Balmoral Racing Club, Inc. v. Illinois Racing Bd., s. 3-91-0187

• Court: United States Appellate Court of Illinois
• Citation: 157 Ill.Dec. 888,573 N.E.2d 306,214 Ill.App.3d 112
• Docket Number: 3-91-0230,Nos. 3-91-0187,s. 3-91-0187
• Parties: , 157 Ill.Dec. 888 BALMORAL RACING CLUB, INC., and Chicago Division of the Horsemen's Benevolent & Protective Association, Inc., Plaintiffs-Appellees, v. ILLINOIS RACING BOARD, Arlington Park Racetrack, Ltd., d/b/a Arlington International Racecourse, Ltd., and Washington Park Thoroughbred Racetrack, Ltd., and Hawthorne Race Course, Inc., Defendants-Appellants, and Balmoral Park Trot, Inc., National Jockey Club, Inc., West Side Corporation, Ogden Fairmount, Inc., Quad City Downs, Inc., Egyptian Trotting Association, Inc., Associates Racing Association, Inc., Maywood Park Trotting Association, Inc., Fox Valley Trotting Club, Inc., and Suburban Downs, Inc., Defendants. Third District
• Decision Date: 30 May 1991

Page 306

573 N.E.2d 306 214 Ill.App.3d 112, 157 Ill.Dec. 888 BALMORAL RACING CLUB, INC., and Chicago Division of the
Horsemen's Benevolent & Protective Association,
Inc., Plaintiffs-Appellees,
v.
ILLINOIS RACING BOARD, Arlington Park Racetrack, Ltd., d/b/a
Arlington International Racecourse, Ltd., and Washington
Park Thoroughbred Racetrack, Ltd., and Hawthorne Race
Course, Inc., Defendants-Appellants,
and
Balmoral Park Trot, Inc., National Jockey Club, Inc., West
Side Corporation, Ogden Fairmount, Inc., Quad City Downs,
Inc., Egyptian Trotting Association, Inc., Associates Racing
Association, Inc., Maywood Park Trotting Association, Inc.,
Fox Valley Trotting Club, Inc., and Suburban Downs, Inc., Defendants. Nos. 3-91-0187, 3-91-0230. Appellate Court of Illinois, Third District. May 30, 1991.

Page 307

[214 Ill.App.3d 113] [157 Ill.Dec. 889] Scott J. Szala, Dan K. Webb (argued), Frank H. Langrock, Darcy J. Bogenrief, Winston & Strawn, Chicago, Ill., for Arlington Park Racetrack, Ltd. and Washington Park Thoroughbred.

Paula Giroux (argued) Asst. Atty. Gen., Roland W. Burris, Atty. Gen., Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, Ill., for Illinois Racing Bd.

Edward M. White, Carey, Filter, White & Boland, Chicago, Ill., for Hawthorne Race Course, Inc., Suburban Downs, Inc.

[214 Ill.App.3d 114] Thomas Feehan, Rooks, Pitts & Poust, Joliet, Ill., for Balmoral Racing Club, Inc.

Jeremiah Marsh, Hopkins & Sutter, William J. McKenna, Jr. (argued), E. Glenn Rippie, Robert R. Hall, Jr., Hopkins & Sutter, Chicago, Ill., for Balmoral Racing Club.

Arthur Edward Engelland (argued), Chicago, Ill., Angela Riccio, Chicago, Ill., for Horsemen's Benevolent and Protective Ass'n Inc.

Thomas J. Gilbert, Gilbert & Schoenstedt, Joliet, Ill., for Balmoral Park Trot, Inc., Egyptian Trotting Assoc., Inc., Maywood Park Trotting Assoc., Fox Valley Trotting Club, Chicago Downs Assoc. and Associates Racing Assoc.

George Lalich, Nash & Lalich, Chicago, Ill., for Fox Valley Trotting Club, National Jockey Club, Inc., West Side Corp. and Chicago Downs Assoc., Inc.

Edward M. White, Carey, Filter, White & Boland, Chicago, Ill., for Hawthorne Race Course, Inc.

Lester McKeever, Jr., pro se, Registered Agent for Associates Racing Ass'n.

Justice BARRY delivered the OPINION of the court:

This is an appeal from an order of circuit court of Will County which reversed an order of the Illinois Racing Board insofar as the Board denied thoroughbred horse racing dates to Balmoral Racing Club, Inc., for 1991 and which remanded this cause to the Board with directions to award 62 thoroughbred dates between May 12 and December 30, 1991, to Balmoral. We reverse the order of the circuit court and reinstate the order of the Illinois Racing Board.

