to using the
battery only during practice was, understandably, not believed by the Commission
since the main purpose of using a battery is to stimulate the horse to greater
speed through the surprise of an electric shock which would be considerably
diminished if the horse became accustomed to it during practice. But, this
conduct, even if only done during practice, certainly reflects negatively on the
sport of horse racing and may cause the public to assume that this conduct will
start to occur during races. Thus, this Court determines that the Commission's
determination that Bensalem Racing Association's decision to eject Bocachica
from Philadelphia Park was based upon a "reasoned determination" that
his presence would be detrimental to the public's perception of horse racing as
a sport is supported by substantial evidence.
Additionally, because the detrimental impact of this conduct
is a valid concern, the Commission's decision was not capricious or
unreasonable. Furthermore, because the Commission explained its reasons for
upholding Bocachica's ejection from Philadelphia Park in a well-reasoned
decision containing findings of fact and conclusions of law, we do not believe
that its decision was arbitrary. To the contrary, the Commission has made it
known that it will not tolerate this type of conduct regardless of whether it
occurs during a race or during practice.
Accordingly, the order of the Commission is affirmed.
Return to Top of This Page
Return to Horse Racing Page