RULING NUMBER COM TB 020/2012

COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 21, 2012

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

AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF

THOROUGHBRED LICENSEE HOWARD G. KEEN

On August 16, 2012, the Stewards issued Thoroughbred Official Ruling TB 7708/2012 wherein Howard Keen (“Keen”) was given the penalty of a fine of $500 and a fifteen-day full suspension as a result of a breath analysis test that exceeded the allowable limits on August 13, 2012, at Fort Erie Racetrack. He was found to be in violation of TB Rules 38.08 (b) (ii) and 38.11.

On August 17 2012, Keen filed a Notice of Appeal, pursuant to Rule 13.17(b) of the Rules of Thoroughbred Racing.

On November 21, 2012, a Panel of the Ontario Racing Commission (“ORC”), comprised of Commissioner John Macdonald, convened for the purpose of hearing this matter.

Neil McCoag appeared on behalf of the Administration of the ORC. Keen attended the Hearing and was unrepresented.

After reviewing the evidence, hearing the testimony of Steward Ed Hall, ORC Investigators Pam Bray and Rick Grant, Fort Erie race office employees Jackie Eder and Tara Stenson, and upon considering the closing submissions, the Panel denied the appeal and upheld the Stewards’ ruling of the fine of $500 and a fifteen-day full suspension. Keen is given credit for the days served from the day he was immediately suspended until his stay was granted. The remaining days will be served after he satisfies the other conditions on the original ruling. Those days are to be determined by the Administration.

A transcript of the Panel’s Oral Decision is attached to this Ruling.

Dated at Toronto, Ontario this 28th day of November 2012.

BY ORDER OF THE COMMISSION ____________________________

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

THOROUGHBRED HEARING

IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF HOWARD KEEN

Held Before:

John Macdonald, Commissioner

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: HOWARD KEEN, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 21st day of November, 2012.

Appearances:

Neil McCoag,

agent for the Ontario Racing Commission Administration

Hearing continued ...

MR. CHAIRMAN: I am going to deny the appeal and the amended ruling Thoroughbred 44/2012 will stand. That's the keeping the peace and the presentation for alcohol testing under the rules 38.07(d), be available for random alcohol testing and I find that listening to all of the evidence on what happened, Mr. Keen, you acknowledge that you had been drinking that morning until sometime 3:00 or 4:00 and then you did go to the track and take care of your horses and then sometime after that you left and then you were paged and through your assistant somehow you were called and told that the track was paging you at the race office to come in and you did come in. And that is to your credit because you were asked to do so. You did take the tests that were given by Inspector Bray voluntarily and it is a fact that you blew over and you were tested twice with the results indicating higher. Now how that occurred only you would know. The indications were that if you were off the grounds you were drinking after the time when you left. It is a little muddy as to when you left. We know when you came back because the testing was done just shortly after 11:00 that morning. So between the drinking time of 3:00 and 4:00 in the morning and 11:00 obviously there wasn't enough time for the alcohol to go through your system. I understand that you think you may have been persuaded, tricked to come back to the track but you did so voluntarily and you didn't explain what you meant on the road. You could have been on the road near the barns, you could have been on the way home which is what you indicated you did. We have no way of knowing and there is no indication. Unfortunately you people, potential witnesses, were not available. However, the facts are that you did blow over, you had been on the grounds that morning and you are in a position of looking after horses and there is a sensitivity factor there. If you had left the grounds and had told your staff that you were not coming back and that you had arranged for someone else to look after the horses that's a different thing. As far as we know that didn't happen. Anyway, the facts are there, you blew over and the amended ruling stands.

MR. MCCOAG: Thank you, sir.

MR. CHAIRMAN: That terminates this matter. Thank you.

CERTIFIED CORRECT:_________________________________

RAYMOND P. MACDONALD, B.A., CVR

Commissioner of Oaths