Ontario Racing Commission
TB
RULING NUMBER COM SB 017/2010
COMMISSION HEARING TORONTO, ONTARIO – MARCH 31, 2010
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF
STANDARDBRED LICENSEE RICHARD SAMUEL (RICK) SHAKES
Richard Samuel Shakes (“Shakes”), is licensed by the Ontario Racing Commission (“ORC”), as a Driver/Trainer/Owner for Standardbred racehorses, licence #M02404.
A random saliva sample taken on December 12, 2009, at Sudbury Downs Raceway from Shakes was verified as a cocaine positive on December 17, 2009.
On December 18, 2009, Standardbred Ruling Number SB 206/2009 against Shakes ordered:
(i) a $500 fine; and
(ii) a 15 day suspension of both his Driver’s and Trainer’s licenses;
(December 18, 2009 to January 1, 2010)
On January 22, 2010, Shakes entered into a Post-Violation Agreement with the ORC.
On January 22, 2010, Standardbred Ruling Number SB 13/2010 ordered the reinstatement of his Driver’s and Trainer’s licenses.
A follow-up urine sample taken from Shakes on February 25, 2010, in accordance with the Post-Violation Agreement was verified as a cocaine positive on March 2, 2010.
On March 3, 2010, Standardbred Ruling Number SB 49/2010 ordered that Shakes:
(i) is suspended from performing the duties for which he is licensed; and
(ii) is referred to the Commission, pursuant to Rule 36.08 (c)(ii) of the Rules of Standardbred Racing.
A follow-up urine sample taken from Shakes on March 15, 2010, was verified as negative on March 17, 2010.
On March 15, 2010, Shakes made Application for a Hearing for Reinstatement.
On March 23, 2010, a Notice of Hearing was issued for March 31, 2010, at 1:00 p.m., before a Panel of the ORC.
On Wednesday, March 31, 2010, a Panel of the ORC, consisting of Commissioner Brenda Walker, was convened to hear this matter.
Shakes appeared in person. Shakes was unrepresented. Anthony Williams appeared as counsel for the Administration.
Upon hearing the allegations against Shakes, and upon hearing the admissions by Shakes to the allegations, and upon reading the exhibits filed, and upon hearing from Pamela Bray, Investigator and from Diane Moretti, Program Administrator, and upon hearing the submissions of both Shakes and counsel for the Administration, the Commission found as follows:
(i) that Shakes violated Rule 36.08 (c) (ii) (“subsequent offence”), of the Rules of Standardbred Racing in that his follow-up urine sample from February 25, 2010, tested positive for cocaine; and
(ii) that Shakes violated mandatory condition (vi) “No further violations – commit no further violations of the Alcohol and Drug Policy” of his January 22, 2010 Post-Violation Agreement.
In view of the circumstances surrounding these violations, including a suspension of 29 days, (a suspension which has already been served), and an apparent recognition by Shakes of his substance abuse problem, the Commission ordered as follows:
(i) $500 fine (payment of the fine is stayed pending successful completion of the Post-Violation Agreement;
(ii) prior to reinstatement of his Driver’s and Trainer’s licenses, Shakes must enter into a Post-Violation Agreement, for a period of 15 months (March 31, 2010 to June 30, 2011, both dates included).
The conditions of the Agreement will include the following:
(a) cooperate fully with a Substance Abuse Professional (“SAP”), assessment and follow the recommendations made by a SAP including, but not limited to, complete an outpatient treatment program as directed by the Program Administrator;
(b) provide monthly proof to Jeremy Locke that you're going to the sessions or the meetings;
(c) treatment/monitoring/aftercare;
(d) sobriety;
(e) return to duty test (both alcohol and drug);
(f) unannounced testing;
(g) no further violations, et al.
A transcript of the Panel’s Reasons for Decision is attached to this Ruling.
DATED this 14th day of April, 2010.
BY ORDER OF THE COMMISSION
Rob McKinney
Acting Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED APPEAL HEARING
IN THE MATTER OF RICHARD SHAKES
This is an excerpt of the hearing of the Ontario Racing Commission re: RICHARD SHAKES, in the above mentioned matter held before The Ontario Racing Commission, taken before Micro‑Tech Reporting Inc., 201 City Centre Drive, Suite 605, Mississauga , Ontario, L5B 2T4 on the 31st day of March, 2010.
