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.