Non Raceday Inquiry – MJ Smolenski

Information No. 65227 (as amended) alleges as follows:

Mr Smolenski admitted the breach and the charge was found to be proved.

The relevant Rule provides as follows:

Mr Kitto presented a detailed Summary of Facts which may be summarized as follows:

1. Mr Smolenski is the trainer of RACY ROCKET which was correctly entered for Race 8, Pyne Gould Guinness NZ Yearling Sale Series Final held by New Zealand Metropolitan Trotting Club at Addington Raceway on 13 May 2005. The horse was driven by J F Curtin and finished 2^nd earning a stake of $33,150.

2. RACY ROCKET was post-race swabbed. On 30 May 2005, a Certificate of Analysis from New Zealand Racing Laboratory Services declared that Ranitidine had been detected in the urine sample. The control sample was negative for Ranitidine. The reserve sample was analysed at Mr Smolenski's request and Ranitidine was detected in that sample.

3. RACY ROCKET was also swabbed on 25 May 2005 at a meeting of New Zealand Metropolitan Trotting Club with a negative result for Ranitidine.

4. Harness Racing New Zealand's Chief Veterinarian, Dr Andrew Grierson, has advised that Ranitidine is an antihistamine as listed in the Prohibited Substance Regulations and is therefore a prohibited substance under the New Zealand Rules of Harness Racing.

5. Mr Smolenski was interviewed at his stables on 31 May 2005 and advised that RACY ROCKET had returned a positive swab for Ranitidine. Mr Smolenski produced a plastic container. The label on the container stated "Ranitidine 300mg tabs x 200. Ulcer tablets, feed 10 daily as required. For animal treatment only". The horse name LYCATOFF and the date 21/7/04 were also on the label.

6. Mr Smolenski said, when interviewed, that he had been giving his horses Ranitidine for maybe 5 years and was unaware that it was now a prohibited substance. He had not been supplied with it for RACY ROCKET. However, it was his stable practice for all racing horses to be given 10 tablets per day if they had ulcers and 5 tablets, if they did not, to help their eating. The tablets were crushed up and mixed with Manuka honey and syringed down the throat. Mr Smolenski said that he would not give a horse any on race day and he would stop administration the day before. He did not know that there was now a withholding time for Ranitidine.

7. Mr David Senior, Mr Smolenski's veterinarian, was spoken to and he advised that his records indicated that Mr Smolenski had been supplied with Ranitidine on 6 April, 11 June, and 21 July 2004. Mr Senior advised that all containers of Ranitidine had a 48-hour withholding time warning since December 2004. Mr Smolenski had made no enquiry of Mr Senior in relation to giving Ranitidine to RACY ROCKET and had a stock of Ranitidine on hand.

8. The definition of "prohibited substance" in Rule 105 came into force on 1 August 2003. The Prohibited Substance Regulations came into force on 19 February 2004. Rule 1001 came into force on 1 August 2003.

Mr Kitto informed the Committee that there had been few prosecutions in which a Judicial Committee has had to consider penalty in relation to a serious racing offence for administration of drugs/prohibited substances. He referred to the recent cases of Court (fine of $6,000) and McGrath (disqualification for 18 months on 3 charges).

Mr Kitto submitted that the starting point for a breach of the particular Rule should be 18 months' disqualification for a first offence. From that starting point, the Committee has to consider the individual's culpability, the aggravating and mitigating factors and the circumstances of the individual case to determine the appropriate penalty. He submitted that, in this case, a period of less than 18 months or a substantial fine could be imposed having regard to the following mitigating factors:

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• Mr Smolenski's cooperation and frankness during the investigation;
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• His previous good record
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• His early admission of the breach
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• His obtaining the Ranitidine through his veterinarian; and
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• His gross carelessness but not deliberate breach of the Rule.
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Mr Kitto submitted that, against those, there were the following aggravating factors:

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• Using Ranitidine prescribed for a horse other than RACY ROCKET; and
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• His not focusing on making enquiries of his veterinarian as to any changes in the drug/prohibited substance Rules.
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Mr Smolenski did not administer Ranitidine on race day ? he obviously exercised some caution, Mr Kitto said.

Mr Kitto submitted that Serious Racing Offences under the Rules were to be viewed as such and significant penalties could be imposed for such offences. Trainers have a clear obligation to ensure that a horse races drug free and trainers need to exercise a high degree of care and vigilance. To support this submission, Mr Kitto referred to the leading cases of Coulson (1993), Nicholson (1994), Wolfenden (1995) and Lamb (1998).

