Monday, May 18, 2015

Upsetting news related to soring Tennessee Walking Horses: new developments in the case against Larry Wheelon.

Rate My Horse PRO delivered disturbing news today: a Tennessee judge threw out a search warrant in the case of Larry Wheelon, on the grounds of an unconstitutional search.

Larry Wheelon is a Tennessee Walking Horse trainer facing multiple charges of aggravated animal cruelty. Wheelon is accused of soring 19 horses. Now, the case against him might not be able to go forward based on the judge’s ruling.

I’m not saying the judge was wrong. The Fourth Amendment protects people from unconstitutional searches and seizures of their property. Criminal Procedure 101: in order to conduct a search, authorities have to have a valid warrant. According to the judge in Wheelon’s case, a federal agent made some unconstitutional undercover visits to Wheelon’s farm, and there were some credibility issues with the basis for the warrant. As lawyers we talk about having good facts and good law. Here, the prosecutors have good facts but the law seems to favor Wheelon.

Soring horses means deliberately causing pain to the horses’ legs to create an artificial gait. It can be accomplished by applying chemicals to the bottoms of the hooves so that they burn when they touch the ground, or by using physical devices such as pads and chains. Regardless of the method, it is illegal and unethical.

So WHY do we not speak out against soring more? If you read Sidelines magazine, you might have seen the article on Priscilla Presley and her condemnation of soring. Mrs. Presley has worked hard to end soring but she cannot do it alone. The Horse Protection Act of 1970 laid the groundwork for fighting soring, but has not been nearly as effective as one would hope. The HPA is largely unenforced and the penalties it prescribes are minimal. The PAST Act would amend the HPA to improve enforcement and strengthen penalties. It is supported by the American Veterinary Medical Association, the Humane Society of the United States, and many more. Add your voice by calling your state representatives in Congress and letting them know that you support the PAST Act and hope for their support when it hits the floor.


Want to know more about the Horse Protection Act and the challenges in fighting soring? Read Kjirsten’s law review article published by the Kentucky Journal of Equine, Agriculture, and Natural Resource Law: “When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show Circuit.”

Wednesday, May 6, 2015

What do you mean, blanketing is extra? What to expect in a boarding contract.

Regular readers know that I’m a proponent of having things in writing. Of course, this goes completely against what 99% of horse people are accustomed to. In the horse business more than almost any other profession these days, business is done on a handshake. It’s easier and less complicated, but also leaves everyone in the dark as to who is supposed to do what. More importantly, if something goes wrong it can leave the injured party without a legal remedy – they’re simply, and sadly, out of luck.

Consider this: Bobby Boarder brings his horse, Gemstone, to Pleasant Pastures, a retirement boarding facility owned by Onna Owner. Bobby does not sign a boarding contract but pays the required amount due, always on the first of each month. Five months later, Onna asks Bobby to leave without giving any reason for her request – she simply tells him he needs to take his horse and go within 72 hours. Bobby scrambles to find a new barn, and the only barn that will take him costs twice as much as Onna’s. Bobby asks his lawyer if he has any legal rights or remedies.

Sadly, Bobby is probably out of luck. A boarder’s rights are generally dependent on what the boarding contract says, unless you are in a state with hefty case law on the subject. Aside from being a good legal tool, a good boarding contract informs the boarder and the facility owner of their rights and obligations, and provides a basis for dispute resolution. So what do you need to have a good boarding contract?

The Basics.

The army says name, rank and serial number; horse people say name, breed, color & markings. Your boarding contract should clearly identify the horse that it pertains to. For example: “Alwaysabridesmaid. Chestnut TB. Mare. 16.0 hands. Stockings on both hind legs and left front. Blaze. Lip tattoo.” Tattoos, brands and scars can be particularly useful in identifying a horse, so make sure you note them in your description.

Next, the contract should state the name and location of the facility: “Green Acres Farm, 772 Westwood Lane, Lexington, KY.” It also should state who owns the facility and who is the barn manager, if different from the owner.

Terms & Conditions.

