Davis Test Only Smog Testing v. Dept. of Consumer Affairs etc.

Filed 9/28/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
DAVIS TEST ONLY SMOG TESTING et al., C079354
Plaintiffs and Appellants, (Super. Ct. No. 34-2014-
80001898-CU-WM-GDS)
v.
DEPARTMENT OF CONSUMER AFFAIRS,
BUREAU OF AUTOMOTIVE REPAIR,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kelly, Judge. Affirmed.
Law Offices of Linda Foster and Linda Foster for Plaintiffs and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Linda K. Schneider,
Senior Assistant Attorney General, Janice K. Lachman, Karen R. Denvir and Daniel
McGee, Deputy Attorneys General, for Defendant and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II and III.
1
This case involves citations issued to smog technician Marc Madison and his
employer Davis Test Only Smog Testing, doing business as Citrus Heights Star Smog
(Star Smog), after Madison passed an unpassable vehicle brought to the business by the
Department of Consumer Affairs, Bureau of Automotive Repair (Bureau) for a smog
inspection. The Bureau had replaced the working air injection system (part of the
emissions control system) with a nonworking air injection system and did not attach a
belt to the pulley to power the air injection system. Star Smog was assessed a $1,000
fine, and Madison was ordered to complete a Bureau training course.
Star Smog and Madison appealed the citations, and the case was heard by an
administrative law judge. Star Smog and Madison acknowledged that Madison passed a
vehicle that should not have passed the smog inspection, but they argued that the relevant
regulations and guidelines from the Bureau were vague and did not give Madison notice
that he needed to determine whether a belt was attached to the air injection system. At
the administrative hearing, Star Smog, a corporation, was represented by Daniel
McGarry, its former secretary/treasurer, not an attorney. Madison personally appeared.
The administrative law judge rejected the arguments of Star Smog and Madison and
issued a proposed decision upholding the citations, which proposed decision the Bureau
adopted.
Star Smog and Madison filed a petition for writ of administrative mandamus,
making the same arguments in the superior court. The superior court denied the petition,
and Star Smog and Madison appeal.
Star Smog and Madison contend on appeal that the administrative decision is void
because Star Smog and Madison were represented by a nonattorney. We conclude that
Star Smog’s decision to send its former secretary/treasurer to represent it in the
administrative hearing did not render the decision void. We also conclude that Madison
properly represented himself.
We therefore affirm.
2
BACKGROUND
As part of the Bureau’s responsibilities to enforce smog inspection laws, an
employee of the Bureau, Michael C. Roberts, modified the emissions control system of a
1985 Chevrolet S-10 Blazer by removing the air injection pump and the belt attached to
the pump, which are part of the vehicle’s emissions control system. Roberts replaced
those parts with an air injection pump that was seized up (nonfunctional) and a shorter
belt that bypassed the pulley on to the air injection pump, attaching the belt only to the
alternator and water pump. This left the air injection pump without power. The pulley to
which a belt would be attached to power the air injection pump was visibly unconnected.
To render the air injection system functional, it would have been necessary to replace the
air injection pump and attach a belt to power it.
An undercover operative of the Bureau took the Blazer to Star Smog, where
Madison performed a smog inspection and passed the vehicle, stating that the vehicle
passed both a visual inspection and a functional test and that the vehicle had “Pump Air
Injection.”
The Bureau issued citations to Star Smog and Madison for violations of Health
and Safety Code sections 44012, subdivision (f) and 44032. The citations required Star
Smog to pay a $1,000 fine and Madison to complete an eight-hour certified training
course through the Bureau.
Star Smog and Madison appealed the citations, and an administrative law judge
held an administrative hearing on the matter. Madison testified that there are two kinds
of air injection pumps: belt-driven and electric. He said that the vacuum diagram and
underhood emissions label on the Blazer did not show that the air injection pump was
connected to a belt. Roberts, the Bureau employee, testified that a smog technician
should have observed that there was no belt attached to the air injection pump pulley.
The presence of a pulley should have alerted the smog technician that the air injection
pump was belt-driven, not electric. Star Smog and Madison acknowledged that Madison
3
had passed a vehicle on which the belt-driven air injection pump had been disconnected,
but they argued that the regulations and the Bureau’s guidance were too vague to put
Madison on notice that the air injection pump required a belt or that he needed to look for
the belt.
