The opinion
Filed 1/25/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOSE DE LA TORRE, B268289
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS152795)
v.
CALIFORNIA HORSE RACING
BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. James
C. Chalfant, Judge. Reversed.
Law Office of Darrell J. Vienna, Darrell J. Vienna; and Carlo Fisco for Plaintiff
and Appellant.
Kamala D. Harris, Attorney General, Chris A. Knudsen, Senior Assistant Attorney
General, Gary S. Balekjian, Supervising Deputy Attorney General, and Jennie M. Kelly,
Deputy Attorney General, for Defendant and Respondent.
_________________________________
Quarter horse trainer Jose De La Torre appeals from the trial court’s denial of his
petition for a writ of administrative mandamus, in which he challenged a license
suspension and fine imposed upon him by the California Horse Racing Board (Board).
The Board penalized De La Torre after finding he violated the Board’s regulations by
racing horses medicated with a drug that the Board had temporarily suspended from
authorized use. De La Torre raises a number of contentions, including that the Board’s
successive temporary suspensions of the drug violated the provisions of the rule
permitting temporary suspension of an authorized drug and thus exceeded the Board’s
authority. We agree and reverse.
BACKGROUND
Clenbuterol, a bronchodilator, was, prior to August of 2011, a medication
authorized for administration to all types of horses entered to race in California by former
California Code of Regulations, title 4, section 1844, subdivision (e)(9),1 subject to time
and quantity limitations.
In April of 2011, the Board duly adopted a new regulation, section 1844.1, which
provides as follows: “(a) After a public meeting that has been noticed in accordance with
Government Code section 11125(a), the Board may for any cause temporarily suspend
the authorized administration to a horse entered to race of any drug, substance or
medication that is otherwise permitted under Rule 1844, Authorized Medication. [¶]
(b) The temporary suspension of the authorized administration of a drug, substance or
medication may be for a race, breed, or race meeting, provided all horses in the same race
compete under the same conditions. [¶] (c) The Board shall notify in writing the racing
association and the trainer’s organization of any temporary suspension of authorization to
administer a drug, substance or medication to a horse entered to race. The written
notification shall at minimum: [¶] (1) State the authorized medication whose use is
1Undesignated regulatory references pertain to the California Code of
Regulations, title 4. Although the parties refer to each regulation as a “Rule,” we refer to
them as sections.
2
temporarily suspended, [¶] (2) The period of time for which the use of the authorized
medication is temporarily suspended, and [¶] (3) Whether the temporary suspension is
for a specific breed or a race meeting. [¶] (d) A suspension of authorization to
administer a drug, substance or medication to a horse entered to race shall not exceed
12 months.” Section 1844.1 became effective on July 21, 2011.
On August 25, 2011, after a publicly noticed hearing, the Board temporarily
suspended the use of Clenbuterol in quarter horses at Los Alamitos Race Course (Los
Alamitos) for 12 months, effective October 14, 2011. On June 28, 2012, the Board
suspended the use of Clenbuterol in all breeds of horses at all race tracks in California for
12 months, commencing July 18, 2012. It also extended the existing suspension for
quarter horses at Los Alamitos (second suspension) through July 18, 2013. On June 20,
2013, the Board extended the suspension (third suspension) for all breeds at all tracks
through July 17, 2014.
From September through November of 2013,2 during the third suspension, four
horses trained by De La Torre that raced at Los Alamitos tested positive for Clenbuterol,
albeit in an amount below the maximum level of five nanograms per milliliter specified
in former section 1844, subdivision (e)(9), as it then existed. On September 29,
Zoomdasher finished second in a race and tested positive for Clenbuterol at 125
picograms (0.125 nanograms) per milliliter. On October 25, Carlota won a race and
tested positive for Clenbuterol at 488 picograms (0.488 nanograms) per milliliter. On
November 24, Walked Away and Harrisburg won in separate races. Both tested positive
for Clenbuterol, with Walked Away registering 687 picograms (0.687 nanograms) per
milliliter and Harrisburg having 428 picograms (0.428 nanograms) per milliliter.
