The opinion
SIXTH DIVISION
May 19, 2006
No. 1-04-3280
HAWTHORNE RACE COURSE, INC., and ) Appeal from the
NATIONAL JOCKEY CLUB, ) Circuit Court of
) Cook County
Plaintiffs-Appellants, )
)
v. )
)
ILLINOIS RACING BOARD, ILLINOIS )
THOROUGHBRED HORSEMEN'S ASSOCIATION, )
ILLINOIS HARNESS HORSEMEN'S ASSOCIATION,)
ARLINGTON PARK RACE COURSE, LLC, )
BALMORAL RACING CLUB, INC., FAIRMOUNT )
PARK, INC., ASSOCIATES RACING )
ASSOCIATION, INC., MAYWOOD PARK TROTTING)
ASSOCIATION, INC., EGYPTIAN TROTTING )
ASSOCIATION, INC., and SUBURBAN DOWNS, )
INC., ) Honorable
) Stephen Schiller,
Defendants-Appellees. ) Judge Presiding
PRESIDING JUSTICE McNULTY delivered the opinion of the
court:
This case involves interpretation of an odd provision in the
Illinois Horse Racing Act of 1975 (the Act) (230 ILCS 5/1 et seq.
(West 2004)). Licensees, who collect the bets and conduct the
races, split a portion of the wagers with the horsemen, who own,
train and race the horses. The Act specifies the allocation of
the total wagered. In 1995 the legislature decided to allow
betting on simulcast races, where bettors at a host track bet on
races run at a different track and broadcast onto a screen at the
host track. Horsemen persuaded the legislature to allocate a
larger portion of the earnings from simulcast races to the
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horsemen. The licensees, in turn, persuaded the legislature to
allow recapture of some of the horsemen's share if the take from
live races fell by a specified percentage from 1994 levels. This
case involves the calculation of recapture.
In 1994 National Jockey Club (NJC), a licensee, conducted
races at Sportsman's Park, while Hawthorne Race Course, Inc.
(HRC), another licensee, conducted races across the street at
Hawthorne Race Course (Hawthorne). In 2002 NJC merged with HRC,
and beginning in 2003 both licensees ran all their races at
Hawthorne. The Illinois Racing Board (Board) held that the Act
did not permit a calculation of recapture based on a comparison
of races NJC ran at Hawthorne with the races run at Sportsman's
Park in 1994. Under the Board's decision, NJC and HRC recaptured
much less in 2004 than they recaptured in prior years.
NJC and HRC sued for administrative review of the Board's
decision. Two horsemen's associations and licensees at other
racetracks in Illinois joined the Board as parties defendant.
The trial court upheld the Board's decision. NJC and HRC now
appeal. We find that the Board properly applied the statutory
formula for recapture, and therefore we affirm.
BACKGROUND
Illinois permits pari-mutuel wagering on horse races. 230
ILCS 5/9(a) (West 2004). For pari-mutuel wagering on a race, a
person licensed to conduct the race collects all bets on the race
and distributes most of the money collected to those who won
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their bets. The pool of all bets on a race is the "handle" for
that race. Balmoral Racing Club, Inc. v. Gonzales, 338 Ill. App.
3d 478, 480 (2003). Before distributing the winnings, the
licensee appropriates the "takeout," a portion of the handle
distributed to state and local governments, the horsemen, and the
licensees. M. Bishop, And They're Off: The Legality of
Interstate Pari-mutuel Wagering and Its Impact on the
Thoroughbred Horse Industry, 89 Ky. L.J. 711, 716 (2001). Under
the approved formula for distribution of the handle from off-
track betting, licensees receive 75% of the takeout remaining
after taxes, while horsemen receive only 25% of that part of the
takeout.
In 1995 a new law came into effect, permitting bettors at a
host track to bet on races run at other tracks and simulcast in
the host track. Horsemen won the right to receive 50% of the
takeout after taxes from simulcast wagering. See 230 ILCS
5/26(g)(5), (g)(7) (West 2004). Licensees anticipated that the
handle from races run at the host racetracks would decrease as
bettors shifted their bets to the races simulcast from other
tracks. Because licensees received a lesser portion of the
handle from simulcast races, they sought to protect themselves
against potential decreases in revenue. They persuaded the
legislature to adopt a provision permitting recapture from
horsemen of part of the expected decrease in the handle on live
races.
