Horses and the Law

Making The Punishment Fit The Crime

Milt — Tue, 16 Mar 2010 12:05:00 GMT

The verdict came down last week, but the story is far from over.

On March 10, Judge George J. Pulver Jr. found prominent New York Thoroughbred owner and breeder Ernest Paragallo guilty on 33 separate counts of animal neglect. The charges arose from the April 2009 seizure of 177 horses, many severely malnourished, from Paragallo’s Center Brook Farm near Albany. It took almost a year for the case to proceed from seizure of the horses to a trial and verdict. That sounds like a very long time, but investigation and preparation for trial by both sides is a time-consuming process. Paragallo is free on bail, with sentencing scheduled in two months, on May 18. His attorney reported plans to appeal the guilty verdict.

Even if the judge decides to throw the book at Paragallo and impose the maximum sentence allowed by law, animal advocates may be disappointed with the result. The "book" in New York is not very heavy.

With the exception of "aggravated cruelty" to a "companion animal," which is a felony, animal abuse and neglect in New York is a Class A misdemeanor. Because horses are specifically excluded from the legal definition of "companion animal," neglect or abuse of a horse, no matter how cruel or heinous, cannot be prosecuted as a felony. The maximum sentence of imprisonment that can be imposed for a Class A misdemeanor is one year. This is called a "definite sentence," and by law in New York (and almost everywhere else) all definite sentences imposed at the same time must run concurrently. This means that the maximum jail sentence for one count of animal abuse or neglect is the same as the maximum for many counts.

The maximum fine for a Class A misdemeanor is $1,000 for each offense or, in Paragallo’s case, a total of $33,000. He also may be required to pay for the cost of caring for the horses. Paragallo reportedly has been represented by some 4,600 runners which have earned in excess of $20 million in purses, and he is part-owner of Unbridled’s Song, which stands at stud in Kentucky for a $100,000 fee. In that light, the maximum fine seems more like a drop in the bucket than a meaningful punishment. Nor are the maximum jail time and fines a requirement. A judge has the discretion to impose the maximums, or something less.

The disparity between potential punishments for abuse and neglect of a companion animal and a horse raises a question that is not limited to New York: Why should one species receive more protection than another? Is it because lawmakers think that companion animals suffer more when abused than farm animals? Or is it because companion animals are cuter and more sympathetic? Or is it because we, as a society, are more willing to accept abuse when the animal is tucked away out of sight on a farm instead of in our living rooms? Or is it because this is the way things have always been done?

None of these are satisfactory answers. The punishment for abuse and neglect should not depend on the species of animal harmed.

What About The Horses?

Milt — Tue, 09 Mar 2010 12:11:00 GMT

A few weeks ago, I commented on Lope Gonzalez, a Florida Thoroughbred breeder who lost the privilege of registering horses with The Jockey Club after his conviction for animal neglect in Florida. The lifetime ban on registering horses imposed by The Jockey Club, which could effectively end Gonzalez’s livelihood as a Thoroughbred breeder, was far more severe than the slap on the wrist handed down by Marion County Judge Steven G. Rogers. Gonzalez was fined $50 for each of 33 counts of misdemeanor animal neglect and his jail sentence was probated for a year.

Lost in the discussion of the criminal case against Gonzalez was any mention of the horses. What happened to them?

In August 2009, 32 Thoroughbreds and one Quarter Horse were seized from Gonzalez’s farm near Ocala, Florida, and placed in the care of Marion County Animal Services. The horses reportedly had a variety of health problems and many were severely malnourished. While the criminal case against Gonzalez was winding its way through court, Marion County initiated a civil action to recover the costs of caring for the horses.

On September 11, 2009, County Court Judge Sarah Ritterhoff Williams entered an Order in the civil case. Her findings of fact included specific determinations that the horses seized from Gonzalez were "neglected and cruelly treated," that Gonzalez was "unable, and unfit to have custody of, and provide adequately for said animals," and that Marion County already had spent almost $9,000 caring for the animals. Judge Williams’s finding that the horses had been neglected had no impact on the criminal case against Gonzalez. The standard of proof in a civil case is not as high as the proof "beyond a reasonable doubt" required for a criminal conviction. Remember O.J. Simpsom, who lost a civil lawsuit for wrongful death after being acquitted in his murder trial.

Judge Williams ordered that Gonzalez turn over all registration papers and other documentation for the horses to Marion County. This would facilitate later sales or adoptions. Gonzalez also was ordered to repay the expenses already incurred by the county to care for the animals, plus an ongoing fee of an additional $12/day for each horse.

So far, so good. But then things took an odd turn.

