Ontario Racing Commission

RULING NUMBER COM SB 007/2008

COMMISSION HEARING TORONTO, ONTARIO – FEBRUARY 6, 2008

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 October 15, 2007, standardbred licensee Wayne Preszcator, Licence Number E43546, as driver/trainer/owner/authorized agent, was suspended for 15 days (October 20, 2007 to November 4, 2007) and fined $2,000 for violation of Rules 26.02.01 and 9.09(a) of the Rules of Standardbred Racing on July 19, 2007, at Mohawk Raceway, as a result of a positive test for the Class V drug Procaine obtained from horse 6, REAL MODLE, in Race 3. The purse was ordered redistributed pursuant to Rule 9.13. The trainer/driver fees were ordered redistributed pursuant to Rule 18.08.01.

On October 15, 2007, a request by Wayne Preszcator for a stay of penalties pending his appeal was granted.

On Wednesday, February 6, 2008, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Commissioners Jane Garthson and Brenda Walker was convened to hear the appeal of Wayne Preszcator. This appeal was a de novo hearing.

Wayne Peszcator appeared in person. Anthony Williams appeared as counsel for the Administration.

Upon hearing the evidence of three witnesses, Standardbred Judge Thomas Peter Miller, Dr. Robert McKenzie, Director of Laboratories for Racing Forensics Inc. and Dr. Michael Hall Weber, doctor of veterinary medicine, and following a review of the exhibits filed, and upon hearing the closing submissions of the participants, the Panel of the Commission ruled as follows:

i. Wayne Preszcator violated Rules 26.02.01 and 9.09(a) of the Rules of Standardbred Racing when the horse he trained received a certificate of positive analysis from an official blood sample for a quantitative level of the Class V drug Procaine, in a concentration in excess of a permissible level, on July 19, 2007, at Mohawk Raceway in Race 3 for Horse 6, being REAL MODEL.

ii. This violation was found to be a second positive test within one year. Following a review of the March 30, 2001 Guidelines - Penalties for Equine Drug and TCO2 Offences, it was ordered:

a. that the fine imposed be varied to $1,500;

b. that the suspension imposed be varied to 30 days;

c. that the date of the commencement of the suspension be worked out with the Administration of the Commission,

d. that Wayne Preszcator is prohibited from entering any horses in the province of Ontario until the full suspension is served.

The Panel’s Reasons for Decision is attached to this Ruling.

DATED this 14th day of February 2008.

BY ORDER OF THE COMMISSION

John L. Blakney Executive Director

REASONS FOR DECSION

Overview

1A hearing was held before the Commission on February 6, 2008, concerning the appeal by Wayne Preszcator from Standardbred Ruling SB 37631. Wayne Preszcator was fined $2,000 and his licence as an owner, trainer, agent was suspended for fifteen days for violation of Rules 26.02 01 and 9.09 (a) of the Rules of Standardbred Racing as a result of a positive test for the prohibited substance procaine in the horse Real Model. The horse raced in Race #3 at Mohawk Raceway on July 19, 2007. As a result of the positive test, Real Model was disqualified and the purse was redistributed to the other horses in the order of finish. A stay of the ruling has been granted. The hearing before the Commission is a de novo hearing.

Background

2ORC licensee Wayne Preszcator’s horse Real Model tested positive for the Class V drug procaine in Race #3 at Mohawk Raceway on July 19, 2007 (Tab 7, Exhibit 1). Mr. Preszcator did file his procaine notice as per the Rules of Standardbred racing prior to the race. There was no disagreement with the chain of command as it related to the drawing of the blood or its transmission to the laboratory for its first test. Mr. Preszcator advocated that he administered the drug within the prescribed guidelines and that a subsequent retest of the sample conducted at his cost resulted in a quantitative number that was within the legal limit for the drug.

3Procaine is a Class V drug as per the Canadian Pari Mutuel Agency’s (CPMA) official drug schedule and can be legally administered to racehorses under prescribed parameters. Procaine administered as penicillin g procaine does have a therapeutic use in fighting infections. Procaine can also have a blocking effect to pain thereby affecting the proprioception of a horse which can then impact on the health of the animal.

4Guidelines for the use of procaine as well as other drugs are published by the CPMA in its Schedule of Drugs 2006. This publication is well known throughout the industry. There are three separate admonitions in the book alerting horse people that guidelines as they relate to time are not absolute. For procaine the book states that a horse can have up to 25 ng/ml in its system and be within the legal threshold.

5Following the race on July 19, 2007 the horse Real Model had blood drawn. The blood was tagged as 1001209QL (tab 6, Exhibit 1). The QL in the tag number is significant in that it alerts the lab that there needs to be a test conducted on the blood sample for procaine. The samples were then forwarded to Cantest Labs in Vancouver, B.C., the official equine testing laboratory for the CPMA. The sample was preserved in the normal fashion (sealed and refrigerated). On July 26, 2007, the lab sent a certificate of positive analysis of an official sample (tab 5, Exhibit 1). Mr. Preszcator was notified by the Judges that same day. The result of the test had procaine quantified at 43ng/ml. This level exceeded the permitted threshold level for procaine of 25ng/ml.

