Appeal of Standardbred Licensee Marty Adler, 2006 CanLII 84590

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

AND IN THE MATTER IN THE APPEAL OF

STANDARDBRED LICENSEE MARTY ADLER

Standardbred Driver/Trainer/Owner Marty Adler appealed Director's Ruling Number SB 52/2006, dated April 11, 2006, wherein Mr. Adler was penalized for a violation of rules 6.46.01 and 6.20(b) of the Rules of Standardbred Racing, and received a fine of $1,000 and a period of probation of one (1) year.

The ORC Panel hearing the matter consisted of Chair Lynda Tanaka and Commissioners Brenda Walker and Jane Garthson. The Panel convened on June 6, 2006. Aaron Dantowitz and Patti Latimer represented the Administration, and Mr. Adler appeared on his own behalf. The hearing was limited to the issue of penalty.

On reading the Agreed Statement of Facts, on hearing the evidence of Dr. Bruce Duncan and Marty Adler, on reviewing the Exhibits, and on hearing the submissions on behalf of the Administration and of Marty Adler, the Panel ordered that Mr. Adler receive a fine of $1,000 and a period of probation of one (1) year from the date of this ruling with the following condition:

1. in the event of any violation of rule 6.46.01 during the probation period, an immediate suspension shall apply for the remaining period of probation that would have been served had the subsequent offence not occurred.

The Commission's written Reasons for Decision is attached to this ruling.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Marty Adler appealed Ruling SB 52/2006 issued by the Executive Director on April 11, 2006. In that ruling the Executive Director charged that Mr. Adler had violated Rule 6.46.01 of the Rules of Standardbred Racing and was thereby guilty of misconduct prejudicial to the best interests of racing pursuant to Rule 6.20(b) of the Rules. A fine of $1,000 and a one-year probationary period was imposed as penalty in the Ruling with the requirement that in the event of any violation of Rule 6.46.01 during the period of probation, Mr. Adler’s licence would immediately be suspended for the remaining period of probation.

Rule 6.46.01 provides as follows, in part:

“No person shall possess or use a drug, substance or medication on a horse…

b) which has not been labelled for veterinary use under the Food and Drug Regulations or, if labelled for human use under the Food and Drug Regulations, has not been prescribed by a veterinarian after conducting an examination of the horse and determining that the drug, substance or medication is medically required by the horse and the drug, substance or medication is used only for that horse in accordance with the prescription issued by the veterinarian,

c) which may endanger the health and welfare of the horse or endanger the safety of a driver,

d) which may adversely affect the integrity of racing …”

The reasons for the Ruling, as recorded in it, provide as follows:

a) Marty Adler violated Rule 6.46.01 by purchasing from Fred Rogers, and therefore possessing medications including but not limited to ACTH, Adenosine, Banamine, Baycox, Dexamethasone, Erythropoietin, Fertiline, Hydrocortisone, Levothyrozine, Phenylbutazone, Testosterone, Propionate and Ventipulmin;

b) The substances listed above in (a) are controlled by the Food and Drugs Act and the Controlled Drugs and Substances Act;

c) Marty Adler’s purchases from Fred Rogers for the period September 15, 2001 through April 30, 2004 totalled $9,914.80;

d) Marty Adler did not provide any prescriptions for any of the medications purchased from Fred Rogers;

e) Marty Adler admitted to using the medications on his racehorses.

Mr. Adler co-operated with the investigators in accordance with his obligations under Rule 6.27 and 6.28 of the Rules of Standardbred Racing. He has admitted that he breached the Rules of Standardbred Racing and he has signed an agreed statement of fact. We accept that he was truthful to the investigators and truthful to the Commission in his testimony. The hearing before us deals only with the penalty to be imposed.

The penalty that is proposed is a $1,000 fine with a 1year probationary period attached to his licences. There is no request for a suspension of his licence unless he violates Rule 6.46.01 during the probationary period.

Mr. Adler was licensed in the period 1968 to 1993 as a Standardbred owner/trainer/driver. He operated a public stable as a trainer for 5 to 10 years. In 1992 he was suspended briefly for a positive test for a horse he owned, but did not train, for the drug Robaxin. He let his licence lapse from 1994 until 2000 when he obtained again his licence as an owner/trainer/driver.

He first started purchasing substances from Fred Rogers (“Rogers”) soon after he came back into the industry. He testified that there had been a substantial increase in the price of all products and services in the industry since 1994 and that he went to Rogers to avoid the mark up that veterinarians applied to drugs they prescribed. Prior to 1994 he had only obtained his medications for his horses from vets. He blamed the price increases charged by the veterinarians and other suppliers on the amount of money in the industry due to the slots program that had come into the industry after 1994.