The administrative law judge concluded that the statutes, regulations, and Bureau
materials put Madison on notice that he had to determine whether the emissions control
system on the Blazer was installed consistent with the manufacturer’s original
configuration. Madison should have recognized that the belt did not attach to the pulley
on the air injection pump, which meant that the emissions control system was not
installed consistent with the manufacturer’s original configuration. The administrative
law judge therefore upheld the citations.
Star Smog and Madison filed a petition for writ of administrative mandamus,
which the superior court denied.1
DISCUSSION
I
Representation at Administrative Hearing
Star Smog and Madison contend that the administrative decision is void as a
violation of due process because Daniel McGarry, who is a layperson and not an attorney,
represented them at the administrative hearing. The contention is without merit as to Star
Smog because Star Smog elected to have McGarry provide its representation and that
decision did not violate Star Smog’s statutory or constitutional rights. And the contention
1 Star Smog and Madison also filed a complaint for declaratory relief. The superior
court dismissed the complaint, and Star Smog and Madison make no contention that the
dismissal was improper.
4
is without merit as to Madison because he attended the hearing and represented himself.2
Having notice of the administrative hearing, Star Smog elected to send McGarry rather
than hiring an attorney who could attend. The perverseness of the contention presented
here is obvious when it is stated as follows: Star Smog is alleging that it violated its own
procedural due process rights and now asks us to void the administrative decision
because of Star Smog’s own choice.
After receiving the citation, Star Smog and Madison each filed a “Request to
Appeal Citation.” The Attorney General issued a notice of hearing, scheduling the
hearing and notifying Star Smog and Madison of some of their rights. Included in the
notice of hearing was the following language: “You may be present at the hearing. You
have the right to be represented by an attorney at your own expense. You are not entitled
to the appointment of an attorney to represent you at public expense. You are entitled to
represent yourself without legal counsel. . . .”
At the hearing, McGarry appeared for Star Smog. When the administrative law
judge asked McGarry whether “you’ve decided to represent yourselves,” McGarry
responded, “Yes. We actually originally hired an attorney, but—about three months
prior, but the attorney was unavailable on that date, tried to get a different date. And we
couldn’t change the date, so rather than get a different attorney, I just decided to take the
case myself.” McGarry had been the secretary/treasurer of Star Smog. However, during
the hearing, McGarry said that he was “no longer the secretary treasurer” of the
corporation. In her proposed decision, the administrative law judge wrote that “Daniel
2 The superior court determined that Star Smog and Madison abandoned this issue
because they did not raise it in the petition for writ of administrative mandamus but
instead raised it later in the memorandum of points and authorities in support of the
petition. Star Smog and Madison assert that the issue of whether a proceeding is void can
be raised at any time. We need not resolve this abandonment issue because the
contention is without merit in any event.
5
McGarry, the former Secretary/Treasurer, represented [Star Smog].” At one point during
the hearing, McGarry said: “I have been to law school. I have completed two years of
law school. I’m not an attorney, but I have some legal training.” There was no
discussion during the administrative hearing concerning whether McGarry was allowed
by law to represent Star Smog at that hearing.
Star Smog did not request a continuance to obtain counsel. (Gov. Code, § 11524
[request for continuance].) Instead, Star Smog sent McGarry, a layperson. On the other
hand, Madison appeared at the hearing.
A. Star Smog
Star Smog claims McGarry was practicing law when he represented Star Smog at
the administrative hearing and therefore, by analogy to judicial proceedings, the
administrative hearing and resulting decision were void. The flaw in this argument is
that, even if McGarry were a layperson practicing law in the administrative hearing, the
circumstance does not require voiding of the administrative proceedings.
Star Smog relies heavily on Benninghoff v. Superior Court (2006) 136
Cal.App.4th 61 (Benninghoff), which held that representing a party in an administrative
hearing constitutes the practice of law. In that case, a former lawyer who had resigned
from the bar represented parties in administrative hearings. The court held that the
former lawyer could not do so because the Business and Professions Code prohibited
such practice of law by a former lawyer, one who had resigned from the bar. (Bus. &
Prof. Code, § 6126, subd. (b).)
