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 
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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 offtrack 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 parimutuel 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 

total Illinois pari-mutuel handle on Illinois horse 

races that is less than 75% of the total Illinois parimutuel 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 

facility for calendar year 1994, 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 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.