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SECOND DIVISION
JUNE 26, 2001

No. 1-98-1749

OPINION MODIFIED UPON DENIAL OF REHEARING

JUSTICE COUSINS delivered the opinion of the court:

The Illinois Racing Board (Board) suspended Peter Noel Hickey'soccupational license for one year after six of his horses tested positive fora prohibited substance in their systems. In May 1998, the circuit court ofCook County reversed and remanded the decision of the Illinois Racing Board. Plaintiff now raises the following issues upon appeal: (1) whether the Boardhad jurisdiction or authority to enter its March 11, 1997, order; (2) whetherthe Board abused its discretion and violated his due process rights when itfound him in violation of Board rules and by suspending his occupationallicense; (3) whether the Board acted in an arbitrary and capricious manner andviolated the plaintiff's due process rights by violating the IllinoisAdministrative Procedure Act (5 ILCS 100/1-1 et seq. (West 1996)) and theIllinois register when it failed to immediately report a positive finding on"World Class Splash"; (4) whether the Board acted in an arbitrary andcapricious manner since it failed to follow its own rules and customs; (5)whether defendants acted in an arbitrary and capricious manner and inviolation of the plaintiff's constitutional rights in suspending hisoccupational license since the Board's rules are vague, ambiguous, and lackspecific penalties; and (6) whether the Board arbitrarily and capriciouslyabused its discretion in relying on matters that were not part of the recordand in doubling the penalty imposed by the stewards. Furthermore, plaintiff,in his appellate brief, speculates that because the trial court remanded thiscause to the Board to impose a different penalty against him, this court lacksjurisdiction over this matter.

The Board cross-appeals seeking reversal of the trial court's remand. The Board contends: (1) it had jurisdiction to issue its March 11, 1997,order; (2) its hearing procedures comport with due process; (3) the Board didnot violate plaintiff's due process rights by failing to notify him earlierthat albuterol was detected in one of his horses; (4) the Illinois HorseRacing Act of 1975 (230 ILCS 5/1 et seq. (West 1996)) and the Board's rulesare not unconstitutionally vague; and (5) the circuit court erred by reversingthe Board's sanction when that sanction was not against the manifest weight ofthe evidence.

BACKGROUND

Plaintiff has been an owner and trainer of Thoroughbred horses forapproximately 30 years and is licensed by the Board. Prior to his suspension,plaintiff was the owner and trainer of the following horses in the followingraces: World Class Splash, winner, eighth race, July 21, 1994; Golden Gear,winner, fifth race, July 30, 1994; Little May, winner, eighth race, August 4,1994; Bantan, winner, ninth race, August 12, 1994; Mucho Miel, third-placefinisher, tenth race, August 14, 1994; and Classic Fit, winner, first race,August 28, 1994.

In July 1994, an initial test indicated that post-race urine samplestaken from horses that raced on July 21, 1994, contained some type ofbronchodilator. The director of the Board laboratory, Shelley Kalita,explained that between 1991 and 1994, the lab could detect bronchodilators,but could not confirm the presence of albuterol. As a result, the lab begandeveloping new techniques to resolve the problem. By August 18, 1994, staffchemists achieved a technique that isolated albuterol from other substances inthe urine. Albuterol is a bronchodilator which is prohibited by the Board andthe Food and Drug Administration (FDA) for treating horses.

Plaintiff was notified of four bronchodilator results in late August1994. At the conclusion of a September 1994 initial hearing with stipulatedevidence and testimony, the Board's stewards found that all six of plaintiff'shorses had raced with albuterol in their systems, in violation of Board rules. Plaintiff's license was suspended and he was excluded from all facilitiesunder the control of the Board for 180 days.

On September 27, 1994, a hearing was conducted before a Board-appointedhearing officer. Plaintiff limited the scope of his hearing to the durationof the penalty imposed upon him by the stewards. Plaintiff was called by theBoard as an adverse witness. Plaintiff testified that, in February 1994, hemet a man named Dale Smallwood at a horse auction. While Smallwood hadpurchased some horses from plaintiff previously, plaintiff asserted that hedid not know anything about Smallwood's background. Smallwood claimed to havea supplement that would strengthen the capillaries and veins of Hickey'shorses who were bleeders. Plaintiff asked Smallwood if he could obtain someof the supplement. Approximately six weeks after their meeting, Smallwooddelivered two unlabeled containers, about a quarter of a gallon each, of awhite, sugary powder to plaintiff. Plaintiff paid $1,000 for this substance. Smallwood instructed plaintiff to put a small scoop of the substance in thehorses' night feed. Plaintiff did not test the substance at that time, but hedid taste it.

