The opinion of the court was delivered by: Kocoras, District Judge:
This matter comes before the Court on the plaintiffs' motion
for summary judgment. Plaintiffs seek an order declaring
Illinois' Thoroughbred Rule 322 and Harness Racing Rule 25.19
unconstitutional under the Fourth and Fourteenth Amendments,
permanently enjoining defendants from engaging in certain acts
under the authority of those Rules, and holding defendants
liable for authorizing and conducting unlawful stops and
searches. Defendants oppose plaintiffs' motion and request
summary judgment in their favor. For the reasons which follow,
the plaintiffs' motion is granted in part and denied in part.
The plaintiffs in this action are Don Serpas, Raymond
Johnson, and Carl Waters, individually and on behalf of the
class of all occupation licensees of the Illinois Racing Board
who serve as exercise persons, grooms, and hotwalkers at
Illinois race-tracks (the plaintiffs).*fn1 Each named
plaintiff lives in residential quarters at Arlington Park
Racetrack provided to him in connection with his work. The
defendants are former and present members of the Illinois
Racing Board, the director of the Illinois Department of Law
Enforcement (IDLE), and unknown agents of IDLE. On a motion
for a preliminary injunction, the plaintiffs challenged the
constitutionality of certain searches conducted under the
authority of Thoroughbred Rule 322 and Harness Rule 25.19 (the
Rules).*fn2 The plaintiffs made three arguments against the
Rules' application and challenged: (1) the warrantless
searches of their residences; (2) the investigatory stops and
searches of their persons within the race track enclosure; and
(3) the conditioning of their occupation licenses upon their
consent to such searches. On June 16, 1983, this Court granted
the plaintiffs' motion and preliminarily enjoined the
challenged activities. Serpas v. Schmidt, Memorandum Opinion
(N.D.Ill. June 16, 1983) (hereinafter Mem. Op.).*fn3
Plaintiffs now move for summary judgment and defendants have
made a cross-motion for summary judgment as well. Summary
judgment shall be granted when the record shows that "there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56. The underlying facts and all inferences to
be drawn from them must be viewed in the light most favorable
to the party opposing the motion. Fitzsimmons v. Best,
528 F.2d 692, 694 (7th Cir. 1976). A material question of fact is one
which is outcome determinative under the governing law. Egger
v. Phillips, 710 F.2d 292, 296 (7th Cir. 1983). Whether there
is a disputed question of fact to be presented to the trier of
fact is, in the first instance, a question of law for the Court
The legal issues in the action fall into three parts: (1)
whether Fourth Amendment protection is afforded plaintiffs
during warrantless searches of their living quarters; (2)
whether the investigatory stops and searches of the
plaintiffs' person while in the race track enclosure are
unconstitutional under the Fourth Amendment; and (3) whether
the Rules unconstitutionally condition the occupation license
on consent to the searches.
I. Warrantless Residential Searches
In issuing the preliminary injunction, this Court placed the
burden upon the defendants to show their warrantless
residential searches, taken pursuant to the Rules, fell into
a recognized exception to the warrant requirement of the
Fourth Amendment. See Camara v. Municipal Court, 387 U.S. 523,
87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In opposing the
plaintiffs' summary judgment motion, defendants now contest the
initial premise that the Fourth Amendment is applicable at all
to the plaintiffs' allegations. Defendants assert that the
searches take place within the context of the horse racing
industry, an industry with such a long history of regulation
that "no reasonable expectation of privacy exists within the
industry." United States v. Harper, 617 F.2d 35 (4th Cir.
1980). Therefore, defendants argue, plaintiffs are without any
reasonable expectations of privacy and are necessarily outside
the scope of Fourth Amendment protection. Defendants rely upon
a variety of factors — a long history of warrantless racetrack
searches, the public and plaintiffs' knowledge of the searches,
and the "commercial" nature of the plaintiffs' living quarters.
This reliance is misplaced.
Without doubt, defendants accurately assert that horse
racing is a highly regulated industry and that the State has
an interest in maintaining the industry's integrity.
