Hawthorne Race Course Inc. v. Illinois Racing Board

Opinion

SIXTH DIVISION May 19, 2006

No. 1-04-3280

HAWTHORNE RACE COURSE, INC., and ) Appeal from the NATIONAL JOCKEY CLUB, ) Circuit Court of ) Cook County Plaintiffs-Appellants, ) ) v. ) ) ILLINOIS RACING BOARD, ILLINOIS ) THOROUGHBRED HORSEMEN'S ASSOCIATION, ) ILLINOIS HARNESS HORSEMEN'S ASSOCIATION,) ARLINGTON PARK RACE COURSE, LLC, ) BALMORAL RACING CLUB, INC., FAIRMOUNT ) PARK, INC., ASSOCIATES RACING ) ASSOCIATION, INC., MAYWOOD PARK TROTTING) ASSOCIATION, INC., EGYPTIAN TROTTING ) ASSOCIATION, INC., and SUBURBAN DOWNS, ) INC., ) Honorable ) Stephen Schiller, Defendants-Appellees. ) Judge Presiding

PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

This case involves interpretation of an odd provision in the

Illinois Horse Racing Act of 1975 (the Act) (230 ILCS 5/1 et seq.

(West 2004)). Licensees, who collect the bets and conduct the

races, split a portion of the wagers with the horsemen, who own,

train and race the horses. The Act specifies the allocation of

the total wagered. In 1995 the legislature decided to allow

betting on simulcast races, where bettors at a host track bet on

races run at a different track and broadcast onto a screen at the

host track. Horsemen persuaded the legislature to allocate a

larger portion of the earnings from simulcast races to the 1-04-3280

horsemen. The licensees, in turn, persuaded the legislature to

allow recapture of some of the horsemen's share if the take from

live races fell by a specified percentage from 1994 levels. This

case involves the calculation of recapture.

In 1994 National Jockey Club (NJC), a licensee, conducted

races at Sportsman's Park, while Hawthorne Race Course, Inc.

(HRC), another licensee, conducted races across the street at

Hawthorne Race Course (Hawthorne). In 2002 NJC merged with HRC,

and beginning in 2003 both licensees ran all their races at

Hawthorne. The Illinois Racing Board (Board) held that the Act

did not permit a calculation of recapture based on a comparison

of races NJC ran at Hawthorne with the races run at Sportsman's

Park in 1994. Under the Board's decision, NJC and HRC recaptured

much less in 2004 than they recaptured in prior years.

NJC and HRC sued for administrative review of the Board's

decision. Two horsemen's associations and licensees at other

racetracks in Illinois joined the Board as parties defendant.

The trial court upheld the Board's decision. NJC and HRC now

appeal. We find that the Board properly applied the statutory

formula for recapture, and therefore we affirm.

BACKGROUND

Illinois permits pari-mutuel wagering on horse races. 230

ILCS 5/9(a) (West 2004). For pari-mutuel wagering on a race, a

person licensed to conduct the race collects all bets on the race

and distributes most of the money collected to those who won

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their bets. The pool of all bets on a race is the "handle" for

that race. Balmoral Racing Club, Inc. v. Gonzales, 338 Ill. App.

3d 478, 480 (2003). Before distributing the winnings, the

licensee appropriates the "takeout," a portion of the handle

distributed to state and local governments, the horsemen, and the

licensees. M. Bishop, And They're Off: The Legality of

Interstate Pari-mutuel Wagering and Its Impact on the

Thoroughbred Horse Industry, 89 Ky. L.J. 711, 716 (2001). Under

the approved formula for distribution of the handle from off-

track betting, licensees receive 75% of the takeout remaining

after taxes, while horsemen receive only 25% of that part of the

takeout.

In 1995 a new law came into effect, permitting bettors at a

host track to bet on races run at other tracks and simulcast in

the host track. Horsemen won the right to receive 50% of the

takeout after taxes from simulcast wagering. See 230 ILCS

5/26(g)(5), (g)(7) (West 2004). Licensees anticipated that the

handle from races run at the host racetracks would decrease as

bettors shifted their bets to the races simulcast from other

tracks. Because licensees received a lesser portion of the

handle from simulcast races, they sought to protect themselves

against potential decreases in revenue. They persuaded the

legislature to adopt a provision permitting recapture from

horsemen of part of the expected decrease in the handle on live

races.

