Appeal from the Circuit Court of Cook County; the Hon. Arthur
L. Dunne, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
After the racehorse Chris Time Pick won four races and Poco Perry won a fifth race, defendant Illinois Racing Board discovered an unauthorized drug in the two horses, which were owned by plaintiff Infinity Stables, Inc., and trained by plaintiff Susan D. Janisch. The Board stewards disqualified the horses, redistributed the purses, imposed fines and suspended Janisch's license. Plaintiffs appealed to the Board, which conducted a hearing de novo and affirmed the decision of the stewards. Plaintiffs sought administrative review in the trial court, which upheld the board's rulings as to three of the races, and set aside the rulings as to two of the races. The Board appeals the adverse ruling of the trial court regarding those two races.
The Board's Medication Rule C9.15 requires the Board's laboratory to test every winning horse's urine for foreign substances. Chris Time Pick won races on June 22, July 5, July 18, and July 28, 1983. Poco Perry won a race on June 28, 1983. Urine samples were obtained and tested after each race.
The June 22 urine sample was found to be negative, while the June 28 sample was found to have a suspect grey spot. All suspect spots were routinely checked on a machine called a mass spectrometer. The laboratory owned one mass spectrometer, and testing was scheduled in accordance with priorities discussed below. The laboratory chemist, Kerry Even, testified that the June 28 sample was not tested immediately because the spots were not strong, and because similar spots had never proved to be caused by a drug. The June 28 sample was scheduled along with other routine tests to be performed on the mass spectrometer.
The July 5 urine sample was found to be negative. The July 18 urine sample was found to be suspect because of grey spots, although the spots were not overly vivid. The July 18 sample was scheduled for further routine testing on the mass spectrometer.
Ten days later, the sample taken after the final race on July 28 clearly revealed the presence of naproxen on the first screening. Naproxen is a nonsteroidal anti-inflammatory agent which reduces swelling. Research has begun in Illinois to establish acceptable blood levels of the drug in racing horses. Thus far, however, no levels have been established or approved and any amount of naproxen in a racing horse remains prohibited under the Medication Rules. The spot in the July 28 sample was large and met naproxen standards. The sample, therefore, was scheduled immediately for testing on the mass spectrometer. Because the laboratory personnel remembered that the July 18 sample had also shown a suspect spot which could be naproxen, it was also immediately tested on the mass spectrometer. The tests confirmed that both the July 18 and 28 samples contained naproxen. The laboratory did not attempt to determine the amount of naproxen in the samples because any amount was prohibited.
The laboratory informed the Board stewards of the positive results and an inquiry was convened. The stewards directed the laboratory to back-test the June 22, June 28 and July 5 samples. The mass spectrometer showed that each sample contained naproxen.
The inquiry revealed that Janisch had been giving naproxen to Chris Time Pick for osteoarthritis. A veterinarian had recommended to Janisch that she discontinue using the drug 72 hours prior to racing. It was stipulated that if a horse had liver and kidney problems, like Chris Time Pick's, the naproxen might linger in the horse's system for longer than usual.
With regard to the four Chris Time Pick races, the stewards fined Janisch a total of $800 and suspended her license for two days for violating its Medication Rules C9.4 and C9.6, which prohibit a horse's carrying of, or a person's administration of, "any foreign substance." Rule C9.4 further specifies that this prohibition exists "irrespective of when administered or injected." The stewards found that while Janisch had not given naproxen to Poco Perry, she had failed to guard the horse in violation of Rule C9.20, which requires every trainer to guard racing horses to prevent drugging. For this violation, Janisch was fined $200 and was suspended for 10 days. Plaintiffs appealed these rulings to the Board, and a hearing de novo was conducted.
At the Board hearing, plaintiffs argued that the amounts of naproxen found in the horses were too small to require penalties, and that the Board violated its own policy by delaying the naproxen testing in favor of doing research on the mass spectrometer.
With regard to the amounts of naproxen found, plaintiffs submitted a report by Dr. Thomas Tobin, a veterinarian employed by the University of Kentucky. According to the report, Dr. Tobin's analysis of the samples showed the levels of naproxen were consistent with an administration four days earlier, but that blood level analysis would be more accurate for quantification purposes. John D. McDonald, director of the Board laboratory, testified that blood level analysis would be more accurate and that he questioned the accuracy of Dr. Tobin's quantification methods.
In its decision, the Board rejected plaintiff's argument that the level was too small to constitute a violation. It held that Medication Rule C9.4 makes no exception for trace levels or small amounts of naproxen, "if indeed the amounts in the horses involved in these cases were small." The Board also noted that plaintiffs could have used the prerace testing services offered by the Board, but that plaintiffs never requested these services even though they knew Chris Time Pick was receiving naproxen.
The Board further noted that Dr. Tobin's report, which attempted to quantify the amount of naproxen in the five samples, could not be relied upon because no proper foundation had been laid. While Dr. Tobin indicated that blood levels were required for an accurate determination of the forensic significance of trace levels, plaintiffs never furnished Dr. Tobin with the blood samples, although they were available. Thus, the Board held that it would not give any weight to the low levels of the naproxen even if Dr. Tobin's methods for measuring naproxen in urine were established as being reliable.
The Board also addressed plaintiffs' argument that the laboratory had violated Board policy in using the mass spectrometer for research before performing tests on the suspect spots. In 1981, the Board established its policy for laboratory priorities. First, current samples would be tested; second, research would be conducted; and third, back testing would be completed. During the summer of 1983, when plaintiffs' horses were racing, many racing horses were being given the prohibited foreign substance ethacrynic acid, a potent diuretic. It remains detectable in the horse for only eight hours, and thus any positive post-race sample establishes race-day administration of the prohibited drug. Kerry Even testified that "the priorities had been changed and routine screening by GC mass spec was altered." He was told to let routine screening for naproxen and other acid-extracted drugs wait while he tried to increase the mass spectrometer's sensitivity and develop a test to screen for ethacrynic acid.
McDonald testified that routine tests for drugs such as naproxen were held until ethacrynic acid testing on the mass spectrometer was completed. The routine naproxen tests reduced the sensitivity of the mass spectrometer, requiring recalibration before ethacrynic acid testing could be resumed. McDonald also testified that the ...