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01/30/87 Dan J. Benefiel, v. the Illinois Racing Board

January 30, 1987

DAN J. BENEFIEL, PLAINTIFF-APPELLEE

v.

THE ILLINOIS RACING BOARD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

504 N.E.2d 827, 152 Ill. App. 3d 539, 105 Ill. Dec. 542 1987.IL.91

Appeal from the Circuit Court of Cook County; the Hon. Anthony Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Following an evidentiary hearing, the defendant-appellant, the Illinois Racing Board, found that plaintiff-appellee, Dan J. Benefiel, had violated a Board rule by possessing on a racetrack hyaluronic acid, a chemical substance not approved by the Federal Drug Administration for use on horses. Benefiel, a veterinarian, was fined $500 and his occupation license was suspended for 60 days. However on administrative review the circuit court of Cook County reversed that decision as against the manifest weight of the evidence, solely because the Board failed to have the substance at issue analyzed.

We reverse.

Illinois Racing Board Medication Rule C9.12 prohibits persons from having in their possession within any racetrack any chemical substance not approved for use on horses by the FDA unless they have prior written approval from the State veterinarian. It is undisputed that on November 19, 1982, a search of plaintiff's car within the racetrack enclosure at Maywood Park disclosed three vials containing a substance labelled "hyaluronic acid for experimental use only." It is also undisputed that the Illinois Racing Board subsequently established that hyaluronic acid was not FDA-approved for use on horses and plaintiff did not have written permission to possess this drug at the racetrack. In this court the plaintiff challenges only one element of the Illinois Racing Board's finding that he violated Rule C9.12, whether the substance found in his car was in fact hyaluronic acid. Accordingly our summary of the facts will focus on the evidence relevant to that question.

About nine months before the Board's hearing, plaintiff furnished it with a response to its request to admit facts. In that document plaintiff stated:

"On or about November 19, 1982, I, Dan J. Benefiel, DVM, possessed three bottles of hyaluronic acid . . .. I possessed three vials of hyaluronic acid which were labeled 'for experimental use only' which I did not know were in my car at the racetrack because they were accidentally put in there by my assistant, Holly Sipples, who restocks and cleans out my vehicle every day to go to the racetrack."

Plaintiff extensively discussed the virtues of hyaluronic acid, referring to his review of over 150 research papers concerning the substance. He also complained that he had been unable to obtain a State veterinarian's written approval to possess the substance.

The plaintiff's statement was subsequently introduced into evidence at the Board hearing. At the hearing plaintiff's counsel called Jeremiah O'Connor, a Department of Law Enforcement agent who participated in the search of plaintiff's car. O'Connor testified that the search was made because a horse owner told them plaintiff had been administering German acid to his horse. O'Connor believed German acid to be another name for hyaluronic acid.

The plaintiff testified that his veterinary practice at the racetrack was conducted out of his vehicle, where he kept his medical supplies. At the time of the search, his assistant, Holly Sipples, was responsible for stocking the vehicle. Plaintiff was not aware that the three vials were in the car. His assumption was that Holly Sipples must have placed them there.

Plaintiff admitted that he had stored these vials in his clinic. He was contemplating performing experiments with them and had planned to send them to a laboratory for evaluation. He had not tested the contents of the vials and ...


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