Plaintiff distributed the substance to eight of his horses on a regularbasis, six of which were the horses that tested positive for albuterol afterracing. Plaintiff further testified that he ran out of the additive in mid-or late July, but did not try to obtain more because he felt it was noteffective. Plaintiff testified that albuterol, when given to a horsesuffering from an inhibited pulmonary system, would enhance the horse'sperformance. Plaintiff maintained that he did not know that the substance hewas administering to his horses contained albuterol.

Plaintiff further testified that he contacted Dr. Fleming in Florida,who already possessed a sample of the powder, "a couple of days after" hereceived "notification from the stewards" (late August 1994) that they came upwith four bronchodilator positives in the urine samples from his horses. Dr.Fleming had treated plaintiff's horses previously and took a sample of thepowder to Florida before the stewards' inquiry to have it analyzed because"she thought it was a product sold for much less money at a health store." After plaintiff's request, Dr. Fleming forwarded the substance via FederalExpress to a California lab for testing. In a letter dated September 1, 1994,the California lab indicated that the sample arrived on August 31, 1994, andwas found to contain albuterol. Plaintiff testified that those results weresent to the stewards.

Dr. Ronald Jensen, a veterinarian for the Board, was called byplaintiff's attorney. Dr. Jensen testified that bleeding in horses is arespiratory disease and that the only medication that is allowed to be presentin the post-race urine samples of bleeder-horses in Illinois is Lasix. Healso testified that albuterol was not approved for use in horses by the FDA orthe state veterinarians and that it is "considered by the ARCI, uniformguidelines on medication classes, as having the ability to affect theperformance of a horse."

Dr. Vincent Brencick, a veterinarian for Arlington Park racetrack, wasalso called to testify by the plaintiff's attorney. Dr. Brencick testifiedthat albuterol would not prevent bleeding but could "be of some benefit" tobleeding horses. He also testified that it is a Board rule that drugs notapproved by the FDA for horses must be approved by the state veterinarian fortherapeutic use. Dr. Brencick opined that albuterol should not have anyeffect on the performance of a horse. Following the testimony, the Boardentered into evidence the Association of Racing Commissioners InternationalDrug Testing Program Guidelines (ARCI or Guidelines), which listed albuterolas a class 3 drug.

At the close of testimony during the October 1994 hearing, hearingofficer Tighe stated:

"In this case, Mr. Hickey received one-half, less than one-half ofthe recommended penalty. The ARCI guidelines for a Class 3 drug callfor a minimum of 60 days and up to a $1500 fine and the loss of a purses[sic].

In this case, Mr. Hickey received 30 days per violation, 180 daysuspension, no civil fine and the loss of the purses. In this case, thestewards took into account Mr. Hickey's background and all of the othercriteria that are listed in the rules, and they gave Mr. Hickey a break.* * *

*** [P]articularly because of Mr. Hickey's experience, particularlybecause of the surrounding circumstances which leads to the purchase anduse, I'm going to recommend to the Board that Mr. Hickey's penaltyshould be the minimum that the ARCI requires, that's 60 days perviolation."

On October 18, 1994, at a Board meeting, board member Simon summarizedthe proceedings before the hearing officer and made a motion to suspendplaintiff. Simon characterized plaintiff's testimony, stating:

"At best Mr. Hickey has shown extremely poor judgment and a recklessdisregard for the rules of the Illinois Racing Board. At worse [sic],and this can be inferred from a fair reading of the testimony in thiscase and the exhibits that accompany it, he has created a fictitiousstory about acquiring an unknown substance from an unknown person tocover up a more sinister plot."

At the end of the presentation, Simon moved that the suspension be in effectfrom September 10, 1994, through December 31, 1994, and that he be ineligiblefor licensure from January 1, 1995, through September 10, 1995. Afterdiscussion, four out of the six Board members present voted in favor ofsuspending plaintiff for 60 days per horse (360 days).