Over the years since the late 1960’s Mr. Adler has been active in the media as a sportscaster and particularly he has been instrumental in producing harness racing material that could be used by television networks on racing events such as the Little Brown Jug, both during the period of time prior to simulcasting and more recently. He cited as evidence of his dedication to the sport that he was fired by CBC who employed him as a sportscaster because of his extensive involvement in harness racing, specifically his contract with TSN involving harness racing. Mr. Adler has been the track announcer at many locations throughout his long involvement in harness racing and currently is the track announcer at Windsor Raceway.

Mr. Alder said that the Ruling and the announcement of it has had a serious adverse effect on him, coming as it did when the industry was focussed on other licensees, both in Ontario and in the United States, who were dealt with by regulators for medication offences, including previous rulings of this Commission concerning licensees dealing with Rogers.

He currently is training a four-year-old horse that he owns and intends to race. In 2005 he had 18 starts as a driver and 40 starts as a trainer, all with horses he owned. His fulltime job is in the media in his companies, including work in that aspect of the horse racing business. In 2004, the last year in which he bought substances from Rogers, he had 90 starts as a trainer and 47 starts as a driver. He said he had two horses usually that he raced twice a week. He said that his horses were either claimed or sold privately or sold at sales and that he did not provide a history of the medications used to the purchasers.

Mr. Adler testified that though he bought EPO in 2001 from Rogers, he did some research on it and that, based on the research he found adverse effects and chose to throw out the vials that he bought from Rogers. He said he also researched other substances he bought from Rogers. He acknowledged that he was aware that substances that he bought from Rogers could cause adverse effects on the horses he used them on. He was careful in his statement that the substances he had used had had no adverse effect on the horses while they were in his care.

Mr. Adler submits that his Rule violation is comparable to a “medicating in error” violation, which carries usually a $100 fine. To agree to this would be to minimize the risk that Mr. Adler ran over a three year period with, not one, but several horses.

Mr. Adler accepted the significant reduction in the price of substances that he got from Rogers as compared to the price that vets would charge without any real questioning as to how the substances could be sold so cheaply. He did not question Rogers about what was in the vials or bottles containing the substances identified only by colour or by a coloured dot on the vial. He said that he thought Rogers would not tell him what was in the substances for fear that he would make it in his own bathtub, as he put it, or that it was Rogers’ secret recipe. When he inquired from Rogers as to the source of one of the substances that was unlabelled (or labelled only with a coloured dot), he said Rogers told him that it came from a compounder in Montreal.

Mr. Adler defended his action on the basis Rogers told him that he was licensed and showed him the licence, and said that he was using a compounder in Montreal. He acknowledges however that he was buying substances that vets ordinarily dispense, to avoid their charges.

Rule 6.46.01 however deals with possession and use of substances, not that the vendor presented himself as licensed. Further, the evidence before us is that the compounders are licensed to provide substances when the company that manufactures the product is unable to meet the demand. There is no evidence that the lack of product through other licensed sources was the basis for Mr. Adler’s choice to buy from Rogers.

Mr. Adler has not been disciplined for any serious Rule violation, with the exception of a positive test in 1992. He said of that incident that he was very surprised to find that the substance, given 60 hours in advance of racing, produced a positive test. He said he volunteered to be penalized because he had told the trainer to use the substance, which he bought in Michigan from a supplier. He subsequently had the substance tested and discovered that the pills he had used had a coating on them that affected the retention time and extended the effective time of the substance.

There is no evidence that Mr. Adler looked carefully into Rogers’ licensing, the sources of the substances or the quality of the substances. He said he bought substances that vets had previously prescribed for his horses. He did not explain why he thought he had the same skill and knowledge as a veterinarian to make the appropriate diagnoses of his horses’ conditions and then determine the substances to be used. He seems to have assumed that whatever treatment the vet prescribed in 1994 would be the same treatment prescribed in 2000 and that the substances would still be appropriate. Despite his experience with the Robaxin positive test, he does not seem to have learned that he could make an error and he did not seem prepared to deal with how the horse’s health was protected from the risk that he might be wrong or that the quality of the substance he gave the horse was not good or that the horse might suffer adverse consequences from the use of the substances. He was content with his knowledge that none of the horses he had owned and medicated had at that time shown any adverse reactions or died from his treatment of them.

The general public, the wagering public and the racing industry need to have confidence that licensees who are charged with the responsibility for the care and health of race horses are avoiding choices that might endanger the health and safety of the horses in their care. Mr. Adler has not demonstrated an appreciation that substances that may have a beneficial effect can, when used inappropriately, have adverse effects on a horse and further, that the regulatory structure that controls the quality and use of substances in race horses must be respected in order to minimize the risk of unintended but nonetheless deleterious and potentially fatal results for the horse. Further, while no positive tests were registered in his horses, there is no question that while his prime motive was to save money, the breadth of his acquisitions, including that of EPO, leads to the conclusion that he was intending to enhance the performance of his horses and he was not appropriately cautious about how he did that.

Mr. Adler has admitted almost $10,000 in purchases from Rogers and he indicated that in some instances Rogers’ price was half of what a vet would charge him. On the basis of the admissions made, Mr. Adler save thousands of dollars using Rogers as his supplier. The fine that is proposed by the Administration is only $1,000.

