IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNER/TRAINER SANDRA HOUGHTON
REASONS FOR DECISION
- On Thursday April 26, 2007, the appeal by Standardbred Licensee Sandra Houghton from Judges’ Ruling SB 36635 of March 30, 2007 proceeded before Vice Chair James Donnelly and Commissioners George Kelly and Brenda Walker. Sandra Houghton had been fined $4,000 and fully suspended for one year (April 5, 2007 – April 4, 2008) for violation of Standardbred Rules 9.09 (a) and 26.02.01 for positive test results for the Class III Drug Torsemide on horses:
Davey My Boy - January 26, 2nd Race at Flamboro Downs Finished 4th D.Q.
Elanas Earl - January 28, 2nd Race at Flamboro Downs Finished 1st – D.Q.
Classic Commotion January 28, 7th Race at Flamboro Downs Finished 1st – D.Q.
Handy Dandy January 31, 2nd Race at Flamboro Downs Finished 1st – D.Q.
Purses and trainer/driver fees were distributed according to the adjusted order of finish. That purse distribution was not in issue on the appeals.
The positive test results were unchallenged. The appeal related only to penalty which was claimed to be excessive having regard to the appellant’s record.
Brendan Van Niejenhuis appeared as counsel for the Administration and Gerald Sternberg appeared as counsel for the appellant.
As a preliminary issue, Mr. Sternberg informed the Panel that in relation to the horse “Handy Dandy”, he had within the prior few minutes received the original certificate of positive analysis.
Examination of the original indicated that the analysis procedure began February 1st although the substance to be tested was not received by the laboratory until February 2nd. This discrepancy had not been detected on the photocopy which had earlier been provided to Mr. Sternberg.
An issue arose as to whether that was a matter of substance or merely a clerical error in preparation of the certificate. Discussion proceeded on whether Mr. Sternberg would require strict proof. Mr. Van Niejenhuis spoke of bringing a witness from Burnaby, B.C. No mention was made of tele-conference.
The Panel indicated that notwithstanding non-compliance with the timing requirements of the rules, fair hearing considerations would likely prevail and leave would likely be given to re-open the issue. Attention was also directed to the frivolous appeals provision in Section 11(8) of the Racing Commission Act with the attendant $1,500 penalty.
The parties agreed to proceed with the appeal relating only to the appropriate penalty for the three horses other than “Handy Dandy”. No penalty would be assessed in relation to the Handy Dandy issue.
The Administration supported the Judges’ ruling revised to reflect the three-horse agreement resulting in a $3,000 fine and a nine-month suspension.
Presiding Judge Tom Miller testified explaining that because Sandra Houghton learned of the first positive test after all of the horses had raced, the Judges decided to treat the entire course of conduct as a single offence so as to attract first offence penalties under the guidelines.
Brian Tropea, Vice President of OHHA testified in support of Ms. Houghton and identified an unspecified precedent where a second positive test was treated as a first offence. The circumstances of the offence were not detailed.
The Judges made a global assessment of penalty rather than a per unit application.
Sandra Houghton gave a written statement to investigators which was in part -
“I had this bag of pills for 10 to 15 years. I can’t be sure where they came from. I believed the medication to be therapeutic. I thought it was Lasix. I was told you could give them two days out and feed 10 pills. I feel this is my responsibility and I should have got rid of those pills a long time ago.”
The pills were unlabelled. None of the horses were enrolled in the Lasix program.
Ms. Houghton did enter the use of the medication in the log for each horse.
She claimed that the horses were treated only for training and the treatment was about 36 hours out from the race. She re-affirmed that she did not know what she was administering but believed it to be Lasix.
The Panel concurred with the Judges’ decision to treat the course of conduct as a first offence. The result of doing otherwise would lead to escalating and grossly disproportionate penalties. The incidents involving each horse will be considered as a first offence. Two results flow. First offence penalties will be imposed. In the event of a subsequent event within the appropriate time frame (three years) that should be treated as a second offence.
