Earlier this week, the WHO published a study claiming that red meats - particularly processed red meats - are carcinogenic. While it is unlikely that this study will cause Americans to stop eating red meat in general, there is one red meat that is absolutely off the table: horse meat. There are currently no operational equine slaughterhouses in the United States. However, that does not mean that horses aren't shipped to slaughter in this country. Both Mexico and Canada allow horse meat to be processed and sold. Some of that meat comes from horses that originate in the U.S.
In April of this year, Rep. Frank Guinter (R-NH) introduced the Safeguard American Food Exports Act. The entire text of the bill is available here. Essentially, this bill would ban the export of horses and other equines for slaughter and consumption. It would establish Congressional recognition that the United States does not raise horses for consumption, and that horses in the U.S. are regularly treated with medications that are unsafe for human consumption. The same bill has been introduced in the Senate by Senatory Robert Menendez (D-NJ).
The bill has been referred to committees in both the House and Senate.
Tuesday, October 27, 2015
Sunday, October 25, 2015
It’s fall, and equestrians know what that means…trail rides! When the leaves start changing color, there’s no better way to enjoy the outdoors than on horseback. Ok, so that’s true for the rest of the year as well, but fall brings some particularly beautiful rides, as well as increased challenges to trail riding – specifically related to the land we ride on.
Some folks are lucky enough to have miles of trails on their own land. For many people, however, trail riding means venturing away from home, whether it’s to a neighbor’s property or on public lands.
Before hitting the trail, make sure horses are allowed where you plan to ride. Check with the local park staff if you are planning to ride on public lands, and with your neighbors if the trails you will be exploring are privately owned. If you are unsure whether the trails you will be riding on cross onto neighboring land, it’s a good idea to consult a plat book to find out if you need to get permission from someone. Verbal permission is great, but it is best to have written permission from the landowner. An equine attorney can help you draft a short agreement giving you limited permission to ride on someone else’s property while limiting your liability if anything bad happens.
For those riding on public property, make sure you check with a member of the park staff regarding the current rules for using the land. You should always plan to bring your own water and hay, but make sure that there aren’t specific restrictions or requirements.
One of the biggest concerns for trail riders in the fall is whether there are hunters nearby. It is not unheard of for horses to be unintentionally shot by hunters, and you will probably hear gunshots in the distance. You can reduce any risk by wearing bright clothing to clearly indicate that you are human. Good colors include safety green or blaze orange. Try to avoid known hunting areas, and if you are riding on neighboring property ask the landowner if anyone will be hunting there. Try to talk with any hunters beforehand and determine when they will be out - most likely early morning or evening. Avoid riding during those times if at all possible. You can find other safety suggestions for trail riding during hunting season here.
Hunters are not the only other trail users you might encounter. In many areas, dogs are also allowed on trails that have equine access. If you run into an unleashed dog on your ride, the best thing is to halt and ask the dog’s owner to restrain the dog while you pass, or to restrain the dog and pass you. Try to avoid direct contact between dogs and horses if at all possible. Also check to see if ATVs are allowed where you will be riding. These vehicles sometimes travel at quick speeds, and are unable to make rapid stops.
What to do in case of an accident
Accidents can happen even if you take every precaution. If there has been an injury, it is best to call for emergency help. If you are on private land when an accident occurs, call for emergency help and then notify the landowner of what has happened. If you have concerns about whether you will be subject to legal liability for an injury, or if you think you have been injured, consult an equine attorney.
I hope everyone has a fun and safe fall, full of trail riding adventures!
Wednesday, August 5, 2015
There are two important bills going through Congress during the current legislative session related to equine welfare. The first relates to the Horse Protection Act, which regulates soring in the Tennessee Walking Horse industry. The second relates to racehorses. As horse owners and horse people it is good to stay up to date on what laws and protections are out there, so I’ve compiled a little summary of each bill.
The Prevent All Soring Tactics Act of 2015 (PAST Act)
Reintroduced in April 2015. This bill is sponsored by Senator Kelly Ayotte of New Hampshire and has 44 cosponsors. (For those unfamiliar with legislative jargon, a sponsor is the person who presents a bill for consideration and cosponsors are those who add their names in support of the bill). The stated purpose of this bill is “to amend the Horse Protection Act to designate additional unlawful acts under the Act, strengthen penalties for violations of the Act, improve Department of Agriculture enforcement of the Act, and for other purposes.” The bill states that the USDA has determined that the current inspection program is inadequate for preventing soring. The bill provides for the following penalties when a horse is found to be sore:
- First offense: horse is disqualified from being shown for at least 180 days
- Second offense: horse is disqualified for at least one year
- Third offense: horse is disqualified for at least three years
Additionally, the maximum fine associated with violating the Horse Protection Act would be raised from $3,000 to $5,000. The maximum time of incarceration for such a violation would also be raised, from one year to three.
