In a statement issued by the CHRB, the agency said it "refused to accept and act on the proposed decision" by judge David L. Benjamin after it was received Feb. 14 because it "did not in any sense approve of the level of discipline set forth in the proposed decision."
The CHRB had recommended a 30-day suspension and a $5,000 fine, according to the statement.
Under state rules governing horse racing cases filed prior to Jan. 1, 2008, the board was blocked from increasing penalties in a case such as Vienna's, which went directly to the state's Office of Administrative Hearings. The statute's language has since been changed.
By law, the penalty went into effect without the board's acceptance after a 100-day period from the time it was proposed.
Vienna's horse, Speak the Language, was disqualified by Judge Benjamin from a win in the sixth race at Bay Meadows on March 31, 2005. The Ken Maddy Laboratory at UC Davis reported that samples taken from Speak the Language tested positive for fluphenazine, a drug used as a sedative for psychotic disorder and to treat schizophrenia.
Benjamin conducted a three-day hearing last December. In his ruling, the judge addressed the CHRB recommendation for a stiffer penalty, writing, “In light of the evidence in mitigation, suspension of (Vienna’s) license is not warranted. There is no basis, however, to dismiss the proceeding without the imposition of discipline, as (Vienna) requests. Using a Class 2 prohibited drug substance for treatment and then racing the horse shortly thereafter is a high-risk course of action that should be discouraged. A fine of $1,000 will be imposed.”
In its statement, the CHRB responded, "In deciding not to act, the board did not in any sense approve of the level of discipline set forth in the proposed decision."