RULING NUMBER COM TB 016/2010
COMMISSION HEARING TORONTO, ONTARIO – AUGUST 5, 2010
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY
THOROUGHBRED LICENSEE FRANK HUARTE
Thoroughbred Licensee Frank Huarte (“Huarte”) appealed Thoroughbred Ruling TB 6367/10, dated April 8, 2010, wherein he was suspended from April 9, 2010, through April 8, 2011, and fined the sum of $5,000.00 for violation of Rules 15.06.01(a) and (b) of the Rules of Thoroughbred Racing as a result of a positive test for the drugs Codeine and Morphine.
The appeal was heard on August 5, 2010, by a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling.
Angela Holland appeared as counsel for the Administration. Huarte was in attendance, with Sue Leslie of the HBPA acting as his agent.
Upon reviewing the exhibits filed, and upon hearing the submissions of counsel for the Administration, including a joint submission with respect to a variance in penalty, the Panel accepted the joint submission, with minor variances, and varied the penalty as follows:
Huarte be suspended for 4 months, from April 9, 2010 to August 8, 2010, and the remaining 8-month suspension be stayed;
The fine be reduced from $5,000 to $2,500, payable on or before August 8, 2010; and
Huarte will have the following conditions placed upon his licence for two (2) years, commencing August 8, 2010 until August 7, 2012:
a. he shall keep the peace and be of good behaviour;
b. he shall allow Commission investigators access to his stabling, home and vehicles at any time to conduct random searches for illegal or non-therapeutic medications or drugs;
c. he shall allow Commission investigators to seize any illegal or non-therapeutic medications or drugs;
d. he shall be subject to the Commission’s out of competition testing program;
e. he may be subject to a Notice of Proposed Order in addition to any penalty imposed by the Stewards for any breach of his licence; and
f. failure to comply with any of the above conditions will result in the automatic expiry of the stay and will result in Huarte being suspended for the remaining 8 months of his original suspension, in addition to any further penalty imposed by the ORC Stewards or Commission.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED at Toronto this 5th day of August, 2010.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Overview
1Licensee Frank Huarte appealed a ruling (TB 6367/10) of the Ontario Racing Commission (ORC) Stewards wherein he was suspended for a period of one year and fined a sum $5,000 for a violation of Rules 15.06.01 (a) and (b) of the Rules of Thoroughbred Racing for a positive test for the drugs codeine and morphine. An oral decision was rendered at the hearing with written reasons to follow.
Background
2Legal Counsel for the ORC, Angela Holland, and the appellant’s representative, Sue Leslie from the HPBA, acting as a friend, provided the Panel with an Agreed Statement of Facts (Ex. 1).
3This document includes a joint recommendation at para 20 to vary the original penalty imposed as follows:
Huarte be suspended for 4 months, April 9, 2010 to August 8, 2010 with the remaining 8-month suspension stayed;
The fine be reduced from $5,000 to $2,500, payable on or before August 8, 2010; and
Huarte will have the following conditions placed upon his licence for 2 years commencing on August 8, 2010:
a. He shall keep the peace and be of good behaviour;
b. He shall allow the Commission Investigators access to his stabling area at any time to conduct unannounced random searches for illegal or non-therapeutic medications or drugs;
c. He shall allow Commission Investigators to seize any illegal or non-therapeutic medications or drugs;
d. He shall be subject to the Commission’s out of competition testing program;
e. He may be subject to a Notice of proposed Order in addition to any penalty imposed by the ORC Stewards for any breach of his licence; and
f. Failure to comply with any of the above conditions will result in the automatic expiry of the stay and will result in Huarte being suspended for the remaining 8 months of his original suspension, in addition to any further penalty imposed by the ORC Stewards.
4The Panel notes that in agreeing with the proposed penalty, Mr. Huarte did not admit any responsibility for the positive test, a test which revealed the presence of the illegal drugs, codeine and morphine, in the system of his horse, Spanish Deputy.
Issue
5Are there mitigating circumstances that would warrant the Panel accepting the joint recommendation of a reduced penalty?
Decision
6After carefully reviewing the testimony, the evidence and the documents filed, the Panel agrees to the joint proposal for a reduced penalty but varies the conditions proposed placed on his licence as outlined above at para 3 of Exhibit 1 including that he is put on probation for two years, August 8, 2010 to August 7, 2012. Mr. Huarte’s penalty suspension is reduced to 4 months, April 9, 2010 to August 8, 2010 with the remaining 8 months stayed. His fine is reduced from $5,000 to $2,500, payable by August 8, 2010. The conditions are as follows: (a) he shall keep the peace and be of good behaviour; (b) he shall allow Commission investigators access to his stabling, home and vehicles at any time to conduct random searches for illegal or non-therapeutic medications or drugs; (c) he shall allow Commission investigators to seize any illegal or non-therapeutic medications or drugs; (d) he shall be subject to the Commission’s out of competition testing program; (e) he may be subject to a Notice of Proposed Order in addition to any penalty imposed by the Stewards for any breach of his licence; and (f) failure to comply with any of the above conditions will result in the automatic expiry of the stay and will result in Huarte being suspended for the remaining 8 months of his original suspension, in addition to any further penalty imposed by the Stewards or Commission. Ms. Leslie responded on behalf of Mr. Huarte that the appellant would accept the changes to the joint submission on the proposed penalty.
Reasons for Decision
7Mr. Huarte, as the trainer of record, is in violation of TB Rules 15.06.01 (a) and (b). Under the Rules of Thoroughbred Racing, this is an absolute offence, no mitigating factors were offered for the cause of the positive test.
8This is another case of the phantom positive test, no one admits to knowing anything as how the horse came to have tested positive for both codeine and morphine. There is no evidence to support sabotage or contamination. In regards to environmental contamination, past attempts to go down this road have clearly proven there is no possible avenue for such an occurrence in this jurisdiction.
9Had the matter come before the Panel to be adjudicated, and had the decision been to deny the appeal, the Panel is of the view that the penalty imposed by the Stewards was appropriate given the ranges available for such a rule violation.
10The Panel accepts the joint submission with the minor variances on the basis that it defers to the experience of the Administration in bringing forth the recommendation supported by Mr. Huarte’s “clean” past record up to this point in time.
DATED this 5th day of August 2010.
Rod Seiling
Chair