Thursday, January 26, 2017
C.A. Overturns Suspension, Fine Imposed on Quarter Horse Trainer De La Torre
By a MetNews Staff Writer
The Court of Appeal for this district yesterday overturned a 38-month suspension and $160,000 fine imposed by the California Horse Racing Board on an award-winning trainer whose horses tested positive for a banned substance.
Justice Elwood Lui, writing for Div. One, agreed with attorneys for Jose De La Torre, who trained the Quarter Horses of the Year in 2012 and 2013, that the board exceeded its authority by extending its temporary ban of the previously approved bronchodilator Clenbuterol.
The Daily Racing Form reported at the time of the penalty that it may have been the most severe ever imposed by the board. It quoted board Chair Chuck Winner as saying the board was seeking to “protect not only the health of the horse but the integrity of the sport for all participants.”
The ALJ had recommended a two-year suspension and $100,000 fine. The board said De La Torre, who trained champions Horses One Dashing Eagle in 2012 and Last to Fire in 2013, has 13 Clenbuterol positives in the state over a six-year period.
Lui, noted that the drug was legal in California until August 2011, when the board ordered its use suspended at Los Alamitos Race Course for 12 months, commencing in October of that year. The following year, the board voted to extend the ban statewide for 12 months commencing in July 2012, and to extend the existing ban at Los Alamitos through the same date.
In 2013, the Los Alamitos ban was extended for yet another year, to July 2014.
Lui, however, said the penalty imposed on De La Torre was invalid because it was for conduct occurring more than 12 months after the original ban had expired. He cited Title 4, §1844.1 of the California Code of Regulations, which says that a temporary ban on a previously authorized substance “shall not exceed 12 months.”
The rule, Lui declared, does not allow the board to extend or reenact a ban.
The principle of great judicial deference to administrative agencies, he said, does not apply here because the issue is not the validity of the regulation, but its interpretation. And the board’s interpretation of the rule as allowing continuous renewals of the ban is inconsistent with the repeated use of the words “temporary” and “temporarily” throughout that part of the code, the jurist noted.
There would have been no purpose, “apart from creating more work for the board,” to having a 12-month limit if the board could simply reenact the ban every time it was set to expire, Lui wrote. “Moreover, a repeatedly reenacted or extended suspension, such as that of Clenbuterol shown in this case, can hardly be called a ‘temporary’ one,” he continued.
Justice Victoria Chaney concurred in the opinion. Presiding Justice Frances Rothschild concurred separately, saying the 2012 statewide suspension of Clenbuterol, following the previous suspension limited to Los Alamitos, may have been valid, but that it was unnecessary to decide the issue because the 2013 extension, and the ensuing penalty imposed on De La Toree, were certainly invalid.
Attorneys on appeal were Darrell J. Vienna and Carlo Fisco for De La Torre and Deputy Attorney General Jennie M. Kelly for the board.
The case is De La Torre v. California Horse Racing Board, B268289.
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