IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;

AND IN THE MATTER OF

STANDARDBRED OWNER, TRAINER, DRIVER

ALLAN CULLEN

Whereas in Ruling S.B. 217/2004 the Director of Racing indefinitely suspended the licence of Standardbred Driver/Owner/Trainer Allan G. Cullen (licence # H40256) as a driver and trainer, pursuant to Rule 6.38 (e) (iii) of the Rules of Standardbred Racing, until he appeared before the Ontario Racing Commission as a result of a positive test for a metabolite of cocaine in his urine sample taken on August 12, 2004 at Hiawatha Horse Park.

And whereas by written notice dated August 19, 2004 Mr. Cullen requested a hearing before the Commission to be held as soon as possible.

On September 1, 2004, Chair Lynda Tanaka of the Ontario Racing Commission held a hearing in this matter. Mr. Ken Marley appeared for Mr. Cullen and Mr. Tim Snell appeared for the Administration.

Upon reading the exhibits filed, hearing the evidence of Mr. Cullen and Pauline Stanczuk and upon hearing submissions of the Parties, the Ontario Racing Commission ordered as follows:

Mr. Cullen’s licence should be suspended until June 30, 2005, followed by an 18-month probationary period, and that, prior to returning to racing, he should provide to the Director proof of his satisfactory commencement and completion in 2004/2005 of a drug rehabilitation outpatient program of a duration and type satisfactory to the Director.

Therefore:

1. Mr. Cullen’s licence is hereby fully suspended until June 30, 2005, inclusive;

2. On or before June 30, 2005 Mr. Cullen shall provide to the Director proof of his satisfactory commencement and completion in 2004/2005 of a drug rehabilitation outpatient program of a duration and type satisfactory to the Director, failing which his licence shall remain suspended until such time as he complies with this requirement;

3. Mr. Cullen’s licence will be placed on probation from July 1, 2005, until December 31, 2006 inclusive, or in the event that he does not comply with requirement in paragraph 2 by June 30, 2005, for eighteen months following the date of the reinstatement of his licence.

DATED this 7^th day of September, 2004.

BY ORDER OF THE COMMISSION ___________________________

John Blakney

Executive Director

REASONS FOR DECISION

On September 1, 2004, the Commission consisting of the Chair sat to hear the matter of the request for hearing by Allan Cullen, licensed as an owner, trainer and driver, made following Ruling SB 217/2004. Mr. Cullen’s licence as trainer and driver had been suspended due to a positive test for a metabolite of cocaine in his urine sample taken on August 12, 2004.

Mr. Ken Marley appeared for Mr. Cullen and Mr. Tim Snell appeared for the Administration. Exhibit 1 was filed on consent and is a document brief containing the certificate of positive test and other documents. Exhibit 2 was a pharmacy receipt for a drug called “Hydromorphone” prescribed for Mr. Cullen. I have entered as Exhibit 3 the tape of the race on July 21^st, 2004, in which Mr. Cullen was injured, which was shown during the hearing. The Administration also filed on consent, a copy of the ruling of the Commission in 2003 (Ruling SB 2/2003) as well as the transcript of his last appearance before the Commission with respect to a positive test on December 7, 2003.

The following are my reasons for determining that Mr. Cullen’s license should be suspended until June 30, 2005 followed by an 18-month probationary period, and that, prior to returning to racing, he should provide to the Director, proof of his satisfactory commencement and completion in 2004/2005 of a drug rehabilitation outpatient program of a duration and type satisfactory to the Director, as set out at the end of these reasons.

Mr. Cullen has previously appeared before the Commission for testing positive for cocaine and has an additional Rule violation for providing a false urine sample. He is on probation for 18 months, commencing at the end of his suspension June 30, 2004 due to a positive test for cocaine. He has tested positive for cocaine five times since 1998, twice since December 1, 2003. From the point of view of the Administration, despite completing rehabilitation treatment and counselling, Mr. Cullen’s positive tests support a conclusion that he continues to use the drug and should not be permitted to race for a very long time, if at all. The Administration has requested that Mr. Cullen’s license be revoked.