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Section 26(g)(13) of the Act provides:
"[I]n the event that the total Illinois pari-
mutuel handle on Illinois horse races at all wagering
facilities in any calendar year is less than 75% of the
total Illinois pari-mutuel handle on Illinois horse
races at all such wagering facilities for calendar year
1994, then each wagering facility that has an annual
total Illinois pari-mutuel handle on Illinois horse
races that is less than 75% of the total Illinois pari-
mutuel handle on Illinois horse races at such wagering
facility for calendar year 1994, shall be permitted to
receive, from any amount otherwise payable to the purse
account at the race track with which the wagering
facility is affiliated in the succeeding calendar year,
an amount equal to 2% of the differential in total
Illinois pari-mutuel handle on Illinois horse races at
the wagering facility between that calendar year in
question and 1994 ***." 230 ILCS 5/26(g)(13) (West
2004).
The licensees guessed right. Since the introduction of
simulcast races, the pari-mutuel handle on horse races run at
tracks in Illinois has never reached 75% of the pari-mutuel
handle on races run in Illinois in 1994. Thus, the recapture
provision has taken effect every year.
The recapture for races run at Maywood Park in 1996
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demonstrates the calculation of the amount of recapture. In 1994
and 1996, three different licensees ran races at Maywood on
separate dates. The Board aggregated the total handle from the
races all licensees ran at Maywood in 1994. The sum exceeded
$100 million. The same three licensees ran all the races at
Maywood in 1996. The total handle from all races at Maywood that
year barely exceeded $53 million. Because the handle for all
races run in Illinois amounted to less than 75% of the 1994
handle, and because the handle at all races at Maywood amounted
to less than 75% of the 1994 handle for races at Maywood, the
recapture provision established that "such wagering facility ***
shall be permitted to receive *** an amount equal to 2% of the
differential in total Illinois pari-mutuel handle on Illinois
horse races at the wagering facility between that calendar year
in question and 1994." 230 ILCS 5/26(g)(13) (West 2004). The
differential between Maywood's 1994 handle and its 1996 handle on
live races surpassed $47 million, so the statutory formula
permitted recapture of more than $940,000. The licensees had the
right to deduct that amount from the total of all purses awarded
to horsemen who entered races run at Maywood in 1997.
In 1994 three licensees, including NJC, ran races at
Sportsman's Park. That year the total handle for Sportsman's
Park exceeded $143 million. In 1998 only NJC ran races at
Sportsman's Park, and its total handle for those races fell short
of $38 million. The differential of more than $105 million
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established a recapture in excess of $2,100,000 for 1998, to be
deducted from purses awarded in 1999.
Sportsman's Park underwent extensive renovation in 1999. No
licensee ran any races at Sportsman's Park that year. NJC ran
races at Hawthorne, across the street from Sportsman's Park, in
1999. Because the Act permits recapture only from the purses of
races run at the same wagering facility, the Board's staff
recommended disallowance of any recapture in 1999 for Sportsman's
Park, despite the large differential between 1998 handle and 1994
handle for Sportsman's Park. The executive director overruled
the staff and permitted NJC to deduct the $2,100,000 recapture
for 1998 from purses NJC gave horsemen for races it ran at
Hawthorne in 1999, just as though NJC had run those races at
Sportsman's Park.
Sportsman's Park reopened for horse racing in 2000. The
executive director allowed NJC to recapture part of the
differential between the 1994 handle and the 1999 handle, using
the races all three licensees ran at Sportsman's Park in 1994 and
comparing that sum with the handle on races NJC alone ran at
Hawthorne in 1999. Because the differential exceeded $110
million, the Board permitted NJC to recapture more than
$2,200,000 from purses awarded to horsemen for races run at
Sportsman's Park in 2000.
NJC again ran races at Sportsman's Park in 2001 and 2002.
After the 2002 racing season, with the Board's encouragement, NJC
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effectively merged with HRC. NJC and HRC both ran races at
Hawthorne in 2003, and no one has run any horse races at
Sportsman's Park since 2002. The Board calculated recapture for
Sportsman's Park in 2002 and permitted NJC to deduct that amount
from purses NJC awarded horsemen for races NJC ran at Hawthorne
in 2003.