6A pre-hearing was conducted on July 28, 2007, with Mr. Preszcator and Standardbred Judge Pat Webb at which time Mr. Preszcator was provided full disclosure. Mr. Preszcator, as is his right, requested a retest for the blood sample on July 31, 2007. Mr. Preszcator had two hearings with the Judges, September 21, 2007 and October 15, 2007. Senior Judge, Tom Miller, presided at both hearings. These hearings resulted in ruling SB 37361 wherein he was suspended fifteen days and fined $2000, (tab 1, Exhibit 1). Mr. Preszcator appealed that decision (tab 2, exhibit 1) that same day and was granted a stay by the Director, Ruling Number SB 165/207 (tab 3, Exhibit 1).

7The retest, which Mr. Preszcator ordered on August 31, 2007, was conducted by Racing Forensics Inc. on September 21, 2007, fifty-seven days after the first test. The delay was caused by a mix-up within the corporate structure at Racing Forensics Inc. and its sister company, Vita Tech. The result of the retest (tab 10, Exhibit 1) was 22ng/ml for procaine which would not have resulted in a positive test call for the drug. There was no dispute that this test result may not be accurate given the time of the test in relation to when the blood sample was drawn.

8Dr Robert McKenzie, the lab manager for Racing Forensics Inc., testified that the blood was badly hemolyzed and that the delay could have affected the test results as procaine is known to deteriorate relatively quickly. This decrease in the integrity of the blood cells is known as lysis. Dr. McKenzie questioned whether a horse person should be penalized for the breakdown in the integrity of the blood as it relates to the delay for the retest.

9The official process is to have all blood samples for procaine testing to be collected in vacuum tubes that contain a special preservative to help maintain the integrity of the blood sample. Dr. Michael Weber, manager of veterinary services for the CPMA at its Jerseyville facility, testified that research has shown the preservation works for at least seven days. This work was done prior to the availability of a retest for horse people and CPMA may have to examine its protocols as they relate to the preservation of these samples.

10All chemical analysis dealing with testing samples have an inherit uncertainty. Dr. McKenzie could not tell what that uncertainty might be from the documentation provided in Exhibit 1 for either the Cantest or Racing Forensics Inc. tests on sample 1001209QL (Real Model). On being provided a copy of Exhibit 3, page 1 of 3 from the summary of analytical results for sample 1001209QL, it was agreed that the test result of 43ng/ml for procaine with a certainty of plus or minus 4 confirmed that this sample had certainty as it related to the reading. Therefore, at the high end it would be 47ng/ml and at the low-end 39ng/ml for procaine. In either case the numbers were well above the allowed threshold.

11The CPMA has conducted extensive research on the use of procaine, Dr. Weber testified. Based on that research the CPMA guidelines advise not using procaine within forty-eight hours of a race. The dosage used in the research was 20 ccs and Dr. Weber testified that using a higher dosage could affect the published elimination rates of the drug in a horse as could the differences in horses’ respective body systems. Dr. Weber agreed he told Mr. Preszcator that he did not think a positive test would result if a horse was administered 25 ccs of procaine seventy two hours out from a race which Mr. Preszcator alleged he did.

12Mr. Preszcator tabled Exhibits 4 and 5, requests for quantitative analysis with Vita Tech Laboratories on the horse Real Model. Both indicated dosages of 25ccs of procaine administered on July 13, 14, 15 and 16, 2007. He argued that the exhibits prove he did not alter the documents as he only became aware of the positive test on July 26, 2007.

Issue

13Should Mr. Preszcator’s appeal be upheld or denied? Does the second test confirm the horse was within the threshold limits for procaine? Is the penalty imposed by the Judges appropriate given this is Mr. Preszcator’s second positive test within one year?

Decision

14A verbal decision was rendered at the hearing. That decision was to deny the appeal and amend the penalty. The penalty ordered was a suspension of thirty days and a fine of $1,500. The date of the commencement of the suspension was to be worked out with the Administration of the Commission but Mr. Preszcator was prohibited from entering any horses in the province of Ontario until the full suspension is served.

Reasons for Decision

15Mr. Preszcator did violate the Standardbred Rules of Racing SB 26.02.1 and 9.09 (a) when the horse he trained Real Model raced at Mohawk Raceway on July 19, 2007 in Race #3 and tested positive for the Class V drug procaine. Trainers have a responsibility under SB 26.02.02, a responsibility that is a lynchpin for both the health of the horse and the integrity of the sport. This Commission takes that responsibility very seriously and Mr. Preszcator is responsible. Mr. Preszcator admitted administering the drug. His claim that he did so within the CPMA guidelines, fails as guidelines state, they are not absolute.

16There can be no dispute as to the certainty of the positive test result from the Cantest Lab of 43ng/ml plus or minus 4. This puts the horse above the allowable threshold of 25ng/ml. The Panel agrees with the findings in the Positive Test Case Report (tab 4, Exhibit 1) that the truer level of procaine was in the first test taken at Cantest. Undisputed testimony was given regarding the deterioration of procaine over time, therefore the second test may well be accurate given the time it was taken post date of the race and the drawing of the blood.

17This is the appellant’s second positive test within one year according to his race record (tab 8, Exhibit 1) as he had a positive test for the drug Torsemide on February 1, 2007. According to the Commission’s Penalty Guidelines the penalty for a second offence for a Class V drug ranges from thirty days to one hundred and fifty days plus a $2,000 fine. The Panel believes the amended penalty is appropriate given the circumstances.