MVMB v. Gray - Defendants' Proposed Judgment

IN THE CIRCUIT COURT OF CLINTON COUNTY STATE OF MISSOURI MISSOURI VETERINARY MEDICAL BOARD

) ) ) ) ) ) ) ) ) ) ) ) ) )

Petitioner, v.

BROOKE RENE GRAY and B & B EQUINE DENTISTRY Defendant.

Case No. 10CN-CV00842

PROPOSED JUDGMENT On the 26th and 27th days of September, 2011, the Missouri Veterinary Medical Board appeared by its Executive Director and by counsel, Edwin R. Frownfelter and C. Ryan Taylor. The Defendant, Brooke R. Gray personally and as representative of B & B Equine Dentistry, an unincorporated entity, appeared in person and by counsel, David E. Roland. The Court heard evidence and arguments of the parties.

Now, this ___ day of _______________, 2011, the Court makes the following findings and enters judgment as follows.

I.

Burden of Proof The Petitioner, Missouri Veterinary Medical Board (―Board‖), filed this action against

the Defendant, Brooke Gray and B&B Equine Dentistry (―Defendant‖ or ―Gray‖), seeking injunctive relief under the authority of Section 340.276.1,1 RSMo, which affords this Court with 1

All statutory references are to the Revised Statutes of Missouri 2010, unless otherwise indicated.

-1-

discretion to enter an injunction prohibiting any person to ―offer to engage or engage in the performance of any acts or practice for which a license, certificate, permit or other authority is required by sections 340.200 to 340.330 upon a showing that such acts or practices were performed or offered to be performed without a license, certificate, permit or other authority.‖ ―The party seeking an injunction bears the burden of proving it is entitled to this relief.‖ Supermarket Merchandising & Supply, Inc. v. Marschuetz, 196 S.W.3d 581, 585 (Mo.App. E.D. 2006).

Any violation of sections 340.200 to 340.330 also constitutes a class A misdemeanor under section 340.294, which specifies that each animal treated by an unauthorized person ―shall be deemed a separate offense.‖ The activities against which section 340.276.1 authorizes this Court to issue an injunction are identical to those made a criminal offense under section 340.294.

In order to meet its ―necessary burden‖ under section 340.276.1, the government must prove that on at least one specific occasion the defendant performed or offered to perform an act for which sections 340.200 to 340.330 require a veterinary license.2 This proof includes several elements. First, the government must identify the date and specific location within the state of Missouri at which it alleges a violation took place.3 Second, the government must prove that the

2

The Missouri Supreme Court recently stated, in State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc June 14, 2011), that it would be ―manifest injustice‖ for a defendant accused of multiple distinct instances of illegal behavior to have a judgment rendered against them without a showing that the government had carried its burden of proof regarding any one specific instance.

3

The Board has no jurisdiction over the actions of non-veterinarians outside the state of Missouri.

-2-

act alleged to have occurred falls within the definition of veterinary medicine.4 Third, the government must prove that the act complained of was done for ―valuable consideration.‖5 And finally, the government must prove that the person who engaged in the alleged act was, in fact, the defendant. If the government cannot prove any specific incident in which all of these factors are met, it cannot prevail in this action against the Defendant.

Petitioner has argued that because Chapter 340 allows for either civil injunctive relief or criminal prosecution, the government is entitled to choose a less-demanding burden of proof for itself by electing to pursue an injunction against a citizen accused of engaging in these activities rather than criminal prosecution. But for more than 130 years Missouri courts have refused to allow the government to seek equitable injunctions against activity defined as a criminal act because allowing the government to elect a civil remedy could result in citizens being deprived of their liberty without ever being afforded the protections secured by the U.S. and Missouri Constitutions. See, e.g., State ex rel. Cir. Atty. v. Uhrig, 14 Mo.App. 413 (1883); State ex rel.

Attorney General v. Canty, 105 S.W. 1078, 1083 (Mo. 1907); State ex rel. Prosecuting Attorney of Jackson County v. Chambers, 182 S.W. 775 (Mo.App. 1916); Missouri Veterinary Medical Ass'n v. Glisan, 230 S.W.2d 169 (Mo.App. 1950); City of Kansas City v. Mary Don Co., 606

4

― Veterinary medicine [is] the science of diagnosing, treating, changing, alleviating, rectifying, curing or preventing any animal disease, deformity, defect, injury or other physical or mental condition, including, but not limited to, the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthesia or other therapeutic or diagnostic substance or technique on any animal, including, but not limited to, acupuncture, dentistry, animal psychology, animal chiropractic, theriogenology, surgery, both general and cosmetic surgery, any manual, mechanical, biological or chemical procedure for testing for pregnancy or for correcting sterility or infertility or to render service or recommendations with regard to any of the procedures in this paragraph[.]‖ § 340.200(28).

5

―It is unlawful for any person not licensed as a veterinarian under the provisions of sections 340.200 to 340.330 to practice veterinary medicine or to do any act which requires knowledge of veterinary medicine for valuable consideration[.]‖ § 340.216.1.

-3-

S.W.2d 411 (Mo.App. W.D. 1980); Kinder v. Nixon, 2000 WL 684860 (Mo.App. W.D. 2000) (unreported).

The Petitioner has argued that these precedents have no bearing on this case because the legislature has explicitly authorized courts to enjoin the criminal behaviors the government has alleged in this case. Chapter 340 makes no distinction whatsoever between behaviors that might warrant the imposition of a civil injunction and behaviors constituting the Class A misdemeanor of unlawful practice of veterinary medicine. See §§ 340.294, 340.276. The existence of the criminal penalty demonstrates that all citizens are already enjoined by law from engaging in such acts ―with a prescribed punishment for their commission‖. See Glisan, 230 S.W.2d at 171.

Accepting Petitioner‘s assertion that it need only prove its allegations by a preponderance of the evidence would allow the government effectively to prosecute the crime of the unlawful practice of veterinary medicine – including, eventually, the imposition of fines and imprisonment – without ever affording the accused the protections of the criminal process required by the U.S. and Missouri Constitutions. The legislature cannot construct such a procedural end-run around its citizens‘ constitutional rights. Thus, the Petitioner can only meet its ―necessary burden‖ under section 340.276.1 if it proves each of its allegations beyond a reasonable doubt.

II.

Defendant’s Invocation of Fifth Amendment Privilege Ever since the Board filed its Petition, the Defendant has asserted her Fifth Amendment

privilege. In response, the Petitioner has argued that because it has elected to pursue a civil injunction rather than a criminal prosecution, the Defendant can be subjected to various penalties as a result of her refusal to answer its questions. Thus, despite the fact that the Petitioner‘s discovery requests plainly called for potentially incriminatory responses, the Petitioner argued that this Court should penalize the Defendant by restricting her ability to introduce evidence and

-4-

witnesses in her own defense and by drawing adverse inferences against her as a result of her decision not to respond to Petitioner‘s inquiries. This Court rejects the Petitioner‘s position.

Unlike other civil actions in which courts have drawn negative inferences as the result of a party‘s invocation of their Fifth Amendment privilege, the government itself initiated this action and demanded information that could be used to incriminate the Defendant. The government could immediately use any information the Defendant were to divulge for the purposes of a criminal prosecution addressing precisely the same behaviors targeted by the civil action. The Western District Court of Appeals noted in Johnson v. Missouri Bd. of Nursing Administrators, 130 S.W.3d 619 (Mo.App. 2004), that the possibility that a court might draw an adverse inference was intended to prevent the party claiming the privilege from gaining an undue advantage over the other party. The Defendant in this case has neither sought nor gained any such advantage by maintaining her right to remain silent. In these circumstances, no adverse inferences are warranted.

III.

Demand for Jury Trial Denied The Defendant included a demand for jury trial in her Answer to the Board‘s Petition.

The Petitioner opposed this demand, stating that jury trial is traditionally not available in actions for injunction, citing State ex rel. Diehl v. O'Malley, 95 S.W.3d 82, 85-86 (Mo. banc, 2003).

At

a hearing on Petitioner‘s Motion in Limine raising the issue on February 15, 2011, this Court ruled that that the Defendant was not entitled to have a jury establish the facts to which the law would be applied in this case and that the matter would be heard as a bench trial. The Defendant unsuccessfully asked the Court to reconsider, citing State ex rel. City Atty. v. Uhrig, 14 Mo.App. 413 (1883), in which the Court of Appeals rejected a government attorney‘s attempt to enjoin the unlicensed operation of a dram shop because if the requested injunction were issued and

-5-

disobeyed, ―a single judge… would hear evidence and try the facts whether the defendants had committed such criminal acts—facts which… the law has always required to be contested before a jury.‖ Id. at 417. The Defendant later filed to separate Petitions for writs of prohibition seeking relief from the Court‘s order, first with the Court of Appeals for the Western District, which denied her application by order dated June 27, 2011, and then with the Supreme Court of Missouri, which denied her application by order dated October 4, 2011.

IV.

Findings of Fact The Court finds the following facts:

The Expert Witnesses 1. Five veterinarians testified on the topics of teeth floating, equine dentistry, and their observations of the relative qualifications of veterinarians and trained nonveterinarians to float horses‘ teeth. Two veterinarians testified as to the demand for floating in the state of Missouri and the availability of veterinarians to meet that demand.

2. Dr. Tom Allen testified as an expert witness for the Defendant. Dr. Allen is a Missouri veterinarian whose practice is entirely dedicated to equine dentistry. Dr. Allen co-authored and edited a textbook on the topic, Manual of Equine Dentistry.

Manual of Equine Dentistry was cited at least eight times in the second edition of Baker and Easley‘s Equine Dentistry, which several expert witnesses acknowledged to be the authoritative text on the subject. Dr. Allen has observed the instruction provided at lay equine dental schools, has observed and evaluated the work of a large number of both veterinarian and non-veterinarian horse teeth

-6-

floaters, and has reviewed the curriculum of each of the veterinary schools currently operating in the United States.

3. Dr. Stephen S. Galloway testified as an expert witness for the Petitioner. Dr. Galloway is a veterinarian from Tennessee whose practice emphasizes dentistry, including equine dentistry. He is a fellow of the American Veterinary Medical Association‘s Academy of Veterinary Dentistry, and is one of five candidates on track for the AVMA‘s newly established certification in veterinary dentistry through the American Veterinary Dental College. Dr. Galloway testified at his deposition that he has not reviewed any research that shows only licensed vets are competent to float horses‘ teeth, that he has not formally studied anything that lay equine dentists do, and that his personal observation of lay equine dentists is limited to one individual in Tennessee.