The Board's staff recommended calculating the recapture for
2004 by comparison of the total handle from all races run at
Hawthorne in 2003 with the total handle from Hawthorne races in
1994. Thus, under the recommendation, the races NJC ran in 2003
increased the total 2003 handle at Hawthorne, and therefore those
races reduced the total recapture awarded for Hawthorne. The
staff recommended no award of recapture for Sportsman's Park,
because no one ran races at Sportsman's Park in 2003.
NJC and HRC objected to the recommendations, arguing that
the Board should compare the races NJC ran at Hawthorne in 2003
with the total handle from races all licensees ran at Sportsman's
Park in 1994, and award NJC its own recapture based on that
comparison. They also sought an award for Hawthorne of a
separate recapture comparing the handle from races HRC alone ran
in 2003 with the total handle from races all licensees ran at
Hawthorne in 1994. NJC and HRC argued that they relied on prior
decisions allowing them separate recapture when they decided to
merge.
The Illinois Thoroughbred Horsemen's Association and the
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Illinois Harness Horsemen's Association supported the staff's
recommendation and opposed the calculation of recapture NJC and
HRC proposed. Licensees at other racetracks also supported the
staff's recommendations.
After a hearing in January 2004, the Board agreed with the
staff's recommendations. The chair explained that in the Board's
view, the executive director improperly allowed Sportsman's Park
a recapture for 2000 based on a comparison of the handle from
races all licensees ran at Sportsman's Park in 1994 with the
handle from races NJC ran at Hawthorne in 1999. The Board did
not then review the executive director's decisions on recapture.
According to the chair, 2003 "was the very first year that the
Racing Board ever voted on recapture. Always before it was
handled administratively by the Executive Director. So the Board
never considered it."
The chair also found significantly changed circumstances
from 2000 to 2004, and the change warranted differences in the
calculation of recapture:
"[In 2000, Sportsman's Park was] coming back in
business, it was just one year, you were just off for
that year and you were coming back. [The] Executive
Director *** decided to be a nice guy and look the
other way and give you the recapture in that year
although it was clearly [denied in the staff's
recommendation] correctly in the first place because
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there was no racing at the Sportsman's Park racing
facility."
The chair also pointed out that when NJC explained its financial
strength, in its application for 2003 racing dates, it based its
revenue projection on a "wors[t] case scenario wherein [NJC]
loses *** its recapture." After the consolidation with HRC, NJC
submitted to the Board a document in which it acknowledged that
"issues have arisen as to whether NJC will be able to retain" its
right to recapture.
The Board approved the staff's recommendation for
calculation of recapture for 2003, recoverable from purses
awarded in 2004. Thus, the Board permitted no separate recapture
for NJC, and it awarded a recapture for Hawthorne based on a
comparison of the handle from races all licensees ran at
Hawthorne in 2003 with the handle from races all licensees ran at
Hawthorne in 1994.
NJC and HRC sued for administrative review of the Board's
decision. The Board filed a brief in support of its calculation
of recapture. The horsemen and the other licensees again
supported the Board's position. The trial court affirmed the
Board's decision. NJC and HRC now appeal.
ANALYSIS
This case presents a question of statutory interpretation.
"[R]eviewing courts generally accord substantial
deference to the interpretation placed on a statute by
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the agency charged with its administration and
enforcement. [Citation.] An agency's statutory
interpretation will be rejected if it is unreasonable
or erroneous." Metropolitan Alliance of Police v.
Illinois Labor Relations Board, Local Panel, 345 Ill.
App. 3d 579, 586 (2003).
Section 26(g)(13) of the Act establishes the formula for
calculation of annual recapture:
"[E]ach wagering facility that has an annual total
Illinois pari-mutuel handle on Illinois horse races
that is less than 75% of the total Illinois pari-mutuel
handle on Illinois horse races at such wagering
facility for calendar year 1994, shall be permitted to
receive *** an amount equal to 2% of the differential
in total Illinois pari-mutuel handle on Illinois horse
races at the wagering facility between that calendar
year in question and 1994 ***." 230 ILCS 5/26(g)(13)
(West 2004).
The Act explicitly defines a "wagering facility" as "any location
at which a licensee may accept or receive pari-mutuel wagers
under this Act." 230 ILCS 5/3.22 (West 2004).
NJC argues that because it has a license to collect bets, it
qualifies as a "wagering facility." Sportsman's Park cannot
collect recapture, so it must not count as a wagering facility.
