horsesandlaw
Monday, 16 August 2010 12:22

Horses and the Law TRIAL OF 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.

In two cases, Johnson v. Minnesota Board of Veterinary Medicine, (Mn. Fourth Judicial District Court) and Mitz v. Texas State Board of Veterinary Medical Examiners (Travis County District Court, Austin, Texas), the state, through the state veterinary boards, are cracking down on “horse teeth floaters” by asking the Courts to shut down the practice of teeth floating unless the individuals engaged in such a practice are veterinarians, specially trained and/or under the supervision of veterinarians. The teeth floaters argue that they should be free from unnecessary and irrational occupational licensing laws and are challenging the veterinary boards and the laws and regulations in question. I have written previously about the potential conflict between the veterinarians and non-veterinarian practitioners in The Draft Horse Journal, Winter 2005-'06 in an article entitled “When is a Veterinarian Required for the Treatment of Horses.” Since that article was published, much has happened in the “teeth floater” world.

The Minnesota case has gone to trial and the Texas case will be tried shortly. This article will cover the trial of the Minnesota case.

Jim Johnson and Chris Johnson are a father/son teeth floating team who have floated thousands of horses over many years. Neither Jim nor Chris is a veterinarian or an equine dentist. They have taken no specialized courses in equine dentistry and have learned the art by hands-on practice.

Chris Johnson was called as the first witness at the trial. Chris explained the concept of horse teeth floating to the trial judge who seemed generally interested and involved. Chris then demonstrated how to float teeth by using a horse skull and his teeth floating tools. Chris explained how horses' teeth grow and how they must be filed down so the horse can chew food properly. If sharp points are not floated or filed down, it becomes painful for a horse to chew or hold a bit in his mouth.

Most observers and trial participants were quite impressed with Chris’s testimony and he clearly proved he was very knowledgeable and quite skilled at his job–in fact, more skilled than the vast majority of veterinarians who do not regularly float teeth.

The State of Minnesota called a professor at Minnesota’s Veterinary College as its expert witness. The direct examination didn’t establish much, other than the State should be controlling and regulating the horse teeth floating industry. The cross-examination of the State’s expert, by Johnsons’ attorneys from the Institute of Justice, Minnesota Chapter, proved far more interesting. The Professor was shown numerous pictures of the de-horning of a calf. De-horning a calf requires no license or supervision in Minnesota unlike teeth floating. De-horning is a painful, bloody procedure. The Professor had to admit on cross-examination that de-horning was a far more serious and invasive procedure with greater risk for infection and complications than teeth floating.

The theory of those opposed to the law (Minnesota Law requires 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) was that the State of Minnesota has no rational reason for singling out teeth floating to be licensed when there are far more serious procedures being done by non-licensed individuals. Some animal husbandry practices which are being performed without license or supervision in addition to de-horning, are castration, tail docking and farrier work where nails are driven into a horse’s hoof right next to live tissue.

The Johnsons called a local farmer who testified in graphic detail about pig castration (just too much information!) and a horse owner who testified how difficult it is to find a veterinarian to float teeth, and if you find one, he or she is not nearly as competent as the “teeth floaters,” since vets in the area do not routinely float teeth as part of their practice.

The evidence at trial further established that veterinary students in Minnesota receive forty minutes of instruction on teeth floating and are not graded on competency of “hands-on” teeth floating. Yet, upon graduation, the veterinarian, with forty minutes of instruction and no practical experience, can float teeth, but Chris and Jim Johnson, with decades of hands-on experience, cannot!

Lastly, the Johnsons called Morris Kleiner, an economics professor at the University of Minnesota. Professor Kleiner testified that the Minnesota Law and Regulations on teeth floating were a good example of “regulatory capture” or a situation where industry insiders use government power to keep out competition. In the instant case, the state veterinarians are attempting to restrict teeth floating and eliminate competition, such as the Johnsons.

Professor Kleiner testified that irrational and improper occupational licensing laws which restrict people from performing jobs that do not require a great deal of education or capital can affect a number of people in daily life. Where government is used to limit who may perform a job or service, what services they may provide and how much they may charge, our economic freedom as individuals is curtailed.

Professor Kleiner also testified that occupational licensing does not result in a better product or service and actually costs the national economy significantly in lost profits and nuisance fees. Occupational licensing results in higher prices unaccompanied by any measurable quality benefit. As such, Professor Kleiner saw no benefit or rational reason to control teeth floaters.

At the conclusion of the trial the judge did not issue a decision and required the parties to file legal briefs in support of their respective positions. Certainly the Johnsons presented a spirited defense of their position, allowing them to continue to float teeth without pointless government intrusion. As an attorney I know how difficult it is to beat “city hall” and the judge may well find that the State of Minnesota does have a legitimate interest in regulating teeth floaters. However, I must admit, that I like the Johnsons’ argument better.

Government intrusion into our lives is not something most of us are for, especially where there is no rational basis for the intrusion. Taxing individuals for an occupational license and eliminating competition should never be enough reason in and of itself. We have already seen the government tell the rancher, farmer and horse owner that they cannot sell their horse for slaughter, the federal and state governments continue to push for a National Animal Identification System and other proposals for additional restrictions on horse owners continue to be discussed.

It will be interesting to see if the government intrusion trend continues and if the Minnesota and Texas Court decisions will be another indicator of that trend.

Rest assured, I will keep you informed on the decisions in the “horse teeth floating” cases.

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

Ken is a practicing attorney in Myerstown, Pennsylvania, 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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