Pelling v. Illinois Racing Bd.

• Decision Date: 21 May 1991
• Docket Number: No. 1-90-0172,1-90-0172
• Citation: 214 Ill.App.3d 675,158 Ill.Dec. 322,574 N.E.2d 116
• Parties: , 158 Ill.Dec. 322 Brian PELLING, Plaintiff-Appellant, v. ILLINOIS RACING BOARD; Farrell Griffin, Chairman of the Illinois Racing Board; Robert Milburn, Tim Schmitz, as State Stewards; William Baier, as Associate Steward; and Dennis Nardoni, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 116

574 N.E.2d 116

214 Ill.App.3d 675, 158 Ill.Dec. 322

Brian PELLING, Plaintiff-Appellant, v. ILLINOIS RACING BOARD; Farrell Griffin, Chairman of the Illinois Racing Board; Robert Milburn, Tim Schmitz, as State Stewards; William Baier, as Associate Steward; and Dennis Nardoni, Defendants-Appellees.

No. 1-90-0172.

Appellate Court of Illinois,

First District, Second Division.

May 21, 1991.

Patrick A. Tuite, Ltd., Chicago (Patrick A. Tuite, John L. Hines, Jr., of counsel), for plaintiff-appellant.

Attorney General of the State of Illinois, Chicago (Neil F. Hartigan, John A. Morrissey, and Roberto J. Ruiz, Sol. Gen., of counsel), for defendants-appellees.

Justice DiVITO delivered the opinion of the court:

Plaintiff Brian Pelling appeals from the judgment of the circuit court of Cook County, pursuant to administrative review, upholding the rulings of the Illinois Racing Board (Board). Plaintiff contends that the circuit court erred in the following rulings: (1) that the decision of the Board was not against the manifest weight of the evidence; (2) that the penalty imposed by the Board was not arbitrary, capricious, or otherwise excessive; (3) that plaintiff's due process rights were not violated by the hearing officer's failure to present any findings to the Board; (4) that the Board properly employed a preponderance standard of proof; and (5) that the Board properly imposed a longer suspension upon plaintiff's activities than that recommended by the racing stewards.

Plaintiff was licensed to train, drive, and own race horses in Illinois. On November 6, 1987, he drove Valunga N, a horse he owned and trained, in the tenth race at Maywood Park Harness Racing Track. The race was a trifecta ¹. Plaintiff finished seventh out of nine drivers. Afterwards, the stewards questioned several drivers regarding technical infractions that occurred during the race.

Plaintiff received no inquiry from the stewards concerning his performance on the evening of the race. In fact, plaintiff raced the next day. He was not questioned about the race until November 14, 1987, eight days later, and was not formally charged and suspended until December 17, 1987. During their investigation, the stewards discovered that, on the night of the race, plaintiff and Dennis Nardoni had dinner, and that just before the race, Nardoni had been seen in the paddock, a restricted area. The stewards charged plaintiff with several violations of the Board rules, including that he had conspired to affect the outcome of the race. The stewards suspended plaintiff's license to drive, train, and own horses for the remainder of 1987 and recommended that no future licenses be granted for five years, through the end of 1992.

Plaintiff appealed the steward's ruling to the Board, which conducted a four-day de novo hearing before a hearing officer. In the meantime, plaintiff obtained a stay of the steward's ruling from the circuit court until the Board rendered its decision.

At the hearing, the stewards cited three reasons supporting their claim that plaintiff was guilty of a bad drive. First, when the gate flipped, plaintiff allegedly failed to "close the hole" between him and the driver in front. That is, he did not gain ground where the stewards felt that he could and should have done so. Second, just before the quarter mile pole on the back stretch for the first time, plaintiff pulled off the rail in front of drivers David Magee and Dale Hiteman, who were approaching plaintiff on the outside. Third, at the third turn, the stewards asserted that plaintiff intentionally drove up on Ron Marsh, whose horse was tiring, so that plaintiff would have to restrain his own horse.

On June 13, 1988, after reviewing the entire record, the Board found plaintiff guilty of violating Illinois Racing Board Rule 18.5 and exonerated him of all other alleged violations. The pertinent portion of Rule 18.5 provides as follows:

"Rule 18.5 Unsatisfactory Driving

Every heat in a race must be contested by every horse in the race and every horse must be driven to the finish. If the judges believe that a horse is being driven, or has been driven with the design to prevent his winning a heat or dash which he was evidently able to win, or is being raced in an inconsistent manner, or to perpetrate or to aid a fraud, they shall consider it a violation and the driver, and anyone in concert with him, to so affect the outcome of the race or races, may be fined, suspended or expelled. * * *"

The Board suspended plaintiff's license to drive, train, and own horses through and including 1993 and excluded him from the premises of all racetracks under the jurisdiction of the Illinois Racing Board for the same time period.