They point to the Board's written rules, which provide:
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"Pursuant to Section 26(g)(13) of the Illinois
Horse Racing Act of 1975 ***, qualified licensed
Illinois wagering facilities are permitted to deduct an
amount equal to 2% of the difference between the
licensee's 1994 handle on Illinois races and its handle
on Illinois races in the year in question, from amounts
allocated or payable to purses in the succeeding year,
at the racetrack from which the wagering facility is
affiliated." 11 Ill. Adm. Code '213.10, as amended by
24 Ill. Reg. 17484 (eff. November 8, 2000).
The rules define "Purse Recapture" as "the amounts *** to be
deducted by each qualified wagering facility from amounts payable
to purses at the licensee's affiliated racetrack." 11 Ill. Adm.
Code '213.20, as amended by 24 Ill. Reg. 17484 (eff. November 8,
2000).
The reference in the rules to "licensed *** wagering
facilities" apparently identifies wagering facilities with
licensees. Other licensees oppose appellants' construction of
the statute because the licensees at those racetracks had not
begun operating before 1994. If we construe a "wagering
facility" as a licensee for calculation of the recapture, no one
gets any recapture for the sharp decline in handle from live
races at racetracks at which a new licensee, created after 1994,
now runs races.
The explicit definition of "wagering facility" cannot
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support the construction appellants seek. The statute
unequivocally defines a wagering facility as a location at which
a licensee acts, explicitly distinguishing the licensees from the
wagering facilities. When an administrative regulation conflicts
with a statute, the statute controls. Schilling v. Book, 84 Ill.
App. 3d 972, 976 (1980); North Shore MRI Centre v. Department of
Revenue, 309 Ill. App. 3d 895, 899 (1999). Thus, the rule's
apparent identification of licensees as wagering facilities
cannot overcome the statute's distinction between locations that
count as wagering facilities and the licensees who use those
facilities.
Moreover, NJC has, since 1995, accepted recapture calculated
on the basis of all races run by all licensees at Sportsman's
Park in 1994. If a "wagering facility" in section 26(g)(13)
referred to a licensee, NJC should have recaptured amounts based
solely on its own handle from 1994. The administrative rule on
its face restricts recapture to the difference between "the
licensee's 1994 handle *** and its handle *** in the year in
question." 11 Ill. Adm. Code '213.10, as amended by 24 Ill. Reg.
17484 (eff. November 8, 2000). The Board has always included
handle from races other licensees ran at Sportsman's Park in 1994
as part of the basis for calculating recapture for Sportsman's
Park. The Board predicated the calculation on its interpretation
that a location, a racetrack, is a wagering facility, and a
licensee is not. NJC has for years reaped the benefit of this
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interpretation of the rule. "A party who has accepted and
retained the advantages of an order cannot be heard to attack the
validity or propriety of conditions upon which its right to such
advantages was expressly predicated." Zweifel Manufacturing
Corp. v. City of Peoria, 11 Ill. 2d 489, 493 (1957).
Next, appellants claim that the Board established
portability of recapture in its decisions allowing NJC recapture
in 1999, 2000 and 2003. In effect, appellants argue that the
prior decisions operate as res judicata concerning the issue of
NJC's right to recapture in 2004 based on its 2003 races.
"[A] prior determination by an administrative body
is not res judicata in subsequent proceedings before
it. [Citations.] An administrative body has the power
to deal freely with each situation as it comes before
it, regardless of how it may have dealt with a similar
or even the same situation in a previous proceeding."
Hazelton v. Zoning Board of Appeals, 48 Ill. App. 3d
348, 351-52, 363 N.E.2d 44 (1977).
Also, as the chair pointed out, the Board played no part in the
decisions awarding NJC recapture in 1999 and 2000. The executive
director, unreviewed, granted NJC recapture in those years. The
prior decisions do not collaterally estop the Board from
distinguishing the circumstances in 2004 from the circumstances
arising in prior years in which NJC obtained recapture.
In 1998 NJC ran races at Sportsman's Park, so the executive
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director could compare the handle from those races with the
handle from the races run at the same wagering facility in 1994.
The calculation of recapture then followed the statutory
formula. The formula established an amount of recapture for
Sportsman's Park, but no licensee scheduled any races at that
facility for 1999, during the track's extensive renovations. The
executive director decided to allow NJC, as the sole licensee who
ran races at Sportsman's Park in 1998, to deduct recapture from
purses it awarded for races it ran at Hawthorne in 1999.