4. Dr. Nat Messer testified as an expert witness for the Petitioner. Dr. Messer is a professor at the University of Missouri School of Veterinary Medicine. He teaches students in both classroom lectures and a clinical program in which he and students treat animals in a veterinary clinic setting. His teaching focus is not restricted to equine dentistry and he has done no independent research on the topic of equine dentistry. Dr. Messer testified at his deposition that he has not reviewed the curriculum at lay equine dental schools, that he has not evaluated the work of any graduates of those schools, and that he has not reviewed any academic studies comparing the work of non-veterinarian floaters to that of licensed veterinarians who float horses‘ teeth.

-7-

5. Dr. Sean Strain testified by deposition as an expert for the Defendant and as one with personal knowledge of Brooke Gray‘s skill at floating horses‘ teeth. Dr. Strain is the founder of Strain Equine Services in Bonner Springs, Kansas, a practice entirely dedicated to treating horses. He is licensed in both Missouri and Kansas and he serves as the official equine veterinarian for the Kansas City Mounted Police. Dr. Strain testified that he has observed and evaluated the work of both non-veterinarian floaters and licensed veterinarians.

6. Dr. Cathy Harris testified by deposition as an expert for the Defendant and as one with personal knowledge of Brooke Gray‘s skill at floating horses‘ teeth. Dr. Harris is a licensed veterinarian who graduated from the University of Missouri School of Veterinary Medicine in 1984; since that time she has practiced in Richmond, Missouri, with approximately half of her practice focusing on horses, including teeth floating. Dr. Harris testified that she has observed and evaluated the work of both non-veterinarian floaters and licensed veterinarians.

7. Dr. Bruce Whittle testified as an expert for the Petitioner regarding a study he performed on behalf of the Missouri Veterinary Medical Association on the availability of veterinarians to perform equine dental services. He is a licensed veterinarian who is the immediate past president of the Missouri Veterinary Medical Association and chair of its Equine Committee.

Facts Related to Horse Teeth Floating 8. Domestic horses‘ teeth tend to develop sharp enamel points that can cut or ulcerate their cheeks and tongues, making it painful for a horse to eat or to perform the tasks its owner expects of it.

-8-

9. For hundreds of years people have used tools to remove these sharp enamel points in a process known as ―floating‖ the teeth.

10. Dr. Allen testified that the primary goal of teeth floating is to improve a horse‘s comfort and its ability to perform the tasks its owner expects of it.

11. Dr. Galloway and Dr. Messer testified that both veterinarians and non-veterinarians have promoted teeth floating as a way to help horses maintain a healthy weight. The Petitioner introduced into evidence recent studies suggesting that teeth floating may not improve the digestibility of food and may not improve a horse‘s ability to maintain a healthy weight. Dr. Galloway and Dr. Messer testified that these studies may make veterinarians less likely to recommend teeth floating to their clients. Dr. Allen testified that these studies have no bearing on whether non-veterinarians can competently and safely improve horses‘ comfort and performance by removing sharp enamel points from the horses‘ teeth.

12. While teeth floating is not completely without risk to the health of the horse, the record shows that it is a practice that does not commonly result in injury to the animals or their owners.

13. Dr. Galloway testified that the teeth floating process itself is not a difficult or dangerous one, and at his deposition Dr. Galloway described floating as a ―fiveminute procedure.‖ Dr. Galloway also stated that ―floating, if you define floating professionally[,] is one small procedure in the big universe‖ of equine dentistry.

14. The experts who testified in this case all agreed that it would be unwise and potentially unsafe for any person to attempt to float horses‘ teeth without some level of training or supervision.

-9-

15. The experts agreed that some horses‘ teeth can safely be floated without the horse being sedated, although not all horses will tolerate floating in the absence of sedation.

16. The evidence showed that across the United States teeth floating is commonly performed by both non-veterinarian practitioners as well as licensed veterinarians.

17. Non-veterinarians typically learn this practice from experienced lay floaters, either as apprentices or in courses offered at schools such as the Academy of Equine Dentistry in Glenns Ferry, Idaho.

18. Dr. Allen‘s testimony showed that these equine dentistry schools offer extensive training focused exclusively on preparing students to float horses‘ teeth.

19. The U.S. Department of Agriculture‘s Baseline Reference of 1998 Equine Health and Management revealed that the more horses are cared for in any given facility, the more likely that facility is to have non-veterinarians float the horses‘ teeth.

20. The U.S. Department of Agriculture‘s Baseline Reference of 1998 Equine Health and Management also revealed that operations caring for racehorses—whose owners tend to have a large and immediate financial incentive to ensure the horses‘ health and performance—are more likely to have non-veterinarians float the horses‘ teeth than they are to have veterinarians perform the service.

21. Having reviewed the curriculum at every veterinary school currently operating in the United States, Dr. Allen testified that despite a recent increase in teaching about equine dentistry, horse teeth floating still tends to be a vanishingly slight element of veterinary schools‘ curriculum. Dr. Allen also testified that when veterinary

-10-

schools began to expand their offerings in regard to equine dentistry, several schools brought in non-veterinarian equine dentists to help teach their students.

22. Dr. Messer testified that the subject of horse teeth floating makes up only one halfhour of the 3400 classroom hours required of students at the University of Missouri‘s veterinary school.

23. Dr. Messer testified that approximately ten to twelve percent of students attending the University of Missouri‘s veterinary school will opt for any hands-on training in floating, and that even those students were not likely to be proficient in floating teeth when they graduated and obtained their licenses.

24. Several witnesses‘ testimony established that newly-licensed veterinarians may be called upon to float horses‘ teeth without supervision even if they have received no additional training beyond what they gained at veterinary school.

25. Veterinarians who choose to focus their practice on equine dentistry typically develop their skills either by receiving instruction at one of the specialized equine dentistry schools or by taking continuing education courses taught by other veterinarians.

26. Dr. Allen testified that after observing the work of many non-veterinarian floaters it was his expert and professional opinion that non-veterinarians can become extremely skilled at floating horses‘ teeth and that their skill frequently exceeds that of licensed veterinarians whose work Dr. Allen has also observed. Dr. Messer testified that it could be possible for a non-veterinarian to become competent to float teeth and that he was not aware of any research suggesting otherwise. Dr. Galloway testified that he had not seen any research showing that only licensed

-11-

veterinarians are competent to float teeth, and that he had ―not observed enough people that have graduated from [equine dentistry academies] to state an opinion‖ as to whether non-veterinarians might become proficient in floating horses‘ teeth.

Dr. Strain and Dr. Harris both testified at their depositions that some nonveterinarians can become skilled at floating horses‘ teeth and that a nonveterinarian‘s skill may exceed that of some licensed veterinarians.

27. After considering all of the experts‘ testimony, this Court finds that nonveterinarians can become skilled at floating horses‘ teeth and that a nonveterinarian‘s skill at floating horses‘ teeth may exceed that of some licensed veterinarians.

28. The experts‘ primary disagreement centered on whether a non-veterinarian could provide the standard of care currently expected of veterinarians who float horses‘ teeth. Dr. Messer and Dr. Galloway both testified that veterinarians‘ current standard of care requires an overall examination of the entire horse, a determination as to whether the horse is healthy enough to be sedated, sedation of the horse, and the use of a speculum, light, and mirror to evaluate the horses‘ teeth. Dr. Messer and Dr. Galloway expressed the opinion that only veterinarians are competent to diagnose and sedate animals and, therefore, a non-veterinarian could not provide the required standard of care.

29. Dr. Messer testified that over the course of his career the standard of care regarding equine dentistry has increased dramatically. Dr. Galloway testified that the standard of care is currently moving toward the widespread use of radiography to assess horses‘ dental needs.

-12-

30. Dr. Allen (whose Manual of Equine Dentistry was cited in footnote 1 of the article

by Dr. Jon Gieche that Petitioner introduced as evidence of the appropriate standard of care) agreed that the other experts had expressed a common professional opinion regarding the standard of care, but he also testified that veterinarians‘ ideal standard of care is neither necessary nor practical for horses and horse owners living in the real world.

31. Dr. Allen testified that strict adherence to the ever-increasing professional standard of care could result in animals receiving less treatment because owners could no longer afford to pay for the services that the standard of care might demand. Dr. Galloway‘s testimony demonstrated how quickly veterinary costs can escalate for horse owners seeking even basic treatment for their animals, and Dr. Messer admitted that the rising cost of animal care contributes to the neglect and abandonment of horses.

32. Neither Dr. Galloway nor Dr. Messer identified any empirical research indicating that veterinarians‘ increased standard of care lowers the risk of horses being injured as a result of simple teeth floating.

33. Petitioner introduced as exhibits several studies indicating that, used improperly, power tools might cause injury to equine teeth. Although Dr. Allen questioned the methodology of these studies, he conceded that injuries can occur from the improper use of tools. But Dr. Allen also testified that in his experience nonveterinarians are no more likely than veterinarians to use these tools improperly and that his observation was that the floating injuries he has seen were more likely to have been caused by veterinarians.

-13-

34. Testimony from several expert witnesses established that there is no research indicating that simple floating by experienced non-veterinarians represents a significant threat to the health, safety, or welfare of Missouri‘s citizens.

35. Testimony from several expert witnesses established that there is no research indicating that simple floating by experienced non-veterinarians represents a significant threat to the health, safety, or welfare of Missouri‘s horses.

36. Testimony established that there is no research indicating that a floater‘s acceptance of compensation is likely to increase any threat that simple floating by experienced non-veterinarians might pose to the health, safety, or welfare of Missouri citizens or their horses.

37. Several witnesses with extensive experience owning and working with horses testified that they could not remember any examples of horses being injured as a result of having their teeth floated. Dr. Galloway testified that in 15 years of veterinary practice he could not cite one specific example of a horse being injured as a result of ―just basic floating.‖ 38. Although the Petitioner presented evidence suggesting that more advanced dental procedures, such as tooth extractions or oral surgery, can result in severe injury to horses, it did not demonstrate that such injuries are likely to result from simple floating.