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Section 26(g)(13) of the Act provides:

"[I]n the event that the total Illinois pari-

mutuel handle on Illinois horse races at all wagering

facilities in any calendar year is less than 75% of the

total Illinois pari-mutuel handle on Illinois horse

races at all such wagering facilities for calendar year

1994, then each wagering facility that has an annual

races that is less than 75% of the total Illinois pari-

mutuel handle on Illinois horse races at such wagering

facility for calendar year 1994, shall be permitted to

receive, from any amount otherwise payable to the purse

account at the race track with which the wagering

facility is affiliated in the succeeding calendar year,

an amount equal to 2% of the differential in total

Illinois pari-mutuel handle on Illinois horse races at

the wagering facility between that calendar year in

question and 1994 ***." 230 ILCS 5/26(g)(13) (West

2004).

The licensees guessed right. Since the introduction of

simulcast races, the pari-mutuel handle on horse races run at

tracks in Illinois has never reached 75% of the pari-mutuel

handle on races run in Illinois in 1994. Thus, the recapture

provision has taken effect every year.

The recapture for races run at Maywood Park in 1996

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demonstrates the calculation of the amount of recapture. In 1994

and 1996, three different licensees ran races at Maywood on

separate dates. The Board aggregated the total handle from the

races all licensees ran at Maywood in 1994. The sum exceeded

$100 million. The same three licensees ran all the races at

Maywood in 1996. The total handle from all races at Maywood that

year barely exceeded $53 million. Because the handle for all

races run in Illinois amounted to less than 75% of the 1994

handle, and because the handle at all races at Maywood amounted

to less than 75% of the 1994 handle for races at Maywood, the

recapture provision established that "such wagering facility ***

shall be permitted to receive *** an amount equal to 2% of the

differential in total Illinois pari-mutuel handle on Illinois

horse races at the wagering facility between that calendar year

in question and 1994." 230 ILCS 5/26(g)(13) (West 2004). The

differential between Maywood's 1994 handle and its 1996 handle on

live races surpassed $47 million, so the statutory formula

permitted recapture of more than $940,000. The licensees had the

right to deduct that amount from the total of all purses awarded

to horsemen who entered races run at Maywood in 1997.

In 1994 three licensees, including NJC, ran races at

Sportsman's Park. That year the total handle for Sportsman's

Park exceeded $143 million. In 1998 only NJC ran races at

Sportsman's Park, and its total handle for those races fell short

of $38 million. The differential of more than $105 million

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established a recapture in excess of $2,100,000 for 1998, to be

deducted from purses awarded in 1999.

Sportsman's Park underwent extensive renovation in 1999. No

licensee ran any races at Sportsman's Park that year. NJC ran

races at Hawthorne, across the street from Sportsman's Park, in

1999. Because the Act permits recapture only from the purses of

races run at the same wagering facility, the Board's staff

recommended disallowance of any recapture in 1999 for Sportsman's

Park, despite the large differential between 1998 handle and 1994

handle for Sportsman's Park. The executive director overruled

the staff and permitted NJC to deduct the $2,100,000 recapture

for 1998 from purses NJC gave horsemen for races it ran at

Hawthorne in 1999, just as though NJC had run those races at

Sportsman's Park.

Sportsman's Park reopened for horse racing in 2000. The

executive director allowed NJC to recapture part of the

differential between the 1994 handle and the 1999 handle, using

the races all three licensees ran at Sportsman's Park in 1994 and

comparing that sum with the handle on races NJC alone ran at

Hawthorne in 1999. Because the differential exceeded $110

million, the Board permitted NJC to recapture more than

$2,200,000 from purses awarded to horsemen for races run at

Sportsman's Park in 2000.

NJC again ran races at Sportsman's Park in 2001 and 2002.

After the 2002 racing season, with the Board's encouragement, NJC

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effectively merged with HRC. NJC and HRC both ran races at

Hawthorne in 2003, and no one has run any horse races at

Sportsman's Park since 2002. The Board calculated recapture for

Sportsman's Park in 2002 and permitted NJC to deduct that amount

from purses NJC awarded horsemen for races NJC ran at Hawthorne

in 2003.

