horsesandlaw
Tuesday, 01 March 2011 16:47

Horses & the Law – “VICTORY FOR TEXAS TEETH FLOATERS”

Written by  Ken 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.

The legal column has kept a steady eye on the Government’s attempt to take over the horse industry, decrease competition and regulate us to death. We saw it with horse slaughter, National Animal Identification System, horse massage and teeth floating. However, horse folk have pushed back and NAIS has been shelved, some states are considering legalizing horse slaughter (see The Draft Horse Journal article, Summer 2009), and a favorable decision was handed down by the Maryland Courts in a horse massage case (see The Draft Horse Journal article, Spring 2010).

We have also looked closely at the teeth floating cases. Three cases are of particular importance. The first case was Johnson v. Minnesota Board of Veterinary Medicine. This case involved Jim and Chris Johnson, a father/son teeth floating team who have floated thousands of horses over many years of practice. Neither Jim nor Chris was a veterinarian or an equine dentist. The State of Minnesota, through the Board of Veterinary Medicine, argued that teeth floating must be done by a state-licensed veterinarian or a certified equine dentist working under the supervision of a state-licensed veterinarian.

The Minnesota Courts held that the State of Minnesota, through the Board of Veterinary Medicine, had the right to regulate teeth floating in the state. The Judge, in the opinion, attempted to distinguish equine teeth floating from castration, de-horning and tail docking but was, in my opinion, clearly unsuccessful. The decision could not logically explain a difference between castration, de-horning and tail docking as compared to equine teeth floating to justify no regulation for the former and total regulation for the latter.

The second case was out of New York State and was the case of Brown v. New York State Racing and Wagering Board. Mr. Brown had been a teeth floater for over 30 years and was never licensed by the State of New York as a veterinarian or a veterinarian technician. 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 this finding and a hearing
was conducted.

The Court held in favor of Brown. The Court found that since New York law made 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. Thus, teeth floaters are free to practice their trade in the State of New York without governmental intrusion or regulation.

The third teeth floating case is the case of Mitz v. Texas State Board of Veterinary Medical Examiners. The Texas State Board of Veterinary Medical Examiners developed a licensing scheme which requires that Texas Equine Dental Practitioners must have a degree from a veterinary school before being able to float horses' teeth. This licensing scheme was challenged in the Mitz case and a very heated and contentious legal battle ensued.

While a decision was pending, the government bureaucrats in August of 2010, called for a public hearing concerning its latest proposed rule that would allow non-veterinarians to float horses' teeth using manual rasps but would require veterinary supervision or a veterinary degree for any work involving power tools. As usual, there was no logical reason for this distinction as in many cases the use of power tools offers greater precision, much less effort and is safer than hand tools.

Many teeth floaters and horse owners showed up to testify about the many contradictions, errors and inaccuracies reflected in the Board’s latest proposed rule. It is to be noted, that state-licensed veterinarians also appeared and criticized the proposed rule for allowing non-vets or individuals without veterinary supervision to perform any type of teeth floating, even though it only involved a rasp. The public hearing pitted veterinarians who wanted to stifle competition as opposed to teeth floater practitioners, who were, in many cases, far more experienced and competent than veterinarians. One thing the public hearing showed was that the only people who supported the Board’s campaign against teeth floaters were state-licensed veterinarians. The public should be permitted the choice to pick a qualified practitioner to care for their horses.

Finally, in November of 2010, the Texas Court struck down the law in question by ruling that the Texas Veterinary Board violated state law when it changed its policy on horse teeth floating. The ruling allows Texas horse teeth floaters to go back to work without government intrusion or restriction.

The interesting point of the decision was that until recently, the Texas Veterinary Board acknowledged and approved teeth floating by non-veterinarians, recognizing that “there are not enough veterinarians skilled in equine dentistry to meet the public’s needs.” However, in the Fall of 2006, the President of the State Veterinary Association demanded that the Vet Board shut down the non-veterinarian floaters and force them, in effect, to turn over their businesses to state-licensed veterinarians.

Without holding public hearings and without notifying horse teeth floaters, the Vet Board changed the rules and attempted to close the businesses of non-veterinarian teeth floaters. The Board sent cease-and-desist letters to teeth floaters without determining how the new policy would affect horse owners in complete disregard of state-mandated rule making procedures. The Board even cancelled a public hearing on the issue.

At first, the Board denied that it had changed its teeth-floating policy, however, the Board later acknowledged that it changed its teeth floating policy, but claimed that its actions could not be challenged in court. The teeth floaters challenged the actions and proved that government does not have free reign to do whatever it wants. The art of teeth floating, the term for filing horses teeth to ensure proper length and alignment, was allowed to continue by non-licensed individuals in the state of Texas.

Economic liberty won in this case. For the government to intrude into a business and require licensing, such as teeth floating, the government needs to show that there are real and legitimate reasons, other than stifling competition and making money, for regulating the industry. When government proceeds to attempt to regulate an industry in violation of the law, by failing to hold hearings and considering the consequences of such law, the people can fight back and win.
The teeth floating decision in the state of Texas now makes the score two to one and hopefully other Courts will pick up the reasoning set forth in the Court decisions of New York and Texas.

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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