39. The only specific evidence the Petitioner presented indicating that Missouri horses or horse owners had suffered harm as a result of teeth floating came when the licensed veterinarian whose complaint prompted the Petitioner to file this case admitted to having injured more than one horse in his own attempts to float teeth.

-14-

40. Presented with a hypothetical situation, Dr. Allen, Dr. Strain, and Dr. Harris agreed that it might make sense to have a licensing scheme through which nonveterinarian equine tooth floaters would be required to demonstrate they are qualified, would be required to take continuing education, and would be held accountable through a disciplinary process. But these experts‘ testimony also established that the licensing scheme at issue in this case does not make sense because it restricts highly qualified non-veterinarians‘ ability to serve Missouri‘s horses and horse owners, while allowing poorly qualified veterinarians to continue floating teeth. Dr. Allen testified that education at a veterinary school is currently a reliable indicator that a floater is not particularly well qualified to float horses‘ teeth, yet that is the primary ―qualification‖ that the law at issue in this case demands.

41. After considering all of the experts‘ testimony, this Court finds that there is no evidence that experienced non-veterinarians are more likely than licensed veterinarians to harm horses or their owners as a result of simple teeth floating.

42. After considering all of the experts‘ testimony, this Court finds that although the standard of care veterinarians have adopted in regard to simple teeth floating may assist in the diagnosis of dental conditions unrelated to the presence of sharp enamel points, it greatly increases the costs to horse owners and does not appear to reduce the likelihood of horses or owners being injured as a result of simple teeth floating. This Court also finds that the increasing veterinary standard of care may reduce the overall health of Missouri‘s horse population by driving the cost of basic services such as teeth floating beyond the financial means of some horse owners.

-15-

Facts Regarding Missouri’s Regulation of Veterinary Medicine 43. Missouri has regulated the practice of veterinary medicine—specifically including veterinary dentistry—for more than 105 years. See Missouri L. 1905 [H.B. 254], pp. 209-212 – Medicine and Surgery: Veterinary Surgery Act. ―AN ACT to regulate the practice of veterinary surgery, medicine and dentistry, create a veterinary examining board in the state of Missouri and prescribing a penalty for the violation thereof.‖ See also, Veterinary Surgery, Medicine and Dentistry Act (1909); Veterinary Surgery, Medicine and Dentistry Act (1919); Veterinary Surgery, Medicine and Dentistry Act (1929); Veterinary Surgery, Medicine and Dentistry Act (1939); Veterinary Practice Act (1949), § 340.020, RSMo. (―Any person shall be regarded as practicing veterinary surgery, veterinary medicine or veterinary dentistry…‖). The Veterinary Practice Act (1953) did not use the word ―dentistry,‖ but its definition was crafted almost as broadly as the current Veterinary Practice Act, adopted in 1992.

44. The Missouri Veterinary Medical Board is an agency of the state of Missouri created and established pursuant to Section 340.202, for the purpose of executing and enforcing provisions of Chapter 340.

45. Dana Fennewald, who has served as the Executive Director of the Board since 1995, testified on behalf of the Petitioner regarding how the Board operates and how it has applied Chapter 340.

46. Veterinary medicine is currently defined in Section 340.200(28), as follows: .. . the science of diagnosing, treating, changing, alleviating, rectifying, curing or preventing any animal disease, deformity, defect, injury or other physical or

-16-

mental condition, including, but not limited to, the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthesia or other therapeutic or diagnostic substance or technique on any animal, including, but not limited to, acupuncture, dentistry, animal psychology, animal chiropractic, theriogenology, surgery, both general and cosmetic surgery, any manual, mechanical, biological or chemical procedure for testing for pregnancy or for correcting sterility or infertility or to render service or recommendations with regard to any of the procedures in this paragraph.

47. Almost any non-veterinarian who gets paid for performing any task falling within the definition of ―veterinary medicine‖ may be charged with a separate class A misdemeanor for each animal they work with. § 340.294.

48. Non-veterinarian horse owners, non-veterinarian full-time employees of horse owners, and any non-veterinarian willing to work without receiving ―valuable consideration‖ are permitted to perform acts defined as ―veterinary medicine‖ without regard to those persons‘ skill or training. § 340.216(5).

49. Ms. Fennewald also testified that non-veterinarians may be permitted to perform acts defined as ―veterinary medicine‖ if they are acting under the supervision of licensed veterinarians.

50. In a regulation defining the minimum standards for supervision by licensed veterinarians, the Board specified that a non-veterinarian ―unregistered assistant‖ is permitted to provide treatment for animal patients at a veterinary clinic if the assistant is under the indirect supervision of a licensed veterinarian who has made

-17-

the decisions relating to the diagnosis, treatment, management, and future disposition of the animal patient. 20 CSR 2270-4.060.

51. Ms. Fennewald testified that the language of section 340.200(28) is broad enough that the Board could consider a great range of human interactions with animals to be ―veterinary medicine,‖ including common animal husbandry services such as hoof-trimming, branding, castration, dehorning, teeth floating, massage, nailclipping, training, and even pet grooming.

52. Fennewald testified that the Board does not typically take action against a nonveterinarian unless it has received a complaint. Any person may file such a complaint. When the Board receives a complaint against a non-veterinarian, the Board initiates an investigation. The investigator reports its findings to the Board and the Board decides whether the non-veterinarian‘s actions constitute the practice of veterinary medicine. The Board‘s deliberations and reasoning are not open to the public, and the target of the investigation is not invited to hear or dispute the facts and arguments considered by the Board.

53. If the Board determines that a non-veterinarian has engaged in the unlawful practice of veterinary medicine, it can instruct the Executive Director to issue a cease-and-desist letter threatening legal action, it can refer the case to the Attorney General‘s office to seek an injunction, or it can refer the matter for criminal prosecution. The evidence showed that in recent years the Board has directed Ms. Fennewald to send several cease-and-desist letters threatening legal action — including criminal prosecution — against various non-veterinarians for performing basic animal husbandry tasks such as ―herd work,‖ castration,

-18-

dehorning, and massage. None of these tasks is specifically mentioned in the statutory definition of ―veterinary medicine.‖ 54. The Board has not promulgated regulations to narrow or clarify the definition of ―veterinary medicine.‖ 55. Ms. Fennewald testified that the Board‘s decisions regarding whether a specific behavior constitutes the practice of veterinary medicine have no binding precedential value. If the Board determines on one occasion that a practice such as animal massage does not fall within the definition of veterinary medicine, nothing prevents the Board from arriving at the opposite conclusion the next time that question is presented. As a result, Missouri citizens who work with animals cannot know with certainty whether the Board will treat a given animal husbandry practice as lawful or unlawful, even if the Board has previously addressed the issue.

56. Prior to this case, a subdivision of the state government had never asked a Missouri court to find that floating horses‘ teeth constituted the practice of veterinary medicine.

57. Testimony showed that it is common knowledge among veterinarians that nonveterinarian farriers trim hooves, shoe horses, and perform other basic animal husbandry services. The U.S. Department of Agriculture‘s Baseline Reference of 1998 Equine Health and Management illustrates that the overwhelming majority of horseshoeing and hoof-trimming that takes place in the United States is performed by professional farriers.

58. Testimony showed that farriers may attend special schools to learn their trade.

-19-

59. Testimony showed that hoof-trimming, horseshoeing, and other work typically done by non-veterinarian farriers is more dangerous to horses and horse owners than simple teeth floating, yet Petitioner has not taken any action to prevent nonveterinarian farriers from providing these services.

Facts Relative to Petitioner’s Allegations Against the Defendant 60. Brooke Rene Gray (formerly known as Brooke Neubauer) is an adult individual who maintains a business at 6227 SE Perren Road, Holt, MO 64048.

61. Defendant Brooke Gray is not licensed as a veterinarian or a registered veterinary technician in Missouri.

62. Gray is the owner and the sole proprietor and agent of an unincorporated entity known as B & B Equine Dentistry, which holds fictitious name registration No. X01034744.

63. Defendant B & B Equine Dentistry is not licensed as a veterinary facility in Missouri.

64. Dr. David Leighr, a licensed veterinarian who sometimes floats horses‘ teeth, filed a complaint with the Board against Brooke Gray after hearing her referred to as an ―equine dentist‖ and being told that she had floated the teeth of at least one of his patients.

65. At trial, Dr. Leighr admitted to having injured multiple horses in the course of his own attempts to float horses‘ teeth; he has not been threatened with the loss of his license and he is still legally permitted to float teeth.

-20-

66. On September 9, 2010, the Board initiated this action, invoking section 340.276.1, as its authority to seek an injunction that would prevent Brooke Gray from engaging in the unlawful practice of veterinary medicine for compensation.

67. Although the Petition alleged that the Defendant was causing harm to persons and animals in the state of Missouri, the Petitioner presented no evidence that the Defendant has harmed any specific person or animal.

68. The Petition alleged that the Defendant was ―holding herself out to the public as a practitioner of veterinary medicine by advertisement,‖ but Petitioner presented no evidence that the Defendant advertises her services. a. The Petitioner introduced into evidence a business card which reads: ―B&B Equine Dentistry‖ ―We don‘t Fill ‗em, We Float ‗em‖ ―Brooke Neubauer‖ ―404-925-5278‖. b. The card identifies a business, but it does not constitute an offer of services to any person in the state of Missouri. c. The card does not suggest an expectation of payment for any services that the business might provide. d. The card does not indicate that any services the business might provide are available within the state of Missouri. e. The Court took judicial notice that the phone number listed on the card is not a Missouri phone number. f. Petitioner introduced no evidence that the Defendant asked for her cards to be distributed in the state of Missouri.

-21-

g. The only testimony in the record addressing the distribution of these cards shows that Kelle Brammer asked the Defendant for several of these cards and that Brammer may have distributed them to others; Brammer testified that the Defendant did not ask Brammer to distribute the cards, did not deliver them to Brammer‘s business, and did not ask Brammer to tell Missouri horse owners about her services.

69. The Petition also alleged that the Defendant had unlawfully held herself out to the public as a practitioner of veterinary medicine by participating in an interview with Homestead magazine, ―in which she discussed equine dentistry and discussed the ‗floating‘ procedure with reporter Dean Houghton.‖ Petitioner did not introduce a copy of this article as an exhibit and made no further effort to prove this allegation.