Plaintiff filed for administrative review in the circuit court inOctober 1994. The circuit court affirmed the Board's order on May 11, 1995,and stayed its decision for 10 days. Plaintiff appealed the circuit court'sdecision. On May 15, 1995, plaintiff filed an emergency motion for staypending appeal. The court granted the motion and stayed enforcement of thetrial court's order pending appeal. Defendant's motion to stay the stay wasdenied. The Illinois Appellate Court issued its opinion on February 19, 1997. In a new opinion issued March 5, 1997, the Illinois Appellate Court reversedthe circuit court and vacated the Board's order. Hickey v. Illinois RacingBoard, 287 Ill. App. 3d 100, 108, 678 N.E.2d 21 (1997). The appellate courtheld that the nine-member Board must achieve five votes to effect an order ofrevocation or suspension of occupational licenses and the Board's suspensionorder was null since it did not carry by the required majority vote. SeeHickey, 287 Ill. App. 3d at 107.

On March 11, 1997, Board member Simon renewed his motion for a one-yearsuspension and the Board issued a new decision. In an eight-member, unanimousdecision, the Board suspended plaintiff for one year with credit for timeserved. The March 11, 1997, Board order provided:

"ACCORDINGLY, THE BOARD ORDERS THAT Peter Noel Hickey be suspended fromlicensure by the Illinois Racing Board for the ARCI recommended periodof twelve months, less credit for any period of suspension previouslyserved by him pursuant to the earlier ruling of the Stewards and/or theBoard relative to this matter, and further, that Peter Noel Hickey notbe permitted to have any horses owner [sic] or trained by him, or anyoneacting in concert with him, vanned from his or any other farm to anyracetrack in the State of Illinois."

Plaintiff filed a complaint for review of the March 11, 1997, Boardorder alleging that the findings were against the manifest weight of theevidence, contrary to the law, and that the Board lacked authority to issueits March 11, 1997, order. Per plaintiff's request, the court issued atemporary restraining order on March 18, 1997, enjoining the Board fromenforcing its order. The circuit court later entered a stay of the Board'sorder. In May 1998, the circuit court held:

"[T]he decision of the Racing Board is reversed and the cause isremanded for a determination of an appropriate sanction against Mr.Hickey consistent with the recommendation of the Stewards without regardto the Guidelines. It is further ordered that there exists no justcause to delay enforcement of or appeal from this order."

Plaintiff has appealed the circuit court's order and the Board hascross-appealed.

ANALYSIS

I

We initially address whether we have jurisdiction to hear this matter. In our view, we do. The jurisdiction of the appellate court is limited toreview of appeals from final judgments or orders, subject to certain statutoryor supreme court exceptions. Cavanaugh v. Lansing Municipal Airport, 288 Ill.App. 3d 239, 242, 681 N.E.2d 39 (1997). Where the circuit court has the powerto remand an agency decision for further hearings or proceedings, jurisdictionmust necessarily remain with the circuit court until after disposition ofthese matters before jurisdiction may be conferred upon the appellate court. Mitrenga v. Martin, 110 Ill. App. 3d 1006, 1008, 443 N.E.2d 268 (1982).

It is well settled in Illinois that a statement such as "there exists nojust cause to delay enforcement of or appeal from this order," alone, does notmake a non-final order final and consequently appealable. Mitrenga, 110 Ill.App. 3d at 1007, citing Gutenkauf v. Gutenkauf, 69 Ill. App. 3d 871, 873, 387N.E.2d 918 (1979). Some instructive cases on the finality of orders thatremand actions are Wilkey v. Illinois Racing Board, 96 Ill. 2d 245, 449 N.E.2d843 (1983), Martin v. Cajda, 238 Ill. App. 3d 721, 606 N.E.2d 566 (1992), andKvidera v. Board of Fire & Police Commissioners, 168 Ill. App. 3d 380, 522N.E.2d 757 (1988). In Wilkey, the supreme court held that the finality of anorder which remands an action to the agency turns on the substance of theinstructions. The court stated:

"'[I]f, upon remandment, the trial court has only to enter a judgment ordecree in accordance with the directions of the reviewing court, or toconduct further proceedings on uncontroverted incidental matters, then,irrespective of the remanding clause in the judgment order, the judgmentof the Appellate Court is final and reviewable.'" Wilkey, 96 Ill. 2d at249, quoting Cory Corp. v. Fitzgerald, 403 Ill. 409, 414, 86 N.E.2d 363(1949).