A trainer has a responsibility to take appropriate advice before administering any substance to a horse ? to either contact his veterinary surgeon or a Racecourse Inspector for information in relation to what he is using. Mr Kitto referred to the recent "high profile" cases relating to drug treatment of ulcer complaints that would have sent "alarm bells" to people in the industry to be very prudent in what they are administering to a horse and, if unsure, to make appropriate enquiries.

Mr McMenamin stated that Mr Smolenski runs a training stable where he trains standardbred racehorses. Mr Smolenski had found that, after a hard race, a horse could go off its feed resulting in ulceration of the stomach lining. He submitted that Ranitidine was a popular drug to treat such problems and was widely used. Mr Smolenski had approached his veterinary surgeon for advice on how best to treat the problem. Mr McMenamin acknowledged that this had been as long ago as about 5 years. Mr Smolenski's practice was to administer 5 tablets of Ranitidine with each morning's feed at about 6.00am, mostly daily, but he did not give Ranitidine on race day thereby not giving the drug within 24 hours of a race and, usually, at least 36 hours before a race. He had no knowledge of any withholding period and had his own "self-imposed" withholding period.

The official list of prohibited substances was published in the "Harness Racing Weekly" on 25 February 2004 with effect from 19 February 2004. It was not generally provided to all industry participants, with the notice in the "Weekly" taken to be sufficient notice. Mr Smolenski was not alerted to the fact that Ranitidine was included as a prohibited substance and, in Mr Smolenski's case, the treatment had been prescribed by a Veterinary Surgeon. No withholding periods were published for the substances listed. Prior to December 2004, Ranitidine was not generally considered a banned substance and, prior to 19 February 2004, no prosecution would or could have been brought if it was found in a race day swab.

Mr McMenamin pointed out that, after December 2004, if Mr Smolenski had gone to Mr Senior to obtain Ranitidine, he would have been advised by Mr Senior that there was a 48-hour withholding period recommended in respect of Ranitidine. After that time, Mr Senior began to relabel his containers to show the withholding period. However, Mr Smolenski was relying on supplies he had obtained in June/July 2004 prescribed for another horse which had not been used up. Therefore, Mr Smolenski was innocently administering the drug to RACY ROCKET totally unaware that it was a prohibited substance and that a withholding period applied to it. Mr Smolenski gave the treatment to RACY ROCKET the day before the race ? he had no reason to be concerned whether the horse would be clear of the substance the next day or that it mattered anyway because, as far as he was aware, it was not a prohibited substance. If Mr Smolenski had used all of the stock of Ranitidine prescribed for LYCATOFF and obtained a supply for RACY ROCKET after December 2004, Mr Senior would have advised Mr Smolenski of the withholding period and he would have stopped the treatment to RACY ROCKET a day earlier and these proceedings would have been avoided.

Mr McMenamin took issue with Mr Kitto's submission that Mr Smolenski had been "grossly negligent". He submitted that Mr Smolenski had not been negligent and his actions were certainly not deliberate. Mr Smolenski has been a licensed trainer for 23 years and has an unblemished record. He pleaded guilty immediately. He has had to suffer the mortification and financial loss arising out of the disqualification of RACY ROCKET and will suffer the adverse publicity of this prosecution. His previous clear record has been tarnished through no real fault of his own. The offence was committed "totally unwittingly" and there was no likelihood of his breaching the Rules again.

Mr McMenamin accepted that the offence is one of strict liability but submitted that Mr Smolenski's culpability, if any, is at the very bottom of the scale. He said Mr Smolenski was administering the substance to RACY ROCKET in accordance with the veterinary advice he had received with respect to Ranitidine, albeit that that related to a different time period and to a different horse. He submitted that any penalty should be no more than a fine.

Mr McMenamin said that he believed that Ranitidine had been taken off the banned substances list in Western Australia in respect of both harness racing and the galloping codes.

Mr Senior confirmed that the use of Ranitidine was widespread. He said he believed that 80 to 90 per cent of racehorses have some degree of stomach ulceration. Horses not eating is a very common problem in the industry and it is an "animal welfare issue" to keep them eating. Ranitidine can now be bought over the counter at a pharmacy without a prescription and, he believed, a lot of trainers just use this and the other common ulcer treatments purchased over the counter.

