Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Cook County affirming in part and reversing in part a decision of defendant, the Illinois Racing Board, that suspended the occupation license of plaintiff, James "Derry" Ray, for 270 days, imposed on plaintiff a fine of $6,000, and ordered forfeiture of the purse money won by two of plaintiff's horses in which laboratory tests had revealed the presence of a prohibited drug. The Illinois Racing Board appeals the circuit court's reversal of the civil penalty, the $6,000 fine; plaintiff cross-appeals the circuit court's affirmance of the suspension of his occupation license; neither party appeals the affirmance of the forfeiture of the purse money won by plaintiff's horses.
The issues presented for review are (1) whether the civil penalty was imposed by the Racing Board in violation of plaintiff's due process rights because no fine had been recommended by the Racing Board stewards who held the first hearing on the matter; and (2) whether the harness racing rule for violation of which plaintiff was penalized is unconstitutional because it imposes liability without fault.
We affirm that portion of the circuit court's order that upholds the suspension of plaintiff's occupation license and reverse the portion that reverses the civil penalty.
Plaintiff is licensed by the Illinois Racing Board as a driver, trainer, and owner of harness horses. In November and December, 1978, the Illinois Racing Board laboratory issued three reports indicating that an illegal drug, despropionyl fentanyl, was present in the post-race urine sample taken from two horses trained by plaintiff. The drug had been detected in Craig's Champ on November 1, 1978, and November 17, 1978, and in Barker Black on November 4, 1978, after the horses had raced at Balmoral Park. Despropionyl fentanyl is a metabolite of fentanyl, a controlled substance commonly known as sublimaze, a powerful stimulant and analgesic.
A hearing on the matter was held by the Illinois Racing Board stewards at Balmoral Park after these reports were issued. The stewards found that plaintiff had violated Illinois Racing Board Harness Rule 21.19, which provides:
"Every owner, trainer, groom or caretaker must guard or cause to be guarded each horse owned, trained or attended by him in such a manner as to prevent any person from administering to such horse any chemical substance in violation of these rules."
On February 14, 1979, the stewards ordered that plaintiff be denied the privilege of harness racing under the temporary status he had been granted during their investigation and hearing and recommended to the Illinois Racing Board that his application for a 1979 license be denied and no 1979 license application accepted for 270 days. They also ordered the purse money won by the drugged horses forfeited and returned to the stewards for redistribution.
On February 20, 1979, plaintiff requested a de novo hearing on the matter before the Illinois Racing Board. The requested hearing was held before a hearing officer on May 8, 1979, and final arguments were heard by the full board on June 14, 1979. On June 14, 1979, the Board issued a written order finding that plaintiff had violated the rule quoted above by failing to guard the horses in that he routinely left them unattended for five to six hours every day, although he realized that security at Balmoral Park had been lax for several years and he had observed unguarded entrances through which any stranger could enter the barn area. The Board imposed a one-year suspension of his occupation license and a $2,500 civil penalty for each of the three violations, with the suspensions to be served concurrently. The Board also ordered that the purse money be forfeited and returned to the stewards for redistribution.
On July 19, 1979, plaintiff filed a complaint for administrative review of the Board's decision. (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) A hearing was held in the circuit court of Cook County on October 15, 1979, during which the trial judge stated that the stewards had no authority to impose a fine; the Illinois Horse Racing Act of 1975 gave authority to impose a fine only to the Board itself. (Ill. Rev. Stat. 1979, ch. 8, par. 37-9(1).) The trial judge remanded the case to the Racing Board "for findings, if any, as to a reason for imposing an increased punishment."
The Board's attorney thereupon filed a memorandum setting forth its position that the hearing before the Board had been a hearing de novo rather than a hearing on the record adduced at the steward's hearing, and that such a de novo hearing should be had with the same effect as if no prior action had taken place. The penalty imposed by the stewards was therefore irrelevant, since the Board was limited to consideration of the evidence presented in the de novo hearing in determining what penalty should be imposed on plaintiff.
On November 15, 1979, the Board held another hearing, at which no additional evidence was presented but legal arguments were made. That day, the Board issued an order that again found plaintiff had violated Harness Rule 21.19, but "after reconsideration of this matter and of the mitigating factors * * * including the fact that Ray had no prior major offenses involving medication and his relative youth," imposed a reduced penalty consisting of a 90-day suspension and a $2,000 fine for each violation and forfeiture of the purse money. The suspensions were to be served consecutively, with credit for the 10 days already served.
The memoranda, transcript, and order were filed in the circuit court as a supplemental answer by the Board, and a hearing was held on April 14, 1981. The court affirmed the 270-day suspension but reversed the $6,000 fine on the authority of Burton v. Civil Service Com. (1979), 76 Ill.2d 522, 394 N.E.2d 1168, which held that an administrative department disciplining an employee could not increase the punishment for an incident of misconduct after it had once imposed a final penalty for the same misconduct. ...