On the other hand, "'where a cause is remanded for a new trial or otherfurther proceedings involving disputed questions of law or fact, the judgmentof the Appellate Court is not of a final character. [Citations.] The ultimatequestion to be decided in each case is whether the judgment fully and finallydisposes of the rights of the parties to the cause so that no materialcontroverted issue remains to be determined.'" Wilkey, 96 Ill. 2d at 249,quoting Cory, 403 Ill. at 414-15.

In Cajda, the court used the Wilkey standard and found that the trialcourt order, which required the Board to enter an order of discharge, wasfinal and appealable. Cajda, 238 Ill. App. at 725. The court reasoned that"[t]he order left nothing to the discretion of the Board, nor did itnecessitate any further proceedings other than the mere ministerial task ofentering the prescribed order." Cajda, 238 Ill. App. at 725. That order, inour view, directs a ministerial act.

In Kvidera, the plaintiff was suspended and ultimately discharged forviolating various rules of the Schiller Park police department. In Kvidera,the circuit court confirmed the findings of the Board of Fire and PoliceCommissioners but reversed the penalties imposed and remanded for "anappropriate lesser sanction." Kvidera, 168 Ill. App. 3d at 381. On remand,the board reaffirmed its original decision as to each count. The circuitcourt again reversed the board's penalties. The board, however, determinedthat its sanctions were appropriate and asked the court to confirm thesuspension and discharge orders. The court denied the motion and reversed thesanctions as excessive. The board appealed and the plaintiff cross-appealed. The appellate court dismissed both appeals, explaining that "to have anappealable order the circuit court should either affirm or direct the board toimpose a specific sanction." Kvidera, 168 Ill. App. 3d at 382.

In the instant case, the circuit court remanded the case for the Boardto make a "determination of an appropriate sanction against Mr. Hickeyconsistent with the recommendation of the stewards without regard to theGuidelines." In our view, this order is analogous to the order in Cajda, inthat nothing is left to the discretion of the Board other than the ministerialact of entering an order consistent with the recommendation of the stewards,without regard to the ARCI Guidelines. Unlike the remand in Kvidera, whichafforded the Board some discretion, the remand in the instant case, in effect,directs the Board to enforce a sanction in conformance with the recommendationof the stewards. In our view, the decision of the circuit court was a finalorder. Accordingly, this court has jurisdiction.

II

Plaintiff contends that the Board lacked jurisdiction to enter its March11, 1997, order subsequent to the appellate court's opinion dated March 5,1997, reversing the trial court's decision, because the appellate court'smandate had not yet issued.

Illinois Supreme Court Rule 369 provides:

" (a) Filing of Mandate. The clerk of the circuit court shall filethe mandate promptly upon receiving it.

(b) Dismissal or Affirmance. When the reviewing court dismisses theappeal or affirms the judgment and the mandate is filed in the circuitcourt, enforcement of the judgment may be had and other proceedings maybe conducted as if no appeal had been taken.

(c) Remandment. When the reviewing court remands the case for a newtrial or hearing and the mandate is filed in the circuit court, the caseshall be reinstated therein upon 10 days notice to the adverse party." 134 Ill. 2d R. 369.

Plaintiff relies upon Butler v. State Board of Elections, 188 Ill. App.3d 1098, 545 N.E.2d 165 (1989). Plaintiff's reliance on Butler is misplaced. In Butler, the plaintiff requested the circuit court to order the IllinoisState Board of Elections to certify him as a candidate for the state senate. Butler, 188 Ill. App. 3d at 1099. Plaintiff was denied relief by the circuitcourt. Butler, 188 Ill. App. 3d at 1099. The appellate court remanded thecause to the circuit court with directions that additional evidence be taken. Butler, 188 Ill. App. 3d at 1100. Before the mandate issued, the circuitcourt held additional hearings and ordered the election board to certifyButler as a candidate. Butler, 188 Ill. App. 3d at 1100. The appellate courtheld that the circuit court lacked jurisdiction to issue its order prior toreceipt of the mandate. Butler, 188 Ill. App. 3d at 1100.

Butler is not analogous because, in the instant case, incontradistinction to Butler, neither the judgment of the appellate court northe mandate that issued directed the circuit court to take any action. Significantly, the complete language of the mandate that was filed on May 6,1997, reads: "The judgment of the circuit court is reversed." Here, havingdetermined that the Board's order was a nullity because a majority vote waslacking, the appellate court vacated the Board's order and reversed thecircuit court. Hickey, 287 Ill. App. 3d at 107-08.

