Opinion
B162669.
10-31-2003
REINHOLD INDUSTRIES, INC., Plaintiff and Appellant, v. OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD, Defendant and Respondent; DEPARTMENT OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH, Real Party in Interest and Respondent.
David E. Rosenbaum for Plaintiff and Appellant. Douglas G. Nareau, Chief Counsel, Robert N. Villalovos, Assistant Chief Counsel, and James A. Madden, Jr., Staff Counsel, for Defendant and Respondent. Michael D. Mason, Chief Counsel, and Albert C. Cardenas, Staff Counsel, for Real Party in Interest and Respondent.
Plaintiff Reinhold Industries, Inc. (Reinhold) appeals from a judgment denying its petition for writ of administrative mandate and upholding the decision of defendant California Occupational Safety and Health Appeals Board (Appeals Board). It contends the trial court erred in finding substantial evidence supported the Appeals Boards determination that the regulations Reinhold was found to have violated were not void for vagueness. We agree and reverse the judgment with directions to grant Reinholds petition.
FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 1995, defendant Department of Industrial Relations, Division of Occupational Safety and Health (Department), issued a citation to Reinhold. The citation stated that "[o]n March 6, 1995, an employee was seriously injured while operating an orange Hy[s]co hydraulic press . . . . The employees hands were crushed by two of the formed billets or blanks being pushed out of the lower die by the action of the upper die. At the time of accident, the press operator was not protected by any of the methods described in section 4215 [of title 8 of the California Code of Regulations, hereinafter section 4215]." The Department gave Reinhold until November 26 to correct the failure to comply with section 4215 and imposed a $5625 penalty.
Section 4215 provides that "[h]ydraulic power presses shall be guarded in a manner that will accomplish the following: [& para;] (1) Restrain the operator(s) from inadvertently reaching into the point of operation, or [¶] (2) Inhibit machine operation if the operators hands are inadvertently within the presence sensing field or inadvertently within or placed within the point of operation, or [¶] (3) Automatically withdraw the operators hands if they are inadvertently within the point of operation."
Section 4188(b) of title 8 of the California Code of Regulations (hereinafter section 4188(b)) contains "Specific Definitions for Power Operated Presses." At the relevant time, it defined "Power Press, Hydraulic (Punch Press)" as "[a] machine which is hydraulically powered that shears, punches, forms, draws, or assembles metal or other material by means of tool actuated by slides." It did not define the term "slide."
Section 4189 of title 8 of the California Code of Regulations (hereinafter section 4189) specifies that "[t]he requirements of this article apply only to those mechanically or hydraulically powered machines that shear, punch, form, or assemble metal or other material by means of tools or dies attached to slides, commonly referred to as power operated presses." "This article" is article 55, which also includes section 4215.
Reinhold timely appealed the citation to the Appeals Board. It claimed there was no violation of section 4215 and challenged the correction requirement and penalty imposed. The appeal was heard by Administrative Law Judge James Wolpman (ALJ) on January 7, 1997, and he issued his decision on April 18, 1997. At the hearing, Reinhold and the Department stipulated to some basic facts and introduced evidence as well. The facts, as stipulated to and found by the ALJ, are as follows:
The machine at issue was a Hysco Press #25, on which was mounted a Hellfire billet mold. It produced Hellfire billets. A billet is a bar of material used in the manufacturing process. In this case, the billets were bars six inches long and three inches in diameter, made of fiber-reinforced plastic.
The top of the press contains four rods, also referred to as cores. At the bottom are four corresponding cavities. Beneath the cavities is an empty chamber, also called a well. The basic operation of the machine, which will be described in more detail below, is that the fiber-reinforced plastic is compacted within the cavities by the cores. The material to be compacted is placed in the cavities. A ram pushes the bottom portion of the machine up against the top, causing the material to be compacted as it is forced against the cores.
The production process consists of two steps: compaction and ejection. The production process is controlled by a control panel, located 32 inches from the operating portion of the press. The control panel contains a control mode switch which can be set to one of three modes: off, manual or automatic. When in the off mode, no hydraulic power is supplied to the machine. In manual, the hydraulic power operates the press only when the operator presses the close or open buttons. In automatic, the press operates automatically.
The automatic mode is not used in the production of the Hellfire billets.
