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DIMEO v. GRIFFIN

August 25, 1989

VINCENT DIMEO, et al., Plaintiffs,
v.
FARREL J. GRIFFIN, et al., Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE.

 Vincent Dimeo ("Dimeo"), James Kinnard ("Kinnard"), William Knott ("Knott"), Brent Bullard ("Bullard") and James Curran ("Curran") have brought this class action *fn1" against the nine members of the Illinois Racing Board ("Board"), *fn2" charging that various provisions of Board's Substance Abuse Rule (the "Rule") *fn3" violate the Fourth Amendment's prohibition against unreasonable searches and seizures. *fn4" On February 25, 1988 this Court conducted an evidentiary hearing on Plaintiffs' Emergency Motion for Temporary Restraining Order and Preliminary Injunction. Based on that hearing this Court issued a temporary restraining order ("TRO") that, among other things, enjoined defendants from conducting random urine tests or any other urine tests without specific articulable facts that meet an objective standard of probable cause. *fn5" By agreement of the parties the TRO was extended beyond the ten-day period prescribed by Fed. R. Civ. P. ("Rule") 65(b) and remains in effect pending disposition of the motion for a preliminary injunction.

 Both sides have (at long last) submitted proposed findings of fact and conclusions of law as well as extensive evidentiary submissions bearing on the propriety of a preliminary injunction to supplant the TRO. This Court now finds the facts specially and states its conclusions of law, as required by Rule 52(a), in the following Findings of Fact ("Findings") and Conclusions of Law ("Conclusions"). *fn6"

 FINDINGS OF FACT

 Board's Authority Under the Act

 1. Act para. 37-15(a) authorizes Board to issue, in its discretion, occupational licenses to persons "whose work, in whole or in part, is conducted upon race track grounds within the State which are owned by race track organizations."

 2. Board may refuse a license to any person (Act para. 37-15(c), quoted verbatim):

 
(1) who has been convicted of a crime;
 
(2) who is unqualified to perform the duties required of such applicant;
 
(3) who fails to disclose or states falsely any information called for in the application;
 
(4) who has been found guilty of a violation of this Act or of the rules and regulations of the Board; or
 
(5) whose license or permit has been suspended, revoked or denied for just cause in any other state.

 3. Board may suspend or revoke a license (Act para. 37-15(d), quoted verbatim):

 
(1) for violation of any provisions of this Act; or
 
(2) for violation of any of the rules or regulations of the Board; or
 
(3) for any cause which, if known to the Board, would have justified the Board in refusing to issue such occupation license; or
 
(4) for any other just cause.

 4. Act para. 37-9(b) vests Board:

 
with the full power to promulgate reasonable rules and regulations for the purpose of administering the provisions of this Act and to prescribe reasonable rules, regulations and conditions under which all horse race meetings in the State shall be held and conducted. Such reasonable rules and regulations are to provide for the prevention of practices detrimental to the public interest and for the best interests of horse racing and to impose penalties for violations thereof.

 5. Board "may eject or exclude from any race meeting or organization grounds or any part thereof, any occupation licensee whose conduct or reputation is such that his presence on organization grounds may, in the opinion of the Board, call into question the honesty and integrity of horse racing or interfere with the orderly conduct of horse racing" (Act para. 37-9(e)). "Race meeting" is defined as (Act para. 37-3.07):

 
the whole period of time, whether consecutive dates or those instances where nonconsecutive dates are granted for which an organization license to race has been granted to any one organization by the Board.

 6. Board may impose civil penalties of up to $ 5,000 against individuals and up to $ 10,000 against organizations for violations of the Act, for violations of Board rules or orders, or for "any other action which, in the Board's discretion, is a detriment or impediment to horse racing" (Act para. 37-9(l)).

 7. Pursuant to its authority granted by the Act, Board promulgated the Rule as well as the Guidelines for the Implementation of the Illinois Racing Board Substance Abuse Rule ("Guidelines"). *fn7"

 Relevant Rule and Guideline Provisions

 8. Rule § 508.10(b) asserts the Rule's purpose is:

 
to prevent practices in horse racing that are detrimental to the public interest, to promote the best interests of horse racing, and to cooperate in the establishment of a national substance abuse rule for racing as proposed by the National Association of State Racing Commissions.

 9. Board has a twofold stated concern with drug use in the racing industry (Rule § 508.10(c), quoted verbatim):

 
1) the impact on an individuals ability to perform his duties; and
 
2) the addiction which may make the individual peculiarly susceptible to bribes or other improper influences.

 10. Rule §§ 508.30-508.40 outline the procedures for testing for alcohol. Class Plaintiffs do not challenge those aspects of the Rule.

 11. Rule § 508.50(a) prohibits the "use on the grounds of any race track [of] any Controlled Substance or any prescription drug unless such substance was obtained directly, or pursuant to a valid prescription or order from a licensed physician." That prohibition applies specifically to Jockeys, Drivers, Starters, Assistant Starters and Outriders *fn8" (id.; Guidelines § II).