On January 24, 2014, the Board filed an accusation against De La Torre based
upon the four aforementioned positive Clenbuterol tests in 2013. The Board sought to
revoke De La Torre’s license and fine him. The Board appointed as a hearing officer
Daniel Q. Schiffer, the attorney for the Pacific Coast Quarter Horse Racing Association,
2 Undesignated date references pertain to 2013.
3
which was instrumental in the enactment of the temporary suspension of authorization for
use of Clenbuterol. Schiffer denied De La Torre’s motions to disqualify him and for
appointment of an administrative law judge. Schiffer was the sole hearing officer at the
administrative hearing conducted in May of 2014. He rejected all of De La Torre’s
arguments, including the one discussed in this opinion, and found that with respect to
each of the four horses De La Torre trained that tested positive for Clenbuterol in 2013,
De La Torre had violated section 1843, which prohibits horses racing in California from
having any unauthorized substances in their bodies, and section 1887, which allows a
trainer to be sanctioned if his or her horses entered in a race test positive for any
prohibited substance. Schiffer recommended De La Torre’s license be suspended for two
years and that he be fined $100,000.
The Board rejected Schiffer’s proposed decision, allowed the parties to submit
briefs, and decided the matter for itself. It subsequently adopted all of Schiffer’s factual
findings, but amended it by incorporating by reference specified sections of its own
attorney’s brief and modifying the conclusion and penalty to reflect a finding that De La
Torre violated sections 1843, 1844, and 1847 on four occasions in 2013, to suspend his
license for three years sixty days, and to impose a fine of $160,000.
De La Torre then filed a petition for a writ of administrative mandamus in the trial
court to challenge the Board’s decision. He ultimately moved for judgment on his
petition, raising grounds that included the issue addressed herein, i.e., that the Board
illegally extended the temporary suspension of an authorized medication pursuant to
section 1844.1 beyond the 12-month limit specified in section 1844.1, subdivision (d).
After briefing and argument, the trial court denied De La Torre’s petition and entered
judgment in favor of the Board. De La Torre filed a timely appeal.
DISCUSSION
De La Torre contends the disciplinary action against him was impermissible
because the Board illegally extended the temporary suspension of an authorized
medication pursuant to section 1844.1 beyond the 12-month limit specified in section
4
1844.1, subdivision (d). Because all of the violations alleged against him occurred more
than 12 months after the expiration of the original suspension, he essentially argues he
was not in violation of any valid regulation in force at the time. We agree.
1. Relevant legal principles
“An appellate court applies the following standards of review to a trial court’s
denial of a petition for a writ of administrative mandamus. First, if the trial court
exercised its independent judgment, we review the record to determine whether the
court’s factual findings are supported by substantial evidence, resolving all evidentiary
conflicts and drawing all legitimate and reasonable inferences in favor of the court’s
decision. [Citations.] Second, ‘to the extent pure questions of law (e.g., jurisdiction)
were decided at the trial court upon undisputed facts, a de novo standard will apply at the
appellate level.’ ” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th
620, 627.)
The standard courts apply when reviewing an agency’s interpretation of a statute
or regulation differs from that applied when reviewing the validity of an agency’s
promulgation of a regulation within the scope of law-making authority delegated to the
agency by the Legislature. (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 10–12 (Yamaha).) “An agency interpretation of the meaning and legal
effect of a statute [or regulation] is entitled to consideration and respect by the courts;
however, unlike quasi-legislative regulations adopted by an agency to which the
Legislature has confided the power to ‘make law,’ and which, if authorized by the
enabling legislation, bind this and other courts as firmly as statutes themselves, the
binding power of an agency’s interpretation of a statute or regulation is contextual: Its
power to persuade is both circumstantial and dependent on the presence or absence of
factors that support the merit of the interpretation.” (Id. at p. 7.) “Courts must, in short,
independently judge the text of the statute, taking into account and respecting the
agency’s interpretation of its meaning, of course, whether embodied in a formal rule or
less formal representation. Where the meaning and legal effect of a statute is the issue,
5
an agency’s interpretation is one among several tools available to the court. Depending
on the context, it may be helpful, enlightening, even convincing. It may sometimes be of
little worth.” (Id. at pp. 7–8.) “Because ‘ “the ultimate resolution of . . . legal questions
rests with the courts” ’ [citation], judges play a greater role when reviewing the
persuasive value of interpretive rules than they do in determining the validity of quasi-
legislative rules.” (Id. at p. 13.)