This bill has been introduced in previous legislative sessions but has never progressed very far.
Introduced for the first time in June 2015. This bill is sponsored by Representative Joseph Pitts of Pennsylvania and currently has 2 cosponsors. It’s stated purpose is “[t]o improve the integrity and safety of interstate horseracing, and for other purposes.” This bill would create an independent anti-doping organization responsible for “ensuring the integrity and safety of horseraces.” The independent organization would have the power to create, publish, and enforce rules related to use of substances in racehorses. It would also be able to exclude people who violate anti-doping rules or are otherwise subject to suspension by any State racing commission.
The 2015 legislative session is the first time a bill like this has been introduced in Congress.
This is the briefest summary of each of these bills. For more information on each, follow the links in the titles. You can also read my articles:
When Cheaters Prosper or That’s Just How It Is? A Look at Abuse – Or Industry Practices – On the Horse Show Circuit, published in the Kentucky Journal of Equine, Agriculture, & Natural Resource Law (2014), and
Transgressing Trainers and Enhanced Equines: Drug Use in Racehorses, Difficulty Assigning Responsibility and the Need for a National Racing Commission, published in the Journal of Animal & Natural Resources Law (2015).
Have strong feelings about one or both of these bills? Let your senators and representatives know!
Sunday, July 5, 2015
One of my favorite television shows is Buying & Selling on HGTV. The stars of the show help homeowners renovate their homes to receive top-dollar, while also seeking a new home. Sometimes horse trainers can be seen as having similar roles: maximizing a horse’s potential for a sale, and searching for a new, more appropriate horse for the owner.
Buying and selling horses is one way for professionals to get their name into the market and make a profit. The ability to make a profit frequently depends on the trainer’s ability to identify potential and draw it out. However, the trainer should also be aware of their legal rights and duties when buying and selling.
There is an old saying: caveat emptor, or buyer beware. This basically means that a buyer assumes the risk that what they are purchasing may fail to meet expectations, or may be defective in some way. Buyers can protect themselves by doing their research and having a carefully worded sales contract.
Horse searching can be a long, stressful process. It is sometimes tempting to cut corners – buy a horse sight unseen, buy without a pre-purchase exam, and so on. For amateurs buying their first horse, it is a good idea to work with a trainer who has connections and knows where to find appropriate horses.
A buyer’s research should cover both the horse in question and the seller. As to the horse, the buyer should see the horse go and, ideally, ride the horse. The buyer may also want to look up the horse’s show record, if possible, and look into the pedigree, being on the lookout for a history of unsoundness or training difficulties. It is always a good idea to have a pre-purchase exam performed so as to be aware of the horse's physical condition. The exam should be performed by the buyer's veterinarian or by a neutral vet who has never seen or treated the horse, and preferably has not treated other horses at the seller's barn if possible. This avoids any claims of conflict of interest.
As to the seller, it is worth considering a professional’s reputation when deciding to purchase a horse from them. A professional with a reputation for honesty and trustworthiness can be easier to deal with than someone who has a reputation for “horse dealing” or being “fast and loose with the truth.” If you are purchasing from someone who falls into the latter category, it is even more important to have a well-written sales contract, approved by an attorney. This can help a buyer avoid heartache and financial loss if there is a disagreement regarding the horse sold or the terms of the sale.
Having just noted the importance of a well-written sales contract, I have to say that buyers are frequently at the mercy of sellers when it comes to contracts used in a sale. The seller usually presents the buyer with a contract, and the buyer has a few minutes to read and sign – with no opportunity to consult an attorney. Keeping this in mind, buyers might want to familiarize themselves with basic horse sale contracts and talk to an attorney about any terms or clauses to beware of. When you are presented with the contract, be sure to read it thoroughly and ask about any clauses or terms that you do not understand.
As sellers, horse owners want to find the best new home for their horse. While you can pull basic sales contracts off the internet, it is always a good idea to have an attorney review and customize a contract for your own use. The attorney can tell you whether certain clauses are unnecessary and make sure that all of your concerns are covered by the contract.
Sellers should also be aware of the buyer's interests and needs. As an equine professional, don't be afraid to tell a potential buyer (tactfully) that you don't think a particular horse is a good match. Some ruffled feathers at the time are preferable to a lawsuit down the road and a bad reputation when the buyer decides the seller knowingly sold an unsuitable horse!