Judgments of the appellate court are operative from the time of theirentry until they are arrested either by the appellate court in an appropriateorder or by writ of certiorari issuing from the supreme court, or a reversalor modification by the supreme court. Upton v. Swedish American Hospital, 157Ill. App. 126, 128 (1910). Where there has been an appeal from a circuitcourt judgment, the judgment of the appellate court becomes final whenentered, and the mandate of a court of review is the transmittal of thejudgment of that court to the circuit court and revests it with jurisdiction. Brandon v. Caisse, 172 Ill. App. 3d 841, 844, 527 N.E.2d 118 (1988). Thejurisdiction of the circuit court is not revived unless the case is remandedto it by the appellate court. It is the filing of the mandate from theappellate court in the circuit court that reinvests jurisdiction in thecircuit court. Bank of Viola v. Nestrick, 94 Ill. App. 3d 511, 514, 418N.E.2d 515 (1981).

An instructive case is PSL Realty Co. v. Granite Investment Co., 86 Ill.2d 291, 427 N.E.2d 563 (1981). In PSL Realty Co., one of the issues addressedby the Illinois Supreme Court was whether the effective date of the appellatecourt's judgment dissolving a temporary injunction and receivershipjurisdiction became effective on the date the judgment was filed or on thedate that a mandate issued. PSL Realty Co., 86 Ill. 2d at 304-05. Relativeto this issue, the Illinois Supreme Court in PSL Realty Co. wrote:

"We must first determine the effective date of the judgment of theappellate court. That judgment was final when entered and not on thedate that the mandate of the appellate court issued. [Citation.] *** Our Supreme Court Rule 368(a) (73 Ill. 2d R. 368(a)) provides that themandate of the reviewing court shall be transmitted to the circuit notearlier than 21 days after the entry of the judgment. The date of theissuance of the mandate does not control the effective date of theappellate court judgment. *** Also, the filing of a petition forrehearing does not alter the effective date of the judgment of areviewing court unless that court allows the petition for rehearing, inwhich event the effective date of the judgment is the date that thejudgment is entered on rehearing. (See 73 Ill. 2d R. 367(a).) ***

The judgment of the appellate court entered on July 23, 1976, wasfinal as to the dissolution of the receivership." (Emphasis omitted andadded.) PSL Realty Co., 86 Ill. 2d at 304-06.

Accordingly, we hold that the judgment of the appellate court vacating theBoard's March 5, 1997, order became operative when entered and the Board hadjurisdiction and authority to enter the March 11, 1997, order.III

Plaintiff's next contention is that the Board acted arbitrarily andcapriciously, thereby depriving him of his due process rights during theadministrative process. Specifically, plaintiff asserts that the Boardviolated his due process rights when it failed to immediately report apositive finding on World Class Splash; acted in an arbitrary and capriciousmanner since it failed to follow its own rules and customs; acted in anarbitrary and capricious manner and in violation of the plaintiff'sconstitutional rights in suspending his occupational license since the Board'srules are vague, ambiguous, and lack specific penalties; and abused itsdiscretion in relying on matters which were not part of the record and indoubling the penalty imposed by the stewards. Plaintiff also contends thatthe Board violated his constitutional rights in suspending his occupationallicense for a period of 360 days. We disagree.

Relative to plaintiff's contention that his due process and equalprotection rights were violated by the stewards and the Board by failing tonotify him earlier that albuterol was detected in one of his horses, werecognize that a license to pursue one's occupation as a trainer of harnessracers is a property interest protected by the due process clause. Edwards v.Illinois Racing Board, 187 Ill. App. 3d 287, 290, 543 N.E.2d 172 (1989). In aproceeding involving revocation of a professional license, due process lawrequires a definite charge, adequate notice, and a full, fair and impartialhearing. Goranson v. Department of Registration & Education, 92 Ill. App. 3d496, 499, 415 N.E.2d 1249 (1980).

Section 509.190(a) of the Illinois Administrative Code provides, inpertinent part:

"Upon receipt of a positive laboratory result, the stewards or theExecutive Director of the Board shall immediately direct that no pursemoney shall be awarded to the horse in question pending a finaldetermination by the stewards or the board of the accuracy of thelaboratory's report. The stewards *** shall notify the owner, trainer,and any other person having care or custody or control of the horse." 11 Ill. Adm. Code