The press also contains a lateral slide mechanism, which slides a metal block into the empty well below the cavities. The material in the cavities is compacted against this metal block. The lateral slide mechanism can be operated only when the control mode switch is in the off mode.
In compaction, the operating instructions call for the control mode switch to be set to off or manual, so compaction can occur only if the operator presses the close button. With the press in the off mode, the operator reaches into the empty well and inserts metal plugs into the cavities above. The operator then energizes the lateral slide mechanism, sliding the metal block into the empty well below the cavities. The operator places the material to be compacted into cavities. The operator then sets the control mode switch to manual and presses the close button. The ram presses the mold upward, compressing the material in the cavities against the cores. The operator then presses the open button, to reopen the press.
After the press is reopened, the operator puts the press into the off mode. The operator uses a lever on the side of the press to retract the lateral slide. At this point, some of the metal plugs frequently fall into the empty well. The operator reaches into the well to remove the metal plugs by hand.
For the ejection step of the process, the press is put into the manual mode. The operator presses the close button a second time. The ram moves up, and the cores push the formed billets and any remaining metal plugs into the empty well. The operator presses the open button to open the press a second time. The operator then turns the press off and removes the billets and plugs.
The accident in question occurred after compaction. The operator had pressed the open button, the machine was opened and should have been de-energized. The operator reached into the well to remove metal plugs that had fallen into it. For no apparent reason, the press energized and the ram moved upwards into a closed position. The operators hands were crushed between the metal plugs in the wells and the formed billets above them.
A coworker observed that the control mode switch was in the off mode. She switched it to automatic, hoping the press would open, but it did not. A foreman arrived and pressed an emergency switch to open the press.
The operator was hospitalized and had surgery on her hands to repair the damage. She eventually was able to return to work.
Section 4215 is entitled "Hydraulic Power Presses (Punch Presses)." According to Reinholds chief engineer, the Hysco Press #25 is not commonly known as a punch press and differs from a punch press in a number of ways. In a power punch press, the piston which supplies the driving force is known as a slide. In the plastic molding industry, the piston supplying the driving force is known as a ram. The slide on the typical punch press moves rapidly—20 inches per second—while the ram on the Hysco Press #25 moves much more slowly—3 inches per second. A punch press uses dies which transmit a contour to material without fully enclosing it, while the Hysco Press #25 uses molds which fully enclose the material. A punch press uses the force of impact to contour the material, while the Hysco Press #25 uses compression. Finally, the stroke on a punch press cannot be interrupted once begun, while the stroke on the Hysco Press #25 can be stopped and reversed.
Reinholds operations manager testified that the cost of compliance with section 4215 would be $2,000 to $10,000 per press. Reinhold had 31 presses. The total cost would impose a severe financial burden on the company.
The ALJ found that the Hysco Press #25 is hydraulically powered and forms material with a tool—a mold—within the meaning of section 4188(b). The question was whether the mold was actuated by a slide within the meaning of that section.
The ALJ accepted the evidence "that, in the plastics industry, the piston which supplies the driving force is always called a `ram, and that would appear the normal usage of the term where hydraulic, as opposed to mechanical presses, are concerned." More importantly, however, section 4188(b) defined a "ram" as "[a] reciprocating part of the machine or any die piece attached to it, whichever comes closest to the stationary die. It is sometimes called a plunger, slide, or mandrel." The ALJ believed that "[u]nder that definition, `slide appears to be just another way of referring to a `ram. If so, it would be fair to say that the Hysco press meets the final definitional requirements for a hydraulic punch press because its mold is `actuated by a slide."
Even though a ram is never referred to as a slide within the plastics industry, the ALJ followed the definition provided in section 4188(b) in order to eliminate the possibility that regulatory coverage "will depend on the idiosyncrasies of industry usage, rather than the function performed. Whether the part be termed a slide or a ram, its function is the same—to provide the force for a tool, die or mold to alter the material being worked on."
Reinhold claimed that enforcement of section 4215 under the circumstances violated due process of law due to "the confusion, and consequent vagueness, in using the term `slide where the term `ram should have been used." The ALJ rejected this claim, finding "no proof that the usage which [Reinhold found] objectionable presents a difficulty for anyone outside the plastic molding industry, and no proof that members of that industry are so isolated as to be unaware that rams and slides have identical functions and, consequently, are deserving of similar treatment . . . ."