70. The Petition alleged that the Defendant had floated teeth for seven sets of horse owners. Three owners (Elizabeth Hill, Teri Magrath, and Sterling Silver) testified by deposition as to the Petitioner‘s allegations. Michelle Wycoff, who was also named in the Petition, testified by deposition and at trial. Kelle Brammer, who was not named in the Petition, testified by deposition.

71. Elizabeth Hill, operates a boarding stable in Kansas City. Hill testified that on a recommendation from a boarder she contacted Brooke Gray in November 2008 and asked Gray to float the teeth of a horse named Izod.

72. Hill stated that she received a document from Gray and B & B Equine Dentistry including a tooth chart with notes on the horse‘s teeth, and a statement for $85 which Hill paid.

-22-

73. Hill testified that she has never met Brooke Gray, that she would not recognize Brooke Gray if she saw her, and that she was not present when Gray allegedly floated Izod‘s teeth. Hill testified that she did not look to see if Izod‘s teeth had actually been floated.

74. Petitioner did not prove that any services had been performed on Izod, nor did it prove that the Defendant personally provided any services that might have taken place.

75. Teri Magrath testified by deposition that she had been acquainted with Brooke Gray since Gray was in high school, that she was familiar with Gray‘s business doing ―dentals on horses,‖ including teeth floating, and that on one occasion more than five years ago Gray floated the teeth of a horse Magrath owned.

76. Magrath testified that Gray floated the horse‘s teeth in the barn at Magrath‘s farm in Holt, Missouri and that while she feels sure that Gray was paid for that service, Magrath cannot remember the details regarding payment.

77. This Court finds that the Petitioner did not prove that any services the Defendant provided to Magrath took place within the relevant statute of limitations.

78. Sterling Silver testified by deposition that he owns and keeps horses at his property in Osborn, Missouri, that he became aware that Brooke Gray performed equine dental services from a business card he picked up at a feed store, and that he engaged her to perform dental services on the teeth of horses he owned. He paid her at a rate of $75 per horse on three occasions, evidenced by checks he wrote payable to Gray.

-23-

79. Silver testified that he could not recall where services were provided, and that they may have been provided at a location other than his farm.

80. The Petitioner did not prove that the alleged services were provided in the state of Missouri.

81. A letter introduced into evidence shows that when Silver became aware of the Petitioner‘s investigation of the Defendant, he and his wife notified the Board that they could compare the work done by veterinarians to that done by Brooke Gray and that they believe Gray‘s work to be ―exceptionally professional and thorough.‖ Silver also testified at his deposition that he preferred to have Gray float his horses‘ teeth because ―there wasn‘t nobody as good as her‖ and that the available veterinarians ―didn‘t do the quality of job as I thought they should.‖ 82. Kelle Brammer testified by deposition that she knows Brooke Gray, that Brooke Gray told her she attended equine dental school and that she performs floating services, and that Gray had at some point floated teeth for Brammer‘s horses.

83. Brammer testified that she had not observed the Defendant floating her horses‘ teeth and could not recall a specific occasion on which Defendant had floated her horses‘ teeth.

84. Brammer testified that she did not pay the Defendant or provide any other valuable consideration in exchange for the Defendant floating her horses‘ teeth.

85. Petitioner did not prove that any services the Defendant might have performed for Brammer took place in the state of Missouri.

86. Contrary to the Petition‘s allegation, Michelle Wycoff did not claim to have owned a horse whose teeth were floated by the Defendant. Instead, Wycoff

-24-

claimed to have observed Brooke Gray floating teeth at Elizabeth Hill‘s stables on June 10, 2009.

87. Wycoff did not establish a proper basis for her testimony: a. At her deposition Wycoff testified that she had never met Brooke Gray, that she did not recall ever seeing a picture of Brooke Gray, and that she was not sure she could point Brooke Gray out if Wycoff saw her on the street. b. At her deposition prior to the trial Wycoff testified that she could not recall any identifying characteristics of the person she says she observed at Elizabeth Hill‘s stables other than that the person had been chewing tobacco; Wycoff could not even remember if the person she saw had been wearing a hat of any sort. c. The event about which Wycoff testified took place more than two years prior to the trial. d. Although Wycoff attempted to make an in-court identification of the person she claims to have observed at Elizabeth Hill‘s stables, no witness ever established the identity of the person at whom Wycoff pointed.

88. This Court finds that Michelle Wycoff did not establish that the person she claimed to see at Hill‘s stables was the Defendant.

89. Wycoff‘s testimony at trial deviated significantly from her deposition testimony: a. At her deposition Wycoff stated that she did not engage in conversation with the person she observed at Hill‘s stables, but at trial Wycoff claimed to remember a conversation with the person she observed;

-25-

b. At her deposition Wycoff on multiple occasions testified that the person she observed had used and disposed of more than one bottle in dealing with the horses, but at trial Wycoff claimed to have removed only one bottle from the trashcan at Hill‘s stables.

90. Wycoff claimed to have a camera when she was at Hill‘s stables, but did not produce any pictures of the person she allegedly observed and did not produce pictures of the bottles and syringes she allegedly removed from a trashcan at the stables.

91. The Petitioner produced no forensic or documentary evidence suggesting that the Defendant ever possessed or used the physical evidence that Wycoff allegedly removed from the trashcan at Hill‘s stables.

92. The Court finds that the discrepancies in Michelle Wycoff‘s testimony and her failure to properly identify the Defendant as the person she claims to have seen at Hill‘s stables render Wycoff‘s testimony unreliable.

93. The Petitioner did not prove that the Defendant floated teeth at Hill‘s stables on June 10, 2009, did not prove that Defendant ever possessed or used the syringes and bottle Wycoff allegedly removed from a trashcan at Hill‘s stables, and did not prove that the person Wycoff observed at Hill‘s stables had been compensated for the work performed that day.

94. Even if this Court had considered Wycoff‘s testimony to be reliable, the Petitioner failed to establish a proper chain of custody regarding the physical evidence Wycoff claimed to have recovered at Hill‘s stables:

-26-

a. Wycoff testified that after obtaining the physical evidence, she kept it in an unsealed cardboard tube and kept the tube in an unsecure location in her home b. Wycoff testified that she gave the unsealed tube to Bill Burton, a contract investigator for the Veterinary Medical Board, on April 5, 2010. c. Burton testified at deposition prior to the trial that the unsealed tube he received from Wycoff was not marked or dated in any way. Burton specifically stated that Wycoff did not sign anything indicating that she was handing over the tube. d. Burton testified that after receiving the cardboard tube he kept it on the floor next to his desk in his living room. e. Burton testified that the tube was not enclosed in a drawer or safe, the room in which the tube was kept is open to the rest of the house, and that people other than himself had access to that room while he was not present. f. The tube introduced into evidence at trial did not match the description Burton gave at his deposition; the tube offered as evidence at trial had been marked with dates and signatures.

95. Because the Court finds that the Petitioner failed to demonstrate a secure and proper chain of custody regarding the physical evidence presented by Wycoff and Burton, the evidence is not reliable.

96. Bill Burton, a contract investigator for the Petitioner, testified by deposition and at trial regarding matters not alleged in the Petition.

-27-

97. Burton testified that during his investigation of this case he made a cell phone call to the phone number listed for Brooke Gray. A female answered and when asked if she was Brooke Gray, replied that she was. Burton then stated he was looking for someone to float a horse‘s teeth, and Gray stated that she did that. Burton then lost cell phone contact with Gray. He subsequently received a voice message return call from a woman identifying herself as Brooke Gray, stating in part, ―Give me a shout back sometime we can chat about the dentistry or whatever you wanted to know; what I do and how I do it. What I normally do is come to your place. I never got to ask what kind of horses you had or your background.‖ 98. Petitioner did not prove that Brooke Gray was located within the state of Missouri at the time she spoke to Burton, nor did it prove that Brooke Gray offered to perform services constituting the practice of veterinary medicine for compensation in the state of Missouri.

99. Petitioner did not prove that any aspect of Burton‘s telephone communication with Brooke Gray violated any part of sections 340.200 to 340.330.

Facts Regarding Defendant Gray’s Skill Floating Horses’ Teeth 100.

Although the Petitioner‘s pleadings did not make any allegations beyond

those addressed above, Dr. Sean Strain and Dr. Cathy Harris each testified by deposition as to their observations regarding Brooke Gray‘s ability to float horses‘ teeth.

101.

Dr. Strain testified that he has personally observed Brooke Gray floating

horses‘ teeth on approximately six occasions.

-28-

102.

Dr. Strain testified that he could not recall when or where he first observed

Brooke Gray floating teeth, but guessed that it was either Raymore or Peculiar, Missouri. He did not see her sedate the horse and did not know whether another veterinarian might have been supervising or reviewing her work. Strain was not asked if he had any personal knowledge as to whether Gray was being compensated for her work on that horse.

103.

Dr. Strain testified that since that initial meeting he had personally worked

with Gray on several occasions in the state of Kansas. On those occasions, he or his associate would sedate the horses and Brooke Gray would float the horses‘ teeth. Dr. Strain also testified that he has worked on horses whose teeth he knows Gray has floated, so he has been able to evaluate the effects of her work even though he was not present when the work was performed.

104.

Dr. Strain expressed the opinion that Gray is ―absolutely‖ qualified to float

horses‘ teeth, that he has ―always had the utmost respect for what Brooke does,‖ and that he trusts her judgment in matters of equine dentistry. He stated that Brooke Gray recognizes when dental issues are beyond her abilities and that on those occasions she recommends veterinary treatment.

105.

Dr. Strain has referred his own clients to Brooke Gray when their horses‘

teeth needed floating.

106.

Dr. Strain testified that a person does need a certain level of experience

and before they would be competent to float teeth, but that a veterinary license does not tell a person anything about the license holder‘s floating skills and that many licensed vets attempting to float teeth have no business doing so.

-29-

107.

Dr. Strain testified that Brooke Gray is more skilled at teeth floating than a

number of licensed veterinarians who offer floating services.

108.

Dr. Strain stated that he has never seen a problem caused by floating that

could not be corrected with proper care and that at least as many of the problems he has seen have come from licensed veterinarians rather than non-veterinarian floaters.

