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Ellison v. Illinois Racing Board

October 11, 2007

JAMES ELLISON, PLAINTIFF-APPELLANT,
v.
ILLINOIS RACING BOARD; LORNA PROPES, JAMES KANE, LOUISE O'SULLIVAN, RALPH GONZALEZ, GENE LAMB, JOSEPH KINDLON JOHN SIMON, J. GERARD PECK AND WILLIAM JACKSON, MEMBERS OF THE ILLINOIS RACING BOARD, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; JACK KUBIK, EXECUTIVE DIRECTOR OF THE ILLINOIS RACING BOARD; ROBERT MILBURN AND BRAD DYE, STATE STEWARDS; AND BEN WESSELS, ASSOCIATION STEWARD, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 CH 18598 Honorable Anthony Young, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

On December 20, 1999, defendant Illinois Racing Board (Board) suspended and excluded plaintiff, James Ellison, a horse owner, trainer and rider, from all racetracks under the supervision of the Board and revoked his licenses. The three-year suspension was dated to an incident of July 13, 1999. Plaintiff filed a complaint in administrative review pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2004)), claiming that the Board's decision was arbitrary and capricious and against the manifest weight of the evidence. Plaintiff also asserted that his constitutional rights were violated by the Board and that section 9(e) of the Illinois Horse Racing Act of 1975 (Act) (230 ILCS 5/9(e) (West 2004)) and the Board's rules were unconstitutionally vague. The circuit court affirmed the Board's ruling. For the following reasons, we affirm the Board's decision.

I. BACKGROUND

On July 13, 1999, following an incident at plaintiff's tack room and Barn 14 at Balmoral Park Racetrack (Balmoral), a hearing was held by state and Balmoral race stewards. Plaintiff was sworn and presented his story to the stewards. In addition, investigator Michael Delaney, security guard Greg Kash, and plaintiff's employee Juan Orantes also testified to the incidents of that day. Following the hearing, the stewards issued a ruling, without further facts or findings, that, pursuant to section 9(e) of the Act, plaintiff was excluded from all racetracks and wagering locations under the Board's jurisdiction. Plaintiff filed an appeal with the Board regarding the stewards' ruling. Plaintiff was denied a stay of the stewards' order, but was subsequently granted a temporary restraining order by the trial court staying that ruling during the pendency of the administrative process.

The Board held a hearing in November 1999 and called plaintiff to testify as the first of its eight witnesses. Plaintiff testified that at around noon on July 13, 1999, he was with a horse that was being treated by veterinarian Dr. Paul McCune. Delaney, an investigator hired by Balmoral, and security officer Kash, entered Barn 14 and plaintiff accompanied them to his tack room. Plaintiff testified that Delaney began inspecting the room and sorting through files. Since Delaney was taking items out of the file cabinet quickly, plaintiff moved items on his couch out of the way, including a shoe box containing an empty isopropyl alcohol bottle.

Plaintiff testified that he was holding that shoe box when McCune appeared at the door and stated that there was a problem with the horse "Beach Bound Britt." Still holding the box, plaintiff immediately left the tack room, running past McCune as he left to check on the horse. Plaintiff stated that he stopped for one or two seconds and saw the horse's leg was extended in the air in distress. Plaintiff testified that, though he just passed McCune, he next ran toward McCune's truck to find him, throwing the shoe box in the trash on the way. Plaintiff denied seeing his employee Juan Orantes or having a plastic bag of items at this time.

Delaney testified next to his experience as an investigator and his investigation of July 13, 1999, to look into allegations of illegal drugging against plaintiff. Delaney and Kash arrived at Barn 14 at around noon on July 13, 1999, to inspect "Fox Valley Admiral," a horse trained by plaintiff. After inspecting the horse, Delaney asked plaintiff if they could inspect his tack room, informing plaintiff that he could refuse. Plaintiff consented and led them to his tack room. Delaney stated that the office was disorganized and cluttered. After looking through a refrigerator and after a couple minutes of looking through files, Dr. McCune appeared and informed plaintiff that a lame horse was doing poorly.

Delaney testified that plaintiff then grabbed a "K-Swiss" shoe box with a white plastic bottle visibly protruding and ran out of the tack room. Delaney and Kash yelled at him to stop but plaintiff continued on, and the two started to chase plaintiff. Delaney saw plaintiff pause for less than two seconds by the lame horse and continue to run with the shoe box. Delaney then saw Orantes and told Kash to continue pursuing plaintiff while he pursued Orantes.