Reinhold also claimed that the Hysco Press #25 was not a punch press, as power hydraulic presses were identified in parentheses. The ALJ rejected this claim as well.
The ALJ concluded that section 4215 did apply to the Hysco Press #25. Under that section, guarding would be required when the operator pressed the close button, in that there was a risk of injury to the operator at that time. Reinholds violation of that section properly was classified as serious based upon the risk of injury. The ALJ acknowledged that the accident was unrelated to the violation. The ALJ therefore reduced the penalty to $1,250. The ALJ also gave Reinhold two months to correct the violation as to the machine involved in the accident, the only one to which the citation referred.
Reinhold filed a petition for reconsideration with the Appeals Board in May 1997. It granted the petition. On December 21, 2000, it issued a decision affirming the ALJs decision after independent review of the record.
The Appeals Board agreed that the Hysco Press #25 is a hydraulic power press within the meaning of section 4188(b) and thus covered by section 4215. It agreed that under section 4188(b), "`slide is a synonym for `ram." "Because the Hysco press has tools attached to and actuated by a slide, it is a hydraulic power press as defined in section 4188(b), and specifically covered by section 4215 . . . ."
The Appeals Board rejected Reinholds argument that the Hysco Press #25 more properly was classified as a plastic processing machine or compaction equipment than a hydraulic power press and therefore was not covered by section 4215. It found no evidence the Hysco Press #25 fit within either of these classifications.
Division 1 of title 8 of the California Code of Regulations covers the Department of Industrial Relations. Subchapter 7 of Chapter 4 of this division contains General Industry Safety Orders (GISO) of the Division of Industrial Safety. Group 8 under subchapter 7 refers to points of operation and other hazardous parts of machinery and contains guarding requirements. It is divided into articles, each referring to a different type of equipment. Article 55 refers to power operated presses and contains the sections at issue here. Plastic processing machinery is covered by article 72, which contains guarding requirements for injection molding machines and thermo-setting plastic molding presses. Compaction equipment is covered by article 61, which applies to stationary and mobile compaction equipment (trash compactors) and balers.
The Appeals Board also agreed that the sections were not unconstitutionally vague. Because a practical meaning could be given to the sections, "the Board will not find the safety order void and unenforceable, even though its meaning may be difficult to ascertain or susceptible to different interpretations."
Reinhold filed the instant petition for writ of administrative mandate in January 2001. The trial court denied the petition. It found substantial evidence supported the Boards decision. It found the Board "correctly applied the definitions to the appropriate mechanism of [Reinholds] Hysco press machine to determine that the machine was a `hydraulic power press as defined in section 4188(b) and that the machine was . . . subject to the point of operation guarding requirement in section 4215(a) for which [Reinhold] was issued a citation by [the Department]." In addition, "[s]ubstantial evidence and the applicable regulations support [the Boards] decision that the `ram is a `slide under the special definition provided in section 4188(b), and further, that section 4215, as applied, is not void for vagueness given such special definition in section 4188(b) which provided sufficient notice that `ram is synonymous with `slide so that the Hysco press was subject to the point of operation guarding requirement in section 4215(a)."
We have taken judicial notice of the following facts at Reinholds request: On December 14, 2000, one week before the Appeals Board issued its decision, the Occupational Safety and Health Standards Board (Standards Board) held a public meeting on proposed changes to title 8 of the California Code of Regulations. Among the proposed changes were changes to the definitions contained in section 4188(b). In a digest of the proposed changes, the Standards Board explained: "Ambiguous and inconsistent terms used in defining power operated presses has [sic] contributed to misunderstandings and confusion regarding application of safety requirements for point of operation guarding. The existing definitions for power presses utilize the term `slide. However, `slide is not specifically defined . . ., other than by indirect reference in the definition for `ram. The proposed rulemaking action consists of revisions to make clear the definition of `slide, and thus to clarify the definitions for power presses. . . . [¶] . . .
Although there was no opposition to Reinholds request, both the Appeals Board and the Department in their briefs challenge the propriety of judicial notice of these facts.