The Board's staff recommended calculating the recapture for

2004 by comparison of the total handle from all races run at

Hawthorne in 2003 with the total handle from Hawthorne races in

1994. Thus, under the recommendation, the races NJC ran in 2003

increased the total 2003 handle at Hawthorne, and therefore those

races reduced the total recapture awarded for Hawthorne. The

staff recommended no award of recapture for Sportsman's Park,

because no one ran races at Sportsman's Park in 2003.

NJC and HRC objected to the recommendations, arguing that

the Board should compare the races NJC ran at Hawthorne in 2003

with the total handle from races all licensees ran at Sportsman's

Park in 1994, and award NJC its own recapture based on that

comparison. They also sought an award for Hawthorne of a

separate recapture comparing the handle from races HRC alone ran

in 2003 with the total handle from races all licensees ran at

Hawthorne in 1994. NJC and HRC argued that they relied on prior

decisions allowing them separate recapture when they decided to

merge.

The Illinois Thoroughbred Horsemen's Association and the

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Illinois Harness Horsemen's Association supported the staff's

recommendation and opposed the calculation of recapture NJC and

HRC proposed. Licensees at other racetracks also supported the

staff's recommendations.

After a hearing in January 2004, the Board agreed with the

staff's recommendations. The chair explained that in the Board's

view, the executive director improperly allowed Sportsman's Park

a recapture for 2000 based on a comparison of the handle from

races all licensees ran at Sportsman's Park in 1994 with the

handle from races NJC ran at Hawthorne in 1999. The Board did

not then review the executive director's decisions on recapture.

According to the chair, 2003 "was the very first year that the

Racing Board ever voted on recapture. Always before it was

handled administratively by the Executive Director. So the Board

never considered it."

The chair also found significantly changed circumstances

from 2000 to 2004, and the change warranted differences in the

calculation of recapture:

"[In 2000, Sportsman's Park was] coming back in

business, it was just one year, you were just off for

that year and you were coming back. [The] Executive

Director *** decided to be a nice guy and look the

other way and give you the recapture in that year

although it was clearly [denied in the staff's

recommendation] correctly in the first place because

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there was no racing at the Sportsman's Park racing

facility."

The chair also pointed out that when NJC explained its financial

strength, in its application for 2003 racing dates, it based its

revenue projection on a "wors[t] case scenario wherein [NJC]

loses *** its recapture." After the consolidation with HRC, NJC

submitted to the Board a document in which it acknowledged that

"issues have arisen as to whether NJC will be able to retain" its

right to recapture.

The Board approved the staff's recommendation for

calculation of recapture for 2003, recoverable from purses

awarded in 2004. Thus, the Board permitted no separate recapture

for NJC, and it awarded a recapture for Hawthorne based on a

comparison of the handle from races all licensees ran at

Hawthorne in 2003 with the handle from races all licensees ran at

Hawthorne in 1994.

NJC and HRC sued for administrative review of the Board's

decision. The Board filed a brief in support of its calculation

of recapture. The horsemen and the other licensees again

supported the Board's position. The trial court affirmed the

Board's decision. NJC and HRC now appeal.

ANALYSIS

This case presents a question of statutory interpretation.

"[R]eviewing courts generally accord substantial

deference to the interpretation placed on a statute by

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the agency charged with its administration and

enforcement. [Citation.] An agency's statutory

interpretation will be rejected if it is unreasonable

or erroneous." Metropolitan Alliance of Police v.

Illinois Labor Relations Board, Local Panel, 345 Ill.

App. 3d 579, 586 (2003).

Section 26(g)(13) of the Act establishes the formula for

calculation of annual recapture:

"[E]ach wagering facility that has an annual total

Illinois pari-mutuel handle on Illinois horse races

that is less than 75% of the total Illinois pari-mutuel

handle on Illinois horse races at such wagering

receive *** an amount equal to 2% of the differential

in total Illinois pari-mutuel handle on Illinois horse

races at the wagering facility between that calendar

year in question and 1994 ***." 230 ILCS 5/26(g)(13)

(West 2004).

The Act explicitly defines a "wagering facility" as "any location

at which a licensee may accept or receive pari-mutuel wagers

under this Act." 230 ILCS 5/3.22 (West 2004).

NJC argues that because it has a license to collect bets, it

qualifies as a "wagering facility." Sportsman's Park cannot

collect recapture, so it must not count as a wagering facility.