Phillips v. Graham, 86 Ill.2d 274, 427 N.E.2d 550 (1981).
Moreover, the Supreme Court has clearly recognized that
warrantless searches in closely regulated industries can be
reasonable. Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct.
2534, 2538-39, 69 L.Ed.2d 262 (1981). Under this exception to
the Fourth Amendment's warrant requirement, courts have found
that by accepting the benefits of a highly regulated trade, an
individual also accepts the burden of regulation and thereby
consents to administrative investigations or inspections.
Marshall v. Wait, 628 F.2d 1255, 1258 (9th Cir. 1980).
Therefore, the individual operating within a highly regulated
industry can have no reasonable expectation of privacy as least
as to administrative inspections. Id. (emphasis added).
From this administrative inspection case law, defendants
conclude that plaintiffs cannot have a reasonable expectation
of privacy in their living quarters located within the
racetrack grounds. To accept this conclusion, this Court must
accept defendants' necessary first premise — that the
warrantless searches of plaintiffs' living quarters are
administrative inspections. This court cannot accept the
characterization of the residential searches as administrative
inspections because: (A) the warrantless searches are conducted
on private, residential premises, not commercial premises; (B)
the statute's language in this case does not provide an
adequate substitute for a warrant; (C) the regulatory scheme
present does not provide an adequate substitute for a warrant;
and (D) a balance of plaintiffs' privacy interests and the
Government's enforcement needs favors the plaintiffs.
(A) Residential Nature of Plaintiffs' Quarters
The detailed description of the dorm rooms does not persuade
this Court that they qualify as a commercial premise for
purposes of the Fourth Amendment. The crucial quality which
the rooms possess is their exclusive residential use.
Serpas v. Schmidt, Mem.Op. at 8-10. The other details of the
plaintiffs' living conditions cannot deprive them of their
constitutional rights to be free of unreasonable searches in
their homes. The courts have viewed rooms similar to
plaintiffs' quarters as homes. These rooms include hotel rooms,
boarding house rooms, and college dormitory rooms. See, e.g.,
Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11
L.Ed.2d 856 (1964); Smyth v. Lubbers, 398 F. Supp. 777
(W.D.Mich. 1975). Such private rooms have been found to be
homes and residences although they share the very qualities the
defendants argue make them "commercial": they are small,
temporary, and accessible by a master key. The plaintiffs'
rooms' proximity to the barns and stalls do not make them
commercial; they are used for residential purposes exclusively.
Defendants, however, analogize the warrantless searches of
plaintiffs' rooms to the warrantless searches of the baggage
of persons boarding airlines, United States v. Bonstein,
521 F.2d 459 (2d Cir. 1975), cert. denied 424 U.S. 918, 97 S.Ct.
1121, 47 L.Ed.2d 324 (1976); of persons entering courtrooms,
McMorris v. Alioto, 567 F.2d 897 (9th Cir. 1978); of prison
guards, United States v. Sihler, 562 F.2d 349 (5th Cir.
1977); and of a parolee's residence pursuant to a consent
provision in his parole terms, United States v. Dally,
606 F.2d 861 (9th Cir. 1979). These cases do not change the nature of
the plaintiffs' quarters. The cases generally involve searches
on public property — an airport, a courtroom, a prison. The
search of a parolee in Dally was governed by the terms of a
search consent which was a condition of a prisoner's parole.
The Dally search was not characterized as an
administrative inspection. Plaintiffs' situation is not
analogous to individuals on parole from prison.
Therefore, the plaintiffs' living quarters are residential,
not commercial. Their temporary and crowded conditions do not
change their nature. Although employed in a highly-regulated
industry, the plaintiffs possess the constitutional right to
be from unreasonable searches in their homes.
(B) Statutory Authority for the Searches
In other highly regulated industries, warrants are not
required where statutory language authorizes the terms and
conditions of searches of particular premises. Donovan v.
Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981)
(mining industry); United States v. Biswell, 406 U.S. 311, 92
S.Ct. 1593, 32 L.Ed.2d 87 (1972) (gun dealers); Colonnade
Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25
L.Ed.2d 60 ...