“Unlike quasi-legislative rules, an agency’s interpretation does not implicate the
exercise of a delegated lawmaking power; instead, it represents the agency’s view of the
statute’s [or regulation’s] legal meaning and effect, questions lying within the
constitutional domain of the courts. But because the agency will often be interpreting a
statute within its administrative jurisdiction, it may possess special familiarity with
satellite legal and regulatory issues. It is this ‘expertise,’ expressed as an interpretation
. . . , that is the source of the presumptive value of the agency’s views. An important
corollary of agency interpretations, however, is their diminished power to bind. Because
an interpretation is an agency’s legal opinion, however ‘expert,’ rather than the exercise
of a delegated legislative power to make law, it commands a commensurably lesser
degree of judicial deference.” (Yamaha, supra, 19 Cal.4th at p. 11.) “Whether judicial
deference to an agency’s interpretation is appropriate and, if so, its extent—the ‘weight’
it should be given—is thus fundamentally situational. A court assessing the value of an
interpretation must consider complex factors material to the substantive legal issue before
it, the particular agency offering the interpretation, and the comparative weight the
factors ought in reason to command.” (Id. at p. 12.)
“[T]wo broad categories of factors relevant to a court’s assessment of the weight
due an agency’s interpretation [are] [t]hose ‘indicating that the agency has a comparative
interpretive advantage over the courts,’ and those ‘indicating that the interpretation in
question is probably correct.’ ” (Yamaha, supra, 19 Cal.4th at p. 12.) “In the first
category are factors that ‘assume the agency has expertise and technical knowledge,
especially where the legal text to be interpreted is technical, obscure, complex, open-
6
ended, or entwined with issues of fact, policy, and discretion. A court is more likely to
defer to an agency’s interpretation of its own regulation than to its interpretation of a
statute, since the agency is likely to be intimately familiar with regulations it authored
and sensitive to the practical implications of one interpretation over another.’ [Citation.]
The second group of factors . . . —those suggesting the agency’s interpretation is likely to
be correct—includes indications of careful consideration by senior agency officials (‘an
interpretation of a statute contained in a regulation adopted after public notice and
comment is more deserving of deference than [one] contained in an advice letter prepared
by a single staff member’ [citation]), evidence that the agency ‘has consistently
maintained the interpretation in question, especially if [it] is long-standing’ [citation] (‘[a]
vacillating position . . . is entitled to no deference’ [citation]), and indications that the
agency’s interpretation was contemporaneous with legislative enactment of the statute
being interpreted.” (Yamaha, supra, 19 Cal.4th at pp. 12–13.)
“Rules governing the interpretation of statutes also apply to interpretation of
regulations. [Citation.] ‘In interpreting regulations, the court seeks to ascertain the intent
of the agency issuing the regulation by giving effect to the usual meaning of the language
used so as to effectuate the purpose of the law, and by avoiding an interpretation which
renders any language mere surplusage.’ ” (Diablo Valley College Faculty Senate v.
Contra Costa Community College Dist. (2007) 148 Cal.App.4th 1023, 1037.) We do not
construe a regulation in isolation, but instead read it with reference to the scheme of law
of which it is a part, so that the whole may be harmonized and retain effectiveness.
(Spanish Speaking Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1214.)
2. Section 1844.1 does not permit extension or reenactment of temporary
suspensions of authorized medications
De La Torre does not challenge the validity of section 1844.1, only the Board’s
(and trial court’s) interpretation of it. We may assume, for the sake of argument, that
enactment of section 1844.1 was a proper exercise of the Board’s quasi-legislative
powers and is a valid regulation. Those assumed facts, however, do not implicate the
7
more deferential standard of review to be applied when reviewing the validity of a
regulation falling within the scope of an administrative agency’s law-making powers.3
The issue in this case is, instead, whether the Board correctly interpreted section 1844.1,
subdivision (d). We review the interpretation in accordance with the principles set forth
in Yamaha, supra, 19 Cal.4th at pages 11–13, and recited above.
The Board argues that nothing in section 1844.1 “prohibits the Board from issuing
a subsequent 12 month suspension of a drug as the need arose so long as the public
hearing requirements” were met. De La Torre argues that the 12-month limit on duration
of a temporary suspension set forth in subdivision (d), in conjunction with the absence of
any provision in subdivision (d) or elsewhere in section 1844.1 authorizing an extension
or reenactment of a temporary suspension at the end of an existing 12-month suspension
means that a temporary suspension cannot be extended or reenacted. Both parties’
positions are plausible. However, viewing section 1844.1 in the context of the regulatory
scheme of which it is a part and in accordance with both principles of construction and
the history of its enactment, we conclude De La Torre’s view is the correct one.
