Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 30, 1985.
Plaintiff, Harvey Margulis, owned the winning horse, C.C. Sun, in whose post-race urine sample an unauthorized "foreign substance," the drug procaine, was discovered. For this reason, defendant Illinois Racing Board (Board) disqualified the horse, canceled and redistributed the winning purse. Plaintiff appealed to the circuit court, which reversed the Board's decision. The circuit court held that the applicable State statute and Board rules had not been violated because the quantity of the drug procaine in the horse did not have a "therapeutic effect" on the horse during the race. This appeal followed. We reverse.
The Board contends before this court that the rules of the Racing Board (1) prohibit the presence of a foreign substance in a horse during a race, regardless of its effect on the horse during the race; (2) disqualify a winning horse in which a foreign substance is found; and (3) require redistribution of the winning purse, all of which is designed to promote and protect fair and honest horse racing.
Section 37-36(a) of the Illinois Horse Racing Act of 1975 prohibits the administration to any horse of "a hypnotic, narcotic, stimulant, depressant or any chemical substance which may affect the speed of a horse at any time, except those chemical substances permitted by ruling of the Board * * *." Ill. Rev. Stat. 1981, ch. 8, par. 37-36(a).
Illinois Horse Racing Board Rule C9.4 states:
"No horse participating in a race shall carry in its body any foreign substance (irrespective of when administered or injected), except as provided in Rule C9.9 (a)."
Section (a) of Rule C9.9, entitled "Permitted Use of Foreign Substances," sets forth the limited exceptions under which a nonsteroidal anti-inflammatory drug may be present in a horse at controlled levels, and the rule sets forth the external liniments and leg paints which may be applied to a horse. Any "caine" derivative (such as a procaine) is expressly prohibited. Rule C9.9(a) states in part:
"(a) Non-steroidal Anti-Inflammatories (NSAID).
Only one non-steroidal anti-inflammatory drug (NSAID) may be present in a horse's body while it is participating in a race. The presence of more than one NSAID at any test level is forbidden. The only foreign substance which now meets the criteria established in Rule C9.8 ["Future Additions to Permitted List"] is phenylbutazone.
(b) The following foreign substances may be administered externally to a horse entered to a race: leg paints and liniments which do not contain ethyl-aminobenzoate, or do not contain any "caine" derivatives, and which can be applied topically without penetrating the skin."
Future additions of authorized drugs are provided for in Rule C9.8, which authorizes the Board to permit the use of a foreign substance "of accepted therapeutic value * * * as prescribed by a veterinarian when test levels and guidelines for its use have been approved by the Board * * *."
On October 4, 1982, plaintiff Harvey Margulis' horse, C.C. Sun, finished first in the second race at the Hawthorne Race Course in Cicero. On November 4, 1982, the Board of Stewards, who, along with the Illinois Horse Racing Board, are charged with regulating Illinois horse racing (Ill. Rev. Stat. 1981, ch. 8, par. 37-3.19) declared C.C. Sun disqualified and ordered redistribution of the winning purse. This finding was based on a report from the Illinois Racing Board laboratory, the official testing agency of the Board, that a urine sample from C.C. Sun showed the presence of procaine. Plaintiff appealed this decision to the Board on November 8, 1982, and a de novo hearing was convened on March 7, 1983.
In the interim, a portion of the urine sample taken from C.C. Sun was sent to the laboratory at the University of Kentucky in Lexington. Dr. J.W. Blake, associate professor in the department of veterinary science at the university, found that the sample contained 23 nanograms of procaine per milliliter of urine. A ...