IN THE MATTER OF THE RACING COMMISSION ACT, [S.O. 2000, c.20](https://www.canlii.org/en/on/laws/stat/so-2000-c-20/latest/so-2000-c-20.html);
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE ROBERT M. ZUBKOFF
Standardbred licensee Robert M. Zubkoff appealed from Standard Official Ruling SB 149/2006 dated July 13, 2006 in which the Acting Executive Director suspended his licence pending the resolution of the outstanding matters with the Ohio State Racing Commission.
On September 11, 2006, a panel of the Ontario Racing Commission consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and David Gorman, convened to hear the appeal. Patricia Latimer appeared at the hearing for the Administration and John Walzak appeared on behalf of Mr. Zubkoff.
On reading and reviewing the exhibits filed, and on hearing the submissions of counsel and Mr. Walzak, the Commission granted the appeal, on conditions to be attached to his licence as follows:
Except where Mr. Zubkoff is participating solely as a catch driver, any horse owned (in whole or in part) or trained or driven by Mr. Zubkoff entered to race at an Ontario track must be presented at the track for testing for TCO2 under the Rules of Standardbred Racing (including Rules 22.38 and 22.38.05), at the expense of Mr. Zubkoff, until such time as the final determination of the appeal(s) from the Ohio Racing Commission ruling in question is made. Such testing does not preclude such horse from being otherwise tested for drugs or medication in accordance with the CPMA regulations or in accordance with the Rules of Racing.
In the event that Mr. Zubkoff chooses to apply for his Ontario licence in November 2006 or thereafter, he must provide proof in a form satisfactory to the Executive Director that all steps required by law pertaining to his appeal to the Ohio Court of Common Pleas (or any higher court on a subsequent appeal) have been taken in accordance with the rules of the relevant Court to ensure an expeditious resolution of the appeal(s).
In the event that the final determination of Mr. Zubkoff’s appeal of the Ohio Racing Commission ruling is that he is subject to penalty or in the event that the appeal is withdrawn resulting in a penalty being imposed, then the usual Rules of Racing in Ontario will apply to reflect the reciprocal enforcement of the Ohio Racing Commission’s rulings.
In the event that Mr. Zubkoff’s appeal is granted in the final determination, then the conditions imposed by this decision will be lifted from Mr. Zubkoff’s Ontario licence, if he is licensed in Ontario at the time.
DATED at Toronto this 13th day of September 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
SB licensee Robert Zubkoff has appealed Ruling SB 149/2006 issued by the Acting Executive Director on July 13, 2006 which suspended his licence pending the resolution of issues in Ohio concerning a suspension of his Ohio licence imposed by the regulator there.
In May 2005 Mr. Zubkoff’s horse tested positive for TCO2 in Ohio and the following November a Ruling issued imposing a penalty including a licence suspension and fine. This Ruling was stayed pending his appeal to the Ohio Racing Commission. This stay was in effect at the time of the renewal of Mr. Zubkoff’s Ontario licence in November 2005. Therefore this Commission issued a licence for Mr. Zubkoff to race in Ontario for 2006.
In June 2006, the Ohio Racing Commission dismissed his appeal and imposed a one-year suspension and $1,000 fine for the TCO2 positive test. On July 10, 2006 the Ohio Court of Common Pleas stayed the penalty imposed by the Ohio Racing Commission. It was following on that disposition that the Administration here issued Ruling SB 149/2006, suspending Mr. Zubkoff’s Ontario licence.
The order of the Ohio Court of Common Pleas contains certain conditions in recitals to the order to the effect that:
Mr. Zubkoff has not applied for his 2006 licence in Ohio.
If he did apply in 2006, the Ohio Racing Commission does not intend to issue a licence to him.
The Ohio Racing Commission is not opposed to the stay because Mr. Zubkoff is not racing in Ohio.
Based on these recitals, the Ohio Court of Common Pleas stayed the suspension and fine imposed in the Commission ruling pending the final determination of the appeal.
In essence, there is now a stay of the Ohio Racing Commission’s penalty imposing a suspension and fine, and if that stay were without condition the Administration says there would be no issue for us to address. The stay is however based on the conditions noted above. The result is that unlike other cases where a stay is issued either on consent or otherwise, this licensee is not able to race in Ohio. In essence Ohio has accomplished what it wanted to: it has kept Mr. Zubkoff out of racing in that jurisdiction. The issue is whether or not the stay operates such that he should have his licence in Ontario.
The Administration in its argument before this panel relies on the wording of Rule 3.10 which explicitly refers to the situation where a suspension is in effect. On the narrow reading of the word “suspension”, the Rule does not apply since the suspension imposed by Ohio has now been stayed by order of the Court of Common Pleas. The original ruling SB 149/2006 referred to Rule 3.12 which refers to a license not being issued to an applicant whose license in another jurisdiction is suspended whether or not there is an appeal. The Administration now agrees that this Rule does not apply to this situation.
The effect of the agreement between the Ohio Commission and Mr. Zubkoff is that he is effectively barred from racing in that state, as if there were no stay of the penalty. Other jurisdictions, such as Ontario, must now deal with a licensee whose penalty has been stayed in the jurisdiction where the rule violation occurred but he is nonetheless prevented from racing there. The Rules of Racing in Ontario as presently drafted to reflect reciprocity do not contemplate the situation presented here.
The purpose of Rules 3.10 and 3.12 is to prevent those whose licenses are suspended for violations of Rules of Racing in one jurisdiction from avoiding the effect of the license suspension by going to another jurisdiction and continuing to participate in racing there. The situation is complicated by simulcasting. Without reciprocal enforcement of Commission rulings, the licensees simply move operations to another jurisdiction after they have been suspended, and the betting public is then faced with betting on races televised into the jurisdiction, with participants who are barred from that jurisdiction. The purpose of reciprocity is to give effect in a real sense to the lawful Rulings of another Commission and to protect the integrity of the sport.
In Ontario the practice is to reciprocate other jurisdictions’ rulings, whether by respecting suspensions and fines or by respecting stays of penalty.