Allan Cullen v. Ontario Racing Commission, 2008 CanLII 89020

*AMENDED RULING NUMBER COM SB 015/2008

COMMISSION HEARING TORONTO, ONTARIO – MAY 1, 2008

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

Standardbred licensee, Allan G. Cullen, as driver/trainer/owner, Licence No. H40256, appealed against:

i a 15-day suspension as a result of SB Ruling SB 30/2008, dated 14 February, 2008, issued by Deputy Director Rob McKinney for a violation of Rule 36.08 (c) (i) of the Rules of Standardbred Racing for a positive random test, saliva sample, from February 2, 2008 at Windsor Raceway, Ontario.

ii. made an application for a declaration that the manner in which the 15-day suspension was imposed resulted in an unnecessary and inappropriate delay in his return to racing; and

iii. made an application to reinstate his licenses following an indefinite suspension as a result of SB Ruling 66/2008, dated April 23, 2008, issued by Deputy Director, Robert McKinney, for violation of Rule 36.08 (c) (ii) of the Rules of Standardbred Racing, for a positive follow-up test, urine sample from March 28, 2008 at Windsor Raceway.

On Thursday, May 1, 2008, a Panel of the Ontario Racing Commission, consisting of the Chair, Rod Seiling, was convened to hear the matters.

Allan G. Cullen appeared in person at the hearing.

Allan G. Cullen was represented by Kenneth Shawn Marley as counsel.

Anthony Williams appeared as counsel for the Administration.

Upon hearing the evidence of the witnesses called by the Administration: Jeremy Locke, James Richard Frye and Dr. Iris Greenwald; and upon hearing the witnesses called by counsel for the licensee, Allan G. Cullen: Thomas “Jesse” Graham, Pauline Stanczuk and Robert Banyie; and upon reading the exhibits filed; and upon hearing the submissions of both counsel for the licensee and counsel for the Administration, the Commission ordered as follows:

the appeal of Allan G. Cullen against the penalties imposed (including the 15-day suspension) by SB Ruling 30/2008 dated February 14, 2008, was dismissed;
the application by Allan G. Cullen for a declaration that the manner in which the 15-day suspension was imposed resulted in an unnecessary and unwarranted delay in his return to racing, was dismissed;
the application by Allan G. Cullen for reinstatement of his licenses following the indefinite suspension by SB Ruling 66/2008, dated April 23, 2008 was dismissed.

It was further ordered:

*(a) that Allan G. Cullen pay a fine of $1,000.

(b) that the suspension of the licence of Allan G. Cullen is to remain in effect for one year from the issuance of the Ruling, (May 12, 2008 to May 11, 2009 inclusive).

i. must provide proof to the Director that he has successfully completed a substance abuse program, and

ii. that he is enrolled as an active participant in an accredited aftercare program for a minimum of one year.

(d) Allan G. Cullen:

i. must demonstrate to the Director that he is worthy of having his licenses reinstated following his suspension;

ii. which will include a negative alcohol and drug test at his cost.

(e) In addition, he will be placed upon probation for 2 years.

(f) The Director may see fit to attach conditions to his reinstatement.

(g) Any breach of those conditions will cause an automatic suspension of his licence with a requirement that he appear before the Commission.

DATED this 12th day of May 2008.

BY ORDER OF THE COMMISSION original signed by Maureen Harquail

Maureen Harquail

Acting Executive Director

REASONS FOR DECISION

Overview

SB licensee Allan Cullen has appealed Rulings SB 30/2008 and SB 66/2008 issued by the Deputy Director, Rob McKinney on February 14, 2008 and April 23, 2008 respectively. Mr. Kenneth Marley represented Mr. Cullen as legal counsel and Mr. Anthony Williams represented the Administration of the Commission. The issues which were agreed to be combined, were as follows:

I. an appeal of the fifteen day suspension;

II. an application for a declaration that the manner in which the fifteen-day suspension was imposed resulted in an unnecessary and inappropriate delay in his return to racing; and

III. an application to reinstate Mr. Cullen’s licenses following the indefinite suspension issued April 23, 2008, (Exhibit 4, tab 30).