Despite her findings that the seized horses had been neglected and that Gonzalez was unfit to have custody of the animals, Judge Williams ordered that the horses be returned to him if he paid Marion County for their care within 10 days. Further complicating matters, Judge Williams next restricted the number of horses that Gonzalez could buy, acquire, own, or possess to 10 animals. The judge also ordered Gonzalez to provide a detailed plan of care for the animals seized from his farm, and that the plan satisfy "minimum care standards" established by Marion County Animal Services.

Twenty-three of the seized horses eventually were put up for adoption by Marion County, for a fee of $75 each. The other 10 presumably were returned to Gonzalez pursuant to Judge Williams’s order. A condition of Gonzalez’s probation in his criminal case was that his ownership of horses in the future be consistent with the civil court order. There was no time limit on the ownership restriction, although Gonzalez can petition the court for modification in the future.

These proceedings raise a bothersome question: how can a judge order that horses be returned to an owner, when that owner was found by the same judge to be "unable, and unfit" to have custody of the animals? An "unfit" owner does not magically become a "fit" owner simply through payment of a fine. It is a puzzle, one that strengthens the proposition that meaningful forfeiture provisions should be a part of every state’s animal abuse and neglect laws.

Meet My Horse—"Fido"

Milt — Tue, 02 Mar 2010 12:41:00 GMT

If your horse lives on a farm, is it a "farm animal?"

If your horse lives in the back yard, and gets more attention than your dog or cat, is it a "companion animal?"

If your horse shares a pasture with cows, or sheep, or llamas, is it "livestock?"

The answers depend on state law, which generally lumps horses with other livestock. But state law can be revised to reflect changes in the use of animals or the perception of the role of animals in society. The New York State Senate, for example, is considering legislation that would alter the legal status of horses. The proposed bill (S6729) would amend Section 350 of the state’s Agriculture and Markets Law to remove horses from the statutory definition of "farm animal." The legislation does not simply add horses to the existing definition of "companion animal," which includes "any dog or cat, and . . . any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal." Instead, a new legal category for horses would be created if the amendment is approved.

Horses used for "recreational pursuits," including racing, jumping, showing, and rehabilitation, would be classified as "equine companion" animals. This would not, by the way, alter the current legal status of animals as the personal property of their owners, nor would it bestow legal rights on animals. That is the purview of the Guardian Movement, which is an entirely different kettle of fish.

One effect of the proposed change would be to broaden the application of animal protection laws in New York. Under the current scheme, misdemeanor animal abuse and neglect applies to a person who "overdrives, overloads, tortures or cruelly beats or unjustifiably injures, mains, mutilates, or kills any animal." Horses clearly fall into this category.

Aggravated cruelty to animals, on the other hand, is a more serious felony that applies only to individuals who cause physical injury to a companion animal. Because the current definition of companion animal specifically excludes "farm animals," horses cannot, by law, be the victims of aggravated cruelty—no matter how despicable their treatment. Arguably, horses as "equine companions" would fall under either the misdemeanor or felony animal cruelty statutes, based on the severity of the abuse or neglect, but that is not at all clear.

This seems like a positive step, but there are some potential problems.

If horses lose their status as farm animals or livestock, will the United States Department of Agriculture and state departments of agriculture continue to support humane treatment for horses and research into equine-specific diseases? Or will that already limited support vanish?

Will commercial breeders of horses for racing or shows be eligible for agricultural loans if their animals are considered companion animals rather than livestock? And will the Internal Revenue Service be reluctant to confer business status on a commercial horse farm that raises companion animals rather than livestock?

How would such a change affect equine liability laws in states like Kentucky, where those laws are written broadly to cover injuries to participants in "farm animal" activities rather than "equine" activities? Would sponsors of equine activities lose the protection of those statutes if horses no longer are farm animals?

These questions are all very speculative, and none present insurmountable difficulties. A far simpler approach, though, is to simply apply the full range of a state’s neglect and cruelty laws to all animals, horses included.

Quantum Meru . . .What?

Milt — Tue, 23 Feb 2010 11:12:00 GMT

Is a horse owner always obligated to pay the bills for necessary goods and services arranged by a trainer but provided by a third party?

Probably, at least according to the Appellate Division of the Superior Court of New Jersey.

The case involved a Standardbred owner, a trainer, a veterinarian, and a horse named River Runs Red. The issue was whether the owner was responsible obligated to pay $1,866 for veterinary treatment authorized by the trainer. The veterinarian testified that he had talked with the owner, who told him to "do everything you have to do to take care of my horse." The veterinarian also testified that the trainer had authorized and approved the specific veterinary work done on River Runs Red.

The horse owner did not dispute that the veterinary services that were billed had been performed, or that the work was necessary. The vet work included vaccinations for rabies, influenza, and rhinopneumonitis, which were required by the race tracks where River Runs Red competed. Nor was it disputed that the trainer had requested the veterinary work for River Runs Red.