Similarly, in 2002 NJC ran races at Sportsman's Park, so the
Board could compare the handle from those races with the handle
from the races run at the same facility in 1994. The statutory
formula again established an amount of recapture for Sportsman's
Park. The Board decided to allow NJC, as the sole licensee who
ran races at Sportsman's Park in 2002, to deduct recapture from
purses it awarded for races it ran at Hawthorne in 2003. The
decision apparently allows a limited kind of portability. As
long as a licensee ran races at a facility where some licensees
ran races in 1994, the statutory formula establishes a sum for
recapture for that wagering facility. The Board's decision in
2003, and the executive director's decision in 1999, permit the
licensee who ran the races at the wagering facility to recapture
the statutory amount from purses it pays out the following year,
even if the licensee runs its races at a different facility. The
Board has never approved recapture calculated on the basis of a
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comparison of the handle from races run at one facility with
handle from races run at a different wagering facility in 1994.
In 2000 the executive director decided to permit NJC to
recapture part of the purse it awarded for races scheduled at
Sportsman's Park. To calculate the recapture, the director
compared the handle from races all licensees ran at Sportsman's
Park in 1994 with the handle from races NJC ran at Hawthorne in
1999. The Board found that no credible reading of the statute
supported that calculation of recapture. We agree. If the
director mistakenly treated NJC as a "wagering facility," he
should have compared the handle on races NJC ran in 1999 with the
handle on races NJC ran in 1994, rather than comparing the 1999
handle with the handle on all races all licensees ran at
Sportsman's Park in 1994. The executive director apparently
applied a kind of legal fiction, treating the races NJC ran at
Hawthorne in 1999 exactly as though NJC ran them at Sportsman's
Park. The chair best explained the 2000 decision as a bonus to
NJC to help it defray the costs of renovating Sportsman's Park.
Thus, even if Board decisions could collaterally estop the
Board from reconsidering issues it had decided, the Board's 2003
decision involved circumstances strikingly different from those
presented in 2004. The Board could compare the handle from races
run at Sportsman's Park in 2002 with the handle from races run at
that wagering facility in 1994 to make the statutory calculation
of the recapture it awarded in 2003. Because no one ran races at
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Sportsman's Park in 2003, the Board had no basis for a
calculation of recapture for Sportsman's Park in 2004 and,
therefore, no amount for NJC to import to its new location.
Appellants present no grounds for treating the executive
director's mistake in 2000 as res judicata disallowing denial of
recapture in 2004.
Appellants argue that the legislature's failure to amend the
statute after 2000 shows that the executive director then
interpreted the statute correctly. First, we note that the
legislature allocated funds in 2000 to the horsemen to cover the
amount deducted from all purses under the recapture provision.
Thus, the legislature ensured that the horsemen did not suffer
any detriment from the executive director's mistaken award to NJC
in 2000.
As the chair points out, the Board had also in prior
decisions treated a single location as a wagering facility and
permitted no portability of the basis for recapture. In one case
an operator of an off-track betting parlor moved its operations
to a new location. The Board disallowed recapture because the
new wagering facility had no 1994 handle to compare with current
handle; the old location, which had in 1994 a certain handle, had
no current operations and no current handle to compare with 1994
handle. The legislature's failure to amend did not approve
decisions allowing portability any more than the same failure to
amend approved the decisions denying portability for other
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wagering facilities. Legislative inaction here provides no basis
for disturbing the Board's decision.
Next, appellants claim public policy requires application of
the formula they propose for calculation of their recapture. The
legislature expressly adopted the Act to:
"(a) support and enhance Illinois' horse racing
industry, which is a significant component within the
agribusiness industry;
(b) ensure that Illinois' horse racing industry
remains competitive with neighboring states;
(c) stimulate growth within Illinois' horse racing
industry, thereby encouraging new investment and
development to produce additional tax revenues and to
create additional jobs;
***
[and] (e) encourage the breeding of thoroughbred
and standardbred horses in this State[.]" 230 ILCS
5/1.2 (West 2004).
To remain competitive with racing in other states, Illinois
racetracks must award horsemen purses sufficient to motivate them
to race their best horses in Illinois. The legislature designed
the provisions of section 26 to allocate funds in a manner that
best preserves the welfare of both the horsemen and the licensees
who run races in Illinois. The legislature created an explicit
formula for determining the amount of recapture to deduct from
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purses awarded to horsemen. We see no reason to second-guess the
legislature's formula. Money not awarded as recapture remains in
the purses awarded to horsemen and thereby supports the growth
and development of the racing industry in Illinois. We note that
the other licensees support the Board's interpretation of the
Act. Public policy does not demand an award of recapture for a
former wagering facility no longer used for horse racing.
