Edwards v. Illinois Racing Bd.

• Decision Date: 07 August 1989
• Docket Number: No. 1-88-2198,1-88-2198
• Citation: 134 Ill.Dec. 889,187 Ill.App.3d 287,543 N.E.2d 172
• Parties: , 134 Ill.Dec. 889 Roger W. EDWARDS, Petitioner-Appellant, v. The ILLINOIS RACING BOARD, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 172

543 N.E.2d 172

187 Ill.App.3d 287, 134 Ill.Dec. 889

Roger W. EDWARDS, Petitioner-Appellant, v. The ILLINOIS RACING BOARD, Respondent-Appellee.

No. 1-88-2198.

Appellate Court of Illinois,

First District, First Division.

Aug. 7, 1989.

Edward R. Vrdolyak, Ltd., Chicago (Elizabeth A. Karkula, of counsel), for petitioner-appellant.

Neil F. Hartigan, Atty. Gen., Chicago (Diane Curry, Grapsas, of counsel), for respondent-appellee.

Justice O'CONNOR delivered the opinion of the court:

This is an appeal by plaintiff, Roger W. Edwards, from the suspension of his occupational license by the Illinois Racing Board. We affirm.

Plaintiff has been licensed since 1981 by the Illinois Racing Board as a driver, trainer and owner of harness horses. On May 17, 1984, the stewards at Balmoral Park Race Track issued a ruling summarily excluding him from any race meeting held within the jurisdiction of the Illinois Racing Board (the Board) subject to a subsequent hearing by the stewards. This ruling was predicated upon results from six separate laboratory tests which indicated the presence of illegal drugs in four horses trained by Edwards.

After plaintiff was excluded, he was advised that a hearing would be held once the Board's lab completed testing on other urine samples from horses trained by plaintiff. Following the completion of the testing, plaintiff was advised that eight additional instances of illegal drugs had been found in horses he trained.

A hearing on the fourteen laboratory reports was held on July 17, 1984. Edwards and his attorney were present at the hearing, but plaintiff offered no evidence in rebuttal. On July 17, 1984, the stewards issued a ruling finding that plaintiff had violated Illinois Racing Board Rules C9.6, C9.7 and C9.20 and suspending his license and track privileges for life.

On July 23, 1984, plaintiff timely filed an appeal of the stewards' ruling. Although plaintiff had a right to a hearing within seven days, he sought a continuance for the purpose of having independent tests performed on the blood and urine samples. In May, June and December of 1985, Edwards' counsel advised counsel for the Board that Edwards was considering withdrawing his request for a hearing. On March 13, 1986, the Board's counsel filed a motion to dismiss based on Edwards' failure to actively pursue his case. On April 8, 1986, plaintiff responded that he wished to proceed and a hearing was set for April 23, 1986.

The April 23 hearing was cancelled by the Board due to the resignation of the Board's attorney and reset by agreement of the parties for June 26, 1986. Pursuant to Illinois Racing Board Rule A4.11, a stipulation of facts was agreed to. At the hearing on June 26 a dispute arose over the Board's attempt to supplement the record with scientific data regarding the drugs found in the course of testing. The matter was taken under advisement by the hearing officer who set a new hearing date of September 11, 1986. At the September 11 hearing, Edwards withdrew his agreement on the stipulation.

Between November 1986 and September 1987, the parties continued negotiations in an attempt to reach an agreement on the stipulation of facts. An agreement was reached and a hearing was held on September 2, 1987. The stipulation of facts was entered into evidence. In the stipulation, the parties agreed that the samples taken from the horses in question and the Board's laboratory tests were accurate and that the urine samples of the horses contained one of three drugs, either Sulindac, Isopyrin or Etorphine. Edwards failed to provide any evidence that he had guarded the horses in question as required by Board Rule C9.20.

On October 27, 1987, the Board entered an order finding that plaintiff had violated Rule C9.20 on fourteen occasions and suspending his license for nine months for each of the fourteen violations, to run consecutively with credit for time served. The Board set February 21, 1995, as the termination date for plaintiff's suspension.

On December 1, 1987, plaintiff filed a complaint for administrative review in the circuit court of Cook County. On June 22, 1988, a hearing was held and the trial court entered an order affirming the decision of the Illinois Racing Board. This appeal followed.

Plaintiff's first contention is that the hearing on the original six laboratory findings was held more than 60 days after the exclusion and the violation of his right to a prompt hearing denied his right to procedural due process.