Delaney eventually found Orantes walking "semi-crouched" toward an exit. Delaney testified that he saw Orantes trying to conceal something while he retreated. When he achieved a better view of Orantes, Delaney saw that Orantes was carrying a plastic grocery bag. Orantes ducked behind a horse trailer and emerged without the bag. Delaney told Orantes to stop and grabbed him when he failed to respond. Delaney testified that he led Orantes to the back of the trailer and he found a tan plastic grocery bag containing needles, syringes and bottles of pharmaceuticals. Delaney admitted that the first time he saw the grocery bag, it was in Orantes' hands and that he lost sight of the bag when Orantes was out of sight.

Delaney testified that he next met with Kash, Orantes, plaintiff and Dr. McCune. Delaney asked plaintiff about the contents of the bag without showing anyone the bag. Plaintiff responded that it was McCune's vet trash that he had collected to throw away. Delaney testified that he asked plaintiff why he had run away with a shoe box and refused to stop when requested. Plaintiff answered that he had to check on his horse and that he was just throwing away the box of garbage. Plaintiff led Delaney to the trash can where he discarded the shoe box. Plaintiff denied that the shoe box ever contained the grocery bag recovered from Orantes.

When questioned by Delaney about the grocery bag, McCune stated that the items were similar to what he uses in his practice but that they were not his. Delaney stated that plaintiff appeared agitated during this questioning. In addition, Delaney testified that plaintiff attempted to grab the grocery bag several times while McCune was being questioned. Delaney then secured plaintiff's tack room with a new lock and instructed plaintiff and Orantes to return later that day for an interview.

Following the hearing before the race stewards, Delaney testified that he, Kash and Daniel Martinez, director of security for the Board, searched plaintiff's office. Several bottles and jars containing liquids, tablets or powder were identified. In addition, numerous syringes were found. These items were inventoried by Delaney and Martinez and they were forwarded to the Board's laboratory for analysis.

Kash also testified to this course of events. Kash testified consistently with Delaney's recitation, also testifying that plaintiff was advised he had a right to refuse their search of his office and that plaintiff consented. Martinez testified that he had worked for 20 years with the Board and that he had conducted investigations regarding contraband. Martinez assisted Delaney in inventorying, sealing and sending the confiscated items to the laboratory.

Robert Milburn and Bradley Dye, state race stewards for the Board, and Ben Wessels, race steward for Balmoral, testified to the hearing and the exclusion order entered against plaintiff. The stewards testified that they determined from the testimony of Delaney, Kash, Orantes and plaintiff that plaintiff's actions called into question the honesty and integrity of horse racing and were contrary to the best interests of the sport, warranting exclusion under section 9(e) of the Act. In support of their finding, the stewards cited Orantes' possession of contraband, plaintiff's fleeing and failure to stop when directed by security personnel, and plaintiff's failure to cooperate in the investigation. The stewards found that plaintiff was responsible for Orantes' actions under the Board rules.

Shelley Kalita, director of the Board's laboratory, testified to the identification of the substances confiscated from plaintiff's office. Kalita testified that she received a sealed box obtained from the investigation of plaintiff containing 85 items, including medications, prescription bottles, injectables, syringes and needles that were to be tested. The tests administered identified the substances to be various prescription medicines, including antiinflammatory steroids and bronchodialators.

Plaintiff was recalled to testify on his own behalf. Plaintiff testified that neither Delaney nor Kash admonished him of his right to deny their inspection of his office. Plaintiff repeated that he left the office in a hurry because his horse was ailing and he just happened to be holding the shoe box containing trash. Plaintiff claimed that he did not know where McCune was when he ran to look at the horse and that he did not hear anyone yell at him to stop. Plaintiff confirmed that the seized items on Kalita's list were in his possession at the time of the investigation. Plaintiff stated that he received the medicines from veterinarians, doctors, pharmacies and stores, though he did not produce any prescriptions for the medicines.

McCune testified that he followed plaintiff, Delaney and Kash toward the injured horse after plaintiff ran off. McCune next saw plaintiff standing by the horse. McCune disputed plaintiff's allegation that the items in the plastic grocery bag were ...


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