Background

Allan Cullen, Licence Number H40256, is 45 years old, has been in the standardbred industry all his working life, and was licensed as a driver/trainer and owner prior to his suspension. He is well regarded as a “catch driver” with a lifetime Universal Driving Record Rating System (UDRS) of .303 but has had five previous violations for controlled substances.
On February 2, 2008, Mr. Cullen was selected randomly from those participants scheduled to participate in racing at Windsor Raceway that evening to provide a saliva sample pursuant to Rule 36. 08 (c), (Exhibit 3, tab 3). This new rule was communicated to the standardbred horse racing industry via Standardbred Directive Number 6-2007, (Exhibit 3, tab 3). The test, for which Mr. Cullen signed the acknowledgement form (Exhibit 4, tab 9), was confirmed positive for the controlled substances cocaine and oxycodone on February 13, 2008 by Dr. Iris Greenwald, Medical Review Officer (MRO) of Driver Check at Ayr, Ontario (Exhibit 4, tab 12). The MRO serves as the substance abuse professional (SAP) in the ORC’s human drug and alcohol program. While it was not an issue, evidence was provided as to how Mr. Cullen was selected in the random process, (Exhibit 4, tabs 1 and 2), wherein the number 6 horse in the fourth race, “Ol Memories” was the twenty-eighth horse programmed that day in the Standardbred Canada sheet. The number twenty-eight was selected by a random generator.
If a positive test is returned, the MRO, as part of the official process (Exhibit 4, tabs 21 & 22), must speak with the person before a report can be filed with the employer, (ORC). On February 8, 2008, Dr. Greenwald did speak with Mr. Cullen wherein she confirmed to him his positive test. He denied using the drugs or being around them. She asked for any explanation as to how the positive test could have occurred. He told her about his dental issues and using percocet that he still had from an old prescription mistaking them for Tylenol 3. She asked for him to fax the prescription and medical documents to her within five days or the test would be verified positive. On February 12, 2008, Mr. Marley communicated to her information on Orajel. The benzocaine it contains would not cause a positive test for cocaine, she testified. The medical records were for dental work done on Mr. Cullen on February 6, 2008, four days after his test, she noted and did not reference any medications. Tylenol 3 will not cause a positive test for oxycodone nor would orthocaine cause a cocaine positive, she stated. MRO, Dr. Melissa Snider-Adler, in a letter dated April 28, 2008 to ORC Investigator Jeremy Locke, (Exhibit 4, tab 38) provided a confirming overview of these events. Dr. Greenwald also agreed with the contents of the letter.
On February 14, 2008, Mr. Cullen was issued Amended Standardbred Ruling SB 30/2008, (Exhibit 4, tab 18). As per SB Rule 36.08 (c) of the Rules of Standardbred Racing Mr. Cullen was fined $500 and suspended fifteen days as this offence was deemed to be his first offence under the new rule (SB 36.08 (c) (i)). Under SB 36.08 (f) of the Rules of Standardbred Racing, prior to having his licence reinstated, Mr. Cullen had to meet the following conditions:
Full co-operation with the Substance Abuse Professional (SAP) assessment process;
Adherence to any recommended treatment, monitoring, and aftercare program;
Maintenance of sobriety on return to duty;
Successful completion of a return to duty drug and alcohol test;
Ongoing unannounced testing for a period set out in the agreement; and
No further violations of the policy.
On February 29, 2008, Mr. Cullen successfully completed his “return to duty” alcohol and drug test. The final clearance for him was not made until March 7, 2008 as the initial test result from the laboratory, Gamma Dynacare, reported on March 1, 2008 (Exhibit 4, tab 13) a positive for oxycodone. It had to be retested by Maxxam Analytics where a negative report was issued on March 7, 2008 (Exhibit 4, tab 14).
Mr. Marley contended that his client was unfairly restrained from returning to work and that he was penalized as being the first person to have to contend with the new rule process as the ORC had not perfected it. Jeremy Locke, team leader for the ORC investigations testified that the hold up was the time required to retest the sample as Gamma Dynacare only could do a screening test and that when the positive for oxycodone resulted, it had to be sent to Maxxam Analytics for analysis which had the equipment to perform the required testing. Mr. Locke did admit that during this time he was in contact with ORC head office regarding perfecting the necessary paperwork and Mr. Williams admitted that there were “bumps” along the way.