Plaintiff filed a complaint for administrative review in the circuit court. On October 6, 1989, after briefs were filed and oral arguments were heard, the circuit court affirmed the Board's order with one qualification. Pursuant to the doctrine of North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, it limited plaintiff's suspension to December 1992, as recommended by the stewards. On December 20, 1989, pursuant to the Board's motion to reconsider, the circuit court entered an order nunc pro tunc affirming the Board's ruling without exception. This appeal followed.

I.

Plaintiff initially contends that the circuit court erred in holding that the decision of the Board was not against the manifest weight of the evidence.

Findings and conclusions of an administrative agency on questions of fact are to be considered prima facie true and correct. (Ill.Rev.Stat.1989, ch. 110, par. 3-110; Graham v. Illinois Racing Board (1986), 145 Ill.App.3d 383, 99 Ill.Dec. 278, 495 N.E.2d 1013; Feliciano v. Illinois Racing Board (1982), 110 Ill.App.3d 997, 66 Ill.Dec. 578, 443 N.E.2d 261.) Accordingly, a reviewing court is limited to determining whether the findings are contrary to the manifest weight of the evidence. Graham, 145 Ill.App.3d at 389, 99 Ill.Dec. 278, 495 N.E.2d 1013, quoting Strickland v. Department of Registration and Education (1978), 60 Ill.App.3d 1, 17 Ill.Dec. 256, 376 N.E.2d 255.

The record in the instant case contains a videotape of the race which was viewed by the Board numerous times. As noted by Commissioner Ray Garrison, "the best evidence is the film itself." Garrison also referred to the Board's expertise in judging racing films. Each Board member was knowledgeable in the area of racing practices and procedures. Ill.Rev.Stat.1989, ch. 8, par. 37-4.

In addition, the Board considered testimony from the race stewards. Each steward testified to his years of experience in judging thousands of races. Each stated that, in his opinion, plaintiff intentionally drove an unsatisfactory race. Considering the training and knowledge of the Board and its careful study of the videotape and testimony, great deference should be given to its findings.

Plaintiff's reliance on Viera v. Illinois Racing Board (1978), 65 Ill.App.3d 94, 22 Ill.Dec. 142, 382 N.E.2d 462, is misplaced. In that case, the Board suspended the plaintiff for exercising unreasonable professional judgment in a race; the trial court reversed the Board's ruling, and the appellate court affirmed. In Viera, however, there was significantly more evidence in opposition to the Board's finding than in the instant case. For the same reason, Pletcher v. Illinois Racing Board (1978), 57 Ill.App.3d 73, 14 Ill.Dec. 796, 372 N.E.2d 1075, is also unpersuasive.

Here, the record discloses no basis for reversing the circuit court's conclusion that the findings of the Board were not contrary to the manifest weight of the evidence.

II.

Plaintiff next complains that the penalty imposed by the Board was arbitrary, capricious, and otherwise excessive. A reviewing court may overturn an agency's sanctions which are overly harsh in light of mitigating circumstances. (Edwards v. Illinois Racing Board (1989), 187 Ill.App.3d 287, 134 Ill.Dec. 889, 543 N.E.2d 172; Feliciano v. Illinois Racing Board (1982), 110 Ill.App.3d 997, 66 Ill.Dec. 578, 443 N.E.2d 261.) The test is not whether the reviewing court would have imposed a lesser sanction if it were making the decision in the first instance, but whether in view of the circumstances, the agency acted unreasonably or arbitrarily. Edwards, 187 Ill.App.3d at 293, 134 Ill.Dec. 889, 543 N.E.2d 172, quoting Sutton v. Civil Service Commission (1982), 91 Ill.2d 404, 411, 63 Ill.Dec. 409, 438 N.E.2d 147; Graham, 145 Ill.App.3d at 389-90, 99 Ill.Dec. 278, 495 N.E.2d 1013; Feliciano, 110 Ill.App.3d at 1005, 66 Ill.Dec. 578, 443 N.E.2d 261.

In the instant case, we find that the Board's imposition of a six-year suspension was not unduly excessive. Plaintiff cites a number of cases in support of his position, none of which are of precedential value, as they are unpublished orders pursuant to Illinois Supreme Court Rule 23. (107 Ill.2d R. 23.) Also, in DeSilva v. Hartack, et al. (1990), 201 Ill.App.3d 387, 147 Ill.Dec. 51, 559 N.E.2d 51, this Court affirmed a 30-day suspension for a jockey who violated Illinois Racing Board Rule 234. The violation in DeSilva, however, cannot be compared to the one at bar, as it did not involve intentional conduct.

Here, defendants correctly point out that plaintiff's lengthy suspension was justified because his conduct was intentional rather than careless and because of the prior violations in his racing record. The record reflects that plaintiff has had prior disciplinary problems and that his license had been suspended in Australia. There is no basis for concluding that the sanction imposed upon plaintiff was arbitrary, capricious, or excessive.

III.

Plaintiff's next contention is that his due process rights were violated when the Board rendered its opinion without benefit of findings of fact made by the hearing officer. He contends that testimony was taken before the hearing officer, but that no findings or recommendations were...