What is a contract but a legally binding list of people’s obligations to each other? The contract needs to spell out what each party (horse owner and barn owner) is expected to do for the other party. So:

·      Dates: what date does the contract take effect, and how long will it be in effect. Is it a contract for a month of board, a year, or any other period of time. Additionally, the contract should state whether it automatically renews at the end of each contractual period. For example: if you sign a monthly contract that automatically renews, then you don’t need to sign a new contract every month and will continue to be bound by the terms of the original contract until the contract is terminated.
·      Fees: boarding, blanketing, trailering, holding for vet & farrier, etc. Spell it all out.
·      Feeding: what is provided and what will the owner have to provide themselves. Some barns provide only a set poundage of feed, and if the owner wants to feed more or feed a different type of grain or roughage (i.e., alfalfa, sweet feed, etc.), that’s their responsibility. Supplements are almost always up to the owner to provide.
·      Stall: if a stall is provided, how big the stall is, what kind of bedding is used, if a salt block is provided in the stall, and how often stalls will be cleaned.
·      Turn-out: when are the horses turned out and what the turn-out situation is. This can be how many horses are turned out together, what the fencing is, whether there is pasture or dry lot, and so on.
·      Blankets: are boarders required to provide blankets, if so where are they to be stored, AND will the barn blanket and change blankets. Boarders, make sure to ask if there will be an extra fee for blanketing!
·      Access: when will the horse owner have access to the horse. Many show barns are closed on Mondays, and boarders need to be aware of whether that applies to them. There may also be certain hours during which the facility will not have a staff member on site, so they will close during this time.
·      Emergency communication: who will be contacted and when.
o   Who: List the owner and an alternative emergency contact as well as the horse’s veterinarian and farrier. If the barn has one veterinarian they use, that veterinarian’s contact information should be listed in the contract. The same goes for farriers.
o   When: This gets tricky – if a horse is colicking, should the first call be to the veterinarian or the owner? Add in an insurance company and you’ve really got some questions to navigate.
·      Health & vaccination requirements: what vaccinations does the facility require, including a negative Coggins test; whether the facility has a deworming program.
·      Termination: who can terminate the boarding contract and when. Will the barn owner require notice before the horse owner removes their horse? On the other hand, will the barn owner have to give notice before asking a boarder to leave? Remember Bobby from earlier in this post!
·      Liability release clauses.
o   Risk of loss: horse owner assumes specific risks associated with leaving horse in facility’s care.
o   Hold harmless: horse owner agrees to release facility from liability associated with any injury to horse, horse owner, or anyone the horse owner brings to the barn. If required, note that horse owners and their guests will be required to sign additional liability releases.
·      Stable rules: asserts that the horse owner has received a copy of the stable rules and agrees to abide by them.
·      Insurance: if the horse is insured, the owner should provide the contact information for the insurance company and instructions on when to contact the company.
·      Special instructions: the horse owner can note any special instructions. If there will be an extra cost, the facility owner should note those costs in this section as well.
·      Lien rights: note that the stable can legally exercise its lien rights, if available in the state. Check your state!
·      Arbitration clause: consider having a clause requiring arbitration or mediation before litigation. If there is a dispute, arbitration or mediation can be a quicker and less expensive tool for resolution.
·      Choice of law clause: what state’s laws will apply to a dispute. This is particularly important for barns serving clients from multiple states.
·      Attorney’s fees clause: if there is a dispute, who will pay the attorney’s fees. These can be immensely costly, so it helps to state who is responsible for paying them.

Signatures.

A contract is only enforceable against the parties who agree to be bound by its terms and conditions. A boarding contract must be signed by the horse owner and the facility owner and/or manager.


Remember that what I’ve laid out here is just a list of suggestions. Boarding contracts should be individualized to fit a particular facility’s needs. To have a contract custom-made for your facility and program, contact an equine attorney.

Friday, May 1, 2015

The 30th National Conference on Equine Law

Spring in Kentucky is full of promise: new foals frolic on the bluegrass, the eventing season kicks off with the Rolex Kentucky Three-Day Event, and Kentucky Derby hopefuls prepare to make their mark on Thoroughbred racing. Amidst this activity a group of lawyers and horse people gather for the National Conference on Equine Law. Hosted by the University of Kentucky at Keeneland Racetrack, this event brings people from all over the United States - and even some international participants!