Benninghoff does not help Star Smog because the question to be answered is
whether representation by a layperson rendered the proceedings void, not whether
McGarry was technically practicing law when he represented Star Smog. Even if
6
McGarry engaged in the unauthorized practice of law by representing Star Smog at the
administrative hearing, such violation does not establish that the proceedings were void.3
The conclusion that representing a party in an administrative hearing is the
practice of law does not provide a conclusive answer on the issue presented in this case
because, in some instances in administrative proceedings, a layperson may practice law.
(See, for example, administrative proceedings in which a layperson may represent a
party: Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 770 [welfare
hearings]; Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25
Cal.3d 891, 913-914 [Public Utilities Commission hearings]; Bland v. Reed (1968) 261
Cal.App.2d 445, 449 [workers’ compensation appeals].) While there appears to be no
statute or rule concerning whether a layperson may represent a party in an administrative
hearing on a citation from the Bureau, Star Smog provides no persuasive authority or
3 In any event, the Benninghoff holding was limited specifically to the practice of
law by a former lawyer who had resigned from the bar, interpreting Business and
Professions Code section 6126, subdivision (b). (Benninghoff, supra, 136 Cal.App.4th at
p. 69.)
The statute making the unauthorized practice of law a crime does not assist us here
because it does not apply if the person is an active member of the bar or is “otherwise
authorized pursuant to statute or court rule to practice law.” (Bus. & Prof. Code, § 6126,
subd. (a); Benninghoff, supra, 136 Cal.App.4th at p. 69.) This statute does not make it a
crime for a layperson to practice law if such practice is authorized by statute or court rule.
In other words, this statute allows that there may be circumstances under which a
layperson may practice law.
On the issue of whether a layperson can represent a party in an administrative
hearing, the Benninghoff court noted that the Administrative Procedure Act allows for
representation by an attorney or other representative. Here, McGarry was not a former
attorney; instead, he was a layperson.
7
argument for the proposition that allowing a layperson to represent a party in such a
hearing is a violation of due process invalidating the proceedings.4
In a similar case, the court held that a corporation may be represented by a
corporate officer at an administrative hearing on revocation of the corporation’s liquor
license. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99
Cal.App.4th 1094 (Caressa Camille).) In that case, the court wrote: “[T]he general
common law rule requiring corporations to be represented by counsel in proceedings
before courts of record other than small claims courts does not extend to proceedings
before administrative agencies and their tribunals.” (Id. at p. 1103.) The court also
noted: “Even were we persuaded to the contrary (and we are not), a decision rendered by
an administrative body following a hearing at which a corporation was not represented by
counsel would be voidable at the option of the opposing party, rather than void for lack of
jurisdiction. [Citation.]” (Ibid.) Here, the Bureau has not sought to invalidate the
decision.
We recognize that the current case is unlike Caressa Camille because the record
does not support a finding that McGarry was a current corporate officer, or even a current
employee, for that matter, when he represented Star Smog at the administrative hearing.
4 Star Smog cites an apparently unpublished decision of a superior court in
Delaware. (Marshall-Steele v. Nanticoke Mem'l Hosp., Inc. (Super.Ct. June 18, 1999,
C.A. No. 98A-10-001) 1999 Del. Super. LEXIS 137.) In that case, which disagreed with
another Delaware Superior Court case, the judge upheld an employee’s bid to invalidate
an unemployment insurance award in favor of an employer who was represented at the
administrative hearing by a layperson. Here, unlike that case, it is the party seeking to
void the proceedings who sent a layperson to represent it at the administrative hearing.
The unpublished Delaware case is unpersuasive on the issue presented here.
The rule in California prohibiting citation of unpublished cases applies on its face
only to unpublished California cases. (See Cal. Rules of Court, rule 8.1115.)
8
Nonetheless, Caressa Camille is instructive because it establishes that principles relating
to representation in a court of law do not necessarily apply to administrative proceedings.