They point to the Board's written rules, which provide:

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"Pursuant to Section 26(g)(13) of the Illinois

Horse Racing Act of 1975 ***, qualified licensed

Illinois wagering facilities are permitted to deduct an

amount equal to 2% of the difference between the

licensee's 1994 handle on Illinois races and its handle

on Illinois races in the year in question, from amounts

allocated or payable to purses in the succeeding year,

at the racetrack from which the wagering facility is

affiliated." 11 Ill. Adm. Code '213.10, as amended by

24 Ill. Reg. 17484 (eff. November 8, 2000).

The rules define "Purse Recapture" as "the amounts *** to be

deducted by each qualified wagering facility from amounts payable

to purses at the licensee's affiliated racetrack." 11 Ill. Adm.

Code '213.20, as amended by 24 Ill. Reg. 17484 (eff. November 8,

2000).

The reference in the rules to "licensed *** wagering

facilities" apparently identifies wagering facilities with

licensees. Other licensees oppose appellants' construction of

the statute because the licensees at those racetracks had not

begun operating before 1994. If we construe a "wagering

facility" as a licensee for calculation of the recapture, no one

gets any recapture for the sharp decline in handle from live

races at racetracks at which a new licensee, created after 1994,

now runs races.

The explicit definition of "wagering facility" cannot

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support the construction appellants seek. The statute

unequivocally defines a wagering facility as a location at which

a licensee acts, explicitly distinguishing the licensees from the

wagering facilities. When an administrative regulation conflicts

with a statute, the statute controls. Schilling v. Book, 84 Ill.

App. 3d 972, 976 (1980); North Shore MRI Centre v. Department of

Revenue, 309 Ill. App. 3d 895, 899 (1999). Thus, the rule's

apparent identification of licensees as wagering facilities

cannot overcome the statute's distinction between locations that

count as wagering facilities and the licensees who use those

facilities.

Moreover, NJC has, since 1995, accepted recapture calculated

on the basis of all races run by all licensees at Sportsman's

Park in 1994. If a "wagering facility" in section 26(g)(13)

referred to a licensee, NJC should have recaptured amounts based

solely on its own handle from 1994. The administrative rule on

its face restricts recapture to the difference between "the

licensee's 1994 handle *** and its handle *** in the year in

question." 11 Ill. Adm. Code '213.10, as amended by 24 Ill. Reg.

17484 (eff. November 8, 2000). The Board has always included

handle from races other licensees ran at Sportsman's Park in 1994

as part of the basis for calculating recapture for Sportsman's

Park. The Board predicated the calculation on its interpretation

that a location, a racetrack, is a wagering facility, and a

licensee is not. NJC has for years reaped the benefit of this

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interpretation of the rule. "A party who has accepted and

retained the advantages of an order cannot be heard to attack the

validity or propriety of conditions upon which its right to such

advantages was expressly predicated." Zweifel Manufacturing

Corp. v. City of Peoria, 11 Ill. 2d 489, 493 (1957).

Next, appellants claim that the Board established

portability of recapture in its decisions allowing NJC recapture

in 1999, 2000 and 2003. In effect, appellants argue that the

prior decisions operate as res judicata concerning the issue of

NJC's right to recapture in 2004 based on its 2003 races.

"[A] prior determination by an administrative body

is not res judicata in subsequent proceedings before

it. [Citations.] An administrative body has the power

to deal freely with each situation as it comes before

it, regardless of how it may have dealt with a similar

or even the same situation in a previous proceeding."

Hazelton v. Zoning Board of Appeals, 48 Ill. App. 3d 348, 351-52, 363 N.E.2d 44 (1977).

Also, as the chair pointed out, the Board played no part in the

decisions awarding NJC recapture in 1999 and 2000. The executive

director, unreviewed, granted NJC recapture in those years. The

prior decisions do not collaterally estop the Board from

distinguishing the circumstances in 2004 from the circumstances

arising in prior years in which NJC obtained recapture.

In 1998 NJC ran races at Sportsman's Park, so the executive

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director could compare the handle from those races with the

handle from the races run at the same wagering facility in 1994.

The calculation of recapture then followed the statutory

formula. The formula established an amount of recapture for

Sportsman's Park, but no licensee scheduled any races at that

facility for 1999, during the track's extensive renovations. The

executive director decided to allow NJC, as the sole licensee who

ran races at Sportsman's Park in 1998, to deduct recapture from

purses it awarded for races it ran at Hawthorne in 1999.