 12. To implement that provision, Rule §§ 508.50 and 508.80 provide for two kinds of urine testing: testing based on individualized suspicion and testing at random (see also Guidelines § II). Because random testing is obviously more problematic in constitutional terms, it will be considered first.

 Random Testing

 13. Board determines the volume and frequency of random testing at each race meet, as well as which selected racing programs are subject to testing (Guidelines at 2).

 14. Random testing begins by placing the names of all Class Plaintiffs who appear as participants on the official program in a locked container secured by the race stewards (id.).

 15. Next a steward draws up to five names from the container, with a representative of the Jockey's Guild ("Guild"), the Illinois Horsemen's Benevolent and Protective Association or the Illinois Harness Horsemen's Association having been invited to witness the selection process (id.; Rule § 508.80(c)).

 16. Then the stewards locate and notify the individuals selected for random testing. Each individual selected must report to the designated sample collection area and provide a urine sample to the stewards or their designee before the last race on that day's racing program (Guidelines at 2; Rule § 508.80(d)).

 17. No licensee is required to provide a sample more than three times in a race meet (Guidelines at 2; Rule § 508.80(e)). Board has also now agreed (though this appears nowhere in the Rules or Guidelines) that a licensee will not be randomly tested more than five times per year (D.R. Mem. 9). If a name is drawn more than three times in any meeting (or presumably more than five times in any year) the stewards will disregard the selection, return the name to the container and draw another name (Guidelines at 2-3; Rule § 508.80(e)). To implement that limitation the stewards must maintain a confidential log of all licensees selected for random testing (Guidelines at 3).

 18. Any licensee subject to testing based on individualized suspicion will receive written notice from the stewards stating he or she will be tested and the reason for such testing (Guidelines at 3).

 19. Individualized-suspicion testing must be based on a finding that the licensee is under the influence of drugs. On that score Guidelines at 3 provide (quoted verbatim):

 
Such a finding by the stewards shall be based upon corroborated evidence or observable phenomena, such as direct observation of drug use or possession and/or physical symptoms of being under the influence of alcohol or drugs such as erratic behavior. These are examples of conduct which would satisfy individualized suspicion standards, however, this list is non-inclusive.

 Urine Collection and Testing Procedures

 20. Any licensee selected for urine testing (either random or individualized-suspicion) must present himself or herself to the designated collection site, which is secured by Board representatives: No unauthorized personnel are permitted in any part of the site where urine specimens are collected or stored (Guidelines at 4).

 21. Before providing the sample the licensee must present personal identification. As for the sample itself, it may be provided in the privacy of a stall or other partitioned area that allows for individual privacy. Before entering the stall the licensee must remove all unnecessary outer garments and leave personal belongings outside. Bluing agents are added to the toilet water to prevent adulteration (Guidelines at 4).

 22. Upon receiving the specimen from the licensee, the Board representative determines whether it contains a minimum of 50 milliliters of urine (one-half of the bottle). If not, the licensee may return later in the day (but before the last race) to provide a sufficient sample. If unable to provide a sample on the day selected, the licensee may be requested to return the next day (Guidelines at 4).

 23. Once the Board representative receives the specimen he or she must check for signs of tampering (such as obvious temperature or color difference). Then the representative separates the specimen into two parts, a "laboratory" sample and a "referee" sample. Only the laboratory sample is tested initially (Guidelines at 6; Rule § 508.50(d)).

 24. Both specimen bottles are then sealed and tagged. Board maintains stringent procedures for assuring the chain of custody of the sample, and the licensee is required to verify that he or she has witnessed the identification, splitting and sealing procedures by signing a form provided by Board (Guidelines at 5-6; Rule § 508.50(c)). All sealed urine specimens are kept in a locked refrigerator pending pickup by the laboratory (Guidelines at 7).

 25. After analyzing the "laboratory" sample for possible adulteration, the laboratory screens the urine using an immunoassay test that meets FDA requirements for commercial distribution (Guidelines at 8). Immunoassay testing uses antibodies to detect the presence of similar drugs and their metabolites in the urine (Id.). In this instance the test screens for "Controlled Substances," defined as any substance listed in 21 U.S.C. § 812 (not including later amendments to that statute) (Rule §§ 508.20, 508.50(a)). 26. When the concentration level of any of the following substances meets the indicated cut-off level, the test is considered "positive" (Guidelines at 8): Marijuana metabolites n9 100 ng/ml Cocaine metabolites 300 ng/ml Opiates 300 ng/ml Amphetamines 1,000 ng/ml Barbituates 300 ng/ml

 Except for marijuana metabolites, those test levels are subject to change as advances in technology permit identification and quantification at lower concentrations (id.) As for marijuana metabolites, the level is set at 100 ng/ml to reduce the chance that a licensee ...


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