In a court of law, “an unlicensed person cannot appear . . . for another person, and
. . . the resulting judgment is a nullity.” (Russell v. Dopp (1995) 36 Cal.App.4th 765,
775.) However, “procedural due process in the administrative setting does not always
require application of the judicial model.” (Dixon v. Love (1977) 431 U.S. 105, 115 [52
L.Ed.2d 172, 181-182].) Here, Star Smog gives us no reason to conclude that McGarry’s
representation at the administrative hearing was a violation of Star Smog’s due process
rights.
Finally, if McGarry’s representation of Star Smog was not authorized, then Star
Smog failed to appear at the properly noticed administrative hearing. “If the respondent
. . . fails . . . to appear at the hearing, the agency may take action based upon the
respondent’s express admissions or upon other evidence and affidavits may be used as
evidence without any notice to respondent . . . .” (Gov. Code, § 11520, subd. (a).)
B. Madison
Madison contends McGarry improperly represented him at the administrative
hearing. The contention is without merit because Madison appeared at the hearing and
represented himself. The administrative law judge informed Madison of his right to be
represented and offered him the opportunity to cross-examine witnesses and provide
closing argument. The fact that McGarry included arguments concerning Madison in his
statements at the hearing does not mean that McGarry was representing Madison.
9
II
Standard of Review for Administrative Mandate
Star Smog contends the superior court used an improper standard of review in
evaluating the administrative decision.5 In its ruling, the court stated that it was using a
substantial evidence standard except as to interpretation of statutes and rules, where it
used an independent judgment standard. We conclude that the superior court did not
apply the wrong standard to the various questions raised in the petition for writ of
administrative mandamus. And, in any event, Star Smog fails to demonstrate how this
asserted error caused prejudice.
“Where it is claimed that the findings are not supported by the evidence, in cases
in which the court is authorized by law to exercise its independent judgment on the
evidence, abuse of discretion is established if the court determines that the findings are
not supported by the weight of the evidence. In all other cases, abuse of discretion is
established if the court determines that the findings are not supported by substantial
evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)
However, when reviewing the interpretation of statutes or rules, the court applies a de
novo or independent judgment standard. (Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 7-8.)
Star Smog’s contention is without merit as it relates to the standard of review
applied by the superior court on the interpretation of statutes and rules. The court stated
that it applied the independent judgment standard, which is the correct standard.
Star Smog’s contention is also without merit as it relates to matters other than
interpretation of statutes and rules. In its decision, the superior court found that the
substantial evidence standard of review applied because the agency decision did not
5 Hereafter, except where it is important to be more specific, we refer to Star Smog
and Madison collectively as Star Smog.
10
affect a fundamental right. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144 [independent
judgment standard when agency’s decision affects fundamental rights].) That was the
correct standard because no fundamental rights are affected by the Bureau’s decision.
While Star Smog asserts that the agency decision might result in revocation of its
STAR certification by the Bureau, the superior court noted that any revocation of the
STAR certification would be the subject of a separate proceeding. This proceeding
relates only to the $1,000 penalty imposed by the Bureau. Such penalties do not
implicate fundamental rights. (Handyman Connection of Sacramento, Inc. v. Sands
(2004) 123 Cal.App.4th 867, 880.) By the same reasoning, the requirement that Madison
attend eight hours of training does not affect a fundamental right. It is a penalty, to be
sure, but not one that takes away his livelihood.
In any event, Star Smog fails to establish that using the wrong standard of review
was prejudicial. There is no discussion or argument concerning what would have
occurred differently if the superior court had used a different standard of review. We
may not reverse a judgment on appeal unless, “after an examination of the entire cause,
including the evidence,” it appears the error caused a “miscarriage of justice.” (Cal.
Const., art. VI, § 13.) “To establish prejudice, a party must show ‘a reasonable
probability that in the absence of the error, a result more favorable to [it] would have
been reached.’ [Citation.]” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1161.)
III
Various Contentions
Star Smog also attempts to pick apart the rulings of the administrative law judge
and the superior court, as well as the relevant provisions in the Code of Regulations and
the Bureau’s BAR Smog Check Manual, to establish that the citations for passing the
Blazer cannot be upheld. The attempt, however, fails. Plainly, passing the Blazer, which
did not have a properly installed emissions control system, violated Madison’s duty to
fail it. Nothing in the regulations or Bureau rules justified Madison’s failure.
