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02/08/89 Warren J. Hansen, v. the Illinois Racing Board

February 8, 1989

WARREN J. HANSEN, PLAINTIFF-APPELLEE

v.

THE ILLINOIS RACING BOARD ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

534 N.E.2d 658, 179 Ill. App. 3d 353, 128 Ill. Dec. 476 1989.IL.150

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Illinois Racing Board (Board), appeals from an order of the circuit court of Cook County on administrative review which declared Illinois Racing Board Rule 25.19 (11 Ill. Adm. Code 1325.190 (1985)) unconstitutional on its face. The circuit court's order reversed the order of the Illinois Racing Board which had suspended the occupation license of plaintiff, Warren J. Hansen, for violation of the rule, for refusing to consent to a search of a pick-up truck allegedly within Hansen's control at the Quad Cities Downs Race Track.

On appeal defendant contends that the trial court erred in finding Rule 25.19 unconstitutional on its face, since the rule provides for a constitutionally permissible warrantless administrative search within the administrative search exception to the fourth amendment. In addition, defendant argues in the alternative that if the circuit court was correct in finding the rule unconstitutional, the trial court erred in awarding plaintiff attorney fees and costs under section 14.1(b) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b)).

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that plaintiff had been licensed by the defendant Board since 1981 as a driver, trainer, and owner of standard bred horses. Joseph Hofmann, an Illinois Department of State Police agent assigned to Quad Cities Downs Racetrack, testified before the Board that on May 24, 1987, between 11 a.m. and 1 p.m., he received a telephone call at his police office in East Moline. The phone call was from an informant who told Hofmann that Warren Hansen had two syringes on his person and that Hansen took those two syringes and put them in his pick-up truck. Hofmann knew that plaintiff had two horses to race that day at Quad Cities Downs. At around 4:30 p.m., Hofmann went to Hansen's horse barn area on the backstretch of Quad Cities Downs. Hofmann knew that plaintiff had a horse in the eighth race and that the horse had been "specialed," that is, that a urine sample was taken. Hansen arrived in the barn area around 4:45 p.m. Hofmann then observed a woman approach a red and white pick-up truck parked near the barn. Hofmann asked if she was Mrs. Hansen, and when she replied affirmatively, Hofmann asked her to return to the barn area. Hofmann was accompanied by the assistant steward of Quad Cities Downs Racetrack and the backstretch director of security.

When Hofmann and the others entered the barn, plaintiff and two other men were present. Hofmann identified himself as a police officer and requested permission to conduct an Illinois Racing Board administrative tack search. Plaintiff asked what an administrative search was, and Hofmann responded that it was a search of everything that was under plaintiff's control at Quad Cities Downs. Plaintiff consented to the search and signed the Illinois State Police consent-to-search waiver form. Hofmann then searched plaintiff's person and plaintiff's tack boxes, feed room, and equipment. Nothing was discovered. Hofmann then requested to search the pick-up truck. Hofmann testified that he had seen plaintiff driving in the red and white truck onto the Quad Cities Downs backstretch area previously, and also that he had never seen plaintiff driving any other vehicle at Quad Cities Downs. Plaintiff refused to consent to a search of the truck, stating that he did not own it and he would not consent to a search of something he did not own. Plaintiff stated that the truck was registered to either his mother or his father. Hofmann asked plaintiff's wife for permission to search the truck, which permission she denied.

Hofmann then went to a telephone in or near the barn and called the racetrack's senior steward, advising him of what had happened and that plaintiff refused to consent to a search of the truck. The steward asked to speak to plaintiff. The steward asked plaintiff if he would consent to the search and plaintiff responded negatively. Hofmann again spoke with the steward, who advised Hofmann that the proper procedure was not to search the truck. He advised Hofmann to return to his vehicle and run a license plate check of the truck, which Hofmann did. The check revealed that the vehicle was registered to plaintiff's father.

On June 5, 1987, the stewards of Quad Cities Downs suspended plaintiff's license as a driver and trainer of standard bred race horses for one year for refusing to allow the search of the truck under his control. After a hearing, the Board found that plaintiff's refusal to consent to the search violated Rule 25.19, promulgated under the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37-1 et seq.). Plaintiff thereafter filed a complaint for administrative review in the circuit court. The circuit court reversed the order of the Board, finding the statute unconstitutional on its face. The court also awarded plaintiff $10,625 in fees and $151.80 in costs.

Initially we address defendant's contention that the circuit court erred in holding Rule 25.19 unconstitutional on its face. Section 9(b) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1987, ch. 8, par. 37-9(b)) grants the Illinois Racing Board "full power to promulgate reasonable rules and regulations for the purpose of administering the provisions of this Act." Pursuant to its authority under section 9, the Board promulgated Rule 25.19, which provides in pertinent part:

"(a) The Illinois Racing Board or the state steward investigating for violations of law or the Rules and Regulations of the Board, shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles, or other places within the track enclosure at which a meeting is held, or other tracks or places where horses eligible to race at said race meeting are kept, of all persons licensed by the Board, and of all employees and agents of any race track operator licensed by said Board; and of all vendors who are permitted by said race track operator to sell and distribute their wares and merchandise within the race track enclosure, in order to inspect and examine the personal effects or property on such persons or kept in such stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby irrevocably consent to such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed operator, in accepting his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does ...


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