Section 1843, subdivision (a) prohibits horses racing in California from having
any unauthorized substances in their bodies, and subdivision (b) requires any “drug
substance” administered to horses entered to race in California to be “approved and
authorized . . . as provided in these rules.” Section 1843.1 defines “prohibited drug
substance” as any substance “whose use is not expressly authorized in this article” or any
authorized substance “in excess of the authorized level or other restrictions as set forth in
this article.” Section 1844 sets forth the list of “drug substances and medications
authorized by the Board for use” in horses entered to race. At the time of De La Torre’s
3 “Because agencies granted such substantive rulemaking power are truly ‘making
law,’ their quasi-legislative rules have the dignity of statutes. When a court assesses the
validity of such rules, the scope of its review is narrow. If satisfied that the rule in
question lay within the lawmaking authority delegated by the Legislature, and that it is
reasonably necessary to implement the purpose of the statute, judicial review is at an
end.” (Yamaha, supra, 19 Cal.4th at pp. 10–11, italics added.)
8
alleged violations, Clenbuterol was listed in section 1844, subdivision (e)(9) as
authorized for administration to all types of horses entered to race in California, subject
only to time and quantity limitations.
Section 1844.1 repeatedly refers to the temporary nature of any suspension
imposed pursuant thereto. The words “temporary” and “temporarily” are used in each
subdivision and subpart of each subdivision except subdivision (d). Subdivision (d) sets
forth the maximum duration of such a temporary suspension: “A suspension of
authorization to administer a drug, substance or medication to a horse entered to race
shall not exceed 12 months.” Although the regulation does not expressly prohibit
extensions or reenactments of a particular temporary suspension, its frequent references
to the temporary nature of any suspension, its inclusion of a specific maximum duration
of any such temporary suspension, and the regulatory scheme in which authorized
substances and quantities are listed in section 1844 support De La Torre’s view that a
section 1844.1 temporary suspension of authorization for use of an otherwise authorized
substance was not intended to be made long-term or permanent through extensions or
immediate reenactments. Inclusion of a 12-month time limit otherwise serves no
purpose—apart from creating more work for the Board—if section 1844.1 was intended
to permit a temporary suspension to be extended or reenacted. Moreover, a repeatedly
reenacted or extended suspension, such as that of Clenbuterol shown in this case, can
hardly be called a “temporary” one.
In its brief on appeal, the Board argued that “[t]here is no limit in the rule as to
how many temporary suspensions can be imposed.” At oral argument, the Board revised
its position, conceding that repeated suspensions might at some point violate the rule by
converting a temporary suspension into a quasi-permanent suspension.
This concession illustrates the difficulty with the Board’s interpretation of the
twelve month limitation in subdivision (d). That interpretation is based on the “plain
language” of the rule, which the Board argues does not prohibit “subsequent 12 month
suspensions after an initial suspension.” But there is also no language in the rule
9
permitting some, but not too many, successive suspensions. And, as the Board’s
concession recognizes, the rule is intended to permit only a temporary suspension. Thus,
the most reasonable interpretation of the rule’s language is that a “temporary” suspension
is defined by the only time limit that actually appears in the rule, i.e., the twelve month
limit in subdivision (d).4
The regulatory history of section 1844.1 also supports De La Torre’s view. In
response to pre-enactment comments from interested groups and individuals, the Board
not only emphasized the one-year maximum duration of any temporary suspension, it
also declared that it would act in accordance with the Administrative Procedure Act to
amend section 1844 if, during the temporary suspension, it concluded a substance should
no longer be authorized for use. For instance, in responses to comments by Dr. Don
Shields, the California Thoroughbred Trainers group, and the Thoroughbred Owners of
California group, the Board repeatedly defended section 1844.1 by distinguishing it from
the authority the Board already possessed under section 1406, which allows the Board to
suspend any of its rules, with or without a hearing and with no time limitation on such
4 At oral argument, the Board also suggested that the repeated suspensions at issue
in this case do not violate the 12-month time limit because they were different
suspensions and not extensions of the same suspension. There are several reasons why
we do not find this persuasive. First, each suspension concerned the same drug—
Clenbuterol. Section 1844.1 focuses on the suspension of a particular “drug, substance or
medication.” (§ 1844.1, subd. (a).) Indeed, the Board argues that the purpose of the
section was to “monitor and study the effects of a temporary suspension of a particular
medication to determine whether it should be permanently suspended or whether it can be
authorized in smaller quantities without mischievous results.” Second, although the
second and third suspensions at issue here were broader than the first, they all included
the category of horses that affected De La Torre, i.e., quarter horses racing at Los
Alamitos. As to that category, the subsequent suspensions were in fact merely extensions
of a ban that was already in place. Third, the second and third suspensions were identical
in scope, and the alleged violations at issue in this appeal all occurred during the third
suspension. Thus, even if one accepted the proposition that section 1844.1 permits
successive non-identical suspensions (which we do not), that would not affect the
outcome of this appeal, as the third suspension would be invalid here even under that
interpretation.