11
In scattergun fashion, Star Smog makes numerous contentions that the citations
cannot be upheld. Mentioned among these contentions is the notion that the citations
violated due process rights because the regulations and rules did not give adequate notice
concerning what was required as part of a visual inspection during a smog inspection.
We do not agree that there is any due process violation because the regulations required
Madison to verify that the emissions control system was properly installed, which he did
not do.
“A fundamental principle in our legal system is that laws which regulate persons
or entities must give fair notice of conduct that is forbidden or required. [Citations.] This
requirement of clarity in regulation is essential to the protections provided by the Due
Process Clause of the Fifth Amendment. [Citation.] It requires the invalidation of laws
that are impermissibly vague. A conviction or punishment fails to comply with due
process if the statute or regulation under which it is obtained ‘fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement.’ [Citation.] . . . [A]
regulation is not vague because it may at times be difficult to prove an incriminating fact
but rather because it is unclear as to what fact must be proved. [Citation.]” (FCC v. Fox
TV Stations, Inc. (2012) 567 U.S. 239, 253 [183 L.Ed.2d 234, 245-246].)
In the superior court, Star Smog and Madison asserted that Madison followed the
requirements for a smog inspection by consulting the underhood emissions control label
and the vacuum diagram, and neither of them referred to a belt. They claimed that
Madison was required to go beyond those two sources only if the labels were missing or
illegible. Star Smog and Madison also asserted that their due process rights were violated
to the extent the regulations and the Bureau’s procedures required more because those
regulations and procedures were vague and overly broad.
The superior court noted that the parties did not dispute the facts as reflected in the
administrative law judge’s decision.
12
The superior court concluded that the petition for writ of administrative mandamus
was without merit. In March 2013, California Code of Regulations, title 16, former
section 3340.42, subdivision (e)(1)(A) required as part of a smog inspection: “A visual
inspection of the vehicle’s emissions control systems. During the visual inspection, the
technician shall verify that the following emission control devices, as applicable, are
properly installed on the vehicle: [¶] (A) air injection systems. . . .”
The Bureau’s BAR Smog Check Manual included requirements for smog
inspections in sections 1.3.1 and 1.3.2. Section 1.3.1 requires the smog technician, in
making the visual inspection, to use “all available information necessary to determine the
vehicle’s emission control requirements . . . .”6 The section provides a nonexclusive list
(“including but not limited to”) of sources to consult: “underhood emission control label
(see section 1.3.2), a current emission control application guide, emission control repair
manuals, emission component location guides, manufacturer emission control recalls,
vacuum hose routing diagrams, California Air Resources Board (CARB) aftermarket
parts listings, the aftermarket part label (see section 1.3.2), and any reliable vehicle
manufacturer sources.” Section 1.3.1 requires the smog technician to fail the vehicle if
6 Section 1.3.1 of the BAR Smog Check Manual provides, in part: “Inspectors must
use all available information necessary to determine the vehicle’s emission control
requirements, including but not limited to, the underhood emission control label (see
section 1.3.2), a current emission control application guide, emission control repair
manuals, emission component location guides, manufacturer emission control recalls,
vacuum hose routing diagrams, California Air Resources Board (CARB) aftermarket
parts listings, the aftermarket part label (see section 1.3.2), and any reliable vehicle
manufacturer sources.”
Section 1.3.1 also provides, in part: “To pass inspection, the required emission
control system(s) must be complete and installed in accordance with the vehicle
manufacturer’s original California or Federal certified configuration, or, when applicable,
in accordance with a CARB aftermarket configuration. If any required emission control
systems are found to be tampered or defective, the vehicle shall fail the inspection.”
13
the emissions control system is not “complete and installed in accordance with the
vehicle manufacturer’s original California or Federal certified configuration” or if “any
required emission control systems are found to be tampered or defective.”
