Belmonte v. Mercado Reverón

Mr. Justice Blanco Lugo delivered the opinion of the Court. On July 6, 1964, petitioner, Eddie Belmonte, brought an action before the Superior Court, San Juan Part, which he labelled “civil action”, including as sole defendants Agustín Mercado Reverón, in his capacity as Racing Administrator, and the three members which make up the jury of the horse races held at the El Comandante Race Track. After narrating in twenty-seven paragraphs a series of facts which culminated in the imposition by the Administrator of a penalty of 10 days of suspension as jockey,1 petitioner con252 eludes praying that “in protection of the constitutional rights of this claimant the Court is requested to pass upon the following points: “(1) that plaintiff is entitled to legal assistance in any appearance to answer for charges before the Racing Jury, Racing Administrator or any other Racing Authority. “(2) that subsections 20 and 21 of § 1001 of the Racing-Regulations insofar as they deprive the plaintiff of the constitutional right to freedom of speech, subject to the provisions of the Penal Code of Puerto Rico, are void and unconstitutional. “(3) that neither the Racing Jury, nor the Racing Administrator, nor any other racing authority is empowered to punish plaintiff without having complied with the minimum requirements of due process of law; and “(4) that it be specifically decreed that the suspension of 10 days imposed on plaintiff by the Racing Administrator in his Resolution of May 21, 1964, is null and void at law and the same should be eliminated from the record of this plaintiff in the Racing Administration and likewise that if said punishment has been notified to any foreign agency, instrumentality, or authority connected with the racing sport with which the Racing Sport Administration of Puerto Rico has connections they be notified of the elimination of said punishment.” We note, at the threshold, that there is nothing in the Racing Act of Puerto Rico, Act No. 149 of July 22, 1960, 15 L.P.R.A. § 181 et seq., authorizing the direct re — 253 — view by the courts of the actions- of the Administrator,: and much less of the members of the jury. Section 9, 15 L.P.R.A. § 189, provides the review, by way of certiorari, of the decisions, orders, or final resolutions of the Racing Board as to errors of law. But, as we have seen, the Racing Board is not a part of this proceeding. Now then, even though we would interpret with excessive liberality that paragraph 23 of the complaint2 seeks to challenge an action of this entity, the trial court could not take cognizance of the matter since the reconsideration of the resolution was not timely requested nor the petition for certiorari filed within the term specified by law.3 In our opinion the foregoing is sufficient to show that the applicable administrative remedy was not properly exhausted. On the other hand, it should be explained that this is a case of the temporary suspension of petitioner’s jockey license for the limited period of 10 days.4 We are not considering a cancellation or revocation of a license blindly requiring a previous hearing and the opportunity of defense. Already in Las Monjas Racing Corp. v. Racing Commission, — 254 — 67 P.R.R. 42 (1947), construing a similar statute,5 we said at pages 46 and 47: “[1,2] Since a license is a privilege and it does not constitute property nor is it a contract between the person licensed and the Government, its revocation does not take away any right under the Constitution. People v. Department of Health, 82 N.E. 187 (N.Y. 1907). Consequently when the Legislature grants a license it may impose the terms which it deems reasonable for its temporary suspension or revocation. Indeed, the Racing Act of Puerto Rico upon conferring authority on the Racing Commission to grant licenses also granted to it the power to suspend them temporarily, cancel or take them away. As to the temporary suspension, it empowered the Commission to decree it without the need of a previous hearing and did not grant the right of review in the courts. However, the power to cancel or take away the licenses was subject to the condition of giving the party an opportunity to be heard and granted him the right to judicial review. “[3] • . “The temporary suspension, as distinguished from the cancellation — which has the character of permanency — ought to be for a definite period, which should appear from the face of the order decreeing the suspension.” When dealing with punishments imposed by the jury, it is easy to note that it would be practically impossible to administer the law if it were required that the proceedings before said body, which are generally related to the conduct observed in the course of the races, must unfailingly follow the formalities of hearings, legal assistance, cross-examination of witnesses, etc. The lawmaker expressly provided that the Administrator was empowered to suspend temporarily or to cancel permanently jockey licenses (§ 7, 15 L.P.R.A. § 187), and that in the case of a permanent cancellation only he shall grant the prejudiced party the opportunity to be heard in its — 255 — defense by itself or by counsel. In the instant case we note that the Administrator cautiously granted a hearing to the jockey Belmonte.6 But there is more. From the confused recital of the allegations it transpires that it seeks to impress us that this case involves petitioner’s freedom of speech, since originally it was certain statements made by the latter which gave rise to his summons by the jury. This is not so. The decision of the jury referring the case to the Administrator says: “Considering that the jockey E. Belmonte despite having been summoned by the Jury to appear before said body for the purpose of investigating certain statements made by said jockey to the press, radio, and television, has not appeared; and considering further that the alleged statements, if it is true that they were made by said jockey, constitute in the jury’s opinion, a violation of subsections 20 and 21 of § 1001 of the Racing Regulations ... and in the resolution of the Administrator it is clearly set forth that “The action of the racing jury suspending jockey Belmonte was due