APPEAL from the Circuit Court of Kane County; the Hon. FRED M.
MORELLI, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The Illinois Racing Board (hereinafter Board) appeals from the decision of the circuit court of Kane County in an administrative review proceeding in which the circuit court reversed the decision of the Board.
The plaintiff, Larry Wayne Heavner, is the owner of the horse, Brookes Pride, which was a three-year-old and eligible to race in a race known as the Cardinal Stakes. The race was sponsored by the Illinois Department of Agriculture and was to be run on May 28, 1980, at Sportsman Park. The Department of Agriculture sent out notices indicating that entries for the race would be taken on May 16, 1980. However, the custom of the racing industry is to make the entry date 10 days excluding Sundays before the actual race. The Board's rule, No. 9.10, provides that:
"In the event there are conflicting published conditions, the more favorable to the nominator [owner or trainer entering a horse] shall govern."
Accordingly, in order to give the owner the more favorable date, the closing entry date for the Cardinal Stakes was set for May 17 at 6 p.m., instead of May 16. A horse could also have been entered on May 16.
When the entries for the race were closed at 6 p.m. on May 17, the entry box was opened and no entry appeared in the box for Brookes Pride. Sometime later that evening, after the entries were closed, Heavner complained to Phillip Langley, Director of Racing for Chicago Downs Association, that his horse, Brookes Pride, had not been listed as an entry. A horse is entered in a race by completing an entry blank showing the horse's name, trainer or owner, and the race entered, and depositing the blank by shoving it through a slot in the entry box. Thus the names of the horses entered for any particular race are not known to anyone but the nominator until the entry box is opened. A decision to enter or not to enter a particular race might be influenced by advance knowledge of the competition this horse would face if that information was available to the owner. After discovering that Brookes Pride was not entered in the Cardinal Stakes Heavner did not claim that he himself had entered the horse, but claimed that his trainer, Jim Herman, had done so. Herman testified he placed the entry slip for Brookes Pride in the entry box on Saturday (which would have been May 17) about 2 or 2:30 p.m. (The appellants' brief is in error in stating that Herman claimed to have entered the horse on May 16. He did not specify in his testimony the date he entered the horse but testified that he entered it on Saturday, about 2 or 2:30 p.m. Saturday was May 17.) Herman had entered another horse in another race at the same time. This entry was found. In a deposition, Herman testified that he, accompanied by two of his employees, Tom Herman and Keith (or Fred) Livingston, went to the racing office about 2 p.m. on Saturday and entered Brookes Pride in the Cardinal Stakes. A thorough search of the racing office and all wastebaskets failed to turn up an entry blank for Brookes Pride.
Since Heavner contended a mistake had been made by the racing officials, Langley referred the matter to the racing stewards who, since no entry for Brookes Pride could be found, declined to enter the horse in the Cardinal Stakes. Heavner then filed another entry blank for Brookes Pride on the theory that he had an alternative entry date, since the weekly bulletin of the Chicago Downs Association (of which Sportsman Park is a member) for the week of May 21 through May 29, showed the entries for the "Cardinal" would close on May 24 for that race. This bulletin was not an official published "condition" of the race, but the date of May 24 was printed in the schedule of events to be run off, if any elimination race was necessary. As explained in the official "conditions" for the race, the actual entry closing date was May 17, unless more than 12 horses entered the race. If more than 12 horses were entered an elimination heat would be required which would be run three days (not including Sundays) before the scheduled race date of May 28. The stewards again rejected the entry for Brookes Pride entered on May 24, holding that all information prior to the entry date of May 17 sent out by the Department of Agriculture had indicated that the closing date would be May 16 (or, as extended by the stewards, May 17) and that an elimination race, or heat, would be necessary only if there were more than 12 horses entered. Since only seven horses (or eight, if Brookes Pride was considered) were entered in the Cardinal Stakes, the alternate date of May 24 was irrelevant. In other words, the stewards held that if less than 12 horses were found to have been entered by May 17, the alternate date of May 24 was irrelevant, since that date was only applicable if an elimination race was required.
After the State stewards had ruled that Brookes Pride had not been properly entered and could not race in the Cardinal Stakes, Heavner sought a temporary restraining order enjoining the management at Sportsman Park from interfering with the running of Brookes Pride in the Cardinal Stakes. The temporary restraining order was granted and Brookes Pride ran in the race and finished second, which entitled his owner to 25% of the purse, that being in excess of $60,000. Heavner then filed a petition with the Board to review the ruling of the stewards of Chicago Downs Association declining to allow the entry of Brookes Pride in the Cardinal Stakes and withholding the Heavner share of the purse earned by that horse.
At the hearing before the Board, Heavner contended that he should have been allowed to enter Brookes Pride on May 24, since that entry date was printed in the Chicago Downs Bulletin of racing events for the week of May 21 through May 29, which created a conflict of dates and in accordance with the Board's Rule 9.10 he should have been allowed to use the more favorable date. He also contended, in accordance with Jim Herman's testimony, that the horse had actually been entered on May 17 and that in any event the Board had waived strict compliance with the entry rules because the State stewards representing the Board and Chicago Downs had violated the Board's own rules in conducting the race, and thereby lost the authority to enforce such rules. Heavner specified Rules 6.04, 9.10, 9.11 and 12.21 of the Board as having been violated by the stewards and officials at Sportsman Park in the running of the Cardinal Stakes.
"No official, acting as a judge, shall serve as racing secretary or clerk of the course at such meeting. No race official shall be qualified to act as such at any meeting where he is the owner or otherwise interested in the ownership of any horse participating at such meeting."
It was shown by the testimony at the administrative hearing that Eliot Narotsky, who was acting as assistant to the racing secretary, Langley, had acted as a patrol judge occasionally at Sportsman Park. The Board held there was no violation of the rule in that, since Narotsky was not "racing secretary."
As to Rule No. 9.10, to the effect that where there is a conflict in published conditions, the date more favorable to the nominator (Heavner) shall govern, the Board held this rule was not violated since the weekly racing bulletin of the Chicago Downs Association did not constitute a published condition of the race. Moreover, the Board found that Heavner was very well aware of the correct closing date for entries in the Cardinal Stakes and had shown this by his testimony that his trainer, Jim Herman, claimed to have entered Brookes Pride in the race on May 17. Heavner admitted that he had been under the impression that Herman had entered the horse on May 17 and he had commented to other persons that perhaps Herman had "blown it," thus implying that he had intended to enter the horse on May 17 but had inadvertently failed to do so.
Rule No. 9.11 provides that the "condition books," that is, the official rules and conditions applying to the particular race, were required to be printed and available to the horse owners at least 24 hours prior to the closing date for entries. The "condition books" for Cardinal Stakes were not available in this case until about 11 p.m. on May 16, whereas these books should have been ready by 6 p.m. on that date to allow 24 hours before the closing date of 6 p.m. on May 17. Heavner testified that he would have entered the horse on May 16, around 6 p.m. when he was present at the racing office if the books had been available. The Board found that there had indeed been a lag of several hours in publishing the condition books but that this was an unavoidable accident due to a breakdown in the Xerox machine, which required several hours to repair. Moreover, the Board pointed out that Heavner had the information published in the condition books ...