Boatright v. Kansas Racing Commission

The opinion of the court was delivered by

Herd, J.:

This is an appeal from the district court’s judicial review of an administrative proceeding by the Kansas Racing Commission (Commission) to cancel the occupation racing licenses of William Don Boatright and Rodney L. Boatright. The Commission found the Boatrights used live lures to train racing greyhounds in violation of K.S.A. 1991 Supp. 74-8810(g) and cancelled their licenses. On appeal, the district court consolidated the two cases and reversed the Commission’s order. This appeal followed.

*242The facts are undisputed. William Boatright is Rodney Boat-right’s father. They each own and operate separate greyhound training businesses in Sumner County. William’s racing kennel and training facility accommodate three to four hundred greyhounds. Rodney owns and operates a greyhound training farm. Both parties hold kennel owner occupation licenses issued by the Commission pursuant to K.S.A. 1991 Supp. 74-8816(a). Greyhounds owned by William compete at tracks in 10 states throughout the United States, including Wichita Greyhound Park and the Woodlands in Kansas City, Kansas.

Both parties use the same greyhound training procedure, which begins when the hounds are pups and continues until they arrive at the racetrack. The training starts with permitting the young greyhounds to chase live jackrabbits in a large field. Next, the greyhounds are allowed to chase live rabbits hooked to a mechanical arm which circulates around a small track called the “wheel.” In the final training phase, the greyhounds are taught to run on a “schooling” or “training” track. This phase also involves the use of a live rabbit on a mechanical arm. The rabbits are used until killed by the greyhounds. When training is completed the greyhounds are shipped to the various racetracks.

The Commission instituted separate administrative actions against the Boatrights, alleging they had violated K.S.A. 1991 Supp. 74-8810(g) by using live lures in training racing greyhounds. The Boatrights argued the statute did not apply to their operations because the young dogs they trained were not yet racing greyhounds. In its initial orders the Commission found the statute applied to the training of all racing greyhounds whether they were currently racing at a track or would be racing at some future time. Pursuant to K.S.A. 1991 Supp. 74-8816(f), the Commission revoked both their licenses and fined William $2,500 and Rodney $1,000. After reviewing its initial orders, the Commission adopted them as final orders.

Each party petitioned the Sedgwick County District Court for review of the Commission’s order. The cases were consolidated. The district court held K.S.A. 1991 Supp. 74-8810(g) applies only to greyhounds (1) registered with the National Greyhound Association; (2) at least 15 months of age at the time of training; and (3) registered at a racing greyhound track.

*243None of the Boatright dogs met the court’s definition of racing greyhounds. It thus reversed the orders of the Commission.

The district court also held in the alternative that the term racing greyhound is unconstitutionally vague under both the criminal and business standard of review and, therefore, does not apprise a reasonably prudent person of the act prohibited. This appeal followed.

The first issue for our consideration on appeal is whether K.S.A. 1991 Supp. 74-8810(g) is unconstitutionally vague. The statute provides: “It is a class B misdemeanor for any person to use any animal or fowl in the training or racing of racing greyhounds.”

It is axiomatic that a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. Guardian Title Co. v. Bell, 248 Kan. 146, 149, 805 P.2d 33 (1991).

There are two standards for determining whether a statute is unconstitutionally vague. The criminal standard requires a determination of whether the statute’s

“language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” Hearn v. City of Overland Park, 244 Kan. 638, 642, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).

Statutes regulating business are aiforded greater leeway than criminal statutes. We have stated:

“A common-sense determination of fairness is the standard for determining whether a statute regulating business is unconstitutional for vagueness, i.e., can an ordinary person exercising common sense understand and comply with the statute? If so, the statute is constitutional.” Guardian Title Co. v. Bell, 248 Kan. at 150 (citing Harris v. McRae, 448 U.S. 297, 311 n.17, 65 L. Ed. 2d 784, 100 S. Ct. 2671, reh. denied 448 U.S. 917 [1980]).