Similarly, in 2002 NJC ran races at Sportsman's Park, so the

Board could compare the handle from those races with the handle

from the races run at the same facility in 1994. The statutory

formula again established an amount of recapture for Sportsman's

Park. The Board decided to allow NJC, as the sole licensee who

ran races at Sportsman's Park in 2002, to deduct recapture from

purses it awarded for races it ran at Hawthorne in 2003. The

decision apparently allows a limited kind of portability. As

long as a licensee ran races at a facility where some licensees

ran races in 1994, the statutory formula establishes a sum for

recapture for that wagering facility. The Board's decision in

2003, and the executive director's decision in 1999, permit the

licensee who ran the races at the wagering facility to recapture

the statutory amount from purses it pays out the following year,

even if the licensee runs its races at a different facility. The

Board has never approved recapture calculated on the basis of a

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comparison of the handle from races run at one facility with

handle from races run at a different wagering facility in 1994.

In 2000 the executive director decided to permit NJC to

recapture part of the purse it awarded for races scheduled at

Sportsman's Park. To calculate the recapture, the director

compared the handle from races all licensees ran at Sportsman's

Park in 1994 with the handle from races NJC ran at Hawthorne in

1999. The Board found that no credible reading of the statute

supported that calculation of recapture. We agree. If the

director mistakenly treated NJC as a "wagering facility," he

should have compared the handle on races NJC ran in 1999 with the

handle on races NJC ran in 1994, rather than comparing the 1999

handle with the handle on all races all licensees ran at

Sportsman's Park in 1994. The executive director apparently

applied a kind of legal fiction, treating the races NJC ran at

Hawthorne in 1999 exactly as though NJC ran them at Sportsman's

Park. The chair best explained the 2000 decision as a bonus to

NJC to help it defray the costs of renovating Sportsman's Park.

Thus, even if Board decisions could collaterally estop the

Board from reconsidering issues it had decided, the Board's 2003

decision involved circumstances strikingly different from those

presented in 2004. The Board could compare the handle from races

run at Sportsman's Park in 2002 with the handle from races run at

that wagering facility in 1994 to make the statutory calculation

of the recapture it awarded in 2003. Because no one ran races at

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Sportsman's Park in 2003, the Board had no basis for a

calculation of recapture for Sportsman's Park in 2004 and,

therefore, no amount for NJC to import to its new location.

Appellants present no grounds for treating the executive

director's mistake in 2000 as res judicata disallowing denial of

recapture in 2004.

Appellants argue that the legislature's failure to amend the

statute after 2000 shows that the executive director then

interpreted the statute correctly. First, we note that the

legislature allocated funds in 2000 to the horsemen to cover the

amount deducted from all purses under the recapture provision.

Thus, the legislature ensured that the horsemen did not suffer

any detriment from the executive director's mistaken award to NJC

in 2000.

As the chair points out, the Board had also in prior

decisions treated a single location as a wagering facility and

permitted no portability of the basis for recapture. In one case

an operator of an off-track betting parlor moved its operations

to a new location. The Board disallowed recapture because the

new wagering facility had no 1994 handle to compare with current

handle; the old location, which had in 1994 a certain handle, had

no current operations and no current handle to compare with 1994

handle. The legislature's failure to amend did not approve

decisions allowing portability any more than the same failure to

amend approved the decisions denying portability for other

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wagering facilities. Legislative inaction here provides no basis

for disturbing the Board's decision.

Next, appellants claim public policy requires application of

the formula they propose for calculation of their recapture. The

legislature expressly adopted the Act to:

"(a) support and enhance Illinois' horse racing

industry, which is a significant component within the

agribusiness industry;

(b) ensure that Illinois' horse racing industry

remains competitive with neighboring states;

(c) stimulate growth within Illinois' horse racing

industry, thereby encouraging new investment and

development to produce additional tax revenues and to

create additional jobs;

***

[and] (e) encourage the breeding of thoroughbred

and standardbred horses in this State[.]" 230 ILCS

5/1.2 (West 2004).

To remain competitive with racing in other states, Illinois

racetracks must award horsemen purses sufficient to motivate them

to race their best horses in Illinois. The legislature designed

the provisions of section 26 to allocate funds in a manner that

best preserves the welfare of both the horsemen and the licensees

who run races in Illinois. The legislature created an explicit

formula for determining the amount of recapture to deduct from

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purses awarded to horsemen. We see no reason to second-guess the

legislature's formula. Money not awarded as recapture remains in

the purses awarded to horsemen and thereby supports the growth

and development of the racing industry in Illinois. We note that

the other licensees support the Board's interpretation of the

Act. Public policy does not demand an award of recapture for a

former wagering facility no longer used for horse racing.