On March 9, 2008, Mr. Cullen entered into a post violation agreement with the Judges at Windsor Raceway (Exhibit 4, tab 23). He had been offered the opportunity to do this the day before at Western Fair Raceway In London, Ontario, according to Mr. Locke, to speed up his return but Mr. Cullen stated he chose not to because of weather issues and the likelihood of his getting to drive would not be till the following Friday nevertheless.
On March 28, 2008, Mr. Cullen provided a “follow-up” urine sample as per his post violation agreement and SB Rule 36.08 (c) to Anne Marie Lopez. The ORC’s program follows the United States Department of Transportation guidelines (Exhibit 4, tab 24). There was no issue with the taking of that test but it was noted she is qualified to perform such duties as per her certificate (Exhibit 4, tab 25).
The sample was tested at Maxxam Analytics with a positive test for cocaine. The verification date for the controlled substance was April 8, 2008 by Dr. Snider-Adler of Driver Check, (Exhibit 4, tab 15).
Mr. Cullen did not contest the validity of the positive tests but testified under oath he did not knowingly or intentionally take cocaine. He offered up a possible way re the February 2, 2008 positive. He suggested that he could have ingested the drug by using Orajel offered to him for a dental problem in a bar by Thomas Graham who told him he was using it for a similar problem. This assertion was conveyed to ORC Director, John Blakney, in a letter faxed to him dated February 14, 2008, with an offer to test it (Exhibit 2, tab 2). Mr. Williams entered as Exhibit 6 a new unopened bottle of Orajel wherein Dr. Greenwald read the contents and stated there was nothing in the contents that could cause a positive test for cocaine nor would Tylenol 3.
Mr. Graham, who has a criminal record with thirty sentences to date, and a declared member of organized crime, is an admitted former member of the Outlaws according to his testimony. He is currently out on bail, acknowledged that he knows Mr. Cullen, and testified that he let him use some of his Orajel in a bar in Windsor on January 31, 2008. He testified that he doctors up his Orajel with cocaine and percocet. He did not give Mr. Cullen the bottle but stated he has had it in his possession the whole time. This contradicted Mr. Cullen’s testimony wherein he stated that Mr. Graham gave him the bottle and that he continued to use it until his dental work was completed on February 6, 2008 (Exhibit 2, tab 1). A question was tendered to Dr. Greenwald as to why she did not accept the invitation to test the contents of the Orajel Mr. Cullen allegedly used. She responded that is not part of the official process.
Mr. Cullen testified that he is using herbal products to cleanse his body and that they could be the cause of the cocaine positive. He also admitted to be using over the counter products but none of them can contain cocaine. Mr. Williams pointed out that cocaine comes from the coca plant which is not found in the Far East nor is oxycodone a naturally occurring substance. None of the alleged products were tendered as evidence. A police report dated March 19, 2008, (Exhibit 2, tab 3) was referenced as a reported break in at Mr. Cullen’s residence that occurred the day before when someone would know he was racing according to him. Nothing was missing or left behind according to Mr. Cullen but he suggested that Windsor Raceway could be responsible.
Mr. Cullen has a record of human drug violations as his record indicates and admitted under oath that he was a heavy user of cocaine about ten years ago but was reluctant to admit to an addiction. He testified that since his relationship with his common law partner, Pauline Stanczuk, some ten years ago, he has not used cocaine. She testified that she is sure Mr. Cullen is not using cocaine as she can tell and that the one time she became aware of him using the drug, she “kicked him out”. Ms. Stanczuk, through Mr. Cullen’s lawyer, Kenneth Marley, referenced three letters of support for the appellant. They were from Gabriella Petruzzi, Ms. Stanczuk’s mother, Deanna McFadden-Burt and Nicole Kalas, both friends of hers.
His first ORC human drug violation occurred in February of 1998 when he found to have tried to substitute the urine from another person to avoid a positive result. He was fined $1500 and suspended six months. His second cocaine positive test occurred in July of 1999, the third in July of 2003, the fourth in February of 2004 followed up by a fifth in September of that year. In each case, he was issued both fines and suspensions along with treatment requirements, with his last suspension being from September 2004 to June 2005.