109.

Dr. Strain testified that farriers are more likely to do harm to a horse than

non-veterinarian floaters and that he is personally aware of more than one occasion in which a mistake make by a farrier led to the death of a horse.

110.

Dr. Strain testified that he would support a requirement that a person

performing equine dentistry demonstrate his or her competence and be accountable through a disciplinary process, but also stated that the current licensing scheme in Missouri does not ensure that only competent people are floating horses‘ teeth and that he has never heard of a veterinarian being disciplined for floating teeth without first developing the appropriate level of competence.

111.

Dr. Strain testified that the idea of retaining customers‘ business is a more

powerful motivation to provide high-quality services than the possibility of losing a license.

112.

Dr. Harris testified by deposition that approximately five years ago on the

recommendation of a friend Dr. Harris called Brooke Gray for assistance with an unnamed horse on an unidentified stud farm at an unspecified location.

113.

Dr. Harris testified that Gray told her that she was an ―equine dentist.‖

-30-

114.

Dr. Harris sedated the horse, observed Gray as she floated the horse‘s

teeth, and inspected the horse‘s teeth at the completion of the floating. Dr. Harris testified that she was ―very impressed with [Gray‘s] work.‖ 115.

Petitioner did not prove that this service took place in the state of Missouri

and did not prove that it occurred within the statute of limitations.

116.

Dr. Harris subsequently worked again with Gray on approximately five to

ten occasions, in which Dr. Harris sedated the horse and Gray floated the horse‘s teeth. Dr. Harris observed and reviewed Gray‘s work on several of these occasions and continued to be impressed with her skill.

117.

Dr. Harris testified that Brooke Gray is more skilled at teeth floating than a

number of licensed veterinarians who offer floating services.

118.

As a result of her experience with Gray, Harris has recommended to

numerous clients that they have Gray perform work on their horses, and Harris has entrusted the floating of her own horse‘s teeth to Brooke Gray.

119.

At Harris‘s request Gray came to Harris‘s clinic on August 1, 2011, to

assist with two horses, including a horse owned by Harris. Harris testified that she examined and sedated the horses, then provided a diagnosis and instructions as to how Gray should float the horses‘ teeth. While Gray was working Harris was either standing next to Gray or nearby in her office where she could observe Gray‘s work through a picture window; Harris also examined the horses‘ teeth after Gray finished floating them and testified that ―they looked great.‖

-31-

120.

Section 340.218(18)(a) defines ―immediate supervision‖ as existing where

―the licensed veterinarian is in the immediate area and within audible and visual range of the animal patient and the person treating the patient.‖ 121.

Harris compensated Gray by providing Gray with some flea medication

and writing a check.

122.

The uncontroverted evidence shows that Brooke Gray is highly skilled at

floating horses‘ teeth.

123.

There is no evidence that Brooke Gray has ever injured a horse or a horse

owner as a result of floating teeth, nor is there evidence that Brooke Gray is likely to cause such an injury as a result of floating teeth. There is no evidence that Brooke Gray performs any services other than simple floating.

124.

The evidence also shows that Brooke Gray sometimes floats teeth without

being compensated and sometimes floats teeth in states other than Missouri.

125.

The Court finds that the services provided on August 1, 2011, represent

the only specific occasion for which the Petitioner proved that the Defendant performed services defined as the practice of veterinary medicine within the state of Missouri and for compensation. The Court also finds that these services were provided at the request and under the immediate supervision of a licensed veterinarian with 28 years of experience working with horses, including teeth floating.

126.

Based on the evidence offered at trial, the Court finds that Petitioner failed

to prove any specific instance within the statute of limitations in which Brooke

-32-

Gray, individually and under the business name B & B Equine Dentistry, has unlawfully floated horses‘ teeth in the state of Missouri for compensation.

Facts Regarding Veterinarians’ Availability to Provide Dental Care 127.

No witness testified that he or she had ever been unable to find a

veterinarian to care for a horse‘s teeth.

128.

Sterling Silver testified that he had previously taken his horses to have

their teeth floated by veterinarians, but that ―they didn‘t do the quality of job as [he] thought they should,‖ and that ―You can always find somebody to do the job, but you can‘t find the right person.‖ 129.

Dr. Bruce Whittle, a veterinarian who is the immediate past president of

the Missouri Veterinary Medical Society and chair of its Equine Committee, testified for the Petitioner about a study he performed on behalf of the Missouri Veterinary Medical Association regarding the availability of veterinarians to perform equine dental services in Missouri.

130.

Dr. Whittle described a study that purported to extrapolate Missouri horse

owners‘ demand for equine dental services by applying what he believed to be a national average for the percentage of horses needing dental care (5.3%) to a 2001 estimate of Missouri‘s horse population (200,000). Whittle then estimated the number of Missouri veterinarians providing dental services (75) and calculated the average number of horses each veterinarian would need to see each week in order to meet the presumed demand (2.7).

131.

Cross examination revealed that Dr. Whittle‘s study was irredeemably

flawed:

-33-

a. Dr. Whittle had relied upon a 2001 survey estimating that Missouri had 200,000 equids; the Defendant introduced into evidence a 2007 study by the American Horse Council Foundation indicating that Missouri‘s equid population stood at 281,255. b. Dr. Whittle had based his estimate for the demand for equine dental services on a 2005 USDA study that – he believed – indicated that an average of 5.3% of all horses would require dental care in a given year.

The Defendant demonstrated that Dr. Whittle had completely misunderstood the chart from which he had taken that number; it really meant that 5.3% of ―horse operations‖ had at least one horse that had been affected with ―dental problems.‖ The Defendant pointed out that a single ―horse operation‖ could represent dozens of horses, any number of which could have been affected with ―dental problems.‖ The Defendant also showed that the 1998 precursor to the USDA study had found that ―larger operations were more likely to provide dental care for resident equids‖ and that ―[a]s the size of operation increased, the percentage of operations where an equine dentist (non-veterinarian) provided primary dental care increased.‖ 132.

Because Dr. Whittle used an outdated estimate of Missouri‘s horse

population and because he based his study on a number that plainly did not mean what he thought it meant, the study‘s conclusions have no value.

133.

Dr. Allen also testified in regard to the demand for horse teeth floating,

asserting that a number of horse owners across the state prefer to have non-

-34-

veterinarians float their horses‘ teeth but that some veterinarians will threaten to stop serving their animals if they find that an owner has used a non-veterinarian floater. Dr. Allen testified that, particularly in rural areas of Missouri where there are very few large-animal veterinarians, a threat of this sort carries a great deal of weight because if acted upon it could leave the horse owner without any reasonable access to veterinary care. Dr. Allen testified that some stable owners try to avoid this dilemma by ensuring that their regular veterinarian periodically floats the teeth of a few of their horses, while still enlisting the aid of nonveterinarian floaters to serve the rest of their animals.

V.

Conclusions of Law 1. A government agency seeking a statutorily authorized injunction against behaviors constituting criminal activity must prove its allegations beyond a reasonable doubt.

2. When the Missouri Veterinary Medical Board seeks an injunction against the unlicensed practice of veterinary medicine, the ―necessary burden‖ established in Section 340.276.1, requires the Board to prove that on at least one specific occasion the defendant performed or offered to perform an act for which sections 340.200 to 340.330 require a veterinary license.

3. ―Tooth floating‖ falls within the definition of ―veterinary medicine‖ under Section 340.200(28), RSMo. 4. As defined by Section 340.200(15), to engage in the ―practice of veterinary medicine‖ is ―to represent directly, indirectly, publicly or privately an ability and willingness to do any act‖ defined as ―veterinary medicine.‖

-35-

5. The Defendant has not challenged the general validity of Missouri‘s veterinary licensing requirements; she is merely contending that Section 340.216.1 is not being applied in a constitutionally permissible manner.

6. Under Section 340.216.1, the ―practice of veterinary medicine‖ is not unlawful unless the person who engages in such practice receives valuable consideration for doing so.

7. Section 340.216.1 does not prohibit non-veterinarians from performing tasks defined as ―veterinary medicine;‖ it prohibits them from being paid for those tasks.

8. A non-veterinarian who performs tasks defined as ―veterinary medicine‖ without being paid has no legal obligation to conform to veterinary standards of care.

9. A non-veterinarian who performs tasks defined as ―veterinary medicine‖ without being paid has no legal obligation to demonstrate any level of training, proficiency, or good character.

10. A non-veterinarian who performs tasks defined as ―veterinary medicine‖ without being paid has no legal obligation to attend continuing education courses.

11. A non-veterinarian who performs tasks defined as ―veterinary medicine‖ without being paid is not subject to ethical requirements or professional discipline.

12. Section 340.216.1 permits any non-veterinarian, regardless of training or experience, to lawfully float horses‘ teeth if they do not receive valuable consideration for doing so.

13. The Missouri Veterinary Medical Board has no jurisdiction over the actions of non-veterinarians outside the borders of this state.

-36-

14. On August 1, 2011, Brooke Gray was acting lawfully as an ―unregistered assistant‖ floating teeth at the request and under the instruction and immediate supervision of Dr. Cathy Harris, a licensed veterinarian who had determined that Gray was competent to provide the treatment that Harris had prescribed for two horses. 20 CSR 2270-4.060.

15. Section 340.216.1, as applied in this case, denies the right to earn a living as protected by the Due Process clauses of the Fifth and Fourteenth Amendments of the United States Constitution.

16. Section 340.216.1, as applied by the Petitioner in this case, denies the right to enjoy the gains of industry as protected by Article I, Section 2, of the Missouri Constitution.

17. Section 340.216.1, as applied in this case, violates the freedom of speech as protected by the First Amendment to the United States Constitution or Article I, Section 8, of the Missouri Constitution by making it unlawful for the Defendant to share truthful, nonmisleading information about the subject of equine dentistry and her own skill as a horse teeth floater.

18. Section 340.216.1, as applied in this case, denies procedural due process as protected by the Fifth and Fourteenth Amendments of the United States Constitution or Article I, Section 10 of the Missouri Constitution because it gives an unelected administrative agency unbounded discretion to vary its interpretation and application of the law in such a way that citizens cannot know from one day to the next which behaviors are permitted and which are prohibited.