Mr. Cullen’s counsel made three arguments in defense of his client:

a) the test result shows a cocaine metabolite but it was a “false positive”, i.e. it was not the result of taking cocaine but rather because Mr. Cullen used prescription medicine and usually takes a variety of herbal remedies and teas, the combination of which generated the cocaine metabolite;

b) there was a procedural failure in that a Medical Review Officer failed to contact Mr. Cullen to determine if he was taking any prescription medication, and if he had, he would have been told that Mr. Cullen had received a variety of prescription medications since July 21, 2004; and

c) because no notice of proposed order to revoke had been served the Administration could not succeed in its request for a revocation of the licence.

Rule 6.38 (e) provides in part as follows:

“In the event of a positive result relating to a controlled substance for which a licensee does not have a valid prescription, the licensee shall be subject to the following penalties…”

A “positive test” is defined as a laboratory report indicating that a controlled substance is present in the sample. The Administration relies on the certificate at Tab 4 of Exhibit 1.

“Controlled substance” is defined as cannabis sativa, its preparations, derivatives and similar synthetic preparations and cocaine. The certificate of the testing laboratory indicated that the sample tested positive for: “Cocaine metabolite – benzoylecgonine”.

Mr. Cullen testified that he was prescribed medication for the pain due to the broken ribs, collapsed lung, bruises and abrasions he suffered in an accident in the course of the race on July 21, 2004. When he was taken to the hospital on July 21, and thereafter at the hospital, he was given a variety of drugs. After he was released from hospital, he was prescribed “Hydromorphone” which, according to his counsel, is known on the street as “synthetic heroin”. It is very potent and often abused by those who cannot get heroin.

On August 12, Mr. Cullen provided a urine sample to the ORC investigator in accordance with the requirements of Ruling SB 011/2004. This was the first time Mr. Cullen had been required to provide a sample since his return to racing from the license suspension arising from the positive test in December 2003.

He testified that he took one of the Hydromorphone pills to alleviate the pain each night but he did not take one on the night of August 11. He also testified that he follows a regimen of herbal teas, gels, and medicines he needs to stay healthy, ease stomach problems and assist in pain management. He limped to the witness stand. He testified that he had stopped following his usual regimen and had done so prior to going to the lab on August 23 for the urine sample that tested negative.

Mr. Cullen testified that he did use cocaine in the ‘90’s but he has changed his lifestyle and does not associate with people who use cocaine. He and his common law spouse testified that he had not used cocaine and she remains adamant that he showed none of the signs he used to show of using the drug.

I was not provided with any evidence as to whether or not the prescription for Hydromorphone, which was the only prescription detail provided, would or would not generate the cocaine metabolite identified in his urine sample. Mr. Cullen did not secure information on any of the other drugs that he had taken, and when he went for his urine test on August 23, he did not follow his regular regimen of naturopathic remedies, nor take Hydromorphone.

The Rule specifically refers to a positive test relating to a controlled substance for which the licensee does not have a valid prescription. The knowledge of what prescription medicines the licensee has used is uniquely in the knowledge of the licensee. In the face of a positive test, the Rule provides for a defense but that defense must be established by the licensee. Mr. Cullen did not even bring to the hearing the pharmacy form that gave the particulars of the medication and identified the side effects, etc. of the medicine, which form he acknowledged had been received when the medication was purchased.

Ms. Stanczuk, his common law spouse testified that she recalled that its side effects included nausea and fatigue. The form included an admonition not to drive.

Mr. Cullen had a number of options open to him to establish the connection between the positive test and the prescription medicine. Since the over-the-counter medications are not referred to in the Rule, their use and subsequent generation of a positive test would not be a defense to a positive test within the wording of the Rule. Mr. Cullen could have produced evidence from a chemist as to the relationship between his prescription medicines and the metabolite. He could have taken the medicine as he had taken it in the days preceding the urine test and had his urine tested to duplicate the positive results, followed by a subsequent test when he was free of the prescription drug which test, if the speculation is correct, would have been negative. Absent the evidentiary base to establish that the positive result relates to a controlled substance for which a licensee has a valid prescription, I reject the defense.

Mr. Cullen’s counsel proffers a defense based on a procedural failure, i.e. there should have been a call to Mr. Cullen from a Medical Review Officer who could have been informed about the prescription drugs. The logical but unstated extension of the argument is that if the Medical Review Officer were informed of the drug(s) taken, he/she could make an informed decision on whether the metabolite shown on the test result was related to the prescription drug and perhaps no positive test certificate would have been issued.

