Hickey v. Illinois Racing Board

THIRD DIVISION

MARCH 5, 1997

1-95-1619

PETER NOEL HICKEY, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County

)

v. )

)

ILLINOIS RACING BOARD, ) The Honorable

) Thomas A. Durkin,

Defendant-Appellee, ) Judge Presiding

Justice Leavitt delivered the opinion of the Court:

The plaintiff, Peter Hickey, has been a licensed race horse

trainer for approximately thirty years. In 1994, post-race test

results revealed that six horses for which he was responsible had

been administered a bronchodilator called albuterol, the use of

which violates Illinois racing law. As a result, the racing

stewards suspended Hickey's license 30 days for each violation --

a total of 180 days. Following a subsequent hearing, the

Illinois Racing Board (the Board) increased the suspension to 360

days pursuant to its authority under section 15(d) of the

Illinois Horse Racing Act of 1975 (the Act). 230 ILCS 5/15(d)

(West 1994).

Hickey filed a complaint in the circuit court seeking review

of the Board's decision pursuant to the Administrative Review

Law. 735 ILCS 5/3-101 et seq (West 1992). The judge upheld the

decision of the Board. Hickey contends that the Board's order is

void because a majority of the Board did not approve it, as

required by section 14(a) of the Act. 230 ILCS 5/14(a).

This case arises from the plaintiff's violation of various

regulations promulgated by the Board. Under these regulations,

"[n]o horse participating in a race *** shall carry in its body

any foreign substance, except as provided" by the Board. 11 Ill.

Adm. Code sec. 509.40 (1994). A foreign substance "means all

substances except those which exist naturally in the untreated

horse of normal physiological concentrations [and] substances, or

metabolites thereof which are contained in equine feeds or feed

supplements but do not contain any pharmacodynamic and/or

chemotherapeutic agents." 11 Ill. Adm. Code sec. 509.20 (1994).

Furthermore, "[a]ny person who [unlawfully] administers *** any

foreign substance to any horse *** shall have his license

suspended." 11 Ill. Adm. Code sec. 509.60(a) (1994). Albuterol

is not a permitted foreign substance. See 11 Ill. Adm. Code

secs. 509.90, 509.95 (1994).

In 1994, the plaintiff was training 50 horses. The six

horses involved in this case raced at the Arlington International

Race Course between July 21 and August 20, 1994. These horses

and the respective races they ran were:

World Class Splash: July 21, eighth race, first place.

Golden Gear: July 30, fifth race, first place.

Little May: August 4, eighth race, first place.

Bantan: August 12, ninth race, first place.

Muchomiel: August 14, tenth race, third place.

Classic Fit: August 20, first race, first place.

After the races, the state veterinarian took blood and urine

samples from each horse and sent them to the Board Laboratory for

routine analysis, as required by the regulations. 11 Ill. Adm.

Code secs. 509.150, 509.160, 509.170 (1994). These samples that

tested positive for the substance albuterol.

Following an inquiry conducted at Arlington Park Racecourse,

the racing stewards (see 11 Ill. Adm. Code sec. 509.190(a)

(1994)), ruled that Hickey had violated the regulations banning

the administration of foreign substances. See Ill. Adm. Code

secs. 509.40, 509.50, 509.60 (1994). As a penalty, the stewards

suspended Hickey's license from September 10, 1994 through

December 31, 1994 and made him ineligible for relicensing from

January 1, 1995 through March 8, 1995. The stewards also

redistributed approximately $60,000.00 in purses that the horses

had won. Hickey appealed to the Board.

On September 27, 1994, Hickey appeared before a hearing

officer designated by the Board. He advised the hearing officer

that he was not contesting the redistribution of purses or the

finding that he had administered a foreign substance to his

horses. Rather, he was challenging the length of his suspension.

He contended that in issuing the suspension, the stewards failed

to "take into account" the nature of the foreign substance, as

required by section 509.60(b)(1) of the regulations. Ill. Adm.

Code, sec. 509.60(b)(1) (1994). Hickey maintained that because

albuterol is not a performance enhancing substance, the length of

his suspension was inappropriate. Hickey also argued that

because the Board Laboratory did not inform him that any of his

horses had tested positive until August 24, 1994, after all six

had raced, the stewards should not have found each positive test

result to constitute a separate violation. Hickey premised this

claim upon his testimony that the albuterol he administered to

each horse was an ingredient in a bulk additive he fed the

horses.