-37-

19. Section 340.216.1, as applied in this case, denies equal protection of the laws as protected by the Fourteenth Amendment to the United States Constitution and Article I, Section 2, of the Missouri Constitution because the Board has taken action against horse teeth floaters but has declined to take any action against farriers, whose services have been shown to be both more common and more dangerous than those provided by floaters.

VI.

Discussion The Petitioner has asked this Court to enter an injunction barring the Defendant from

engaging in acts which constitute the practice of veterinary medicine for valuable compensation pursuant to Section 340.276.1, RSMo, which states: Upon application by the board, and the necessary burden having been met, a court of general jurisdiction may grant an injunction, restraining order or other order as may be appropriate to enjoin a person from: (1) Offering to engage or engaging in the performance of any acts or practice for which a license, certificate, permit or other authority is required by sections 340.200 to 340.330 upon a showing that such acts or practices were performed or offered to be performed without a license, certificate, permit or other authority . . .

While the Defendant did not contradict any of the testimony elicited by Petitioner regarding its allegations that the Defendant had acted unlawfully, the Petitioner still bore the ―necessary burden‖ of proving at least one specific instance in which the Defendant violated the restrictions of sections 340.200 to 340.330, RSMo. The evidence presented by the Petitioner, while uncontradicted, remained incomplete and inadequate. When a witness has testified that they have no knowledge of or cannot remember a particular fact crucial to a party‘s case, this

-38-

Court is not at liberty to fill the gaps in the witness‘s testimony. Similarly, the fact that a witness‘s testimony is not contradicted does not lead to the conclusion that it is credible or reliable. As the finder of fact in a bench trial, the Court‘s responsibility is to make a careful evaluation of the quality of testimony even if no other witness directly challenges its truthfulness.

As an initial matter, this Court has found that Brooke Gray is a highly skilled horse teeth floater even though she does not hold a Missouri veterinary license. The Petitioner nonetheless bears the burden of proving that the Defendant has used her skills unlawfully. To meet this burden the Petitioner must show beyond a reasonable doubt that on at least one specific occasion within the state of Missouri and within statute of limitations, the Defendant engaged in an act defined as the unlicensed practice of veterinary medicine and received valuable consideration for doing so. Several of the witnesses (Dr. Leighr, Dr. Harris, and Ms. Magrath) testified to events that occurred more than five years prior to the filing of this case. The applicable statute of limitations6 had run regarding these events, and this Court would not consider them. Other witnesses (Mr. Silver, Ms. Brammer, Dr. Strain) failed to recall or did not testify as to the date or location at which Gray may have provided services on their behalf. Ms. Hill believed that Brooke Gray had floated her horse‘s teeth, but she was not present at the stable and she did not look at the horse‘s teeth to find out. And in contrast to the witnesses who merely left holes in their testimony, Ms. Wycoff never established who she had observed at Ms. Hill‘s stables and she repeatedly contradicted her own testimony. When the witnesses have not told a complete or consistent story, it is not the role of the Court to fill in the gaps.

6

§ 516.120(2), RSMo.

-39-

This Court finds that the Petitioner has not met its ―necessary burden‖ of proving any specific instance in which Brooke Gray engaged in the unlawful practice of veterinary medicine; the Court is therefore not authorized to issue the injunction Petitioner has requested under section 340.276.1. Furthermore, even if the Petitioner had met its ―necessary burden,‖ the language of this statute is permissive, not mandatory. The legislature has left to the courts‘ discretion whether an injunction is warranted in any given case arising under section 340.276.1. This Court has found that while Brooke Gray does not hold a veterinary license, she is a highly skilled horse teeth floater and there is no evidence suggesting that her work as a floater is likely to cause injury to any Missouri horse or horse owner. Given this set of facts, it is this Court‘s opinion that the Petitioner has not demonstrated any reason that its requested injunction against Brooke Gray would serve the public interest and therefore it should not be granted.

Even if this Court had been of the opinion that an injunction might be warranted in this case, for the following reasons the Defendant has established that various provisions of the U.S. and Missouri Constitutions preclude this Court from applying section 340.276.1, in the manner requested by the Petitioner.

A. First Affirmative Defense: Substantive Due Process – Right to Earn a Living The Fourteenth Amendment and Article I, section 10, of the Missouri Constitution prohibit governments from depriving ―any person of life, liberty, or property without due process of law.‖7 The U.S. Supreme Court has repeatedly held that the liberty component of the Due Process Clause ―denotes not merely freedom from bodily restraint but also the right of the individual to contract [and] to engage in any of the common occupations of life[.]‖ Bd. of

7

Missouri courts do not differentiate between due process claims brought under the Fourteenth Amendment and those brought under Article I, section 10, of the Missouri Constitution.

-40-

Regents v. Roth, 408 U.S. 564, 572 (1972); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923); see also Habhab v. Hon, 536 F.3d 963, 968 (8th Cir. 2008) (Fourteenth Amendment protects the liberty to pursue a chosen calling or occupation); Heath v. Motion Picture Mach. Operators Union No. 170, 290 S.W.2d 152, 157 (Mo. 1956) (Fourteenth Amendment protects an individual‘s right ―to earn a livelihood at any common occupation‖).

The right to earn a living is, of course, limited by the government‘s power to protect citizens‘ health and safety, and courts grant extraordinary deference to laws that are challenged under the rational basis test. See Craigmiles v. Giles, 312 F.3d 220, 223-24 (6th Cir. 2002). But beneath all that deference is the fact that our constitutional system has never given government free rein to impose arbitrary or unreasonable restrictions on a person‘s ability to earn a living in a common profession. Where the government attempts to impose restrictions on an occupation, those restrictions must be rationally related to legitimate government interests. Id. at 224.

Several federal courts have recently struck down state economic regulations because they were not rationally related to legitimate government interests. See Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2007) (striking down irrational regulation of pest control workers); Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) (striking down irrational requirement that casket sellers must be licensed funeral directors); St. Joseph Abbey v. Castille, 2011 WL 1361425 (E.D. La. Apr. 8, 2011) (striking down irrational requirement that casket-makers must be licensed funeral directors); Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D. Cal 1999) (striking down irrational requirement that African-style hairbraiders must be licensed cosmetologists).

In Craigmiles v. Giles, the state of Tennessee had a law that prohibited citizens from earning a living selling caskets unless they first became licensed funeral directors. The government asserted that this requirement was related to two interests: (1) protecting vulnerable

-41-

consumers and ensuring competency in the funeral services profession, and (2) protecting the public health, safety, and welfare. Craigmiles v. Giles, 110 F.Supp.2d 658, 662 (E.D. Tenn.

2000). The trial court acknowledged that each of these were legitimate governmental interests, but held that requiring one to become a licensed funeral director before you could lawfully sell caskets was not rationally related to either of these objectives. The court pointed out that there was no evidence that caskets pose any appreciable risk to the public health and safety, a point which was bolstered by the fact that the state did not even require caskets for burial. The court also noted that the two years‘ worth of educational requirements for licensed funeral directors were only minimally related to the matter of casket sales and that there was no evidence that the training related to caskets played any role in protecting health, safety, or the environment. Id. at 663. Addressing the state‘s asserted interest in consumer protection, the court stated that there was no evidence that the disciplinary procedures available to punish unethical licensees resulted in better customer service, and it observed that the licensing restrictions actually hurt consumers by making funeral services much more expensive. Id. at 664. The trial court left Tennessee‘s regulatory scheme for the funeral industry in place, but held that the state could not constitutionally apply its laws to prevent persons other than funeral directors from selling caskets and urns. Id. at 667. On appeal, the Sixth Circuit reviewed similar arguments and affirmed the trial court‘s ruling that the licensing requirement was an unconstitutional restriction on the right to earn a living. See Craigmiles, 312 F.3d 220 (6th Cir. 2002).

Another similar case, Cornwell v. Hamilton, 80 F.Supp.2d 1101 (S.D. Cal 1999), considered a California law that prohibited citizens from earning a living by performing Africanstyle hairbraiding unless they first became licensed cosmetologists. The government in that case argued that the licensing requirement was related to the government‘s interest in protecting the

-42-

health and safety of its citizens, and the court agreed that this was a legitimate government interest. Id. at 1106. The government also asserted other interests, including an interest in regulating the conduct of professions, and ensuring that those engaged in cosmetology had demonstrated competence and fitness to enter the profession. Id. The court was not persuaded that these interests could be considered ―legitimate,‖ particularly when compared to the very limited scope of the occupation in which the hairbraiders wished to engage. The court acknowledged that the government had defined the practice of cosmetology broadly enough to encompass African-style hairbraiding, but found that natural hair care was a clearly defined and limited subdivision of the practice of cosmetology. Id. at 1108. The evidence showed that the government required cosmetologists to undergo 1600 hours of training before they were eligible for licensure, but that ―just over six percent‖ of the training materials were relevant to Africanstyle hairbraiding. Id. at 1111. The government had argued that cosmetology students interested in braiding had the option of taking a specialized course of study, but the court noted that this would only increase the time and expense required for a braider to meet the licensing requirements. Addressing the fact that cosmetology schools do teach some sanitation and hygiene, the court found that those courses comprised only four percent of the hours required for the completion of cosmetology school. In sum, the court held that the government‘s legitimate interest in protecting the public health and safety simply could not be considered rationally related to requiring African hairbraiders to spend incredible amounts of time and money to obtain a cosmetology license when all they really wanted to do was braid hair. Id. at 1117. The court left the broad cosmetology licensing framework undisturbed and it specified that its order would not protect anyone whose practices went beyond hairbraiding, but it ruled that the state

-43-

could not constitutionally require citizens to obtain cosmetology licenses if they only wanted to pursue the limited occupation of hairbraiding. Id. at 1119.

The reasoning in Craigmiles and Cornwell is directly applicable to the facts of this case.

Section 340.216.1 currently allows any Missouri citizen to float horses‘ teeth, but citizens must become licensed veterinarians before they are permitted to accept money for doing so. The Petitioner has asserted that this restriction is related to the government‘s interests in protecting the health and safety of Missouri‘s citizens and ensuring the quality of paid veterinary services; the Defendant argue that the Petitioner‘s application of the licensing requirements is not rationally related to the government‘s asserted interests.