10
suspension. The Board noted that section 1844.1 would constrain its existing authority,
not only because the Board could act without a hearing under section 1406, but also
because section 1844.1 only allowed the Board to “temporarily suspend the use of an
authorized medication . . . for a limited amount of time (up to one year)”; “the term of
suspension is limited to one year”; and section 1844.1 “restricts any temporary
suspension to not more than one year” and “limits the duration of any temporary
suspension to not longer than one year.” (Italics added.)
In response to another comment in which Dr. Shields suggested that proposed
section 1844.1 should be revised to allow only a maximum duration of six months for a
temporary suspension because 12 months was “ ‘too onerous a burden,’ ” the Board also
elaborated upon the duration of a temporary suspension: “Subsection 1844.1(d) states a
suspension of an authorized medication shall not exceed 12 months. This means the
suspension of an authorized medication can be for as short a time as within 24 hours of
the race in which the horse is entered until post race . . . or for as much as one year.”
In response to a comment by the California Thoroughbred Trainers group
expressly acknowledging that suspension of “ ‘the normal rulemaking process’ ” might
be required “ ‘in isolated or emergency situations,’ ” the Board stated: “The proposed
addition of Rule 1844.1 is not an attempt to suspend the normal rulemaking process.
Rule 1844.1 will allow the Board to temporarily suspend the use of an authorized
medication or drug substance. If, during the temporary suspension, the Board determines
that it must amend Rule 1844, it will engage in rulemaking process according to the
California Administrative Procedures Act.” (Italics added.) The California
Thoroughbred Trainers further commented: “ ‘As currently written, any suspension of
authorization under the proposed rule shall not exceed 12 months. However, there is no
safeguard against renewals of the “temporary” authorization. Presumably, the current
rule is written to provide for a rulemaking process to enable a permanent rule to be
enacted, or modification of an existing rule, in the 12-month period. However, additional
language should be prepared to disable any attempt to evade the existing rulemaking
11
process.’ ” (Italics added.) The Board responded: “This comment assumes that every
temporary suspension of an authorized medication will last twelve months. Subsection
1844.1(b) provides that a temporary suspension may be for a race, breed, or race meeting
provided all horses in the same race compete under the same conditions. The quarter
horse meeting at Los Alamitos is the only race meeting that lasts twelve months. Other
meetings may last for as long as six months or as short as one week. If the Board were to
determine it wished to amend Rule 1844, that would be a separate action made in
accordance with the California Administrative Procedure Act.”
In response to a comment by the Thoroughbred Owners of California group
questioning “ ‘the need for such an overreaching rule,’ ” the Board represented as
follows: “The temporary suspension need not be global; instead, it can be for a single
race, a breed or a race meeting, and it may be for a period of time that ranges from a
couple of days to one year.” In response to another comment by the Thoroughbred
Owners of California requesting that the Board “ ‘rewrite rule 1844.1 to narrow the scope
of what it desires to achieve, while instilling the proper parameters and guidelines,’ ” the
Board responded, in part, “Any decision by the Board to temporarily suspend an
authorized medication is limited to no more than one year.” (Italics added.)
In addition, in its Statement of Reasons for adoption of section 1844.1, the Board
represented to the Office of Administrative Law (OAL) that “Subsection 1844.1(d) states
the temporary suspension of authorization to administer a medication shall not exceed
12 months. This provides the Board with enough time to determine the effect of the
temporary suspension, and amend its medication regulations, if necessary. In addition,
this sets boundaries so that those affected will know when the temporary suspension will
end.” (Italics added.)
The Board’s representations to the OAL and to interested parties who commented
on the proposed adoption of section 1844.1 thus demonstrate that the Board intended that
any temporary suspension under section 1844.1 would last “no more than one year” and
that during the one-year (maximum) duration of the temporary suspension the Board
12
would decide whether to amend section 1844 to exclude or limit the use of a substance
listed therein. This is exactly what the Board ultimately did in 2015 with respect to
Clenbuterol, prohibiting its use in quarter horses but allowing it to be used in other horses
up to a specified limit.