While a license to pursue one's occupation as a trainer of harness racers is a property interest protected by the due process clause (Barry v. Barchi (1979), 443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365), this argument was never made before the Board and therefore need not be considered here. (E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill.2d 33, 38-39, 89 Ill.Dec. 821, 481 N.E.2d 664; Rackow v. Human Rights Commission (1987), 152 Ill.App.3d 1046, 1064, 105 Ill.Dec. 826, 504 N.E.2d 1344.) We have reviewed plaintiff's claim, however, and find that it lacks merit.

First, we note that following his summary exclusion, plaintiff stipulated to the following facts:

"When the Stewards excluded Edwards in May of 1984, they were aware, and so advised Edwards, that a Stewards inquiry would be conducted once the Board laboratory had completed testing more urine samples of the horses trained by Edwards. Edwards did not and does not challenge the propriety of his summary exclusion by the stewards."

The Illinois Horse Racing Act of 1975 (the Act) (Ill.Rev.Stat.1987, ch. 8, par. 37-1 et seq.) permits stewards to summarily exclude persons for just cause subject to a subsequent hearing by the Board as to the propriety of the exclusion. Summary suspension under section 9(e) of the Act has been upheld against a due process challenge based on the State's interest in preserving the integrity of horse racing and because Rule A4.02A and C give the affected party a right to a prompt hearing. (See Phillips v. Graham (1981), 86 Ill.2d 274, 282, 56 Ill.Dec. 355, 427 N.E.2d 550; Kurtzworth v. Illinois Racing Board (1981), 92 Ill.App.3d 564, 589, 48 Ill.Dec. 6, 415 N.E.2d 1290.) Our supreme court held in Phillips that summary exclusion of a licensee prior to an evidentiary hearing does not constitute a violation of a trainer's due process rights provided that the licensee is ultimately given an adequate opportunity for judicial determination of the matter. Phillips, 86 Ill.2d at 286, 56 Ill.Dec. 355, 427 N.E.2d 550.

Rule A4.02 of the Board's hearing rules provides:

"(C) Appeals from orders of the stewards or judges suspending an occupation license or from orders of the organization licensee (race track) ejecting or excluding an occupation licensee shall be instituted by filing a written request for a hearing no later than five days after receipt of notice of the suspension, ejection or exclusion has been communicated to the licensee. The Board will conduct its hearing within seven days after such request has been received by the Board unless the licensee requests a postponement for good cause."

There is no evidence that plaintiff exercised his right to a prompt hearing on the summary exclusion pursuant to rule A4.02. Moreover, as the trial court pointed out, at the July 18, 1984, stewards' hearing, plaintiff had the opportunity to present evidence to rebut the inference of a rule violation and on the advice of counsel, he declined to do so. Thus we conclude plaintiff was not denied his right to procedural due process with respect to the first six violations.

Plaintiff also claims that a due process violation arose out of the Board's failure to reset a hearing date within seven days of the cancellation of the initial hearing, which had been scheduled for April 23, 1986. Plaintiff refers to the period between April 23, 1986, and September 11, 1986, during which period no hearing was held and argues that the continuance between September 11, 1986, and September 2, 1987, constituted a vexatious delay. This argument also has no merit.

While plaintiff's appeal of the July 18, 1984, suspension was timely filed on July 23, 1984, the record supports the Board's contention that he waived his right to a hearing within seven days by requesting a continuance for the purpose of conducting independent tests on the fourteen urine samples. Moreover, there is no absolute right to a hearing within the statutory time frame. Where a delay is attributable to the party seeking the hearing, there is no violation of the timely hearing requirement. (See, e.g., Perez v. Civil Service Commission (1987), 153 Ill.App.3d 176, 180-81, 106 Ill.Dec. 276, 505 N.E.2d 1067; Holliday v. Civil Service Commission (1984), 121 Ill.App.3d 763, 768-69, 77 Ill.Dec. 302, 460 N.E.2d 358.) The Board has the authority to grant a continuance provided there is good cause for the delay and the time period is reasonable. (Ragano v. Illinois Civil Service Commission (1980), 80 Ill.App.3d 523, 528, 35 Ill.Dec. 960, 400 N.E.2d 97.) Here the majority of the continuances or delays were attributable to the plaintiff and the one delay caused by the Board was for good cause.

According to the record, after the plaintiff requested the initial delay for purposes of independently testing the urine samples, his counsel and the Board engaged in lengthy negotiations regarding the stipulation, after which a hearing was scheduled for April 23, 1986. On April 22, 1986, the Board's attorney who was handling the case resigned and the hearing was cancelled. The Board sought a continuance in order to give its new general counsel an opportunity to prepare for the hearing. The parties, in fact, agreed to a new hearing date of June 26, 1986.

At the June 26, 1986, hearing, the hearing officer took certain matters under advisement and set a new hearing for September 11, 1986. At that hearing, plaintiff's counsel withdrew his agreement to the...