The evidence in this case showed that there have long existed multiple subsets of nonveterinarian animal husbandry workers who specialize in a very limited, clearly defined range of tasks that have not traditionally made up a significant part of veterinary practice. Among these subsets is that of non-veterinarian horse teeth floaters. The record shows that there are several established lay equine dentistry schools at which these workers can learn and develop their skills under the oversight of experienced practitioners. The record also shows that some of these nonveterinarian floaters—including the Defendant in this case—develop a proficiency that exceeds many licensed veterinarians who also float horses‘ teeth. Under current Missouri law any person can attempt to float horses‘ teeth as long as they do not get paid for their work, but even highlyskilled floaters commit a criminal offense if they attempt to earn a living by applying their skills without obtaining a veterinarians license.

A professor for the University of Missouri‘s Veterinary School testified that veterinary school typically requires students to receive a minimum of 3400 hours of classroom instruction spread out over four school years. Veterinary school requires students to study and develop

-44-

basic competency in dealing with a wide array of species, and that equine studies is only one of seven major rotations students are required to take. The professor testified that that of all the time veterinary students spend in the classroom, most students receive no more than one halfhour of instruction on the practice of floating horses‘ teeth. Students with a particular interest in working with horses may have the opportunity to get hands-on experience floating horses‘ teeth, but the professor testified that only about 10-12 percent of any graduating class would take advantage of the opportunity, and that no recent veterinary school graduate was likely to possess the skills to safely float horses‘ teeth without some supervision. Instead, the record shows that if a licensed veterinarian wants to make teeth floating a large part of their practice, they must first obtain additional training, either from experienced veterinarian floaters or from one of the lay equine dental schools. The lone expert who has extensively evaluated the work of both veterinarian floaters and non-veterinarian floaters expressed his opinion that trained nonveterinarian floaters tend to be better trained and more adept in regard to their specific task than veterinarians who float teeth.

While the record shows that horses may on occasion suffer injury as a result of simple teeth floating, the evidence does not suggest that such injuries tend to be either severe or common. Petitioner submitted into evidence several academic studies questioning the medical value of teeth floating and suggesting the potential that horses might be injured by the improper use of certain tools, but none of the testimony or research indicated that the floating of horses‘ teeth is in any way related to Petitioner‘s asserted interest in safeguarding the public health and safety of Missouri‘s human population. Even if the government has a legitimate interest in protecting the health and safety of Missouri‘s equine population, the evidence offered in this case suggests that – particularly in Missouri‘s rural areas – horses and their owners might be better

-45-

served by having greater access to trained non-veterinarian floaters. The Court also notes that Petitioner‘s asserted interest in protecting the public health or safety is severely undercut by the fact that the law permits even completely untrained persons to float horses‘ teeth – as long as they are not getting paid to do so.

As to Petitioner‘s second interest, that of ensuring the quality of paid veterinary services, this Court is not persuaded that it is a matter of legitimate governmental concern. Even if this interest were assumed to be legitimate, the testimony in this case showed that non-veterinarian floaters tend to provide horse owners with a higher overall quality of service, greater flexibility and convenience, and a lower cost for their services – yet these are the very persons the current system prohibits from providing paid services!

Accordingly, this Court finds that Petitioner‘s

application of Section 340.216.1 to prevent non-veterinarian horse teeth floaters from using their skills to earn a living is in no way related to any legitimate government interest and is therefore unconstitutional.

B. Third Affirmative Defense: Right to the Enjoyment of the Gains of Industry One of the more unique aspects of the Missouri Constitution is that, in addition to acknowledging Thomas Jefferson‘s perspective that all citizens enjoy a right to life, liberty, and the pursuit of happiness, Article I, section 2, of the Missouri Constitution also secures citizens‘ natural right to the enjoyment of the gains of their own industry. This provision was adopted alongside a nationwide push by anti-slavery Republicans to ensure that the former slave states could not enact new laws that would prevent freed slaves from earning a living or owning property. See Timothy Sandefur, The Right to Earn a Living: Economic Freedom and the Law, 40 (2010). The phrasing adopted by the Missouri Constitutional Convention of 1875 echoed the terminology used just a few years earlier as part of the Congressional debates over whether the -46-

Fourteenth Amendment should be adopted to, in part, protect citizens‘ right to earn a living.8 Although the right to the enjoyment of the gains of one‘s industry was added to the Missouri Constitution more than a century ago, state courts have not yet offered a thorough analysis of its history or its proper application.9 There is one case, however, in which the Missouri Supreme Court applied Article I, section 2, to a set of facts similar to those presented in this case.

In Moler v. Whisman, 147 S.W. 985 (Mo. 1912), the Missouri Supreme Court reviewed a statute that forbade student barbers or their instructors to accept any compensation for services the students provided. The plaintiff in that case asserted that denying the students or instructors the opportunity to be compensated for the services they provided amounted to an unconstitutional denial of their right to enjoy the gains of their industry. The Missouri Supreme Court agreed and struck down the prohibition, specifically noting that the ―part of the law under consideration cannot even be said to tend to promote the public health, which is the pretended purpose for which it was enacted‖ and that a scheme intended to inhibit economic competition ―is entirely un-American because it is the policy of a free commonwealth to encourage thrift and industry among its citizens and to keep the door of opportunity ajar so that every qualified and deserving person who so desires may enter thereat.‖ Id. at 988-89.

8

Representative John Bingham, the author of the Fourteenth Amendment‘s privileges or immunities clause, noted that the clause was intended to protect the freedom ―to work in an honest calling and… to be secure in the enjoyment of the fruits of your toil.‖ Id. at 41. Another representative argued that every person had a right ―to carry on his own occupation, to secure the fruits of his own industry, and appropriate them as best suits himself, as long as it is a legitimate exercise of this right and not vicious in itself or against public policy, or morally wrong, or against the natural rights of others[.]‖ Id. 9

Petitioner has cited City of St. Louis v. McCann, 57 S.W. 1016 (Mo. banc 1900) as an example of the Missouri Supreme Court addressing this constitutional provision. The plaintiffs in McCann argued that license taxes violated their enjoyment of the gains of their industry.

Defendant have made no such assertion. Rather, it is their contention that the state may not prohibit a citizen from accepting payment for services that would otherwise be lawful. Petitioner argued that the legislature might rationally desire to deny citizens the gains of their industry, but this right is enshrined in the Constitution to prevent the legislature from doing so.

-47-

In the instant case, section 340.216.1 makes it ―unlawful for any person not licensed as a veterinarian under the provisions of sections 340.200 to 340.330 to practice veterinary medicine or to do any act which requires knowledge of veterinary medicine for valuable consideration[.]‖ Under the Petitioner‘s application of the law, any non-veterinarian may lawfully to engage in acts defined as veterinary medicine as long as they are not compensated in exchange for them.

This is an important point because it establishes that there is nothing inherently unlawful about horse teeth floating and other similar practices — the legislature has not completely restricted these practices to licensed veterinarians.10 To the contrary, the law permits citizens to apply their labor to these tasks on the express condition that they not receive consideration as a consequence of that labor. As such, Petitioner‘s application of the law denies non-veterinarian floaters such as the Defendant of ―the enjoyment of the gains of their own industry‖ in precisely the way that the Missouri Supreme Court ruled unconstitutional in Moler.

C. Fourth Affirmative Defense: Freedom of Speech In its Petition the Board alleged that the Defendant had violated section 340.216.1 by distributing business cards and by participating in a magazine interview in which ―she discussed equine dentistry and discussed the ‗floating‘ procedure with reporter Dean Houghton.‖ As the Petitioner stated it at that time, the interview with the magazine ―constitutes ‗holding herself out to the public as a practitioner of veterinary medicine by other‘ within the meaning of Section 340.216.1.‖ Whether or not the Petitioner introduced the magazine article as evidence, it has not amended its pleadings to remove the allegation that the Defendant‘s mere discussion of her skills

10

The same cannot be said for all practices falling within the statute‘s definition of ―veterinary medicine,‖ as is evidenced by the statement in section 340.216.1(5) that ―only a licensed veterinarian may immunize or treat an animal for diseases which are communicable to humans and which are of public health significance[.]‖ -48-

and knowledge is prohibited under section 340.216.1, and the Petitioner has also indicated throughout this litigation that the Defendant had acted illegally by merely telling others that she floats horses‘ teeth. The record makes clear that the Defendant is a highly skilled horse teeth floater and that even if Petitioner prevails in this case the Defendant will still lawfully be able to float teeth in Missouri as long as she does not get paid. The First Amendment and Article I, section 8 of the Missouri Constitution fully protect the Defendant‘s right to share truthful information related to her skills, knowledge, and experience, and it also protects the Defendant‘s right to express a willingness and ability to float teeth as long as she is not requesting consideration in exchange for that service.

A free speech challenge does not tolerate the same deference to government that is routinely applied to other types of constitutional challenges. To the contrary, where a law imposes a restriction on speech, the government bears the burden of justifying it. U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000). Additionally, Article I, section 8 of the Missouri Constitution forbids any legislative body in the state to pass any law impairing the freedom of speech and also guarantees ―that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, no matter by what means communicated.‖ ―Anything which makes the exercise of a right more expensive or less convenient, more difficult or less effective, impairs that right.‖ Ex parte Harrison, 110 S.W. 709, 710 (Mo. 1908). As the Missouri Supreme Court once stated, ―[l]anguage could not be broader, nor prohibition nor protection more amply comprehensive.‖ Marx & Haas Jeans Clothing Co. v.

Watson, 67 S.W. 391 (Mo. banc 1902).

Petitioner may not constitutionally apply section 340.216.1, in a way that would deny the Defendant her freedom to share truthful, non-misleading information about teeth floating and her

-49-

willingness and ability to float teeth under conditions in which it would be legal to do so. The Petitioner‘s allegation regarding the Defendant‘s magazine interview and the Petitioner‘s continuing suggestion that the Defendant is not permitted to truthfully tell others about her knowledge, skills, and experience and her willingness to use them in lawful ways makes clear that the restriction the government asserts over her speech is not limited to ―commercial speech‖ such as advertising, but rather strikes a pure speech within the heart of the First Amendment‘s protection. As such, this Court must subject the speech restriction to strict scrutiny.