Common clauses in sales contracts
· Right of first refusal. This clause gives the seller the right to have the first option to buy the horse back if the buyer decides to sell the horse. This right MUST be in writing to be enforceable, and even then the original seller may not be entitled to have the horse back if the initial buyer sells the horse without disclosing the original seller’s interest.
· “As-is” clause. This clause states that the buyer takes the horse as-is, with no guarantees of future performance. This is an important clause for sellers, and one that buyers must be aware of.
· Deposit. Buyers may put a deposit down, with the remainder of the purchase price to be paid upon successful completion of a pre-purchase exam. The terms of this deposit should be expressed clearly in the contract.
· Venue. In the event of a lawsuit, this clause states where the buyer can be sued and what state’s law will govern. In today’s era of interstate and international sales, a venue clause is particularly important.
· Risk of loss. Particularly if the horse will be transported from the seller to the buyer – i.e., the sale is not between people at the same barn – this clause states who bears the risk of the horse being injured between the time that the sales contract is signed and the horse arrives at its new home.
Questions about buying and selling? Contact an equine attorney! Equine attorneys understand the particular challenges involved in buying and selling horses and can advise buyers and sellers on best practices.
Wednesday, June 24, 2015
There are many jobs in the equine industry, but not all jobs are created equally when it comes to how they are classified under the law. For example, take this hypothetical: Rocking R Ranch employs several people to do different jobs. Billy cleans the stalls, Margaret keeps the books, and John is the head trainer. Rocking R has employment agreements with each individual and lists Billy as an employee but Margaret and John as independent contractors. Is this correct? The decision will determine responsibilities and liability for Rocking R and its workers.
The distinction can make a world of difference for both the barn and the three workers. First, employees are protected by state and national laws ranging from state workers’ compensation laws to the federal Fair Labor Standards Act. Independent contractors, on the other hand, are not so protected. Additionally, employers of independent contractors do not pay taxes on their workers’ salaries and are not responsible for providing workers’ compensation, unemployment insurance, or other employment benefits. Finally, if an independent contractor commits a wrongful act, the employer will not be liable in the same manner that they might if an employee committed the act.
The IRS considers three overarching factors in determining whether a worker is an employee or an independent contractor for tax purposes. These factors are:
1. the amount of behavioral control the employer has;
2. the amount of financial control the employer has; and
3. the general relationship between the parties.
In analyzing these factors, the IRS considers how the worker performs their assigned tasks and how much instruction the employer gives. The IRS will also consider to what extent materials for the assigned tasks are supplied by the employer or by the worker. Generally speaking, the more input the employer has, the more likely the IRS is to find the worker is an employee rather than an independent contractor.
Federal courts consider other factors in determining, for example, whether an employment relationship exists for purposes of federal employment laws. These factors include:
1. the degree of the employer’s right to control how the work is performed;
2. the degree of skill required to perform the work;
3. the worker’s investment in the business;
4. the permanence of the working relationship;
5. the worker’s opportunity for profit or loss; and
6. the extent to which the work is an integral part of the business.
States sometimes simplify these factors into a “right to control” analysis. Under this test, the relationship between employer and worker is categorized according to the amount of control the employer exercises over the mode, method, and manner of the work performed. This analysis is frequently employed in cases regarding the employer’s liability for the worker’s wrongful act.
Under the doctrine of respondeat superior, an employer is liable for the wrongful acts or torts committed by an employee in the scope of the employee’s work (with some exceptions). An employer is not liable for wrongful acts committed by an independent contractor, with some exceptions. If an employee commits a tort while deviating from the normal course of employment, the employer may be able to escape liability. This ability will depend on whether the deviation was a minor “detour” or a more substantial “frolic.” If it is a frolic, it will be outside the scope of employment and respondeat superior will likely not apply.
Consider this: John (the head trainer at Rocking R) negligently assigns an advanced horse to a beginner rider and the rider is injured. Liability will depend on whether John really was an independent contractor. In a court using a right to control analysis, the court will consider how much influence Rocking R had over John’s work. If John has an exclusive contract with Rocking R, Rocking R states in its employment contract how John is to assign horses to riders, Rocking R pays John a salary rather than an hourly wage, and Rocking R depends on John’s teaching, the court will be more likely to decide John is an employee. Therefore, Rocking R would be vicariously liable for the rider’s injury.
When creating liability release forms, a best practice is to include a clause stating that the signor agrees to release all employees and independent contractors. That way, everyone employed by the barn will be protected regardless of their categorization under the law. But remember – even the most well-drafted liability release form will probably not protect against gross negligence!
Like most legal questions, determining whether a worker is an employee or an independent contractor is a fact-intensive inquiry. Therefore, if you have specific questions, you should consult a licensed attorney.