"Definitions for `Ram and `Slide. The definitions for power presses use the term `slide, consistent with Federal regulation 29 CFR 1910.211. Currently, `slide is not specifically defined, and its meaning must be inferred from the definition for `ram. The proposal defines and makes clear the definition of the term `slide, by adapting the definition for `ram with editorial changes. The definition for `ram will be changed to refer to the definition for `slide. These proposed revisions are intended to eliminate ambiguity in the definitions for power presses and thus will have no effect on the regulated public other than to simplify and clarify the [regulations]."
The reason for these revisions, as explained in the Initial Statement of Reasons, was "a March 15, 1999, Appeals Board decision (Docket 97-R4D4-2138) concerning a citation of a workplace accident that resulted in the amputation of a workers fingers. In that decision, the Administrative Law Judge determined that the General Industry Safety Order (GISO) Section 4188(b) definition of `ram was ambiguous and that applicability of point of operation guarding requirements could not be proven. . . . Ambiguous and inconsistent terms used in defining power operated presses have contributed to confusion and inconsistent application of safety requirements for point of operation guarding."
The revisions were adopted and became effective on June 7, 2001. As revised, section 4188(b) defines "slide" as "A reciprocating part of the machine or press. It is also referred to as a ram, plunger, platen, or mandrel." Under "ram," the reader is directed to "[s]ee definition for Slide."
While this case was pending in the trial court, the Appeals Board issued a decision in the case that was the impetus for the revisions to section 4188(b), Mansfield Plumbing Products. That case involved a petition for reconsideration by the Department. The Appeals Board noted that the ALJs decision in Mansfield preceded the Appeals Boards decision in this case. The Appeals Board followed its decision in this case to hold that the hydraulic ram in Mansfield was a slide.
CONTENTION
Reinhold contends the regulations at issue, sections 4215, 4188(b), and 4189 are void and cannot be enforced against it, in that they are unconstitutionally vague. The contention has merit.
DISCUSSION
In reviewing a decision of the Appeals Board, the courts are limited to a determination whether the Appeals Board acted without or in excess of its powers, or whether its decision was procured by fraud, unreasonable, unsupported by substantial evidence or unsupported by any factual findings made. (Lab. Code, § 6629.) The courts are not permitted to hold a trial de novo, take additional evidence or exercise independent review of the evidence before the Appeals Board. (Id., §§ 6628, 6629) The Appeals Boards factual findings are conclusive. (Id., § 6630.) The question before us thus is whether the decision of the Appeals Board is supported by substantial evidence. (Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd. (1985) 167 Cal.App.3d 1232, 1240; Steve P. Rados, Inc. v. California Occupational Saf. & Health Appeals Bd. (1979) 89 Cal.App.3d 590, 594-595.)
The due process clauses of the federal and state constitutions require a reasonable degree of certainty in legislation. (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 389.) In order to withstand a facial vagueness challenge, a statute or an administrative regulation must provide adequate notice of the conduct proscribed or prescribed, and it must provide sufficiently definite guidelines for enforcement. (Id. at pp. 389-390; Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763-764; Diebold, Inc. v. Marshall (6th Cir. 1978) 585 F.2d 1327, 1335.) Legislation "`which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law," i.e., fairness. (Caswell, supra, at p. 389; Cranston, supra, at p. 763.) People must have notice of what is required of them so that they may act accordingly. (Caswell, supra, at p. 389; Cranston, supra, at p. 763.)
Similarly, those charged with the enforcement of the law must have guidelines sufficient "to prevent arbitrary and discriminatory enforcement." (People v. Superior Court (Caswell), supra, 46 Cal.3d at p. 390.) A law may not be so vague as to delegate impermissibly basic policy matters to law enforcement, allowing "`resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Ibid.; Cranston v. City of Richmond, supra, 40 Cal.3d at p. 763.)
Where, as here, a vagueness challenge does not involve First Amendment freedoms, we look at the regulations at issue not in the abstract but in the context of the facts of this case. (Cranston v. City of Richmond, supra, 40 Cal.3d at p. 765; Arellanes v. Civil Service Com. (1995) 41 Cal.App.4th 1208, 1217.) While there may be a lack of specificity in the regulations themselves, the required specificity may be provided by the common knowledge and understanding of persons within the industry to which the regulations apply. (Cranston, supra, at p. 765; Kropp Forge Co. v. Secretary of Labor (7th Cir. 1981) 657 F.2d 119, 123; Ryder Truck Lines, Inc. v. Brennan (5th Cir. 1974) 497 F.2d 230, 233.) The question is whether a person of common intelligence in Reinholds position would have known that the guarding requirements of section 4215 were applicable to the Hysco Press #25.