Heard before: Brenda Walker, Commissioner
APPEARANCES:
A. Williams
P. Bray
COMMISSIONER WALKER: You may be seated.
After reviewing the exhibits of Mr. Shakes and his acknowledged positive tests for cocaine, he has violated the rules of Standardbred racing and has violated the terms set out in SB 13, 2010.
While these violations are troubling and he is putting at risk in addition to himself the health and safety of the participates and horses, the Commission is charged with protecting the health and safety of both of the above, the horses and the horsemen, that are participating under the basic commission act.
Mr. Shakes appears to have recognized his problem and he goes to an ‑‑ you call it an NA Program?
MR. SHAKES: Mm‑hmm.
COMMISSIONER WALKER: ‑‑ NA Program. Prior to having his license reinstated, Richard Shakes must enter into a post‑violation agreement ‑‑ we're going to set one out for you ‑‑ and the conditions are as follows:
He will have an assessment. He'll cooperative fully with a substance abuse professional, SAP assessment and follow the recommendations.
Treatment is recommended but out‑patient treatment is recommended so you won't have to be in a facility. You can do it ‑‑ go back and forth, so you're going to be in a program. They're going to help you set up a program that works for you. We're not going to make you go to a facility and stay there for 90 days or anything.
MR. SHAKES: Is that the SAP lady, then? Is that who does that?
COMMISSIONER WALKER: They do that.
MR. SHAKES: The lady that I see is, her name is Jody.
COMMISSIONER WALKER: Okay. They will talk to you about that, but that's who sets up the program, and they're going to set something up that will work with you; okay?
MR. SHAKES: Okay.
COMMISSIONER WALKER: That you will follow their program that they set up for you; okay?
MR. SHAKES: Okay.
COMMISSIONER WALKER: And the treatment is recommended, and you have to provide monthly proof to Jeremy Locke so that you're still going to the sessions or the meetings ‑ there has to be proof. You have to keep sober.
Returning to duty, you've already served 29 days. It was 50 days originally so you will get back to work but you have to stay enrolled in the program.
MR. SHAKES: Okay.
COMMISSIONER WALKER: There will be unannounced testing for you and this will be extended for 15 months, so you will be required to ‑‑ whenever they ask you when you go to the racetrack, so they'll be asking you for samples but it will go for 15 months, so it will go to June 2011, approximately that.
Did you pay the $500 fine?
MR. SHAKES: Mm‑hmm. You're leaving the fine?
COMMISSIONER WALKER: No, will not put a fine in.
MR. SHAKES: That's what I mean.
COMMISSIONER WALKER: No, there's no fine but you're going for 15 months this time rather than ‑‑ because you've already sat out 29 days.
MR SHAKES: Mm‑hmm.
COMMISSIONER WALKER: You will be going for 15 months this time, but we don't want to see you here again, so we hope you stick to the program and make it work for you.
MR. SHAKES: So how many days are you giving me? Like, how many days am I ‑‑ do I have to sit out more until I'm reinstated?
COMMISSIONER WALKER: You don't have to. Do you usually make him go for another sample or not?
MR. SHAKES: I just did one.
COMMISSIONER WALKER: Yes, well, that's what I'm asking.
MR. SHAKES: I had to give that before I even got this hearing.
MR. WILLIAMS: It appears the approach is that since the gentleman acquired a clean sample on March 15th I believe it was ‑‑
MR. SHAKES: Yeah.
MR. WILLIAMS: ‑‑ that he would not be required to do another clean sample. The cost is $125.
MR. SHAKES: $175.63 ‑ I'm a man; they got no women at my thing where I go up there. They got to call a male in to sit with me, stand with me, watch me, so it's an extra $50 for a male to go in there and do it up home.
COMMISSIONER WALKER: Ms. Bray will explain how this works.
