DIVISION OF RACES

OFFICES AND OFFICERS ‑- STATE ‑- HORSE RACING COMMISSION ‑- DIVISION OF RACES

WAC 260-12-010(22), an administrative regulation of the Washington horse racing commission permitting races which overfill to be contested in two or more divisions, remains a valid and legally defensible administrative regulation.

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                                                              September 18, 1975

Honorable Howard S. Wright
Chairman, Washington HorseRacing Commission
Suites B & C
210 East Union
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 80

Dear Sir:

            By recent letter you have requested our opinion as to the validity of so much of WAC 260-12-010(22), an administrative regulation promulgated by the Washington horse racing commission in 1961, as provides that:

            ". . .  A race which overfills may be contested in two or more divisions."

            We respond to this inquiry in the manner set forth in our analysis.

                                                                     ANALYSIS

            In order to place your question in perspective let us begin with a bit of history.  By its enactment of chapter 55, Laws of 1933, the Washington legislature authorized the conduct of horse racing at race meets where parimutuel betting is permitted.  As a part of this act, the legislature established the Washington horse racing commission and vested it with numerous functions and duties involving the licensing and regulation of race meets and of participants therein.  One particular section of the act (§ 6, later codified as RCW 67.16.050), in dealing with the licensing of race meets, contained the following directive:

            ". . .  The license shall specify the number of days the race meet shall continue and the number of races per day, which shall be not less than six nor more than eight, . . ."

            In fact, however, in numerous instances following the enactment of this law the racing commission permitted  [[Orig. Op. Page 2]] individual races at a given meet to be split into two or more divisions under certain circumstances.  Then, in 1949, the legality of this practice was questioned by a member of the legislature (then State Representative George N. Adams) who sought from this office a formal opinion upon the matter.  In response, by opinion dated March 30, 1949 [[AGO 47-49-571]], we said:

            "Although other terms are defined in the act, there is no attempt made to define what constitutes a 'race,' nor do we believe that the term 'race' is subject to a fixed and unalterable legal definition; for example, can it be said that a race constitutes any running of a group of horses no matter what may be the number of entrants or the length of the run, or on the other hand, can it be said that a race may be construed to constitute several runnings of horses meeting the same conditions, as that term is understood by horse breeders.  We make this observation for the purpose of demonstrating that the term may well be susceptible to various definitions under various situations.

            "We note that section 4 of the act, being 8312-4 Rem. Supp., vests in the horse racing commission the authority to adopt rules and regulations to govern race meets held under such act.  We have not been supplied with information as to whether the commission has, in the past, adopted a formal rule or regulation construing the word 'race,' but we assume that the commission has, since 1933, acted under at least an informal definition inasmuch as, according to your letter, there has been a uniform practice established of allowing more than eight 'races' to be held per day at various times.  It must also be assumed that such prior commissions have done so with full knowledge of the legislature's limitations on the number of 'races' to be authorized and that accordingly they acted under a construction of the word 'race' as not being unalterably limited to a single running.

            "Our Supreme Court has held in numerous instances that an administrative construction of an ambiguous statute by a board charged with its administration is entitled to great weight in construing such a statute.

             [[Orig. Op. Page 3]] "'The rule is universal that the courts, in ascertaining the meaning of an ambiguous statute, will accord great weight to administrative or executive construction of, and practice under it.'  Long v. Thompson, 177 Wash. 296, 31 P.(2d) 908.

            "See alsoTaylor v. Superior Court, 2 Wn.(2d) 575, 98 P. (2d) 985, and cases cited therein.

            "It would seem that, since in the instant case the legislature has not seen fit to define the term 'race' as used in the act, although it did define the other terms used therein, and since the apparent consistent administrative construction of the term by all the commissions ever since the adoption of the act has been to distinguish between the word 'race' and 'running,' which interpretation has been impliedly acquiesced in by several intervening legislatures, such a construction is not arbitrary and may be continued by the commission if it determines so to do.

            "In summary, it is our opinion that inasmuch as the legislature has not defined the word 'race' as used in the act and has given to the commission rule‑making power, it would not be beyond the authority of such commission to allow more than one running to be considered as a race as long as the conditions (as that term is understood by horse breeders) remain identical for all runnings within the race.  This becomes particularly true in view of the established administrative construction and practice consistently followed by each successive commission, which has been undisturbed by several intervening legislatures."