The Commission argues the business standard should apply here because K.S.A. 1991 Supp. 74-8810(g) regulates business and this case comes to us from an administrative proceeding, rather than a criminal action. For support the Commission cites Feliciano v. Illinois Racing Board, 110 Ill. App. 3d 997, 443 *244N.E.2d 261 (1982). In Feliciano, a jockey licensed by the Illinois Racing Board (Board) allegedly possessed an electrical device designed to stimulate a race horse. Possession of this type of device is both an administrative violation and a crime under Illinois law. The Board applied the civil standard of preponderance of the evidence to determine the jockey had committed an administrative violation of the Illinois Racing Act. 110 Ill. App. 3d at 998-1000.

The jockey appealed, claiming the Board erred by not using the criminal standard of proof because the alleged conduct could subject him to both civil and criminal penalties. The court determined the civil standard was proper because the Board was limited to penalizing the economic interests of the jockey by suspending his racing license and did not have authority to issue criminal penalties against the jockey. 110 Ill. App. 3d at 1000-03.

Feliciano, does not involve the issue of whether a statute is unconstitutionally vague. Moreover, this court has already determined that if a statute could subject a person to both criminal and administrative actions, as K.S.A. 1991 Supp. 74-8810(g) does, the criminal standard for determining vagueness applies. Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 662-63, 562 P.2d 65 (1977). In Kansas City Millwright Co., Inc., the Kansas Retailers’ Sales Tax Act was called into question. The Act subjected building contractors to penalties and criminal liabilities if they mistakenly interpreted its provisions. This court adopted the rule of Connally v. General Constr. Co., 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126 (1926), which used the criminal standard. Thus, we use the criminal standard of review.

The parties cite numerous witnesses who testified differently as to the interpretation of the statute. Kansas Representative Jack Lacey; Herb Koerner, president of the National Greyhound Association; and Richard Nelson, president of the Kansas Greyhound Association, testified that their interpretation of K.S.A. 1991 Supp. 74-8810(g) prohibited the use of live lures at parimutuel tracks when training or racing racing greyhounds. Other witnesses, such as Fred McCormack, an investigator for the Commission, testified they believed the statute prohibited the use of live lures in the training and racing of any greyhound that even*245tually raced at a parimutuel track. Such evidence is irrelevant. A statute is not unconstitutionally vague because there is more than one interpretation of it. See Hearn v. City of Overland Park, 244 Kan. at 641.

We hold the language of K.S.A. 1991 Supp. 74-8810(g) conveys a sufficiently definite warning when measured by common understanding and practice to apprise the public of the prohibited activity. Hence, we hold the statute is not unconstitutionally vague.

Now let us take up the second issue, which is interpretation of K.S.A. 1991 Supp. 74-8810(g).

Courts must follow several rules when interpreting statutes. K.S.A. 1991 Supp. 77-201 provides rules of construction to “be observed, unless the construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute.” K.S.A. 1991 Supp. 77-201 Second further provides: “Words and phrases shall be construed according to the context and the approved usage of the language, but the technical terms and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.”

In State v. Haug, 237 Kan. 390, 699 P.2d 535 (1985), this court was asked to interpret K.S.A. 21-4619 to determine whether it provided for the expungement of a diversion. We stated:

“Nowhere in K.S.A. 21-4619 is there any reference to the expungement of anything other than records of convictions. The statute is clear and unambiguous in this regard and is not open to construction or speculation as to the legislative intent behind it. It has long been the rule in Kansas that in determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous meaning. State v. Gibson, 8 Kan. App. 2d 135, 137, 651 P.2d 949 (1982); State v. Howard, 221 Kan. 51, 54, 557 P.2d 1280 (1976). Even a penal statute subject to strict construction should not be read so as to add that which is not readily found therein, or to read out what, as a matter of ordinary language, is in it. State v. Logan, 198 Kan. 211, 213, 424 P.2d 565 (1967).” 237 Kan. at 391-92.

Further, “[i]t is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it *246used different language in the same connection in different parts of a statute.” Rogers v. Shanahan, 221 Kan. 221, 223-24, 565 P.2d 1384 (1976). It is the court’s responsibility, as far as practicable, to reconcile different provisions within an act to make them “consistent, harmonious, and sensible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).