to the fact that it summoned Belmonte to appear before said body for the purpose of investigating alleged statements made by said jockey, which the jury believed that if true, they constituted a violation of the racing regulations, and said jockey did not appear before the jury as it was his duty to do.” That is why said officer, in deciding the case states that “More than the statements we have been discussing, what really concerns us is Belmonte’s challenge in not appearing before the jury when he was summoned to do so. We believe that there was no justification for such act of open lack of discipline.”7 This suffices to dissipate — 256 — any concern that the violation of a constitutional right is involved.8 But be that as it may, another obstacle appears before petitioner’s claims. Section 8, 15 L.P.R.A. § 188, provides that appeals may be taken before the Racing Board from the suspensions imposed by the Administrator or the jury only when the suspension is for a term of one month or more. In this respect the Racing Board acted correctly in declaring itself without jurisdiction.9 Finally we want to call the attention to the fact that upon filing the petition for review before this Court, petitioner attached copies of several documents — the agreement of the jury of May 19 incorporated to the summons for hearing issued by the Administrator, the resolution of the Administrator, the notice of appeal before the Racing Board and the latter’s resolution — which the trial court did not have before it. This practice is undesirable and should be discontinued. The trial court is placed at a marked disadvantage. For all the reasons stated, the judgment rendered by the Superior Court, San Juan Part on July 31, 1964, granting the motion to dismiss filed by defendants will be affirmed. Mr. Chief Justice dissented in a separate opinion. Mr. Justice Belaval dissented in an opinion in which Mr. Justice Hernández Matos and Mr. Justice Santana Becerra concur. Footnotes [1] It is set forth that petitioner Belmonte was obstructed by another jockey in one of the races held on May 10, 1964, for which reason a claim of foul was filed before the members of the jury, who disregarded it and declared the finish “official”; that the petitioner called the jury again in order to set forth his objection to the decision and to the inaction before his claim, the chairman of the jury answering that “who was he to question the decisions of the jury”; that upon going toward the jockeys’ room he had a wrangle with the jockey who had obstructed him and as a result thereof he was punished with a three-day suspension; that when the races had terminated, while he was getting ready to go home, he was approached by a newspaperman to whom he informed about his purpose of going to New York since it was impossible for him to work in Puerto Rico; that the newspaperman warned him to change his attitude reminding him that he was the leader in winning mounting, asking him “what are you going to do to your leadership,” to which he answered — 252 — that “he- gave the leadership as a present to the members of the -jury so they- could do what they wanted with it”; that on May 13 he went to New York, and the following 16th he received a cable informing him that he had been indefinitely suspended and his presence before the jury was required; that he returned the 17th accompanied by his attorney, he requested a hearing, which was denied; that the 19th he was summoned to appear at a hearing before the Racing Administrator, which was held next day; that at said hearing no evidence was heard on the alleged charges; that he was served with notice of an order of the Administrator imposing a penalty of 10 days counted from the 13th of May, so that it expired the same day he was notified; that he appealed to the Racing Board alleging “that his constitutional rights had been violated” and on June 3 the Board served notice on him of a resolution declaring itself without jurisdiction. [2] “That on June 3, 1964, the Racing- Board served notice on this plaintiff of a resolution declaring itself without jurisdiction to take cognizance of the appeal.” [3] Section 9 provides in part that “Provided, That prior to the filing of the certiorari petition, the interested party shall motion the Racing Board to reconsider such decision, order, or resolution.” This is not a mere formality if it is borne in mind that before the Superior Court the petitioner may plead as errors of law in his petition for review only those pleaded in his motion for reconsideration to the Racing Board. It provides also that “The certiorari petition . . . must be filed within the period of fifteen (15) days following the service of notice ... of the pertinent decision, order, or final resolution.” [4] The decision of the jury of May 17, 1964, provided that the jockey “continue suspended”, but when the matter was referred to the Administrator “so that, after the corresponding investigation, he may take the measures he deems necessary”, said officer, on May 21, limited the. suspension to 10 days, which expired on the following MAy 23. [5] Section 7 of the former Racing Act, as amended by Act No. 17 of July 15, 1985. (Sp. Sess. Laws, pp. 92, 96.) [6] The resolution of the Administrator says in part: “On that day and hour the defendant appeared accompanied by Mr. Cayetano Coll Pujáis.” [7] Now it is sought to adduce untimely that petitioner did not comply with the jury’s summons because he was precluded from bringing his — 256 — attorney. It seems to appear that this explanation was not presented before the Administrator, the jockey’s attorney merely explaining “the scope of the statements made.” [8] We are the first to admit that the phrases attributed to petitioner are not in any way detrimental to the racing sport and that they were rather the expression of petitioner’s spontaneous reaction before actions of the jury from which he dissented. [9] We are aware that successive suspensions for terms less than one month could produce the indefinite suspension of a jockey. Since we are not confronting this situation, we refrain from expressing our view on that point. See, however, Hernández v. Insular Racing Commission, 50 P.R.R. 96 (1936).