He stated that, after the December 2004 prohibited substance notice, it was his practice to ensure that containers of Ranitidine were labelled with a warning as to the withholding period. Prior to this time, he had not placed any such warnings on containers he dispensed as he did not believe such action was necessary. He acknowledged that he did not take any action to inform trainers of the perils of continuing to use old stock of Ranitidine. He agreed with Mr McMenamin that, had Mr Smolenski approached him requesting Ranitidine after December 2004, Mr Smolenski would have been told of or would have seen on the container the withholding time.

Mr Smolenski stated that the owners of the horse are new clients for whom he has trained for 2 years. They have four horses in training as a consequence of the first horse that they bought, RACY ROCKET, having been successful. He risks losing the horses as a result of the loss of the stake monies, he said.

Mr Smolenski questioned whether there was any proof that Ranitidine can affect the stamina, performance or speed of a racehorse. RACY ROCKET raced on Ranitidine throughout his two-year-old career. Mr Smolenski believed that the horse had been swabbed when it won its first start and it was also swabbed again on 25 May 2005 and tested clear on each of those occasions. He had put the owners to the expense of having the horse prepared for the Race and travelling to Christchurch to see the horse race. RACY ROCKET had started a hot favourite in the Race and had been beaten by half a head.

He said that he was disappointed that no one can find any information that can prove that any ulcer treatment can help the performance of a horse. He said that Ranitidine is used for the well-being of the horse and not to improve performance.

DISQUALIFICATION OF HORSE:

Mr Kitto informed the Committee that he had written to the three owners of the horse who reside in Melbourne, Australia, to advise them of the positive swab affecting RACY ROCKET after giving Mr Smolenski the opportunity to contact them. Mr Smolenski confirmed that he had spoken to the owners and they did not wish to be present at the hearing.

Rule 1004D provides as follows:

Accordingly, the Committee ordered that RACY ROCKET be disqualified from 2^nd placing in Race 8, the Pyne Gould Guinness NZ Yearling Sales Series Final, at the meeting of New Zealand Metropolitan Trotting Club's meeting on 13 May 2005. Consequent upon that disqualification, the amended placings for the Race are as follows:

1^st The Reckoning

2^nd Reubhan Hall

3^rd The Finn

4^th Analyst

5^th Smooth Cullen

It is ordered that stakes be paid accordingly.

The detection of a drug in any horse which has competed in an event whilst a drug is in its system is a serious offence and is, in fact, categorised as a "serious racing offence" under the New Zealand Rules of Harness Racing. Rule 1001(2) provides as follows:

It is serious because it is detrimental to the image of the industry and has the very real potential to affect the confidence of the public that supports harness racing by investing on the outcome of races. It is therefore in the best interests of the industry that Judicial Committees, in imposing penalties, ensure that the confidence of the betting public is maintained. In addition, there needs to be a "level playing field" on which all competitors can compete on a fair and equal footing, with no competitor having any unfair advantage over its rivals as the result of having a prohibited substance in its system. These principles have been widely reported in previous cases.

The Appeals Tribunal in the case of McGrath (2005) said this of Rule 1001(1)(q) which is the Rule under which Mr Smolenski has been charged:

The Committee has carefully considered all of the relevant circumstances put before it in this case in its process of determining the appropriate penalty. We have taken into account the following as mitigating factors:

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• Mr Smolenski's cooperation and frankness throughout the investigation;
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• His previous good record;
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• His early admission of the breach;
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• The fact that he obtained the Ranitidine through his Veterinarian;
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• The fact that he took care not to use the Ranitidine on the horse on race day and, thereby, did exercise some degree of care; and
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• The fact that he did not deliberately breach the Rule.
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Against those mitigating factors, there are two significant aggravating factors which were highlighted by Mr Kitto in his submissions to the Committee:

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• Mr Smolenski used Ranitidine on RACY ROCKET that had been specifically prescribed for another horse, namely, LYCATOFF; and
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• In doing so, Mr Smolenski at no stage enquired of his Veterinary Surgeon as to whether any changes had been made to the drug/prohibited substances Rule.
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Mr Kitto described Mr Smolenski's conduct as amounting to "gross carelessness". The Committee agrees that a prudent trainer would not have used a treatment on one horse that had been prescribed for another. To do so, while attempting to economise by exhausting an existing supply of the treatment before obtaining a further supply, must always be fraught with peril and is not a risk that a prudent trainer would take. Furthermore, the changes to the drugs Rules were all extensively advertised in the "Harness Racing Weekly" and the notification in that publication ought to have been sufficient to put trainers on the alert to review any treatments that they were using at that time and, in particular, to consult their Veterinary Surgeon regarding the continued use of any drug or treatment.