In each of the subsequent cases according to the administration’s legal counsel, Mr. Anthony Williams, Mr. Cullen claimed not to have intentionally ingested or used cocaine, providing various alibis including herbal teas.
The security of the ORC processes related to chain of custody and control was raised by Mr. Marley. Testimony was provided and exhibits entered, to demonstrate the secure aspect of this process. Exhibit 5 was an oral specimen collection device, the same used to collect the saliva sample from Mr. Cullen. A demonstration was made using this exhibit as to how it is used to ensure a sample is properly taken and no outside substances can contaminate the swab. This is accomplished by the donor only touching the attached blue flags with the swab itself inserted into the mouth as directed by the attending ORC official. The official, wearing rubber gloves, after the required three minutes takes the swabs from the donor and puts them in the sterilized vials, snaps off the flags, seals the package with the seals from custody and control form (Exhibit 7). Each kit contains two swabs.
Mr. Cullen was given instructions as to how to comply with the oral sample test on February 2, 2008. Testimony from Mr. Locke, ORC Program Administrator and Jamie Frye, ORC Investigator suggested he may have been trying to avoid having his saliva touch the swabs by undertaking a sucking exercise. He also caused one of the swabs to become contaminated by touching it after he was informed about the correct usage thus necessitating a second test. It was also suggested Mr. Cullen used profanity towards one of the ORC investigators on his arrival in his barn about 6:30 p.m. on the 2nd when he saw him enter the barn to notify him of the random test. Mr. Cullen testified the profanity was directed at his realization of how late it was vis a vis to post time. With regards to spoiling the one swab he stated he touched it because it had green goo on it from his mouth that was caused by his dental problems.
Exhibit 7, Maxxam oral fluid drug testing custody and control form that has five copies, # 1 for the laboratory, #2 for the Medical Review Officer (MRO), #3 the collector’s copy, #4 the employer’s copy and #5 the donor’s copy, each contains the same serial number and is carbon papered so that marking on the first automatically goes onto the other four. As well, there are two seals containing the same serial numbers that are to seal the specimen vial that have a place for the date and donor’s initials. Step 1 requires the employer information, the ORC, the MRO, Driver Check information and the donor ID, and in this case, the ORC licence number which was Mr. Cullen’s as per Exhibit 8, H40256. The ID control number becomes the identification marker throughout the process thus ensuring that no errors or mix-ups can occur.
Exhibit 8 was the actual Maxxam drug testing custody and control form utilized for Mr. Cullen’s February 2, 2008 test. The specimen ID number at the top right S00024876 matches up with the laboratory report ID number S00024876 which indicated a positive test for cocaine of 62ng/ml and oxycodone-oral fluid with the upper limit of linearity (ULOL) for oxycodone, =600 ng/ml. That same ID number, S00024876 appears in the Driver Check report of February 13, 2008 as verified by Dr. Greenwald (Exhibit 4, tab 12). Regarding the March 28, 2008 follow-up urine sample, the same custody and control procedures were utilized. This time as per Exhibit 9, the ID number was SAT 0283630. The same number appears on toxicology results which indicated a positive test for cocaine of 300ng/ml, double the figure for a confirmatory result. That same ID number appears on the Driver Check report of April 8, 2008 verified by Dr. Snider-Adler (Exhibit 4, tab 15).
Testimony was provided re chain of custody secure procedures with respect to the February 2, 2008 test after it was secured by Mr. Locke with the special ID numbered seals with Mr. Cullen present. Mr. Frye testified he locked it in a bag and then locked it in his vehicle where it remained over the Sunday until he delivered it himself to Maxxam Analytics on Monday, February the 4th. There it was received by a person he thought may be named Shaun Pollard although the forms indicate it was received by a Siqi Huang. That same person is shown as receiving the March 28th test on March 31, 2008 at Maxxam Analytics. As part of the responsibilities of receiving test samples, that person must ensure there has been no tampering (seals unbroken) and that the ID numbers match up. If there is any variation, the sample will not be tested.

