ORC Rules On Ellis; Reasons For Decision Released

The Ontario Racing Commission has released its reasons for decision in regard to the fine, suspension, and subsequent multi-year probation of trainer

Robert Ellis of Elmira, Ontario.

As indicated on SC's Fines and Suspensions list, Ellis has been handed a $5,000 fine, a one-year suspension, and a subsequent two-year probationary period due to a Class 2 positive relating to a post-race test on November 16, 2009 on The Barber at Woodbine Racetrack.

The ORC's reasons for decision appear below in its entirety.

REASONS FOR DECISION

FACTS

• The horse “THE BARBER”, tattoo #8CM572, raced at Woodbine Racetrack on Monday November 16, 2009 in Race 11, finishing first, he was sent to the test barn and was subsequently designated as a “blood test” horse.
• “THE BARBER” is owned and trained by “ROBERT ELLIS”, licence # F0925, and co-owned by Darryl Hurd and Tony Bolger.
• The test from “THE BARBER” was sent to the Cantest lab in British Columbia, were the sample was tested on November 18, 19, and 20, and found to contain the drug “RESERPINE”. The official sample was properly sealed with the tag #327012B
• The drug “RESERPINE” is designated as a “class 2” drug under the A.R.C.I. guidelines, which are used in determining the classification of all medications for which we receive certificate’s of positive analysis.
• A class 2 drug, by definition, are “drugs that have a high potential to affect performance, but less of a potential than drugs in class 1. These class 2 drugs are 1) not generally accepted as therapeutic agents in racing horses, or 2) they are therapeutic agents that have a high potential for abuse…”
• As a result of the above positive test, a hearing was held at Mohawk Raceway on Thursday December 17, 2009. In attendance for the hearing were; Robert Ellis, Darryl Hurd, C.O.S.A. representative Bill O’Donnell, along with Judges Rick Rier, Don Lawrence, and Doug Hopkins.
• From this hearing it was determined, by virtue of testimony from trainer Robert Ellis, that; the horse “THE BARBER” was difficult to handle, he had been making breaks, and could be considered dangerous at times. For safeties sake, he inquired to an undetermined/unnamed source as to what he could do to quieten the horse down. He purchased a drug at that time in a quantity of 10cc. The product he obtained was unlabelled and, there were no instructions as to how, or when, to administer said drug. As well, Mr. Ellis was unaware of what the drug was he had purchased. It was only “AFTER” having obtained this positive test that he testified he returned to where he purchased the drug and was shown a bottle with the label identifying “RESERPINE”. The horse “THE BARBER” was administered 1cc approximately one month prior to the November 16 start - 1/2cc two weeks prior to the November 16 start, - and 1/3 of a cc at five-and-a-half days prior to the November 16 start.
• “ROBERT ELLIS” also stated that this horse won at Woodbine on November 9, race 11 and did not receive a positive test. It was determined that only a urine sample was taken on this night and, the horse was not selected as a “blood test” horse.
• “ROBERT ELLIS” stated, and this was backed up via a telephone conversation the Judges had with C.P.M.A veterinarian Dr. Mike Weber, that “RESERPINE” is not currently listed in the guidelines book published by them. Dr. Weber did indicate to both the trainer, and the Judges, that we may see a guideline of 2cc at seven days out in the next published C.P.M.A. drug book.
• “ROBERT ELLIS” indicated that again “after” having been notified of this positive test, he inquired to several licenced vets (which he named) as to the withdrawl time for “RESERPINE”. By his testimony, he was told anywhere from 4 to 14 days this would stay in the horses system. He felt that with the confusion among vets regarding this drugs withdrawal time, how was he able to protect his horse from this positive?
• Trainer “ROBERT ELLIS” has had no rule violations within the previous eleven years, making this a first offence positive test.