The trial judge found the horse owner to be the more credible witness. Based on the owner’s testimony that there had been no conversation between the owner and the veterinarian, the judge determined that there had been no express contract between the two that would obligate the owner to pay the vet bill for River Runs Red. The judge would not allow the veterinarian’s attorney to pursue a claim based on the fact that the trainer was an agent of the owner. This was an odd ruling, considering that an agency relationship between a horse owner and a trainer usually goes without saying in the horse business.

Agency is a legal relationship in which one individual (called the "principal") gives another individual (called the "agent") authority to act on the principal’s behalf. When this happens, the acts of the agent obligate the principal to complete the transaction. This relationship is what allows a bloodstock agent to buy a horse on behalf of someone else, who must ultimately pay for the animal. With a few exceptions, the agent incurs no financial liability in the transaction.

The veterinarian appealed the decision. The appellate court also skirted the agency issue but reversed the trial court and ruled in the veterinarian’s favor anyway. Assuming that there had been no conversation between the horse owner and the veterinarian, and assuming that the trainer had no actual authority to contract for the services on behalf of the owner, the court found that the veterinarian still could recover under a legal theory called "quantum meruit." This simply means that a person who does something for someone else with an expectation of getting paid, should get paid. Even without a contract for the services, the court found that the veterinarian could pursue a claim for the reasonable value of the services he provided.

Any value as legal precedent the court ruling might have stops at the New Jersey border. Courts in one state are not obligated to follow rulings from other states. The New Jersey ruling does bring up a sound legal argument, however, that can be raised in other jurisdictions as an added protection for veterinarians and other providers of goods and services.

The case is Danvers v. Bilach, No. A-4608-08T2 (N.J. Superior Ct, App. Div., Dec. 29, 2009).

Time To Take A Stand

Milt — Tue, 16 Feb 2010 11:47:00 GMT

The Jockey Club imposed the organization’s version of the death penalty on Lope M. Gonzalez a few days ago, denying the Florida Thoroughbred breeder "all privileges of The American Stud Book." The lifetime ban on registering Thoroughbred foals or submitting any documents relating to foal registration takes effect on January 1, 2011. The nearly 11-month lag between The Jockey Club’s decision to impose the ban and the penalty’s effective date allows the registration of foals conceived while Gonzalez still had access to the Stud Book.

The ban is the most severe sanction The Jockey Club can impose. It was the right thing to do, especially considering the anemic response from the court.

In October 2009, Gonzalez entered guilty pleas to 33 counts of animal cruelty after malnourished horses were found on his Marion County, Florida, farm. These were first degree misdemeanor offenses under Florida Statute 828.12(1), rather than more serious felony charges, and the court did little more than slap Gonzalez’s hand.

Gonzalez was sentenced to one year probation on each count, with the sentences to be served concurrently. He was required to pay a little more than $3,000, including a fine of $1,650 (that’s $50 for each count of animal cruelty) and an additional $1,320 in misdemeanor surcharges. Maximum penalty for a single count of misdemeanor animal abuse in Florida is one year in jail and a $5,000 fine. Gonzalez received credit for time served—two days in the Marion County jail before he made bail.

The Jockey Club acted pursuant to Rule 19, which generally addresses "Deceptive Practices." Rule 19(A)(4) specifically gives the organization the authority to ban anyone who "killed, abandoned, mistreated, neglected or abused, or otherwise committed an act of cruelty to a horse." The penalty cannot be imposed on a whim, and requires either a criminal, civil, or administrative finding of guilt. Rule 19 also provides a right to appeal within 30 days.

The ban effectively ends Gonzalez’s business as a Thoroughbred breeder, because registration with The Jockey Club is required for a horse to race in the United States or abroad. The ban does not keep Gonzalez out of racing entirely, however. The Jockey Club lacks the authority to do that. The Jockey Club ban does not prevent Gonzalez from buying and selling horses registered by others and from racing those horses.

State racing commissions do have the authority to refuse licenses to a variety of undesirable individuals, and should exercise that authority when appropriate. In Kentucky, for example, Kentucky Administrative Regulations give the state racing commission the authority to deny a license to any applicant who has "abandoned, mistreated, abused, neglected, or engaged in an act of cruelty to a horse." Commissions in other racing states and the multi-state National Racing Compact have similar provisions.

While effective coordination between The Jockey Club and state racing authorities can result in meaningful punishments for neglect and abuse of horses, this is not necessarily the case for other breeds and disciplines. Although many breed registries have the authority to restrict an individual’s ability to register horses, shows and other competitions generally do not require a license for participation. Absent a court-ordered restriction on horse ownership with some teeth, a ban on registration alone may not be a sufficient deterrent to abuse and neglect.