The Committee accepts that Mr Smolenski's continued use of Ranitidine on RACY ROCKET, which had originally been prescribed for another horse, was based on his lack of actual knowledge of the fact that it had become a prohibited substance. However, the Committee finds that Mr Smolenski was negligent in not making enquiries of his Veterinary Surgeon as to its continued use, especially having regard to how long ago it was prescribed and the supply obtained.

Mr McMenamin, on behalf of Mr Smolenski, submitted that his client had adopted a "self imposed regulation" by not administering anything to a racehorse on race day or for at least 24-40 hours before racing. That fact indicates, on the one hand, that Mr Smolenski did exercise some degree of care and was not reckless but, on the other hand, suggests that he was aware that there was an element of risk in using Ranitidine close to race day. It is unfortunate for Mr Smolenski that he did not pay more heed to and investigate that risk.

In considering penalty, the Committee looked at the 2004 cases of Court and McGrath. In the former case, which is closer to the present case, the Judicial Committee found that Mr Court was guilty of "gross negligence" in applying Voltaren Emulgel, a non-steroidal anti-inflammatory intended for use on humans, to the knee of a horse over three days including on race day. He had purchased it from a chemist to use on himself and had not sought any veterinary advice. Mr Court was fined the sum of $6,000.

In the present case, Mr Smolenski has also been negligent but, as far as the degree of negligence is concerned, the Committee would rate Mr Smolenski's negligence as being lower on a scale than that in the Court case. Mr Smolenski was using a treatment prescribed by his veterinary surgeon, albeit for another horse. He had exercised some degree of care in administering it in that he observed a self-imposed withholding period, even though he wrongly believed that Ranitidine was not a prohibited substance.

In the McGrath case, which involved three charges, the Judicial Committee stated:

The Judicial Committee further stated:

The circumstances of the McGrath case were quite different from the present case. Furthermore, the final penalty in that case did not follow a rehearing by the Appeals Tribunal of the original charges pursuant to Rule 1205 (2) but was a penalty arrived at following discussions between the parties.

The Committee had regard to the provisions of Rule 1114 (2) as follows:

The Committee notes that the Race was a race involving considerable status for a total stake of $195,000. The stake earned by RACY ROCKET for 2^nd was $33,150. The owners of the horse have been deprived of that stake as a consequence of the disqualification of RACY ROCKET from the Race. The need to maintain integrity and public confidence in harness racing is referred to earlier in this decision and can never be overstated.

Mr Smolenski has a long, previously unblemished record as a harness racing trainer. The Smolenski name is held in high regard in harness racing circles in Canterbury and throughout New Zealand. When confronted with the news of the positive swab by RACY ROCKET, Mr Smolenski made no attempt to conceal what had happened, which is to his credit, and he cooperated fully during the course of the investigation. He pleaded guilty to the charge at the earliest possible opportunity thus saving Harness Racing New Zealand the trouble and expense of a defended hearing and having to call witnesses. These matters were properly acknowledged by Mr Kitto and the Committee believes that considerable weight should be given to them. These mitigating factors entitle Mr Smolenski to a significant reduction in the penalty that might otherwise have been imposed.

Mr Kitto sought a disqualification for a period of up to 18 months or a substantial fine. The Committee is aware of the far-reaching consequences that a disqualification would have on Mr Smolenski, his family, his staff and his owners. It is the Committee's view that these consequences, which would be out of all proportion to the circumstances of the administration and the degree of culpability in this particular case. Disqualification would, in our view, unduly punish Mr Smolenski and, having regard to all of the circumstances and, in particular, the mitigating factors referred to above, the Committee is satisfied that disqualification is not called for. However, the Committee has fixed the monetary penalty that it intends to impose at the higher end of the scale of penalties for a breach of the former drug negligence rule to reflect the degree of negligence on Mr Smolenski's part. Accordingly, it is the decision of this Committee, taking all of the above matters into account, that Mr Smolenski shall be fined the sum of $5,000.

Mr Kitto did not seek an order for costs in favour of Harness Racing New Zealand. Mr Smolenski is ordered to pay costs in the sum of $500 to the Judicial Control Authority.

The Committee is satisfied that the total financial penalty of $5,500 is sufficient to maintain integrity and public confidence in harness racing and will still adequately punish the breach and operate as a deterrent.

CHAIRMAN