Applying these rules of construction, we first note the term racing greyhound is not defined within the Act. Clearly the legislature meant to regulate the racing of greyhounds. K.S.A. 1991 Supp. 74-8802(i) states: “ ‘Greyhound’ means any greyhound breed of dog properly registered with the national greyhound association of Abilene, Kansas.” K.S.A. 1991 Supp. 74-8812(b) then provides the regulation: “Greyhounds shall not compete in any race meeting before reaching the age of 15 months.” The district court took this regulation as a definition and held the meaning of racing greyhound within K.S.A. 1991 Supp. 77-8810(g) meant: (1) A greyhound registered with the National Greyhound Association; (2) a greyhound that is at least 15 months of age; and (3) a greyhound registered at a greyhound racing facility.

The Boatrights contend this interpretation is proper. The Commission, however, argues its interpretation of “racing greyhounds” should be given judicial deference under the doctrine of operative construction because the Commission is the agency charged with enforcing the Kansas Parimutuel Racing Act. Under the doctrine of operative construction, the court will give deference to the agency’s interpretation of the law although the court may substitute its judgment for that of the agency’s. This court has stated:

“ ‘The ruling of an administrative agency on questions of law, while not as conclusive as its findings of facts, is none the less persuasive and given weight, and may carry with it a strong presumption of correctness, especially if the agency is one of special competence and experience.’ [quoting 2 Am. Jur. 2d, Administrative Law § 676, p. 556.] If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body of questions of law is not conclusive, and, while persuasive, is not binding on the courts.” Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 810, 667 P.2d 306 (1983).

The Commission also argues legislative history supports its interpretation of the statute. Originally, H.B. 2044 did not contain a provision prohibiting the use of animals in the training of grey*247hounds for racing.. After hearing testimony from animal rights groups, the House Committee on Federal and State Affairs amended H.B. 2044 to include the following prohibition: “It is a class C felony for any person to . . . use any animal or fowl in the training of racing greyhounds.” Minutes of House Committee on Federal and State Aifairs (Feb. 16, 1987). The House Committee of the Whole then amended the section to prohibit the use of dogs, cats, or fowl in the training of racing greyhounds and the use of any animal or fowl in the training of a racing greyhound within the confines of a racetrack facility. House J. 1987, p. 284. This version of the bill would have allowed the use of rabbits at greyhound farms and training tracks. The Senate subsequently amended the section to read: “It is a class B misdemeanor for any person to . . . use any animal or fowl in the training of racing greyhounds.” Minutes of Senate Committee on Federal and State Aifairs (April 8, 1987). According to the Commission, the Senate’s first amendment to the provision would have allowed the use of animals or fowl in the actual racing of greyhounds at parimutuel tracks. The second amendment by the Senate, the statute’s current language, extends the. prohibition against using animals or fowl to the racing of racing greyhounds. Sen. J. 1987, p. 619. The Commission argues the Senate’s final amendment “extended the prohibition to include racing as well as training activities.”

The Commission cites Attorney General opinion No. 87-150 for support of its interpretation of K.S.A. 1991 Supp. 74-8810(g). A state representative asked the Attorney General whether the provision prohibited the use of live lures in the training of greyhounds that are being trained as racing greyhounds but have not yet raced. Concentrating upon the statute’s term “training,” the Attorney General found the ordinary meaning of the term training referred to “the instructing, drilling and teaching to obey commands.” Therefore, the Attorney General concluded the prohibition extended, to “the use of such lures in instructing, drilling and teaching greyhound dogs to be racing greyhounds regardless of-racing experience.”

We agree with the Attorney General’s opinion and hold the legislative intent in enacting K.S.A. 1991 Supp. 74-8810(g) was to ban the use of live lures in the training of greyhounds for *248racing and in the actual racing of greyhounds. The use of the term “racing greyhounds” was to distinguish greyhounds used for racing from greyhounds used for hunting. Most of the training of greyhounds for racing occurs before the dog attains the age of 15 months. A statute applying only to older dogs already involved in racing on the track would do little to eliminate the use of live lures in the training and racing of greyhounds. Thus, we hold the use of live lures in the training of greyhounds for racing is prohibited.

We hold the Boatrights violated K.S.A. 1991 Supp. 74-8810(g).

The judgment of the district court is reversed.