APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
K. BERG, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Illinois Racing Board (Board), appeals from an order of the circuit court of Cook County entered under the Administrative Review Act. That order reversed the decision of the Board which had granted plaintiff, Dr. James Lamar, his veterinarian license and then suspended it for 30 days due to plaintiff's violation of Illinois Racing Board Rule 309a. In reversing the Board's decision, the court found that Rule 309a was unconstitutionally vague and arbitrary. The Board now contends (1) that the rule met constitutional standards of certainty; and (2) that the court erred by permitting the introduction of additional evidence at the administrative review hearing.
When plaintiff submitted an annual renewal application for his 1975 veterinarian license, his attorney attached a cover letter indicating a reservation as to a paragraph in the application. That paragraph stated that the applicant would submit to the subpoena and search powers of the Board. On May 6, 1975, the State Stewards of the Board recommended that plaintiff's application be denied pending his compliance with the terms of the application, including the paragraph concerning the Board's subpoena and search powers. Plaintiff then appealed from the State Stewards' recommendation, requesting a hearing before the Board. The hearing was scheduled for May 9, 1975, at a meeting of the Board, at which time the Board considered a proposed change in Rule 309a.
At the May 9 meeting, the Board voted to amend Rule 309a. Prior to amendment, the rule provided:
"a. Whenever any veterinarian licensed by the Board or any other person administers any chemical substance listed in Rule 303.a. to any horse within a race track enclosure at such a time that such chemical substance, or any metabolite thereof, may be found as a constituent in specimens of the horse's urine or blood taken subsequent to or less than four hours prior to a race, he shall submit a written report in triplicate on a form prescribed by the Board to the state veterinarian, provided, however, that a person shall submit such a report for all administrations of phenylbutazone made at any time within a race track enclosure." (Illinois Racing Board Rule 309a.) (Emphasis in original.)
Subsequent to amendment, the initial portion of the paragraph remained unchanged, but the italicized portion was deleted.
At the Board's hearing on plaintiff's appeal from the State Stewards' recommendation, plaintiff agreed to comply with a subpoena previously served upon him. The hearing then adjourned with the understanding that plaintiff would turn over a list of owners for whom he had worked in 1974 and copies of medication records for drugs purchased and prescribed for certain horses. A few days later plaintiff complied.
On May 19, 1975, the Board's attorney sent plaintiff's attorney a letter informing him that the Board was in receipt of an Illinois Bureau of Investigation report which indicated numerous drug reporting violations by plaintiff. The list of alleged violations involved plaintiff's failure to report the administration of phenylbutazone (bute) to enumerated horses. Although the alleged violations occurred at a time in which the rule was in effect, plaintiff was informed of the violations 10 days after the amendment of the rule. A hearing of the matter was then scheduled.
The hearing consisted in pertinent part of showing that plaintiff's bills revealed that he had administered bute to a number of horses, and that he did not report such administration pursuant to the rule then in effect. The Board called Ronald C. Jensen, the State Veterinarian, who testified that bute is an injectible or an oral drug used as an anti-inflammatory or an analgesic. Dr. Jensen also said that administrations of bute were required to be reported in 1974, whether given to racing or nonracing horses. Although he did not know of any specific instances, Jensen assumed that a number of instances existed where administrations to nonracing horses went unreported. He also said that while no one told him directly, he was present at a meeting where some veterinarians said that they did not report bute administrations given to nonracing horses.
Plaintiff then called Ted Atkinson, the Senior State Steward for Chicago area thoroughbred racing. He explained that Rule 309a was in effect for the last 30 days of the 1973 season, the entire 1974 season, and that the rule was thereafter eliminated. Whenever any veterinarians would consult with him about the meaning of the rule, he told them that if they were in doubt about medication rules, they should take up the matter with the State Veterinarian. Atkinson said that the daily medication report sheets were supposed to include all horses treated with any drugs. He explained, however, that the reports were required to be sent to the laboratory and that he had nothing to do with it. He never told veterinarians that they did not have to report administrations of bute to sick or ailing horses. Atkinson said, however, that he thought the reporting requirements in the rule referred to injections, rather than powders or tablets. He emphasized on cross-examination that all administrations by injection were to be reported whether administered to racing or nonracing horses.
Plaintiff also called Dr. James Logsdon, a veterinarian, who testified that he thought the rule meant that a veterinarian did not have to report administrations of bute given to nonracing horses. He testified that other veterinarians thought the same thing. Logsdon later discussed this subject with the State Veterinarian who informed him that his understanding of the rule was incorrect.
At another hearing plaintiff called a horse trainer who said that as far as he knew no reports had to be filed unless the horse given bute ran in a race. On his own behalf, plaintiff testified that in 1974, he did not report oral administrations of bute to nonracing horses on his daily veterinarian sheets because the State Steward, Ted Atkinson, said that when bute is orally administered it did not have to be reported. On rebuttal, Atkinson testified that during the conversation in question he never mentioned racing versus nonracing horses. In addition, he testified that if bute was administered orally, it should be accounted for by a written prescription filed with the State Veterinarian. He fully expected that a copy of the prescription would go to the required authorities.
The Board decided that plaintiff's violations of Rule 309a were sufficient reason to deny plaintiff a license but decided instead to grant him a 1975 license and suspend it for 30 days. Plaintiff then filed a complaint under the Administrative Review Act seeking a reversal of the Board's decision. The complaint alleged in part that the Board had exceeded its authority in promulgating the rule, and that the rule was unconstitutionally vague and arbitrary. The trial court reversed the ...