Where strict scrutiny applies, the law or policy ―will only be upheld if it is necessary to a compelling state interest and narrowly drawn to protect that interest.‖ In re Coffman, 225 S.W.3d 439, 445 (Mo. banc 2007). The Petitioner has argued that the statutes at issue in this case are supported by the government‘s interest in protecting the public health and safety. Protecting the public health and safety may be a compelling state interest, but nothing in the record suggests that Missourians‘ health and safety is in any way imperiled by a citizen‘s truthful comments regarding her knowledge, skills, and experience and her willingness to use them in lawful ways.

This Court finds that the First Amendment prohibits the Board from applying section 340.216.1 to prevent non-veterinarians from truthfully telling others about their knowledge, skills, or experience and their willingness to apply them in lawful ways.

D. Fifth Affirmative Defense Procedural Due Process Petitioner‘s application of section 340.216.1 in this case raises two distinct issues implicating citizens‘ right to procedural due process. The first of these issues deals with the fact that, although the state of Missouri has formally prohibited the unlicensed practice of veterinary medicine — including a specific prohibition against the unlicensed practice of veterinary

-50-

dentistry — for more than one hundred years,11 prior to this case no government subdivision in this state had ever pursued a lawsuit against a non-veterinarian horse teeth floater on the theory that their animal husbandry services were unlawful. The statutory prohibitions relied upon by the Petitioner in this case have been in place since at least 1992, and yet the idea that nonveterinarian floaters could not lawfully accept compensation for assisting horse owners seems to be of relatively recent vintage. Prior to 2003 it appears that non-veterinarian floaters enjoyed the same toleration (if not acceptance) that veterinarians currently afford to professional farriers. It does not appear that Petitioner‘s relatively recent determination that Missouri law prohibits nonveterinarian floaters from getting paid for their work followed any process by which the public was informed of a change in the way the law would be applied.

This observation leads to the second procedural due process concern related to the Petitioner‘s application of section 340.216.1—the record shows that official policy of the Board seems to be that Missouri citizens cannot know with certainty what interactions with animals might lead to an action such as the instant case. The problem may be rooted in the fact that section 340.200(28) defines ―veterinary medicine‖ so broadly, such that the statute‘s restrictions apply to any act ―changing… any animal… physical or mental condition[.]‖ In addition to the Board‘s threats against non-veterinarian horse teeth floaters, which might at least have been anticipated due to the statute‘s specific mention of ―dentistry‖ as part of the definition of 11

See Missouri L. 1905 [H.B. 254], pp. 209-212 – Medicine and Surgery: Veterinary Surgery Act. ―AN ACT to regulate the practice of veterinary surgery, medicine and dentistry, create a veterinary examining board in the state of Missouri and prescribing a penalty for the violation thereof.‖ See also, Veterinary Surgery, Medicine and Dentistry Act (1909); Veterinary Surgery, Medicine and Dentistry Act (1919); Veterinary Surgery, Medicine and Dentistry Act (1929); Veterinary Surgery, Medicine and Dentistry Act (1939); Veterinary Practice Act (1949), R.S.Mo. § 340.020 – ―Any person shall be regarded as practicing veterinary surgery, veterinary medicine or veterinary dentistry…‖. The Veterinary Practice Act (1953) did not use the word ―dentistry,‖ but its definition was crafted almost as broadly as the current Veterinary Practice Act, adopted in 1992.

-51-

veterinary medicine, the record shows that Petitioner has also recently threatened legal action against citizens for practices such as ―herd work,‖ castration, dehorning, and massage – none of which are specifically mentioned in the definition. While the Petitioner has argued that the Defendant overstates any legitimate concerns about the scope of this definition, the Board‘s own executive director testified that even pet grooming could potentially find its way into the definition of ―veterinary medicine.‖ But deeper than the question of what practices the Petitioner might or might not decide fit within that statutory definition is the question of whether the citizens of this state will be able to know what the Board intends to regulate. Ms. Fennewald testified that the Board evaluates practices on a case-by-case basis. The Board‘s deliberations on these matters are not a matter of public record if the discussion is related to a possible enforcement action, and even if the public had access to the Board‘s reasoning in a given situation, Fennewald stated that its decisions about what constitutes the unlawful practice of veterinary medicine have no precedential value.

Fennewald‘s testimony suggested that a citizen could not necessarily know from one Board meeting to the next whether they could lawfully operate a business performing animal massage without first obtaining a veterinarians license.

The U.S. Supreme Court has long held that a government agency cannot exclude a person from any occupation in a manner that contravenes the Due Process Clause of the Fourteenth Amendment.12 Schware v. Board of Bar Exam. of State of N.M., 353 U.S. 232, 238-39 (1957).

Even where one does not necessarily have a legal right to continue in a line of work, they cannot be made ineligible for that work illegally. See Joint Anti-Fascist Refugee Committee v.

12

Defendant note that Petitioner has utterly misunderstood the nature of their Procedural Due Process claim, mistakenly assuming that Defendant asserted a violation of Missouri‘s Administrative Procedure Act. -52-

McGrath, 341 U.S. 123, 185 (1951) (J. Reed, dissenting). If a statute gives a government agency some discretion to act, that discretion may not be exercised arbitrarily. See State ex rel. Jimmy’s Western Bar-B-Q, Inc. v. City of Independence, 527 S.W.2d 11, 12-13 (Mo. App. 1975).

The Missouri Supreme Court recently addressed a similar situation in United Pharmacal Co. of Missouri, Inc. v. Missouri Bd. of Pharmacy, 208 S.W.3d 907 (Mo. 2006). In that case, a feed store had for twenty years been selling federal legend drugs to consumers for treatment of their animals, even though the store did not employ a licensed pharmacist. Id. at 908-09. The Board of Pharmacy had been aware of the store‘s practice since at least the early 1990s, but did not take any action until 2000, when the Board finally determined that the store was practicing pharmacy without a license. Id. at 909. In evaluating the case, the court pointed out not only that the regulatory board had for a decade refrained from taking action against feed stores dispensing animal drugs without having a licensed pharmacist on staff, but also that the state legislature had not intervened to require the board to do so. Id. at 912. Because it determined that the Board had changed its application of the law without justification, the court found no reason to defer to the Board‘s new position regarding the application of the state‘s laws. Id. The facts of the instant case demonstrate an even more established interpretation of the law than was present in United Pharmacal. Despite Missouri‘s longstanding prohibition against the unlicensed practice of ―veterinary dentistry,‖ non-veterinarian horse teeth floaters have been a visible part of Missouri‘s agricultural life during that entire time and never before has a representative of the government brought a floater to court for allegedly violating the state‘s veterinary laws. Likewise, Missouri‘s traditional animal husbandry practitioners have for more than a century enjoyed the presumption that they would be free to earn a living assisting this state‘s farmers and ranchers; principles of procedural due process demand that if that

-53-

presumption is no longer valid, the Petitioner must offer notice and an explanation before suddenly deciding to eliminate their livelihood. But the record in this case indicates that the Petitioner is not in the habit of offering such explanations. This Court concludes that the Petitioner‘s application of the law in this regard represents an arbitrary exercise of authority that denies citizens the procedural due process demanded by the Fourteenth Amendment E. Sixth Affirmative Defense: Equal Protection In its Sixth Affirmative Defense, the Defendant asserted that the Petitioner‘s application of sections 340.216.1 and 340.276 denies the equal protection of the law guaranteed by the Fourteenth Amendment and Article I, section 2, of the Missouri Constitution. The record in this case shows that the Petitioner has sent cease-and-desist letters to several non-veterinarians that the Board has accused of unlawfully floating horses‘ teeth for compensation, but the Petitioner appears to have taken no action whatsoever against non-veterinarian farriers. The Defendant concedes that the laws at issue in this case do not single out non-veterinarian horse teeth floaters as members of a suspect class or classification and that rational basis review is appropriate.

In an equal protection case, a court‘s responsibility is to evaluate whether the facts on which a classification is apparently based ―could reasonably be conceived to be true by the governmental decisionmaker.‖ Merrifield, 547 F.3d at 989. The state is not required ―to verify logical assumptions with statistical evidence… and rational distinctions may be made with substantially less than mathematical exactitude.‖ Id. (emphasis in original). However, ―while a government need not provide a perfectly logical solution to regulatory problems, it cannot hope to survive rational basis review by resorting to irrationality.‖ Id. at 991. (emphasis in original).

In Merrifield, the Ninth Circuit determined that California did not violate the Due Process Clause of the Fourteenth Amendment by requiring non-pesticide-using pest controllers to obtain -54-

a license before pursuing their occupation, even though licensure required training and testing in the use and handling of pesticides. The court reached this conclusion because even pest controllers who did not themselves use pesticides might encounter places where they had been used, making it rational for the legislature to assume that training in pesticide use could lessen a potential threat to the public health or safety. Id. at 988. But the statute at issue in Merrifield also granted exemptions to ―persons engaged in the live capture and removal or exclusion of vertebrate pests, bees, or wasps from a structure without the use of pesticides.‖ Id. at 981-82.

The definition of ―vertebrate pests‖ included ―bats, raccoons, skunks, and squirrels‖ but did not include ―mice, rats, or pigeons‖. Id. at 982. The plaintiff‘s business focused on the pesticide-free removal or exclusion of rodents and pigeons, and he contended that there was no rational basis for exempting one group of non-pesticide using pest controllers while denying such an exemption to the plaintiff. The court agreed with the plaintiff and ruled that the legislature‘s limited exclusion violated the Equal Protection Clause. The exemption could not be considered rational because the exempted subset of non-pesticide-using pest controllers were, in fact, more likely than the plaintiff to find themselves in a situation that endangered health or safety. Id. at 991. In other words, the government was not permitted to justify its general licensing scheme as necessary for the protection of the public health and safety, then to create an exemption in favor of those engaging in more dangerous practices.

The record in this case shows that farriers openly provide services within the definition of ―veterinary medicine‖ for compensation, and that the services they provide are more likely to cause harm to horses, but the Petitioner has not threatened any farriers with legal action. This distinction is informal, but it is reflected in the record and cannot be considered to be rational.

As such, this Court finds that the Petitioner‘s informal policy of taking action against non-

-55-

veterinarian horse teeth floaters while turning a blind eye to the state‘s professional farriers is inconsistent with the Equal Protection guarantees of the U.S. and Missouri Constitutions.

By the Court,

__________________________ Thomas Chapman, Judge

-56-