Mitigating factors include the short time frame, the prior good record, the entry in the logbook, and the absence of notification of the first positive test.
Aggravating factors are – the medication was unlabelled, the source is either unknown or undisclosed. The multiple violations, the possible 15-year interval between receiving and using these particular pills; the quantity of pills if used for cold weather training for multiple horses over a 10-15-year interval with a dosage of 10 per administration – all of which strains credulity and renders the explanation highly suspect. Although the substance was claimed to be used only for training, it was detected in the racing context four times within five days.
The Notice to the industry dated April 18, 2006 codifies what formerly was simply sound common sense as follows:
“Another basic aspect of good control is ensuring that you only use products that are properly manufactured and clearly labelled and that have been obtained from an authorized distributor. And in the case of medications you ensure that these have been prescribed and/or dispensed by a licensed veterinarian.”
Attention is directed to the repeated reference to the concept of “ensuring”.
There is no purpose in flailing away with restatements addressed to the curse of the industry. Doping horses must stop. A powerful message of general deterrence is necessary. Consistent and predictable penalties evidence fairness but at some stage this may not be possible. Degenerating circumstances in the industry may force escalation of penalties. Prevalence of the offence is such a factor.
Having considered these matters the Panel concluded that the penalty imposed by the Judges is fair and appropriate based on the circumstances before them. The Equine Drug Guidelines have been in place for several years – and with good reason. They provide a suggested penalty grid with power to deviate when appropriate. Departure from the guidelines should only occur with sound reason. This evidentiary base provides no such credible reason. However, in light of the agreement by counsel relating to “Handy Dandy”, the penalty is varied. The fine will be reduced from $4,000 to $3,000. The suspension will be reduced from 12 months to 9 months. An order will issue accordingly.
For the benefit of these who may follow, the first offence decision herein is exclusively factually driven. It has no precedential status. Future cases will be decided upon their facts.
DATED this 24th day of May 2007.
Original signed by
James M. Donnelly
Vice Chair
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNER/TRAINER SANDRA HOUGHTON
Standardbred Owner/Trainer Sandra Houghton appealed Judges' Ruling SB36635 issued on March 30, 2007, wherein she was fined $4,000 and suspended for one year (April 5, 2007 to April 4, 2008) for violation of Rules 9.09(a) and 26.02.01 of the Rules of Standardbred Racing for positive test results for the Class 3 Drug Torsemide on the horses DAVEY MY BOY, ELANAS EARL, CLASSIC COMMOTION and HANDY DANDY on January 26, 28 and 31, 2007.
On April 26, 2007 a Panel of the Commission consisting of Vice Chair, Hon. James Donnelly and Commissioners George Kelly and Brenda Walker convened to hear the appeal. Brendan Van Niejenhuis appeared as counsel for the Administration and Gerald Sternberg appeared as counsel to Sandra Houghton.
Following an objection by counsel for Sandra Houghton to the admission of the Certificate of Positive Analysis pertaining to the positive test of HANDY DANDY, and on being advised that the Administration would place no reliance on the Certificate of Positive Analysis pertaining to the positive test of HANDY DANDY, and on being advised that Sandra Houghton did not seek to vary the order pertaining to distribution of the purse and trainer and drivers' fees for the 4th race at Flamboro Downs on January 31, 2007, in which HANDY DANDY raced, the Commission heard the appeal and accepted the joint position that the penalty for the violations should be assessed on the basis of the three remaining positive tests named above.
On hearing the evidence of Judge Tom Miller and Sandra Houghton, and on reading the exhibits filed, and on hearing the submissions of counsel for both parties, the Commission varied the penalty imposed in Ruling SB36635 as follows:
The fine of $4,000 was reduced to a fine of $3,000.
The suspension of one year was reduced to a suspension for nine months.
The purse distribution and driver and trainer’s fees were to remain as stated in Judges' Ruling SB36635.
The Commission advised that written reasons for decision would be released at a subsequent date.
DATED this 30th day of April 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director