Section 1.3.2 of the BAR Smog Check Manual states that the “vehicle’s
underhood emission control label serves as the primary source for emissions control
requirements.”7
Considering the arguments of Star Smog and Madison and the pertinent
regulations and procedures, the superior court concluded that Madison “failed to follow
the requirements for performing a visual inspection of the subject vehicle.” The court
continued: “Petitioners attempt to read section 1.3.2 as preempting section 1.3.1, in that
they contend a technician only needs to rely on additional sources if the emission control
label is missing. This is a misreading of the two sections. The plain language of section
1.3.1 requires technicians to ‘use all available information necessary to determine the
vehicle’s emission control requirements, including but not limited to, the underhood
emission control label. . . [.]’ Consequently, it is incumbent upon technicians to use all
information available, and to make themselves knowledgeable and familiar with the
original configurations of the vehicles they are inspecting. Section 1.3.2 does not provide
that they may solely rely on the underhood emission control label. It merely provides
that the label is the primary source for emissions control requirements, and that an
7 Section 1.3.2 of the BAR Smog Check Manual provides, in part: “Each vehicle’s
underhood emission control label serves as the primary source for emissions control
requirements and to indicate the vehicle’s certification type (California, Federal). It is
important to review emission control components on this label, since emission control
system technology changes and varies between vehicle manufacturers. However, a
missing or illegible emission control label does not constitute an inspection failure. In
cases where the emission control label is missing or illegible, the inspector may proceed
with the inspection provided that the required emission controls can be determined using
other sources as described in section 1.3.1.”
14
inspection may proceed in the absence of such a label if the technician is able to rely on
other sources of information to determine the required emission controls.” (Original
underscoring.)
A. Requirements for Visual Inspection
Star Smog contends that both the administrative law judge and the superior court
misstated the standard for a visual inspection of the emissions control system because
both the administrative law judge and the superior court stated that the system had to be
“properly connected” and “in good working condition.” The contention is without merit
because, even if the statutes and rules do not use those terms, they are clearly implied.
Former section 3340.42 of title 16 of the California Code of Regulations, in effect
at the time of the conduct leading to the citations, required the smog technician to
conduct a “visual inspection” of the “emission control devices” on the vehicle, including
the “air injection systems,” to ensure they were “properly installed.”8 Also, the Bureau’s
manual provided, in its “Visual Inspection Procedures”: “Pass/Fail Criteria: To pass
inspection, the required emission control system(s) must be complete and installed in
accordance with the vehicle manufacturer’s original California or Federal certified
configuration, or, when applicable, in accordance with a CARB aftermarket
configuration. If any required emission control systems are found to be tampered or
defective, the vehicle shall fail the inspection.” (Boldface omitted.) Even though the
terms “properly connected” and “in good working” are not in the former regulation or in
the BAR Smog Check Manual, those terms are implied to any reasonable reader because
they require the equipment, including the air injection system, to be properly installed,
8 In March 2013, California Code of Regulations, title 16, former section 3340.42,
subdivision (e)(1)(A) provided as part of a smog check: “A visual inspection of the
vehicle’s emissions control systems. During the visual inspection, the technician shall
verify that the following emission control devices, as applicable, are properly installed on
the vehicle: [¶] (A) air injection systems. . . .”
15
not to be tampered with, and not to be defective. In this case, in particular, the air
injection system was not properly installed because the pulley to power the air injection
system was not hooked to a belt.
Therefore, neither the administrative law judge nor the superior court applied the
wrong standard in determining whether Madison made an adequate visual inspection.
B. Specification of Air Injection System as Element to be Checked
Health and Safety Code section 44012, subdivision (f) requires the following as an
element of the technician’s inspection of the emissions control system: “A visual or
functional check is made of emission control devices specified by the department . . . .
The visual or functional check shall be performed in accordance with procedures
prescribed by the department.”
Star Smog asserts that the statute does not require the technician to check for a belt
connected to the air injection system because the BAR Smog Check Manual does not
“specify” the belt as one of the emission control devices to be checked. Instead, the
regulation specified only the air injection system. Star Smog argues: “This is totally
vague.” We disagree.
We find it unremarkable that the Bureau’s regulation does not specify the belt
separately from the air injection system because, on cars that power the air injection
system by a belt rather than electrically, the belt is an integral part of the air injection
system. No belt; no air injection. It doesn’t take a scientist or a Bureau official to figure
that out. In other words, the air injection system is incomplete and defective without the
belt, which belt is not a separate “emission control device,” in the words of Health and
Safety Code section 44012, subdivision (f).
