Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 16, 1984.
Plaintiff, Gale D. Kline, appeals from the decision of the circuit court of Cook County which upheld the determination of the Illinois Racing Board (Board) to suspend plaintiff's "occupation license" for two concurrent 90-day periods and to order a forfeiture and redistribution of the purse money for two races won by plaintiff's horse, Lu's Priority. The Board found that plaintiff had violated the rule which requires an owner to guard his horse and the rule prohibiting a horse from carrying a "foreign substance" in its body during a race.
The Board and stewards are charged with regulating Illinois horse racing pursuant to the Horse Racing Act (Ill. Rev. Stat. 1979, ch. 8, par. 37-1 et seq.). The stewards are representatives of the Board and supervise races. They have authority to investigate alleged violations of Board rules, to determine whether the rules have, in fact, been breached, and to impose punishment therefor. The stewards' decisions may be appealed to the Board for a de novo hearing. The Board's decision is appealable to the circuit court for administrative review. Ill. Rev. Stat. 1979, ch. 8, par. 37-16.
Plaintiff is a licensed owner-trainer of standardbred racehorses (trotters). He resides, and stables his horses, in Michigan. The subject horse won the eighth race at Balmoral Park on October 8, 1982, and the fourth race at Maywood Park on October 15, 1982. Both races were run at night. Tests by the Board of the horse's urine after each of the two races disclosed the presence of scopolamine in the horse.
An initial "steward's ruling" was issued on December 30, 1982, with regard to the October 8 race. The ruling found that plaintiff had violated two Board rules, Rule C9.4, which bans foreign substances in horses, and Rule C9.20, which requires trainers to guard their horses prior to a race. The same horse also tested positive for the presence of scopolamine following the October 15 race, but before the steward's inquiry was completed the parties agreed to consolidate the findings from both races in plaintiff's de novo appeal to the Board.
Plaintiff's hearing before the Board took place on January 19, 1983. Before any testimony was taken, the parties stipulated to the following facts: that the horse's urine samples taken after the two races in issue showed the presence of "scopolamine"; the testing was properly administered; prior to the two races in question, plaintiff had caused the horse to be guarded except for a period of 35-40 minutes before each of the two races; if plaintiff's veterinarian were to testify, he would state that he is the sole veterinarian for this horse and he had administered no medication to Lu's Priority except for a single unrelated vaccination; the horse was fed hay grown on plaintiff's farm; and that testing on the hay demonstrated the presence of jimsonweed.
The first witness was Dr. Paul B. Smith, a veterinarian for the Board. He testified: "Scopolamine" is a very potent drug and is classified as a central nervous system stimulant. Horses become "excited" by it. Depending upon the dosage, scopolamine may affect a horse, ranging from causing death to no effect at all. The drug is used to slow the action of a horse's "gut"; it is an "old time" remedy used to alleviate a case of "heaves." One source for scopolamine is the poisonous plant jimsonweed.
In Dr. Smith's opinion, scopolamine could be found at a racetrack in two medications: "BySol M," a product used to cure diarrhea which is "not commonly" now used, and "Bells," a remedy which is sometimes used by lay persons to alleviate colic when a veterinarian is not available. Bells is a powerful stimulant and has, in the past, been used to improperly stimulate a horse before a race. Dr. Smith testified that a horse "injected with a therapeutic dose" of scopolamine would not be raceable because the strong effects of the drug would cause his eyes to dilate and he would become extremely excited or nervous.
Dr. Smith testified that horses find jimsonweed very distasteful. They resent being near it due to its "particular odor" and will not eat it. It is possible, of course, that a horse would "inadvertently" eat hay containing jimsonweed if the latter is in small concentration. If a small dose of scopolamine was ingested by a horse, it could take three to four hours to affect the horse, and the effect would be "slow and subtle." Also, when a horse has ingested the drug over a period of time, he would build up a tolerance for it. If even a small dose of scopolamine is "injected" into a horse, his eyes will become dilated and his mouth will become dry. The dilation of the pupils will make the horse particularly sensitive to light, making it difficult to race at night under the lights.
Dr. Smith testified that he observed Lu's Priority after each of the races in issue and that the horse was "frisky." He did not look for, nor see, any dilation of the horse's eyes.
Plaintiff was the only other witness to testify. He stated that Lu's Priority had not been under medication for any illness. He said he had not even heard of scopolamine before these two incidents. He found no products on his farm which included scopolamine as an ingredient. Jimsonweed is common in his farm area.
The parties submitted written memoranda to the Board.
On February 17, 1983, the Board issued its written decision. The Board found that Kline had violated the Board rules and suspended Kline's occupation license for 90 days and ordered redistribution of the purses from the two races. The Board found, inter alia, that Kline's admission that he left his horse unguarded for 35 to 40 minutes before each of the two races in ...