We now address the appropriate level of deference to afford to the Board’s
interpretation of section 1844.1. Nothing pertaining to section 1844.1 provides the Board
with a comparative interpretive advantage over the courts. Determining whether the
regulation permits renewed or reenacted temporary suspensions requires no expertise or
technical knowledge. The regulation is not technical, obscure, complex, open-ended, or
entwined with issues of fact, policy, or discretion. Although issues of fact or policy
necessarily motivate the Board to temporarily suspend authorized use of a substance,
these fact and policy matters have nothing to do with the interpretation of the regulation
itself.
With respect to the second category—factors indicating that the interpretation in
question is probably correct—the record does not support the Board’s more recent
interpretation. The portions of the rule-making file quoted above establish that when the
Board proposed and adopted section 1844.1, it assured interested parties and the OAL
that any temporary suspension under section 1844.1 would not last longer than 12
months, and that the Board would amend section 1844 within the 12-month temporary
suspension period if it decided that the temporary suspension had been beneficial. The
Board’s subsequent interpretation that temporary suspensions under section 1844.1 may
be extended or reenacted is completely different and therefore has not been consistently
maintained, was not contemporaneous with the adoption of section 1844.1, and was not
the result of careful consideration by senior agency officials. Although the Board
extended or reenacted the Clenbuterol suspension less than one year after the effective
date of section 1844.1, this indicates, at most, that the Board changed its views from
those presented to commenting parties and the OAL before this litigation arose. It does
not, however, negate the import of this change of interpretation.
13
The Board argues that it was merely wrong about 12 months being an adequate
time to study the Clenbuterol problem. That may be true, but it is irrelevant. Section
1844.1 is of general application and both the text and regulatory history clearly reveal
that temporary suspensions are not to exceed 12 months. If the Board was mistaken
about 12 months being sufficient to make a decision and amend section 1844, then it
should have amended section 1844.1. Such a mistake does not, however, justify
disregarding the terms of section 1844.1.
Accordingly, the Board’s interpretation of section 1844.1 at the time it extended or
reenacted the Clenbuterol ban and in the instant litigation is not entitled to deference
because the Board has vacillated. (Yamaha, supra, 19 Cal.4th at p. 13.) After
considering the text of section 1844.1 and its regulatory history, we conclude that a
temporary suspension of authorized use of a particular substance under section 1844.1
may not be extended beyond 12 months through reenactment or extension of the
temporary suspension. Therefore, the 2012 and 2013 extensions or reenactments of the
suspension of use of Clenbuterol in quarter horses at Los Alamitos were invalid. The
allegations against and findings of regulatory violations by De La Torre had no legal
basis, and the penalties imposed upon him were equally invalid.5
5 Because we interpret section 1844.1, subdivision (d) to prohibit extensions or
reenactments of a suspension of the authorized use of a particular substance beyond 12
months, we need not consider De La Torre’s argument that the Board’s orders
authorizing the second and third suspensions were improper “underground regulations.”
The second and third suspensions violated the Board’s own regulation. They were
therefore without legal effect and could not provide the basis for an alleged regulatory
violation by De La Torre.
14
DISPOSITION
The judgment is reversed. Appellant is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, J.
I concur:
CHANEY, J.
15
ROTHSCHILD, P. J., concurring:
In June 2012, the California Horse Racing Board (Board) ordered a statewide,
12-month suspension of Clenbuterol (the 2012 suspension). The following year, in
June 2013, the Board extended the statewide suspension of Clenbuterol for an additional
12 months (the 2013 suspension). De la Torre’s alleged violations occurred entirely
within the term of the 2013 suspension.
I agree with my colleagues that California Code of Regulations, title 4,
section 1844.1 prohibits, through reenactments or extensions, the suspension of a
particular substance for more than 12 months. The 2013 suspension of Clenbuterol,
which extended its 2012 suspension beyond 12 months, was therefore invalid. Because
the Board’s authority to discipline De la Torre depended upon the validity of the 2013
suspension, the Board’s decision must be reversed. I therefore concur in the majority’s
disposition in this case.
Because the Board’s discipline of De la Torre must be reversed based on the
invalidity of the 2013 suspension, we need not decide whether the 2012 suspension was
invalid. The majority opinion nevertheless states that the 2012 suspension, as well as
the 2013 suspension, is invalid. (Maj. opn. ante, at p. 14.) Because I would prefer not
to decide that issue in dicta, but leave it for another day, I decline to join in the majority
opinion. (See, e.g., Young v. Three for One Oil Royalties (1934) 1 Cal.2d 639, 647-648;
Estrada v. RPS, Inc. (2005) 125 Cal.App.4th 976, 987 (conc. opn. of Mallano, J.).)
ROTHSCHILD, P. J.