C. Belt as Component of Air Injection System
Star Smog argues that the belt cannot be considered part of the air injection system
unless the Bureau says that the belt is part of the system. Star Smog couches this as an
argument about the “procedure” for determining the components of the air injection
16
system, maintaining that the Bureau was required to give guidance or directives
concerning whether a belt is a component of the air injection system because such
understanding is outside the knowledge and expertise of the court. To the contrary, we
interpret statutes, rules, and regulations reasonably. For example, “[s]tatutes must be
given a fair and reasonable interpretation, with due regard to the language used and the
purpose sought to be accomplished.” (Home Depot, U.S.A., Inc. v. Contractors’ State
License Bd. (1996) 41 Cal.App.4th 1592, 1601.) Here, a reasonable person, and a
reasonable technician, would interpret the statutory and regulatory rules discussed above
to require a technician to determine through visual inspection whether a belt-powered air
injection system had a belt attached.
D. Reference Sources
Star Smog contends that Madison was not required to check for a belt because the
referenced sources (including the underhood emission control label, the vacuum diagram,
and the manufacturer’s factory manual) did not list or show the belt as a component of
the air injection system. We disagree.
Section 1.3.2 of the BAR Smog Check Manual provides: “Each vehicle’s
underhood emission control label serves as the primary source for emissions control
requirements.” In this case, the underhood emission control label listed the air injection
system but did not mention that a belt was a component of that system. Neither did other
sources of information about the emissions control system on the Blazer list or picture a
belt as a component of the air injection system. A vacuum diagram under the hood did
not include a belt, and the manufacturer’s factory manual contained a diagram of the air
injection system with a pulley for a belt but without a belt depicted.
Star Smog argues that, because these sources did not specifically include mention
or depiction of a belt, Madison was under no responsibility to check for a belt. To the
contrary, as discussed above, Madison was required to conduct a “visual inspection” of
the “emission control devices” on the vehicle, including the “air injection systems,” to
17
ensure they were “properly installed.” (Cal. Code Regs., tit. 16, former § 3340.42, subd.
(e)(1)(A).) It is undisputed that the air injection system could not be properly installed
without a belt. In fact, Star Smog concedes that “the belt is required for the operation of
the system.” Therefore, the absence in the mentioned sources of a listing or depiction of
a belt attached to the pulley on the air injection system did not relieve Madison of the
responsibility to check for a belt.
E. Definitions of Check Failure
Star Smog appears to contend that Madison was not required to fail the Blazer
because none of the reasons for failing a vehicle under the BAR Smog Check Manual
applies to a missing belt. To the extent we can understand this contention, we conclude it
is without merit.
When a technician performs a smog check on a vehicle and determines that the
vehicle fails, the technician must specify one of four reasons: disconnected, missing,
modified, or defective. According to Star Smog, this is confusing because the two
reasons for failing a vehicle are, according to the BAR Smog Check Manual, that the
emissions control system is “found to be tampered or defective.” “Tampered” refers to
“[a]n emissions control system or component that is missing, modified, or disconnected.”
Star Smog appears to claim that the BAR Smog Check Manual and the selection
of a reason for failing a vehicle are confusing because the technician must select from
terms like “missing, modified, or disconnected,” even though the regulation requires the
technician to determine whether the system is “properly installed.” (Cal. Code Regs., tit.
16, former § 3340.42, subd. (e)(1).)
Star Smog asks: “Imagine if somehow the technician felt that the system was not
‘properly installed’ as required by statute, but it did not conform to any of the definitions
[referring to “missing,” “modified,” “disconnected,” or “defective”] that result in a fail?”
But Star Smog vastly overstates any confusion. In our view, the missing belt here would
have justified a finding that the emissions control system was modified or disconnected,
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consistent with the choices offered to Madison. We fail to see how that is so confusing
that it would result in Madison passing the Blazer when he should have failed it.
F. Differing Regulations and Bureau Requirements
Building on his claim that the differing language used in the regulations and the
BAR Smog Check Manual for failing a vehicle are confusing, Star Smog argues that the
differences in the language used is somehow pertinent to whether the citations issued in
this case can be upheld. Again, the argument is not clear. In any event, we see no merit.