At the hearing, Hickey testified that in February, 1994 he

had attended a thoroughbred horse auction in Ocala, Florida.

While there, he met Dale Smallwood, who purchased some horses

from Hickey. Hickey stated that had never met Smallwood prior to

this auction. Hickey knew nothing of Smallwood's background.

During the auction, Hickey and Smallwood discussed the

problem of horses that bled under the stress of a race. Smallwood

told him of an additive that strengthened the capillaries and

veins in race horses, and Hickey asked Smallwood if he could

obtain some of this product. According to Hickey, Smallwood

volunteered that there was nothing foreign in the additive and

that it had been used in other jurisdictions without incident.

Approximately six weeks later Smallwood delivered two plastic

tubs of a substance to the plaintiff's farm in Ocala, Florida.

Each tub contained less than 1/2 gallon of a white sugary powder.

The tubs were neither labeled nor contained directions for use of

their contents; however, Hickey said that Smallwood had given him

verbal directions to "put a little scoop in the night feed".

Hickey admitted that he supplemented the feed of the six horses

at issue with this substance. He asserted that he did not know

the contents of the substance when he fed it to his horses,

although he personally tasted it prior to putting it in the

horses' feed.

Dr. Ronald Jensen, a veterinarian employed by the Board

testified that albuterol is a bronchial dilator which is not

approved by the FDA for use in horses. Jensen stated that a Board

rule precludes the use of any medication in horses unless there

is prior FDA approval or prior approval of the state

veterinarian. Jensen could not conclusively state that albuterol

was a performance enhancing drug generally, but he did indicate

that if a horse was a bleeder suffering bronchial constriction, a

bronchial dilator such as albuterol would improve a horse's

ability to race.

Vincent Brencick, a veterinarian, testified on behalf of

Hickey. He opined that albuterol could be used as part of a

therapeutic regimen for treating horses that suffer from bleeding

following a race. Brencick does not believe that albuterol

enhances the performance of a normal horse, but he acknowledged

that if any of the horses involved suffered from a respiratory

problem, albuterol could have had a positive effect on their

performances. Brencick also acknowledged that the FDA did not

approve albuterol for use on horses, although he stated that

racing officials in Texas, Arkansas, and Louisiana permit

albuterol to be administered to race horses in their states.

Shelly Kalita, the director of the Board laboratory

explained the general procedures employed by the laboratory

before it confirms that a horse's blood or urine contains a

foreign substance. The lab's screening process normally took

five to ten days to confirm the presence of most foreign

substances. In this case, however, the lab's normal procedures

were not adequate to poistively identify albuterol. The lab

received and began routine testing on a urine sample from World

Class Splash on July 22, 1994, a day after it raced at Arlington.

Due to the nature of albuterol, the lab had difficulty confirming

its presence in the specimens taken from Hickey's horses. The

lab's ordinary tests revealed only "an indication' of albuterol

and Kalita believed further testing was necessary before she

could report a confirmed positive result. Kalita believed that

prior to this case, the last time albuterol had been confirmed by

the laboratory was sometime in 1991.

As a result of the difficulties the laboratory experienced

in identifying the drug, it began to develop new procedures and

techniques to resolve the problem. Nonetheless, 33 days elapsed

before the lab was able to confirm that the sample from World

Class Splash contained albuterol. As the laboratory worked on

developing these new techniques and procedures for extracting

albuterol, the five remaining horses involved raced. Urine and

blood samples from each arrived at the laboratory and rendered

the same result as that of World Class Splash: each sample

contained albuterol.

As early as July 29, 1994, however, before the second of the

six horses raced, the laboratory had an initial confirmation that

albuterol was present in samples taken from Hickey's horses.

When questioned as to why Hickey was not notified at that time

that his horses were showing an initial positive for a foreign

substance, Kalita explained that she tests the samples she

receives without any identification of the trainer. She stated,

however, that she did call the executive director of the Board to

report that she had conducted three tests resulting in an

indication of albuterol and that the laboratory chemists would

conduct further tests before she would confirm the results. As a

result of the new procedures and techniques developed in the

testing of the sample from World Class Splash, the lab needed

only 11 days to determine a positive on the sixth of the samples.