Finally, appellants maintain that they relied on portability

of recapture when they merged and therefore the court should

estop the Board from denying the recapture they seek.

"Estoppel against public bodies is generally not

favored and is allowed in only rare and unusual

circumstances. [Citations.] The doctrine of estoppel

is invoked against a public body only when it is

necessary to prevent fraud and injustice." Halleck v. County of Cook, 264 Ill. App. 3d 887, 893 (1994).

The plaintiff must show "an affirmative act on the part of the

public entity and the inducement of substantial reliance by the

affirmative act." Gersch v. Department of Professional Regulation, 308 Ill. App. 3d 649, 660 (1999).

Here, appellants rely on three affirmative acts: the

decisions permitting NJC recapture in 1999, 2000 and 2003. The

argument appears to restate the attempt to collaterally estop the

Board from distinguishing the circumstances in 1999 and 2000 from

the circumstances in 2004. The Board's decisions do not have

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such res judicata effect. Hazelton, 48 Ill. App. 3d at 351-52.

Moreover, the difference in circumstances renders

unreasonable any reliance on the prior decisions as establishing

that NJC would continue to receive recapture based on handle from

races run at Sportsman's Park in 1994, even after NJC stopped

running races at that facility. The Board calculated recapture

for 2003 by comparing handle from races at Sportsman's in 2002

with handle from races run by all licensees at the same wagering

facility in 1994. NJC could not reasonably rely on that decision

as grounds for assuming it would continue to receive recapture

when the Board could no longer use the handle from races run at

Sportsman's Park to compare with the handle from races run at

Sportsman's Park in 1994. Similarly, the decision permitting

recapture in 1999 for races run at Sportsman's Park in 1998

cannot lead reasonable persons to assume they could use races run

at other locations as a basis for calculating recapture.

The executive director in 2000 permitted NJC to recapture an

amount based on a comparison of races run at Hawthorne in 1999

with races run at Sportsman's Park in 1994. But in that case the

executive director treated all races NJC ran at Hawthorne in 1999

as though NJC ran them at Sportsman's Park. The decision

assisted NJC with its efforts to reopen Sportsman's Park

following renovations. NJC does not assert that any state

official or anyone else affiliated with the Racing Board ever

promised NJC, before the merger, that it would continue to

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receive recapture based on a comparison of its races at Hawthorne

with the races all licensees ran at Sportsman's Park in 1994. In

the absence of reasonable reliance, estoppel cannot apply.

Also, we agree with the Board that NJC's documents regarding

the merger show that NJC, to an extent, prepared for the

possibility that the Board might not allow it to calculate

recapture based on a comparison of the handle from races it alone

ran at Hawthorne each year with the total handle from races all

three licensees ran at Sportsman's Park in 1994. NJC and HRC

have not proved that, when they merged, they actually relied on

the calculation of recapture they now propose. If they had so

relied the reliance was unreasonable because the circumstances

after 2003 differed sharply from the circumstances in 1999, 2000

and 2003.

The Act explicitly directs the Board to calculate recapture

for each location at which various licensees ran races, and not

to calculate recapture for each individual licensee. The Board

has consistently so calculated recapture, despite apparently

inconsistent language in the Board's rules, which seem to

identify licensees as wagering facilities. The Act, rather than

the inconsistent rules, governs the proper calculation. The

public policy of supporting the horse racing industry does not

demand appropriation of the amounts appellants seek to recapture

from horsemen. The decisions from 1999 and 2003, allowing a

limited portability of properly calculated recapture, do not

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require an award of recapture for a former wagering facility no

longer used for horse racing. Neither does the executive

director's unreviewed error from 2000 bind the Board. NJC and

HRC, when they merged, apparently did not rely on the continued

calculation of recapture as though NJC continued to run its races

at Sportsman's Park. If they did so rely, that reliance was

unreasonable. Accordingly, we affirm the trial court's decision

upholding the Board's calculation of recapture for 2003, to be

recovered in 2004, for Hawthorne.

Affirmed.

FITZGERALD-SMITH and O'MALLEY, JJ., concur.

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