Focusing on the definition of “disconnected,” Star Smog quotes the language of
the regulation and the corresponding language in the BAR Smog Check Manual. We too
will focus there.
Section 3340.41.5 of title 16 of the California Code of Regulations defines
“[d]isconnected” as follows: “A disconnected hose, wire, belt or component is one which
is required for the operation of an emissions control system and which has been
disconnected.”
On the other hand, the BAR Smog Check Manual defines “disconnected” as
follows: “Any hose, wire, belt or component, which is required for the operation of the
emission control system is present, but has been disconnected.”
Star Smog points out that the BAR Smog Check Manual includes the language “is
present,” while the regulation does not contain that language. Therefore, according to
Star Smog, the citations are defective because the belt required to power the air injection
system was not present—that is, the belt had been removed and replaced with a smaller
belt. Star Smog then asks: “Should the plain meaning of the two words ‘is present’ be
ignored? Undoubtedly, [the Bureau] will argue that the B.A.R. [Smog Check] Manual
definition should be ignored and that only the definition in the California Code of
Regulations should be considered.”
This argument is unconvincing because a belt was present but not connected to the
air injection system. Thus, any difference in language between the regulation and the
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BAR Smog Check Manual has no effect in this case. Also, the air injection system was
present but not connected to power. Either way, the difference in the definitions is no
threat to validity of the citations in this case.
G. Retrospective Expansion of the Meaning of Regulations
Star Smog asserts that an agency cannot retrospectively expand the meaning of a
regulation through interpretation. (See Christopher v. SmithKline Beecham Corp. (2012)
567 U.S. 142, 158-159 [183 L.Ed.2d 153, 172-173].) However, Star Smog does not
explain how that legal assertion applies to this case. We therefore need not consider that
assertion. However, we see no way in this case in which the Bureau has expanded the
meaning of any regulation in a way prejudicial to Star Smog and Madison.
H. How the Reasonable Person Understands the Rules and Regulations
Citing United States Supreme Court precedent, Star Smog contends that clarity in
regulation is essential to due process. “A fundamental principle in our legal system is
that laws which regulate persons or entities must give fair notice of conduct that is
forbidden or required. [Citations.]” (FCC v. Fox TV Stations, Inc., supra, 567 U.S. at p.
253.)
Star Smog asks: “Did B.A.R provide ‘precision and guidance’ [citing FCC v. Fox
TV Stations, Inc.] with their regulation in the subject case? [¶] Would men of common
intelligence differ as to the meaning and application?” This part of Star Smog’s brief
does not provide an answer to these questions.
Simply asking these questions without answering them does not raise an issue we
must consider because the appellant bears the burden of establishing error. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 566 [appellant bears burden of establishing error].)
In any event, the facts of this case are not in Star Smog’s favor because Madison
improperly passed a vehicle that did not have a properly installed emissions control
system. Any reasonable interpretation of the regulations and rules supports that
conclusion.
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I. Amendment of BAR Smog Check Manual
Star Smog notes that an earlier version of the BAR Smog Check Manual updated
in 2004 (then called the Smog Check Inspection Manual) expressly required the
technician, along with other mandatory steps, to “[e]xamine the air pump for a missing or
disconnected belt, check valve(s), diverter/switching valve(s), distribution hoses and
vacuum signal line(s).” On the other hand, the version of the BAR Smog Check Manual
applicable to this case does not include the mandatory steps for inspecting an air injection
system. Instead, it merely directs the technician to visually inspect the air injection
system.
Star Smog claims that the “logical interpretation” of this change “is that
technicians are no longer required to look for disconnected belts during visual
inspections.” That interpretation is neither logical nor reasonable. The modification of
the BAR Smog Check Manual to remove the steps of a visual inspection of the air
injection system cannot reasonably be interpreted to mean that the technician no longer
has the responsibility to determine whether the belt on a system requiring a belt for power
is disconnected .
DISPOSITION
The judgment is affirmed. The Bureau is awarded its costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)
NICHOLSON , J.
We concur:
RAYE , P. J.
DUARTE , J.
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