Finally, appellants maintain that they relied on portability
of recapture when they merged and therefore the court should
estop the Board from denying the recapture they seek.
"Estoppel against public bodies is generally not
favored and is allowed in only rare and unusual
circumstances. [Citations.] The doctrine of estoppel
is invoked against a public body only when it is
necessary to prevent fraud and injustice." Halleck v.
County of Cook, 264 Ill. App. 3d 887, 893 (1994).
The plaintiff must show "an affirmative act on the part of the
public entity and the inducement of substantial reliance by the
affirmative act." Gersch v. Department of Professional
Regulation, 308 Ill. App. 3d 649, 660 (1999).
Here, appellants rely on three affirmative acts: the
decisions permitting NJC recapture in 1999, 2000 and 2003. The
argument appears to restate the attempt to collaterally estop the
Board from distinguishing the circumstances in 1999 and 2000 from
the circumstances in 2004. The Board's decisions do not have
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such res judicata effect. Hazelton, 48 Ill. App. 3d at 351-52.
Moreover, the difference in circumstances renders
unreasonable any reliance on the prior decisions as establishing
that NJC would continue to receive recapture based on handle from
races run at Sportsman's Park in 1994, even after NJC stopped
running races at that facility. The Board calculated recapture
for 2003 by comparing handle from races at Sportsman's in 2002
with handle from races run by all licensees at the same wagering
facility in 1994. NJC could not reasonably rely on that decision
as grounds for assuming it would continue to receive recapture
when the Board could no longer use the handle from races run at
Sportsman's Park to compare with the handle from races run at
Sportsman's Park in 1994. Similarly, the decision permitting
recapture in 1999 for races run at Sportsman's Park in 1998
cannot lead reasonable persons to assume they could use races run
at other locations as a basis for calculating recapture.
The executive director in 2000 permitted NJC to recapture an
amount based on a comparison of races run at Hawthorne in 1999
with races run at Sportsman's Park in 1994. But in that case the
executive director treated all races NJC ran at Hawthorne in 1999
as though NJC ran them at Sportsman's Park. The decision
assisted NJC with its efforts to reopen Sportsman's Park
following renovations. NJC does not assert that any state
official or anyone else affiliated with the Racing Board ever
promised NJC, before the merger, that it would continue to
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receive recapture based on a comparison of its races at Hawthorne
with the races all licensees ran at Sportsman's Park in 1994. In
the absence of reasonable reliance, estoppel cannot apply.
Also, we agree with the Board that NJC's documents regarding
the merger show that NJC, to an extent, prepared for the
possibility that the Board might not allow it to calculate
recapture based on a comparison of the handle from races it alone
ran at Hawthorne each year with the total handle from races all
three licensees ran at Sportsman's Park in 1994. NJC and HRC
have not proved that, when they merged, they actually relied on
the calculation of recapture they now propose. If they had so
relied the reliance was unreasonable because the circumstances
after 2003 differed sharply from the circumstances in 1999, 2000
and 2003.
The Act explicitly directs the Board to calculate recapture
for each location at which various licensees ran races, and not
to calculate recapture for each individual licensee. The Board
has consistently so calculated recapture, despite apparently
inconsistent language in the Board's rules, which seem to
identify licensees as wagering facilities. The Act, rather than
the inconsistent rules, governs the proper calculation. The
public policy of supporting the horse racing industry does not
demand appropriation of the amounts appellants seek to recapture
from horsemen. The decisions from 1999 and 2003, allowing a
limited portability of properly calculated recapture, do not
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require an award of recapture for a former wagering facility no
longer used for horse racing. Neither does the executive
director's unreviewed error from 2000 bind the Board. NJC and
HRC, when they merged, apparently did not rely on the continued
calculation of recapture as though NJC continued to run its races
at Sportsman's Park. If they did so rely, that reliance was
unreasonable. Accordingly, we affirm the trial court's decision
upholding the Board's calculation of recapture for 2003, to be
recovered in 2004, for Hawthorne.
Affirmed.
FITZGERALD-SMITH and O'MALLEY, JJ., concur.
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