2015 was my first year at the conference. I looked at the conference agenda and read the speaker bios. I had signed up to receive the conference materials electronically, so I downloaded them onto my iPad (I confess I didn't read them beforehand). I got to Keeneland Wednesday morning to watch morning workouts - something I HIGHLY recommend if you're in Lexington! - and took my seat in the Keeneland Sales Pavilion, settling in with my iPad, legal pad and pen. The next two days were a fantastic succession of talks by brilliant speakers, all of whom are passionate about their work with the equine industry. I want to share a few of my favorite topics.

The first day started with a case law update by Frank Becker, who teaches Equine Law at the University of Kentucky College of Law and has his own equine law practice in Lexington. He discussed several cases from the past year. The cases addressed sale and ownership of horses, security interests and liens, racing, personal injury, and more. He provided a summary of each case in the conference materials and discussed what some of the case holdings mean for equine law moving forward.

One of the panels I found particularly interesting was on medication and testing. For this, attendees heard from Susan Speckert (Kentucky Horse Racing Commission), Rick Goodell (New York State Gaming Commission), and Alan Foreman (private practice). We heard about the uniform medication program, laboratory accreditation, and out-of-competition testing. As I've written in an article coming out in the Journal of Animal & Natural Resources Law, one of the challenges in racing is the lack of uniform medication regulations. The speakers at this panel discussed how the states are addressing this by implementing the uniform medication program, and by using accredited laboratories for testing. There are fewer accredited labs, which means that if racetracks want to send samples to an accredited lab, they are more likely to be using the same lab as other racetracks. This consolidation of laboratories is achieving uniformity in medication testing.

Dean Dorton Allen Ford sponsored a cocktail and networking reception on the evening of the first day. This was a wonderful opportunity to meet and talk to other conference attendees.

Day 2 began with a legislative update provided by Jay Hickey of the American Horse Council. He shared what legislation has already been introduced for the upcoming legislative session, and what legislation is anticipated. Some interesting, possibly lesser-known pieces involve immigration reform to protect undocumented illegal workers - a crucial part of the horse industry in some areas - and the Equestrian Safety Helmet Act. The helmet act does not mandate wearing helmets, but would set national safety standards for all helmet manufacturers. Finally, Mr. Hickey discussed AHC's marketing alliance: Time to Ride. This is an attempt to attract newcomers to the horse industry. I think it would be an excellent idea for college riding programs to create interest and connection with the community, and to introduce students to the wonderful world of horses.

Julie Fershtman presented on one of the hot topics in equine law: Equine Activity Liability Acts. This is an area of concern for all horse owners and professionals. She talked about some of the recurring issues, including whether the plaintiff in a case qualifies as a "participant" (the definition varies by state) and whether the defendant is protected under the applicable statute. She also spent some time talking about the various exceptions to immunity under the statute, all of which can be found in your state's statute. The last part of her talk was about liability waivers and releases. She noted that while courts aren't all in agreement, the majority will uphold releases of liability.

In the afternoon on the second day, Matthew Williams (Wyatt Tarrant & Combs) gave an update on intellectual property issues. These issues can arise in decisions about jockey silks, horse names, farm names, and so on. For instance, the Ruffian case (Thoroughbred Legends, LLC., et al. v. The Walt Disney Co., et al.) was about the movie rights to the story of Ruffian, a famous racing filly. For the average horse enthusiast, intellectual property issues may not have much impact on their lives. However, show barns and businesses should be aware of any copyrights or trademarks they might be infringing upon when they design their logos.

The conference concluded with a discussion of the effective litigation strategies, presented by successful trial attorneys David Royse (Stoll Keenon Ogden), Craig Robertson (Wyatt Tarrant & Combs), Dorothy Burch (Ragsdale Liggett) and Ira Finkelstein (private practice). The speakers presented ten tips and told some war stories, and ended by reminding us all that the horse world is a small world.

One of the most important take-aways from this conference is that lawyers who practice equine law are generally themselves involved in the horse industry. Because they're involved in the industry, they understand the issues and parts of the horse industry that non-horse people don't always get. So - if you have a legal question related to your horses, contact an equine attorney. We speak your language!