Issue

Did Mr. Cullen have a positive test for a controlled substance result from his random test of February 2, 2008, and was the penalty imposed appropriate? Should the Panel issue a declaration that the manner in which the fifteen-day suspension was administered and implemented resulted in an unnecessary and inappropriate delay in the return to racing for Mr. Cullen? Should Mr. Cullen have his licenses reinstated? What, if any, is the appropriate penalty for Mr. Cullen regarding his indefinite suspension issued April 16, 2008 as per the Rules of Standardbred Racing?

Decision

After reviewing the submissions and considering the testimony, the Panel denies the appeal of the fifteen-day suspension imposed on February 14, 2008 as per SB 30/2008. While there was no discussion by the parties relating to the $500 fine that accompanied the ruling, the Panel rules it finds the fine appropriate as it is in accordance with the rule.
Mr. Cullen’s application for a declaration in the manner in which the fifteen-day suspension imposed on him as per SB Ruling No. 30/2008 is denied.
Furthermore, Mr. Cullen’s application for the reinstatement of his licenses as per SB Ruling No. 66/2008 is denied. Mr. Cullen has a problem with substance abuse and that problem must be resolved to the satisfaction of the Director of the Commission before he can enjoy the benefits and the privilege of an Ontario Racing Commission licence. Mr. Cullen’s suspension is to remain in effect for one year from the issuance of this ruling, and he is fined $1,000. In addition, upon completion of his suspension, Mr. Cullen must provide proof to the Director that he has successfully completed a substance abuse program and that he is enrolled as an active participant in an accredited aftercare program for a minimum period of one year. Furthermore, he must demonstrate to the satisfaction of the Director that he is worthy of having his licenses reinstated following his suspension which will include a negative drug and alcohol test at his cost, plus, he will be placed on probation for a period of two years. The Director may see fit to attach conditions to his reinstatement. Any breach of those conditions will cause an automatic suspension of his licence with a requirement to appear before the Commission.