Today, Kalita estimates the laboratory can detect albuterol

within five to ten days of the receipt of a sample.

On October 18, 1994, pursuant to section 14(a) of the Act,

the Board considered and decided Hickey's appeal of the stewards'

ruling. Six of the nine Board members were present for this

meeting. The Board's order indicates that its consideration "was

limited only to the duration of the penalty imposed upon Hickey."

Four of the Board members voted to increase from six months to

one year, the penalty imposed by the stewards. Two members

dissented.

Hickey asserts that section 14(a) of the Act requires that a

majority -- five members -- of the entire nine member Board

concur in an order revoking or suspending a license. Section

14(a) provides in pertinent part:

"A majority of the members of the Board shall

constitute a quorum for the transaction of any

business, for the performance of any duty, or for the

exercise of any power which this Act requires the Board

members to transact, perform or exercise en banc,

except that upon order of the Board one of the Board

members may conduct the hearing provided in Section 16.

The Board member conducting such hearing shall have all

powers and rights granted to the Board in this Act. The

record made at the hearing shall be reviewed by the

Board, or a majority thereof, and the finding and

decision of the majority of the Board shall constitute

the order of the Board in such case." 230 ILCS 5/14(a)

(1994).

According to the Board, section 14(a) is silent as to the number

of votes required to ratify Board action in a section 16 matter.

Thus, the Board contends that under Illinois law, the vote of a

majority of a quorum validates the Board's action. See People ex

rel. Compton v. Penn, 33 Ill. App. 3d 372, 375-77, 342 N.E.2d 280

(1975) (stating common law rule that absent contrary statutory

language, Board action need only be approved by the vote of a

majority of a quorum). However, the plaintiff contends that

section 14(a) is not silent as to the voting requirements in

matters of license suspension or revocation. We agree.

The final sentences of section 14(a) codify an exception to

the common law quorum rule by permitting one Board member to

conduct a section 16 hearing and providing specific voting

requirements for review of such hearings. Thus, the rule in

Compton cannot apply to section 16 hearings as provided for in

section 14(a), and the number of votes required in a section 16

hearing depends on the legislature's intent in drafting those

sentences. Section 16 governs the revocation or suspension of

occupational licenses. 230 ILCS 5/16 (West 1994). The hearing

on Hickey's appeal was a section 16 hearing conducted by one

person, as provided for by section 14(a).

All of the language in section 14(a) following the provision

for section 16 hearings relates directly to the conduct and

review of those hearings. Specifically, the Board member

conducting "such hearing shall have all powers and rights granted

to the Board." Furthermore, the record at that hearing must be

reviewed by the full board or "a majority thereof," that is, by a

quorum. This language is not in dispute, and, indeed, a majority

of the Board reviewed the record of Hickey's section 16 hearing.

Rather, it is the last clause of the final sentence which is at

issue in this appeal: "the record *** shall be reviewed by the

Board, or a majority thereof, and the findings and decision of

the majority of the Board shall constitute the order of the Board

in such case." (Emphasis added.) 230 ILCS 5/14(a) (1994).

The Board contends that this clause does not alter the

number of votes generally required for it to act. According to

the Board, we should interpret the final clause of the last

sentence of section 14(a) as stating that "the findings and

decision of the [quorum] shall constitute the order of the

Board." That is, to revoke the plaintiff's license, only four

of six possible votes was necessary. The Board's reasoning

requires us to conclude that the word "majority," when used for

both the first time in the statute and in the last sentence,

means more than half of the full Board, but when majority is used

the second time in the last sentence, it means "quorum."

However, where a word has been used more than once in a statue

"it is presumed to have been used with the same meaning

throughout, unless a contrary legislative intent is clearly

expressed." City of Springfield v. Allphin, 50 Ill. App. 3d 44,

47, 365 N.E.2d 249 (1977). In this case, that rule leads us to

conclude that "majority of the Board," as used in the last

sentence of section 14(a), is not equivalent to "quorum," as

urged by the Board.

Our conclusion is bolstered by the fact that the word

"Board" is also used twice in the last sentence. The first

reference is clearly to the full Board. Absent legislative

intent to the contrary, the second use of Board must also refer

to the entire nine member Board. Therefore, a "majority of the

Board" as used in the last section of section 14(a) means five

members of the full Board. Furthermore, if we interpret the

clause as requiring only a majority of a quorum, the clause

becomes superfluous, as section 14(a) earlier authorizes the

Board to act upon the majority of a quorum. A statute should be

interpreted so as to not render its terms superfluous. Jones v.