AGGREVATING FACTORS

• As determined, the drug “RESERPINE” is a “class 2” drug under the Association of Racing Commissioners International guidelines. These classifications are widely accepted by North American horse racing jurisdictions.
• Under the Ontario Racing Commission “POLICY DIRECTIVE 1-2008”, the guidelines for class 1 thru class 5 positives, as well as TCO2 positives are clearly listed. The penalty guideline for a first offence positive with a class 2 drug is; 1 – 5 years suspension plus a $5,000 fine.
• The fact that “ROBERT ELLIS” was unwilling and unable to name the source of the drug “RESERPINE” to us is troubling. By his own account, he knew not what he had purchased at the time prior to the positive. He knew nothing of the proper administration, nor was he able to produce for us any receipt or transcript/prescription. He made no inquiries until “after” having been made aware of the positive test. Buying any drug in a 10cc syringe void of any labelling and/or instructions for administration would be in very poor business practice and, in our mind, asking for potential trouble. The fact that “RESERPINE” (as many other drugs) is not listed in the C.P.M.A. drug book is a mute point as he did not know what he was administering prior to the positive test anyway.
• Under O.R.C. rule 26.02.03; …the Commission and all delegated officials shall consider the following to be absolute liability offences: (c) any trainer whose horse tests positive resulting from testing in accordance with or under the Pari-Mutuel Betting Supervision Regulations.
• As well, under O.R.C. rule 3.09.01 (f); a trainer shall maintain records relating to the particulars of any medications administered to horses in his/her care. For the purposes of this rule, the term medication shall mean a medication that could result in a positive test… As established, this was not done by trainer “ROBERT ELLIS."
• The argument that it was administered to “calm the horse down” and not to enhance performance is misleading. By effectively calming the horse, one would determine that the horse is less hyper or stressed, and therefore, is able to perform better when in a more relaxed state.
• In researching prior case law we found that in 2006, trainer Larry Burns received a positive for “RESERPINE” and received a one year suspension and a $5,000 fine. In October of this year, trainer Gilbert Hamel received a positive test for “RESERPINE” and received a one year suspension and a $5,000 fine.

MITIGATING FACTORS

• “ROBERT ELLIS” felt there would be a tremendous financial impact on him with any penalty administered. This is all he has known for 30 plus years and we would affectively be “putting him out of business” as there is “no money in this business anyhow”. As well, he has no other source of income other than racing horses. That being said, the vast majority of trainers would suffer a great hardship in obtaining a class 2 positive test, this is not unique to this particular case. There was no “homework” done by the trainer to even determine what he was administering to “THE BARBER” prior to receiving the positive test, only after. Effectively, doing it afterwards is too late to prevent the potential consequences.
• “ROBERT ELLIS” brought in a copy of the Commission ruling from participant “Jamie Doig” who also had a positive test for the drug “RESERPINE” in mid 2009. Mr. Ellis was informed that each case has its own unique set of circumstances and the facts for his particular case are clear. We could not, at that time, explain how, or why, Mr. Doig was given the penalty he was as we did not hear his particular case. It should be noted that one of the major reasons we took so long in reaching a decision in this case, was the fact that we reviewed and researched the Doig ruling.

DECISION

• Based on all the facts as presented to this panel of Judges, we feel that the minimum penalty as allowed for under “POLICY DIRECTIVE 1-2008” is justifiable. O.R.C. rules; 3.09.01(f), 9.09(a, b), 26.02.01, 26.02.02, and 26.02.03(c) shall apply. Also, O.R.C. rules; 6.13.01, 9.13, 18.08.01, and 26.08 shall be included. The result will be a one (1) year full suspension and, a fine of $5,000. for trainer “ROBERT ELLIS”. Also, under “POLICY DIRECTIVE 3-2008”, Mr. Ellis will be placed on probation, with conditions, for two (2) years following the completion of his suspension. Note that both the above listed POLICY’S were approved by the Ontario Racing Commission on January 22, 2008.
• Under O.R.C. rule 11.10.01, for a class 2 positive, the horse “THE BARBER” has been suspended for a period of 90 days, being November 23, 2009 to February 22, 2010 inclusive. This was previously issued as SB40198 dated November 23, 2009.

(With files from the ORC)