The determination whether the regulations at issue are unconstitutionally vague is a judicial one for the courts. (Cf. Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd., supra, 167 Cal.App.3d at p. 1243.) We acknowledge, however, that the Appeals Board is "`"one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." [Citation.] [Citation.]" (Id. at p. 1244; accord, C.E. Buggy, Inc. v. Occupational Safety & Health Appeals Bd. (1989) 213 Cal.App.3d 1150, 1156.) We therefore accord great respect to the Appeals Boards determination on this matter and will follow it if not clearly erroneous. (C.E. Buggy, Inc., supra, at p. 1156; Davey Tree Surgery Co., supra, at p. 1243.)
Reinhold does not dispute that the Hysco Press #25 is hydraulically powered and forms material with a tool—a mold—within the meaning of section 4188(b). It argues that a person of common intelligence in its position would not have known that the mold was "actuated by slides" within the meaning of that section. Thus, the section is unconstitutionally vague.
It is undisputed that the only component on the Hysco Press # 25 called a "slide" does not actuate the mold that forms the material placed in the machine. It merely slides a metal block into the empty well below the cavities, then slides it out again. The mold is actuated by "[a] reciprocating part of the machine" known in the industry as a "ram." (§ 4188(b).)
It also is undisputed that section 4188(b), which defined "Power Press, Hydraulic (Punch Press)" as "[a] machine which is hydraulically powered that shears, punches, forms, draws, or assembles metal or other material by means of tool actuated by slides," did not define "slide." It did, however, define "ram," noting that a "ram" "is sometimes called a plunger, slide, or mandrel." (Italics added.)
It is Reinholds claim that a person of ordinary intelligence in its position would not have been put on notice by the definition of "ram" that the ram on its Hysco Press #25 was a slide within the meaning of sections 4188(b) and 4189, making the guarding requirements of section 4125 applicable to that machine. "Even if by chance someone at Reinhold had been browsing through the thousands of pages of regulations and happened upon the definition of `ram," it argues, that person would not necessarily have known when a ram is a slide for purposes of these sections.
A person of ordinary intelligence in Reinholds position seeking to determine whether there were guarding requirements for the Hysco Press #25 would not have been required to read through thousands of pages of regulations in hopes of stumbling on the one that might be applicable. The GISO are divided into groups, and group 8 contains the guarding requirements for points of operation and other hazardous parts of machinery. Within group 8, article 54 contains general definitions and includes section 4188(b). Article 55 applies to power operated presses and includes sections 4189 and 4215. Reinhold argued to the Appeals Board that the Hysco Press #25 was more properly classified as a plastic processing machine covered by article 72 or compaction equipment covered by article 61, but it presented no evidence in support of this argument. Thus, in attempting to determine whether there were guarding requirements for the Hysco Press #25, a person in Reinholds position would have had to read through two articles only.
However, had such a person read sections 4189 and 4215, that person would not necessarily have concluded that they applied to the Hysco Press #25, in that the tool on that machine is actuated by what is known in the industry as a ram, not a slide. If there was a question as to what constituted a slide for purposes of the section, such a person looking in section 4188(b) would be confronted with the absence of a definition for the term "slide." If the person then thought to read the definition of "ram," the person would learn only that a ram "is sometimes called a . . . slide . . . ." (Italics added.)
Because a ram is sometimes called a slide, it appears that persons of common intelligence "must necessarily guess at [section 4188(b)s] meaning and differ as to its application" (People v. Superior Court (Caswell), supra, 46 Cal.3d at p. 389; Cranston v. City of Richmond, supra, 40 Cal.3d at p. 763), i.e., whether the ram on the Hysco Press #25 was a slide within the meaning of section 4189. The regulations provided no further guidance. There is no evidence of a common knowledge and understanding of persons within the plastics industry that this type of ram is considered a slide within the meaning of section 4189. Such common knowledge and understanding could make otherwise vague regulations clear under the circumstances. (Cranston, supra, at p. 765.)
The ALJ acknowledged that within the plastics industry, a ram is never referred to as a slide. He found "no proof that members of that industry are so isolated as to be unaware that rams and slides have identical functions and, consequently, are deserving of similar treatment . . . ." He believed it necessary to enforce section 4215 against Reinhold in order to eliminate the possibility that regulatory coverage "will depend on the idiosyncrasies of industry usage, rather than the function performed."