The Board conducted hearings on September 18, 1990, concerning the applications for thoroughbred and harness racing dates for 1991. In addition to receiving sworn testimony from each of the applicants, the Board also admitted into evidence all of the applications for racing dates, orders setting dates, and annual reports of the Board for the past five years along with staff reports, summaries, and correspondence. The Board issued a 22 page order allotting racing dates to all applicants and imposing certain conditions upon the various licensees.

In 1990 Balmoral had been awarded thoroughbred dates from May 13 to October 2, overlapping the dates of May 9 to October 8 awarded to Arlington. Other tracks in the Chicago area (Hawthorne and Sportman's) were awarded thoroughbred racing dates that did not conflict with either Arlington or Balmoral. The latter two tracks are approximately 63 miles from one another. For 1991 the Board awarded Arlington the dates of May 12 to October 9 while again allotting noncompeting dates to Hawthorne and Sportman's. This year, however, the Board denied Balmoral any thoroughbred dates and instead awarded Balmoral harness racing dates throughout the entire year. (Racing dates were also awarded at Ogden-Fairmount, Quad City Downs and Maywood Park, but none of those awards are involved in this appeal.)

In its order the Board found that the experience of the previous two racing years demonstrated that the three Cook County thoroughbred racetracks (Sportsman's, Arlington, and Hawthorne) needed unopposed[214 Ill.App.3d 115] race meetings in order to maximize state revenue, due in large part to the inadequate supply of horses available for thoroughbred racing in Illinois. The Board stated:

"Based upon staff analysis and our own expertise and experience, we believe that state revenue will be enhanced by eliminating thoroughbred racing at Balmoral, granting thoroughbred market exclusivity and providing harness racing two days per week at Balmoral during the summer

Page 308

[157 Ill.Dec. 890] of 1991. Harness horses in Illinois are sufficient in number and race with enough frequency to completely avoid the problems associated with concurrent thoroughbred meets."

Balmoral filed an administrative review proceeding in the Will County circuit court and obtained a reversal of the denial of thoroughbred racing dates at Balmoral. In support of its judgment order, the court made a finding that the public interest in maximizing state revenue "has no relationship as to whether thoroughbred horseracing programs are run concurrently or not" and held that there was no evidence to support the Board's finding that excluding Balmoral Park from thoroughbred racing in 1991 would be in the best interest of the public or the sport of horseracing. The court also found that the Board's finding of an insufficient number of horses available for concurrent racing at Balmoral and Cook County tracks was contrary to the manifest weight of the evidence and that section 21(c) of the Illinois Horse Racing Act of 1975 (Ill.Rev.Stat.1989, c. 8, par. 37-1 et seq.) restricts "parochial exclusivity to licensees within 35 miles of each other" and thereby evidences a legislative intent "that competition between Balmoral and the Cook County tracks more than 35 miles away to be in the best interest of the public and the sport of horseracing."

The trial court also ruled that the Illinois Administrative Procedure Act (Ill.Rev.Stat.1989, c. 127, par. 1001 et seq.) is applicable to proceedings of the Illinois Racing Board to award racing dates and that Board acted in violation of that Act so as to deprive Balmoral of its rights to procedural due process. However, the court also found that Balmoral had waived its rights under that Act by failing to object during the hearing before the Board and by continued participation in those proceedings.

In addition to reversing the denial of racing dates to Balmoral, the trial court remanded the cause to the Illinois Racing Board with directions to award 62 thoroughbred racing dates for 1991 between May 12 and December 30, 1991, to Balmoral to be held on consecutive Sunday evenings, Mondays and Tuesdays.

[214 Ill.App.3d 116] Three parties have appealed from the decision of the trial court: Arlington Park Racetrack, Inc., the Illinois Racing Board, and Hawthorne Race Course, Inc. Arlington and the Board present the same basic arguments.

We first consider the court's ruling that section 21(c) of the Illinois Horse Racing Act was intended by the legislature to limit the Board's authority to grant exclusive dates to tracks within 35 miles of each other and, furthermore, that the legislature intended that competition between Balmoral and Cook County tracks more than 35 miles away would be in the best interest of the public and the sport of horse racing.

Section 21(c) (Ill.Rev.Stat.1989, c. 8, par. 37-21(c) provides as follows:

"(c) Where 2 or more applicants propose to conduct horse race meetings within 35 miles of each other, as certified by the Board under section 19(a)(1) of this Act, on conflicting dates, the Board may determine and grant the number of racing days to be allotted to the several applicants. In the...