Municipal Officers Electoral Board, 112 Ill. App. 3d 926, 446

N.E.2d 256 (1983).

Although the language employed in section 14(a) is somewhat

ambiguous, "[w]here the language of a statute admits of two

constructions one of which would make the enactment absurd and

illogical, while the other renders it reasonable and sensible,

the construction which leads to an absurd result must be

avoided." Fisher v. Brombolich, 207 Ill. App. 3d 1053, 1060 566

N.E.2d 785 (1991). For the term "Board" to have a reasonable

meaning in the last sentence of Section 14(a) it must refer to

the entire nine member Board.

We believe this is so because the Board's interpretation of

section 14(a) leads to the anomalous result that the number of

votes necessary to deprive a person of his racing license, the

granting of which confers a property right in the holder

(Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d

367, 603 N.E.2d 489 (1992), depends on how many Board members are

present to review the record of a suspension hearing. According

to the Board's reasoning, some licensees may be deprived of their

property rights upon a vote of only three members of the Board --

if five members are present, while others may keep their license

on the same three votes -- if six or more members are present.

We do not believe the legislature intended to so arbitrarily

treat the property interests of individual licensees. Indeed, as

this court has recognized, these licenses "frequently represent

the only livelihood of their holders." Kurtzworth v. Illinois

Racing Board, 92 Ill. App. 3d 564, 589, 415 N.E.2d 1290 (1981).

Rather, we believe the legislature intended to afford

uniform treatment to individuals whose occupational licenses are

at stake. It did so by requiring that a majority of the board

"shall" determine revocation or suspension of licenses. This

means that the Board, even though authorized to act with only a

quorum present, must achieve five votes to effect an order under

section 16.

Our decision is also consonant with the legislature's intent

when it enacted the language at issue. The legislature

originally added this language by a 1957 amendment to section

37a6 of the predecessor to the Act. See Ill. Rev. Stat. 1957,

ch. 8, par. 37a6. Before 1957, the Board was authorized to

perform any action, without exception, upon a meeting of a

quorum. See Ill. Rev. Stat. 1955, ch. 8, par. 37a6.

Significantly, at the time the legislature added the language at

issue in this case, the Board consisted of only three members.

Ill. Rev. Stat. 1957, ch. 8, par. 37a1. Thus, at the time, the

Board's decision in review of a hearing could only be valid if it

achieved the vote of a majority of the full Board -- that is two

of three Board members. Although the legislature has increased

the size of the Board twice since 1957 (see Ill. Rev. Stat. 1965,

ch. 8, par. 37a1 (seven member Board); Ill. Rev. Stat. 1987, ch.

8, par. 37-4 (nine member Board)), it has never amended the

language requiring that "the decision of the majority of the

Board shall constitute the order of the Board" in matters of

license suspension and revocation.

Because the provision of section 14(a) at issue affects the

rights or benefits of an individual, it is mandatory upon the

Board. Stull v. Department of Children & Family Services, 239

Ill. App. 3d 325, 333, 606 N.E.2d 786 (1992). Under the

circumstances, when the quorum cannot achieve a majority vote on

a section 16 matter, it must "seek the input of *** absent

member[s]." Melrose Park National Bank v. Zoning Board of

Appeals, 79 Ill. App. 3d 56, 62, 398 N.E.2d 252 (1979).

Our decision leaves us to determine the effect of an order

by the Board that lacks the required five votes. The Board is

authorized by section 14(a) to act, as it did here, when a mere

quorum is present. Section 14(a) also directs that "the findings

and decision of the majority of the Board shall constitute the

order of the Board." (Emphasis added.) 230 ILCS 5/14(a).

Having concluded the Board's order does not carry by the required

majority vote the order is null and we must vacate it.

Due to our resolution of this issue, we need not address the

remaining issues raised by the plaintiff. For all of the

foregoing reasons, the judgment of the circuit court is reversed

and the order of the Board is vacated.

Circuit court reversed;

Order of the Board vacated.

McNamara, J. and Rakowski, J., concurring.