First, the lack of proof that members of the plastics industry are unaware that rams and slides have identical functions does not equate to proof that members of the industry understand that a ram is a slide. As previously stated, section 4188(b) states only that a ram "is sometimes called a . . . slide . . . ." (Italics added.) It does not state that a ram is a slide. Moreover, the Hysco Press #25 has both a ram and a slide, both performing different functions. This adds to the confusion as to whether the ram on the Hysco Press #25 is a slide within the meaning of section 4189.
In addition, Reinhold is not responsible for determining whether its machines are "deserving of similar treatment" to those described in the regulations. It is not responsible for interpreting the regulations so as to ensure that coverage is based upon function performed rather than machinery described. It is responsible for looking at the language of the regulations and doing that which the regulations prescribe. (People v. Superior Court (Caswell), supra, 46 Cal.3d at pp. 389-390; Cranston v. City of Richmond, supra, 40 Cal.3d at pp. 763-764; Diebold, Inc. v. Marshall, supra, 585 F.2d at p. 1337.)
The Appeals Board found that the sections were not unconstitutionally vague because a practical meaning could be given to the sections, and "the Board will not find the safety order void and unenforceable, even though its meaning may be difficult to ascertain or susceptible to different interpretations." The question is not whether a statute or regulation may be given a practical meaning, however. The question is whether the language of the statute or regulation would have given a person of common intelligence notice of that meaning. Moreover, if the language of a statute or regulation is susceptible of different interpretations, so that persons of common intelligence may differ as to its application, it is unconstitutionally vague. (People v. Superior Court (Caswell), supra, 46 Cal.3d at p. 389; Cranston v. City of Richmond, supra, 40 Cal.3d at p. 763.)
In sum, we conclude that, looking at the language of the regulations at issue and the understanding within the industry, a person in Reinholds position reasonably could have been led to conclude that sections 4189 and 4215 did not apply to the Hysco Press # 25, in that the mold on the machine is not actuated by a slide. This makes it unfair to apply these sections in the instant case: Reinhold was not on notice that the sections applied to its machine. (Diebold, Inc. v. Marshall, supra, 585 F.2d at p. 1337.) Substantial evidence does not support the Appeals boards decision that these sections were not unconstitutionally vague as applied to Reinhold. (Davey Tree Surgery Co. v. Occupational Safety & Health Appeals Bd., supra, 167 Cal.App.3d at pp. 1240, 1243.)
This conclusion is bolstered by the materials of which we have taken judicial notice at Reinholds request. The Standards Board acknowledged that "[a]mbiguous and inconsistent terms used in defining power operated presses [have] contributed to misunderstandings and confusion regarding application of safety requirements for point of operation guarding." It revised section 4188(b) to define "slide" as "[a] reciprocating part of the machine or press" which "is also referred to as a ram, plunger, platen, or mandrel." The term "sometimes" has been omitted, to remove the confusion it might have caused.
The Department claims we have no jurisdiction to consider these materials, citing Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 547. Borror does not stand for this proposition. It merely holds that the failure to raise the issue of lack of foundation in the trial court precludes exclusion of evidence on that basis. We have jurisdiction to take additional evidence on appeal. (Cal. Rules of Court, rule 22(c).)
The Appeals Board and the Department put forth a number of reasons why we should not consider these materials, not the least of which is Reinholds failure to bring the matter to the attention of the Appeals Board or the trial court. Because there is some merit to this claim (Lab. Code, §§ 6628, 6629), we do not rely on the actions of the Standards Board in reaching our conclusion that sections 4188(b), 4189 and 4215 are unconstitutionally vague as applied in this case. We refer to them to show that we are not alone in perceiving a problem with the previous version of section 4188(b), and our conclusion is correct. The Standards Board was concerned enough about the section causing misunderstanding and confusion to rewrite the section to include a definition of "slide." This eliminates the problem with vagueness we have found to exist in the previous version of the statute.
The judgment is reversed. The trial court is directed to enter a new and different judgment granting the petition for writ of administrative mandate. Plaintiff is to recover costs on appeal.
We concur: ORTEGA, J. and MALLANO, J.