There is a good argument that the fine is insufficient to address the basic principle that the penalty should be sufficient to remove the benefit that Mr. Adler received from breach of the Rules. Mr. Adler is, as a race announcer, responsible for describing what is happening on the track accurately and fairly and for announcing changes in the race participants and their equipment and circumstances that affect the wagering public. The public rely on what he says. Mr. Adler is a person on whom the wagering public relies and there is a legitimate expectation of high standards of honesty and integrity in his conduct.

We accept that the adverse publicity has had an impact on him and that he is truthful in his statement that he will not violate this Rule again or make similar inappropriate choices in the future. We also accept that his co-operation and agreement to an agreed statement of facts and a hearing confined to the issue of penalty has saved the Commission hours if not days of testimony and costs.

Therefore we confirm the penalty proposed by the Executive Director including the terms of the probationary period.

While it is not necessary to this decision, we feel it important to address an issue raised by Mr. Adler as to the lack of a hearing prior to the Executive Director issuing the Ruling that has been appealed to us. Coincidental with Mr. Adler’s return to racing was the enactment of the Racing Commission Act, 2000, which he said he was not familiar with. This Act provides for specific powers for the Executive Director in dealing with licensees and in particular the power to revoke or suspend a licence in appropriate circumstances as described in the statute. In this case, the Executive Director has acted under Rule 6.04, which has existed for over twenty years. Rule 6.04 enacted by the Commission also permits the Executive Director to act without holding a hearing prior to issuing a ruling, subject to an appeal to the Commission.

Much the same argument as was raised by Mr Adler was dealt with in Re Arthur Balson, by a Commission panel composed of then Chair Stanley Sadinsky Q.C., Vice Chair Herbert Bryant and Commissioner Bruce Duncan. In that case, the Director of the day had acted under Rule 6.04 without holding a hearing or requiring that the judges hold a hearing on the allegations, and the licensee brought a motion to stay the proceedings before the Commission on the basis that no hearing had been held by the Director. The Racing Commission Act R.S.O. 1990 c R2, and not the new Act, applied to those proceedings.

Following lengthy argument on the point, the Commission in a ruling delivered orally in the course of the hearing on February 22, 2001 rejected the argument that a hearing was required prior to the Director issuing a ruling under Rule 6.04, holding as follows:

“In our view this rule [6.04] is reserved for unusual situations where the Director deems it necessary to proceed in this manner rather than in the usual way under Rule 6.03 where the Standardbred judges investigate a matter, lay charges and conduct a hearing before a decision is reached. In that instance an aggrieved party would have a right of appeal by way of a hearing de novo before the Commission.

In this case, the Director has proceeded to lay charges and has not provided Mr. Balson with a hearing.

We find that under Rule 6.04 the Director may lay charges and then at his option proceed to levy a penalty without conducting a hearing.

There is nothing in this rule directing the Director to conduct a hearing and no other rule appears to require him to do so.

Rule 6.03 requires a hearing when an official lays charges but under the rules the Director is not an official as prescribed by Rule 5 and particularly Rule 5.03. Judges are officials and had the judges laid the charges a hearing would have been required…

It must be noted that all appeals before the Commission are hearings do novo where the Commission hears the evidence and submissions and makes its own decision on the basis of what it has heard.

If the judges had made a prior decision, the Commission is not required to determine the correctness of that decision as the hearing is not by way of an appeal on the record.

In this case, had the Director laid charges and levied a penalty under Rule 6.04 then the hearing before the Commission under this rule would be by hearing de novo and the word appeal, as used in that rule would be entitled to be understood in the usual manner as a hearing following a decision of another person or body.

Given that in this case the Director laid charges but levied no penalty in our view when the rule uses the word appeal, it must be understood to mean that Mr. Balson is entitled to a hearing and I underline the word hearing, before the Commission which in our view will comply with the requirements of the Statutory Powers Procedure Act and at which time the issues of whether there have been any violations of the rules and, if so, what penalties, if any, should apply will be determined. This will be done after the Commission hears all the evidence and the submissions of both parties.”

The Commission in enacting the Rule 6.04 did not require the Director to hold a hearing prior to acting under the Rule but the licensee, in the event that he or she disputes the Director’s action, retains the right to have a hearing, and, as is the practice of the Commission, it is a hearing de novo; that is, the Director must prove the allegations made against the licensee. In this case, Mr. Adler objects to the Director’s action but admits the substance of the Rule violations and therefore the basis for the penalty that the Director imposed under the Ruling. The issue of the appropriate penalty has received a full hearing de novo in accordance with the obligations of the Commission to act in accordance with the Statutory Powers Procedures Act, to ensure procedural fairness and the observance of the rules of natural justice in the course of the appeal, and to act within the mandate of the statute and in accordance with its principles.

DATED this 23rd day of June 2006.

Lynda Tanaka

Chair