Reasons For Decision

On a balance of probabilities, Mr. Cullen, based on the evidence, did knowingly ingest controlled substances or at the very least should have taken precautions not to use medications offered to him without first ensuring he was aware of the contents. Since the inception of the new program, Mr. Cullen had two positive tests for controlled substances. The February 2, 2008 results were for cocaine and oxycodone and the March 28, 2008 test resulted in a positive result for cocaine. Both tests were administered according to the Rules of Standardbred Racing, SB Rule 36. In and of themselves, they are a serious breach of the rules and unfortunately, are a continuation of a substance abuse problem. As he admitted, such usage imperils the safety of participants not to mention the health of the horse and the integrity of the sport.
Mr. Cullen was unable to offer any meaningful explanation to the MRO in his February 8, 2008 interview re his February 2, 2008 positive test. Dr. Greenwald’s testimony is persuasive in explaining that none of the offerings Mr. Cullen made would cause the positive results nor was any proof submitted of prescribed medications given to Mr. Cullen for dental work that was administered four days after the test. Similarly, no credible evidence was provided to the Panel with respect to either the February 2 or March 28 positive test results.
Even if, and that story is flimsy at best, Mr. Cullen’s February 2, 2008 positive test was caused by his ingestion of cocaine and oxycodone that was contained in Mr. Graham’s “doctored” Orajel offering, he was still in violation of the Rules of Standardbred Racing. SB Rule 36.04, which states, “The onus rests with Designated Licensees to investigate (through their doctor or pharmacist) whether a medication can affect safe operation and take appropriate action to minimize safety risk.” Combining alcohol and medication that evening of January 31, 2008 is also is a violation of SB 36.04. Furthermore, there are contradictions in the testimony of Mr. Cullen who testified that he continued to use the Orajel right up until his dental work and then allegedly gave it to his lawyer who offered it up to be tested versus that of Mr. Graham who testified that he had the Orajel in question on his person the whole time. On top of all this, Mr. Cullen’s dental work occurred four days after his February 2, 2008 random test.
While there were admitted “bumps” along the way in relation to Mr. Cullen’s fifteen-day suspension, the Panel prefers the testimony of Mr. Locke, that the main reason for the delay was the need to retest the sample for the oxycodone positive result. Gamma Dynacare’s test was done via a screening process and that lab did not have the equipment required to do the analysis so it had to be sent to Maxxam Analytics where it tested negative. In addition, two days were lost due to the carryover of a weekend.
MRO’s administer the Commission’s human drug and alcohol program. Under the rules, a person must meet a number of criteria (Exhibit 4, tab 22) including being a licensed physician and be knowledgeable and have experience in controlled substance abuse. MRO’s must follow a specific process as it relates to the verification process. They must try for a twenty-four period to discuss directly with the participant before they can release the results to the employer (ORC) and must also allow the participant two business days to furnish a valid medical reason for the test result (Exhibit 4, tab 21). This process takes time. MRO’s cannot change the test result on the basis of an explanation (Exhibit 4, tab 22 40.151(d)) as Mr. Marley suggested may have been the case with the retest sample going from a positive to a negative for oxycodone. Given the time allowed for these steps to occur, including a weekend, Mr. Cullen’s suspension was not materially extended an undue amount. Furthermore, had Mr. Cullen’s retest been clean, there would not have been a delay that resulted in the drug (oxycodone) coming in under the threshold.
The March 28, 2008 test which returned a positive result for cocaine was appropriately ordered under Mr. Cullen’s return to duty agreement (Exhibit 4, tab 23). That agreement was signed by him with the appropriate disclosures as the testimony indicated. Therefore his suspension and requirement to appear before the Commission was in accordance with the terms of that agreement.
The ORC’s chain of custody and control processes for samples are best in practice. The procedures for the revised drug and alcohol regulation under SB Rule 36 mirror those used for equine drug regulatory functions. They have been tested and scrutinized numerous times in previous Commission hearings and found to be secure and accurate.
Mr. Cullen has a substance abuse issue. His excuses and alibis have a pattern that does not stand the test on a balance of probabilities. He has been given many opportunities to deal with his issue but still refuses to admit to it. Ms. Stanczuk is a wonderful support to him but that support alone has not been enough to have him deal with this problem. He must have professional help to deal with it and he must have ongoing professional assistance to ensure there is no relapse. Only then can he safely return to his profession wherein he has a proven talent.
Previous sanctions have not resulted in a change in behaviour. The assessed penalty must act as a deterrent to Mr. Cullen and a signal to other licensees of the consequences for violating this rule and endangering other participants, horses and the integrity of the sport. The ORC continues to be concerned about reformation; that is the rationale behind his penalty. He is being offered a chance again, a chance he should not waste as the consequences for his future in his chosen profession could be fatally harmed.

DATED this 12th day of May 2008.

Rod Seiling

Chair