MS. BRAY: Basically what happens, Commissioner Walker, is I monitor the follow‑up testing program which means anybody in a post‑violation situation that has a post‑violation agreement, I maintain a file for each individual that is in a post‑violation situation.
Not only do we test them at the racetrack when we're there but I make random calls to each post‑violator within an eight‑hour period where prior to that I've arranged a test for them at a location fairly close ‑‑ within their limits of where they live, and then within an eight‑ to twelve‑hour period I will phone them and advise them that they are required to attend that location to provide a sample.
They're not billed. They don't have to pay when they get there. That is handled here at the Commission where then they will receive a bill and they're asked to pay it within 60 days, so that way they're not financially strapped monthly and they kind of maintain it that way, and if they are found in arrears, then I have to go back out and try to collect that from them at which point if they don't pay after a certain period then they're suspended again.
COMMISSIONER WALKER: Now, are the ones that you take at the track, do they pay for those, too?
MS. BRAY: No. Well, yes. I should yes and no. When I'm there to do random drug testing ‑‑ and it's a random selection based on the computer selection ‑ no, they don't pay for that, but if I'm in attendance, and using Mr. Shakes for example, he's not on my list but I know that I have to do a follow‑up test with him, he will end up having to pay for it but not right then and there.
COMMISSIONER WALKER: Do you understand that?
MR. SHAKES: Put me on the list then so I don't got to pay. Yes, I understand.
COMMISSIONER WALKER: Do you understand the agreement?
MR. SHAKES: Yes, yes.
COMMISSIONER WALKER: They're going to make up the agreement and then you will sign it and then you'll have to give them ‑‑ they'll set out the steps basically for you what you have to do; okay? Any more questions?
MR. WILLIAMS: Might I address you?
COMMISSIONER WALKER: Yes.
MR. WILLIAMS: Just in relation to the last question that Mr. Shakes raised, it's my understanding and I will stand corrected ‑ that there's no pay for random tests. It's a deferred payment for a test pursuant to a post‑violation agreement.
MR. SHAKES: When Pam calls me, yes.
MR. WILLIAMS: And I understand that on average perhaps once a month or thereabouts?
MS. BRAY: It depends on the post‑violation agreement that ‑‑ the amount of tests or the dates of the tests are generally decided by the program administrator and coordinator and myself depending on ‑‑ I know that an individual has so many tests that have to be done throughout the year so it's basically at my calendar hand.
The issue is on a return to duty, they do have to pay up front at the laboratory; however, anything that I deal with in the post‑violation it's deferred and then
accounting provides a statement to them and they pay the ORC directly, and we're not making money on this by the way. It's strictly the costs incurred by the lab.
MR. WILLIAMS: Would the average number of visits per post‑violation agreement be around once per month? May be more intensive for some, less for others.
MS. BRAY: Exactly.
MR. WILLIAMS: Thank you. The proposed end date for the post‑violation agreement would be the 30th of June of the year 2011 if that's agreeable.
COMMISSIONER WALKER: That's agreeable.
MR. WILLIAMS: I'm going to ask if, Commissioner Walker, if you feel comfortable in using the wording in relation to Book of Documents, Exhibit 2, tab 6, page 8, paragraph 5, subsection (b) which gives the option of testing at the track for subsection (a) and testing when the person is not at the track.
COMMISSIONER WALKER: Okay. So that's everything. Any questions?
MR. SHAKES: Yeah, am I reinstated with no fine?
COMMISSIONER WALKER: Yes.
MR. SHAKES: Is this what's going on?
COMMISSIONER WALKER: Yes.
MR. SHAKES: Wow, thanks.
COMMISSIONER WALKER: But we don't want to see you here again. Well, we can add the condition that if you are back here, you will pay a fine.
MR. SHAKES: No.
MR. WILLIAMS: I think as part of his post‑violation agreement if acceptable to you that a breach of his post‑violation agreement would draw him back into this particular forum.
COMMISSIONER WALKER: Yes.
MR. WILLIAMS: Thanks very much.
I HEREBY CERTIFY THE FOREGOING
to be a true and accurate
transcription of my shorthand notes
to the best of my skill and ability.
Darlene Goodwin
Shorthand Court Reporter