The Drug Testing Custody and Control form used in this case is headed “NON-D.O.T. DRUG TESTING CUSTODY AND CONTROL FORM” and contains the warning “(DO NOT USE THIS FORM FOR DEPARTMENT OF TRANSPORTATION COLLECTIONS)“. Various steps are set out on the printed form, with the first being identified as to be filled out by “COLLECTOR OR EMPLOYER”. The title “Employer Name, Address, etc.” is crossed out and the Commission’s name and address is inserted. It appears that this is a form not specifically designed for the Commission but rather is used by Maxxam Analytics Inc., whose name and logo are on the top of the form, for employee drug testing programs as well as for the Commission’s program.

In Step 5 on the form is a certificate that is signed by Mr. Cullen and a place for him to provide both his day and evening phone numbers. Under that information printed on the form is the following:

“Should the results of the laboratory tests for the specimen identified by this form be confirmed positive, the Medical Review Officer will contact you to ask about prescription and over-the-counter medications you may have taken. Therefore you may want to make a list of those medications for your own records. THIS LIST IS NOT NECESSARY. If you choose to make a list, do so either on a separate piece of paper or on the back of your copy (Copy 5). DO NOT PROVIDE THIS INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FORM. TAKE COPY 5 WITH YOU.”

Step 4 on the form includes a portion to be completed on receipt by the laboratory. This step is not completed entirely. Steps 6 and 7 of the form are blank. The copy that has been reproduced is the Medical Review Officer Copy, according to the title at the bottom of the form.

Mr. Cullen testified that there was no telephone call from the Medical Review Officer. His counsel argues that the only logical reason to have the provision of the call from the Medical Review Officer is a possibility of a false positive, i.e. a positive test where the source of the metabolite is not the controlled substance but something else.

Step 6 on the form provides the portion to be completed by the Medical Review Officer. Step 6 does not include a reference to prescription medicine and I was not directed to any Rule of Standardbred Racing in which the requirement of the contact between a Medical Review Officer and a licensee as described in Step 5 is a precondition to a positive test certificate being issued.

My assessment is that the form used is not specifically designed for the Racing Commission and the provision in Rule 6.38 (e). The fact that Mr. Cullen was not called by a Medical Review Officer to offer the explanation as to the source of the positive test must be considered in that context and further that he has had a public hearing before the Commission with every opportunity to bring forward his defense related to the prescription drug. Whatever he might have told a Medical Review Officer, he could have established the defense here by credible evidence.

Mr. Cullen testified that he told the investigator at the time of the sample being taken on August 12 that he had taken prescription drugs. He testified that the investigator told him to deal with it if a positive test result came back. He has had that opportunity.

In view of my determination that I will not revoke Mr. Cullen’s licence I will not deal with the argument on the notice of proposed order for revocation.

I have been impressed by Ms. Stanczuk’s sincerity and I have accepted that Mr. Cullen has taken steps to turn his life around. If I did not accept his evidence that he has taken those steps to remove himself from his previous lifestyle, I would be inclined to suspend his licence for a full year or more. I am, however, hopeful that he will continue his efforts, as he has everything to lose if he fails to do so.

Mr. Cullen testified that he has not continued with professional counselling and that the counsellor he had is no longer with the agency. Therefore I am ordering that he enroll in a recognized substance abuse program to receive further professional drug rehabilitation counselling. SB Ruling 2/2003 had required a three-month program at a specific institution. Given the variety of programs that exist and the issues of availability, I will leave to the discretion of the Director approval of the specific program and the duration. The intent, however, is that the program must be by a reputable provider and must be of sufficient duration to provide Mr. Cullen with appropriate support and counselling.

In assessing the period of suspension, I have considered the suspension periods imposed earlier, the probationary periods and the desire expressed by Mr. Cullen to continue in horse racing, as well as the public interest in the integrity of racing. His last suspension ended June 30, 2004 and commenced in December 2003. The date of June 30, 2004 in the last suspension allowed Mr. Cullen to participate, albeit after the racing season in southwestern Ontario was well underway, in the summer months of racing when there are a number of tracks in that region operating. The suspension period I am imposing must reflect the fact that it is the latest in a series of suspensions, ever increasing in duration. It eliminates Mr. Cullen's opportunities to participate in the remaining season for 2004 as well as the first part of 2005, while allowing him the chance, assuming he abides by the terms of this order, to participate to some extent in 2005 and is therefore appropriate.

DATED this 7^th day of September, 2004.

_______________________________

Lynda Tanaka

Chair