            Accordingly, the practice of permitting races to be split into divisions continued and finally, in 1961 (following the passage of the state administrative procedures act in 1959) it was formalized by the racing commission through its adoption of the regulation quoted above; i.e. WAC 260-12-010(22) which, here repeated in material part for ease of  [[Orig. Op. Page 4]] reference, reads as follows:

            "(22)Race.  A contest between horses for purse, stakes, or reward on any licensed course and in the presence of judge or judges.  A race which overfills may be contested in two or more divisions.

            ". . ."

            During all of this period no responsive action of any kind was taken by the legislature.  Twelve years later, however, the legislature did pass an amendment to the sentence from RCW 67.16.050 which we have earlier quoted.  By its passage of § 1, chapter 39, Laws of 1973, 1st Ex. Sess., the legislature amended this sentence of the statute to read as follows:

            ". . .  The license shall specify the number of days the race meet shall continue and the number of races per day, which shall be not less than six nor more than ((eight)) ten, and for which a fee shall be paid in advance of one hundred dollars for each day: . . ."

            Although thus amending the statute to increase the number of "races" which could be conducted by a licensee on a particular day of racing, however, the legislature did not in any way go on to fill the definitional void pointed out in our 1949 opinion,supra, by establishing some form of statutory definition of this term.

            Bearing all of this interesting history in mind, let us now address ourselves to your immediate question.  Of course, the racing commission is perfectly free at the present time to amend its regulation so as to remove the sentence thereof which expressly permits a race which overfills to ". . . be contested in two or more divisions."  Accord, RCW 67.16.020, codifying § 4 of the original 1933 act which (as noted in our 1949 opinion),

            ". . . vests in the horse racing commission the authority to adopt rules and regulations to govern race meets held under . . . [the] act. . . ."

            We cannot at this time, however, say that such action would be legallyrequired in order to cause the rule to  [[Orig. Op. Page 5]] conform with the statute (RCW 67.16.050) fixing the minimum and maximum number of "races" which may be conducted on a given racing day.

            Simply stated, all of the principles of administrative construction upon which we relied in our 1949 opinion are of even greater applicability today than they were then.  Then, the administrative practice of allowing certain races to be split into divisions, even though already long in existence, had not been reduced to a formal, written, administrative regulation ‑ whereas now, as we have seen, this has been done.  Secondly, our opinion itself constituted a further administrative construction of the related statute ‑ in support of the questioned practice.  And thirdly, we have at present the additional factor of a failure on the part of the legislature to repudiate the racing commission's regulation or our opinion when, in 1973, it expressly amended the provisions of RCW 67.16.050 so as to increase the maximum number of permitted races from eight to ten per racing day.

            With particular reference to the last of these three factors, the following observations by our court in White v. State, 49 Wn.2d 716, 725, 306 P.2d 230 (1957), seem most pertinent:

            "When a statute is ambiguous, the construction placed upon it by the officer or department charged with its administration, while not binding on the courts, is entitled to considerable weight in determining the intention of the legislature; and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend the statute, silently acquiesces in the administrative interpretation.  This is particularly true when, as here, the section is subsequently (1) considered by the legislature, (2) amended in some other particular, and (3) the administrative construction of the section is not repudiated.  State ex rel. Pirak v. Schoettler, 45 Wn. (2d) 367, 274 P. (2d) 852.  And, see,Paulsell v. Peters, 9 Wn. (2d) 599, 115 P. (2d) 708."

            Perhaps, if the question had first been submitted to us (or to the court) when it first arose in the context of the racing commission's regulatory activities in 1933  [[Orig. Op. Page 6]] or soon thereafter, a different answer might have been given.  In our judgment, however, while the racing commission (as above indicated) is free to change the rule at the present time if it desires to do so, any requirement that such a change be made must now come from the legislature itself.  In the absence of a pertinent legislative amendment, our answer to your question at this time is that WAC 260-12-010(22), supra, remains a valid and legally defensible administrative regulation.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General