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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEE WAYNE PRESZCATOR

On Thursday, April 26, 2007, the appeal by standardbred licensee Wayne Preszcator from Judges’ Ruling SB 36632 proceeded before Vice Chair James M. Donnelly and Commissioners George Kelly and Brenda Walker. Mr. Preszcator had been fined $1,500 and fully suspended for 60 days (April 4, 2007 – June 2, 2007 inclusive) for a positive test for the Class III drug Torsemide on the horse “Simply Marvellous” which raced in the first race at Woodbine Raceway on February 1, 2007, in violation of Standardbred Rules of Racing 9.09 (a) and 26.02.01.
The horse finished second. By reason of the positive test, the horse was disqualified and the purse was distributed according to the revised order of finish.
Mr. Preszcator had been represented by counsel on a stay application which resulted in a two-week stay to April 30th. That counsel was relieved of responsibility and Mr. Preszcator appeared on the appeal without counsel. He was aware of his right to have counsel but advised that it was his choice to proceed self-represented.
Brendan Van Niejenhuis appeared as counsel for the Administration.
The positive test result was unchallenged. The appeal related only to penalty. The evidentiary record including oral testimony by Standardbred Judge Tom Miller and Mr. Preszcator supported the following findings of fact.

Mr. Preszcator encountered a medical problem (edema) relating to the horse “Simply Marvellous”.
He consulted his regular veterinarian, Dr. Norman Harnack of Ingersoll Veterinary Services, who is not licensed by the Ontario Racing Commission.
Dr. Harnack prescribed and provided a medication with instruction for its use. The medication was described on the invoice only as “nine hour bleeder”
Dr. Harnack knew the substance was Torsemide but did not realize that it was a banned substance.
Mr. Preszcator relied upon the veterinary advice and following instruction administered the medication as directed.
Neither Dr. Harnack nor Mr. Preszcator realized that a positive test would result.
Dr. Harnack’s research lead him to believe that Torsemide would clear the system by nine hours, hence his description as a “nine hour bleeder”.
Dr. Harnack has used Torsemide for five years and uses it to treat edema in cattle.
Dr. Harnack obtained the Torsemide from the Summit Pharmacy of Aurora, Ontario.
He prescribed the Torsemide solely for therapeutic reasons.
The positive test resulted from administration of the torsemide as prescribed by Dr. Harnack.

Judge Miller identified significant features underlying the Judges’ assessment of penalty.

Other Torsemide violators absent exculpatory veterinarian evidence had been suspended for 90 days and fined $1,500.
Mr. Preszcator had no rule violations in the last three years.
His racing record did include some medical scratches from which the Judges inferred some measure of trainer laxity.
The veterinarian should be liable for censure or penalty under Standardbred Rule 8.11. However, since Dr. Harnack was not a Commission licensee, there was no jurisdiction to deal with him.

Judge Miller testified that had there been such jurisdiction, it could have operated to Mr. Preszcator’s advantage.
Accordingly, the Judges imposed the minimum penalty recommended for a Class III violation by the Equine Drug Guidelines being the 60-day suspension and the $1,500 fine.
On the hearing before the Commission, the Administration conceded that throughout, Mr. Preszcator acted upon veterinary advice. Dr. Harnack’s letter of April 20th, 2007 was not available to the Judges upon their hearing and for their decision. That letter is of critical importance in that it conclusively supports Mr. Preszcator’s claimed denial of any conscious wrongdoing. That demonstrated absence of wrongful intent or even carelessness in failing to follow veterinarian advice, is a-major component bearing on assessment of penalty.
That finding of absence of intent plus the fact that Mr. Preszcator was self-represented (which imposes an obligation of increased vigilance by the Panel) raises the question of whether the liability issue should be examined. Should consideration be given to issues of strict liability and due diligence under the trainer responsibility rule (26.02.01) even though not so requested by the appellant?
Factors bearing on the decision not to so proceed were:

By virtue of Mr. Preszcator being represented by experienced counsel upon his stay application, he had opportunity for competent legal advice.
Mr. Preszcator’s apparently self-drafted notice of appeal did not originally include, nor was it later amended to include, a prayer for such relief.
No notice was given to the Administration of intent to re-open the liability issue.
The notation on Dr. Harnack’s account of “nine hour bleeder” absent any other identifier may constitute a red flag for Mr. Preszcator.
If an ORC licensed veterinarian is consulted there may be a sharing of responsibility between trainer and veterinarian.
Mr. Preszcator was entitled to consult and rely upon a veterinarian unlicensed by the ORC. By so doing, he assumed the risk that the veterinarian may not be current on all aspects of the drug issue.

The absence of willful wrongdoing does have a significant impact on the penalty. The critical factor bearing on the decision to vary the penalty is the uncontroverted acceptance of responsibility by Dr. Harnack.
By the bolstering effect of that letter, Mr. Preszcator’s denial of intentional wrongdoing becomes unassailable. It is noted that the April 18, 2006 Notice to the Industry provides - “In the case of medications you ensure that these have been prescribed and/or dispensed by a licensed veterinarian.”
That Dr. Harnack is beyond the disciplinary reach of the Judges should not operate to Mr. Preszcator’s disadvantage. Culpability not availability should attract the penalty.
The rationale underlying the couplet:

“When I’m not near the girl I love

I love the girl I’m near.”

should not be extended to

“If I cannot penalize the person I should

I would penalize the person I can.”

The Panel is fully cognizant of the drug issue, its central importance and the need for specific and general deterrence. It is also aware that response must be measured and rational. Mindless emotional reflexive “off with his head” retaliation is a lurking peril.
The imposition of penalty is premised on wrongdoing. Hence the underlying consideration is determination of the measure of culpability.
The punishment must fit the crime. Into that mix of punishment, general deterrence, specific deterrence and rehabilitation must go such matters as the number of suspension days served to date, the effect on the licensee’s record and the impact and cost of two attendances before the Commission.
Against that background, the Panel hereby orders that the penalty be varied by reducing the suspension period to days already served. The fine of $1,500 is hereby maintained.

DATED this 24th day of May 2007.

Original signed by

James M. Donnelly

Vice Chair