horsesandlaw
Wednesday, 21 July 2010 08:37

“SCORE ONE FOR THE TEETH FLOATERS"

Written by  © Kenneth C. Sandoe, Attorney-at-Law
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Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

If you live in New York State, you do not need to be a veterinarian or hold a special license to float teeth. So says the Supreme Court of the State of New York in the case of Brown v. New York State Racing and Wagering Board, 07, 07303, Decided 2009.

You may recall the case of Jim and Chris Johnson, teeth floaters, who were sued by the Minnesota Board of Veterinary Medicine to “cease and desist” equine teeth floating because it was considered to be practicing veterinary medicine without a license. The Johnsons challenged the Board only to lose their livelihood as the Minnesota Court held in favor of the Board of Veterinary Medicine. You may remember the tortured logic and questionable chart used by the Court in its opinion and as set forth in my article in The Draft Horse Journal of Autumn 2008. You can read more about the Johnsons’ plight in The Draft Horse Journal, Summer 2008 issue.

This column has reviewed and reported on other areas of government intrusion including horse massage, NAIS and horse slaughter, all of which are covered in previous Draft Horse Journal articles. To date the Government takeover of the horse industry has occurred at a steady and deliberate pace. For those of us who believe less government is better, the decision in the Brown case has given us renewed hope in American ingenuity and independent spirit.

Christopher Brown has been a teeth floater since 1975. He was never licensed by the State of New York as a veterinarian, nor in veterinary technology. However, in 1975, Brown did obtain a certificate from the Cornell Cooperative Extension Program in Equine Management and Dentistry.

For over 30 years Brown performed routine equine dentistry on Thoroughbred race horses stabled at New York racetracks including Aqueduct, Belmont and Saratoga. As part of Brown’s practice he routinely filed and floated horses’ teeth and also treated cuts in a horse’s mouth. Brown does not administer medications or drugs.

Brown’s work history is stellar. Brown has worked on horses owned by the Queen of England and the Crown Prince of Saudi Arabia. He has also worked on various winners of the Kentucky Derby and Belmont Stakes. His services are requested by many owners, trainers and veterinarians. With this background, Brown was directed to appear for an “investigative interview” by the New York State Racing and Wagering Board which concluded that he did not have the requisite educational background and, therefore, could no longer practice equine dentistry.

Brown challenged the finding and a hearing was conducted. Brown testified as well as six horse trainers and three licensed veterinarians. The expert witnesses testified that equine dentistry is comparable to routine non-veterinary services which are performed by groomers, trainers and blacksmiths. These individuals perform non-veterinary services including the application of liniments and bandages to wounds, prepare feed with medication, treat foot abscesses and infection, cut and file hooves with a rasp or paring knife and apply horseshoes. In addition, trainers routinely treat horse wounds with poultice and liniments, add supplement and oral medications to feed, and provide leg therapy treatment, all without being licensed veterinarians or veterinary technicians. All of the veterinarians who testified on behalf of Brown agreed that the equine dentistry performed by Brown was routine or prophylactic care and not “veterinary diagnosis” or “treatment.”

The Racing and Wagering Board presented evidence from The American Veterinary Medical Association which, basically, is of the opinion that equine dentistry is “within the realm of veterinary medicine.”

The Appellate Court framed the question this way: “We are asked to determine whether individuals must be licensed veterinarians to lawfully provide certain dental services to horses.” In order to answer the question the Court had to interpret the Educational Law, Article 135. The Court found that the Education Law divides veterinary caregivers into three categories. The first category is that of a licensed veterinarian, the second is a veterinary technician and the third is an unlicensed person providing support services. Brown argued that routine equine dentistry constitutes ordinary non-medical lay care and maintenance just as the services provided by groomers, trainers and blacksmiths.

In interpreting the law in question, the Appellate Division found that Education Law, Section 6701, makes no mention of dentistry in its definition of veterinary medicine. The Court specifically found that in another provision of the Education Law, Section 6601, the law specifically limits the definition of dentistry to humans. The Court noted that the New York law is different from statutes of sister states, as New Jersey requires veterinary licensure for any person engaged in “veterinary medicine, surgery and dentistry” (NJ STAT ANN Section 45: 16-5, 16-9), Connecticut (CONN. GEN STAT Section 20-197), and Pennsylvania (63 PS Section 485.3).

The Appellate Court held that since the Education Law, Sections 6701 and 6702, makes no mention of dentistry or treatment of dental conditions in its definition of veterinary medicine that the legislature did not intend to include animal dentistry within the scope of veterinary medicine. The Court was guided by the legal maxim “expression unius est exclusio alterius” which means that the failure of the legislature to include a particular matter within a law is an indication that an exclusion was intended.

The Court found that the legislature was free to amend the law to expressly include animal dentistry, however, under the current law, Brown is not required to possess a license in veterinary medicine or veterinary technology in order to provide routine equine dentistry and maintenance.

So what does this all mean? One may have to pick his domicile depending on the law of a given state. One thing is for certain, the struggle between individual rights and government control is far from over. Now that federal and state lawmakers are home for the summer, be sure to let them know your view on these matters.

Enough legal talk – it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

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