Texas Animal Law Institute 2012

by Jill Elsey
February 6th, 2012

Dear Friends of Animals:

This year the Animal Law Institute will be held in Fort Worth on March 9, 2012.  Great speakers from around Texas and the U.S. will be giving talks on some fascinating animal law topics.  The Institute, which is put on annually by the Animal Law Section of the State Bar of Texas, is open to non-lawyers.  For more information or to sign up go to http://www.animallawsection.org/institute/  (the right side bar menu has registration, speaker, and hotel information). I hope to see you there!

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Billing Practices for Horse Professionals

by Jill Elsey
January 4th, 2012

I work hard to meet my clients’ needs and expectations, and I have been very blessed with outstanding clients.   Other professionals, both lawyers and non-lawyers, have asked me how difficult it is to collect my bills. In my case, all of my clients are paid up! I do not have worry about outstanding account receivables or whether I have to turn clients over to collections or sue them for the money they owe.

How is the possible? I believe it is because I have focused on good billing practices. These techniques work for any industry and I often recommend them to horse professionals that I advise:

1. Send bills out TIMELY. Always bill on a monthly basis. Clients get angry when bills accumulate for months. They are used to paying bills on a monthly basis.

2. Make sure that bills are ACCURATE. It is difficult to explain errors on a bill. Proof-read your bills. If there is an error, then you should review it, provide an explanation and fix it immediately. Equestrian sports are expensive. You want to express to your clients that you care about their budgets and want them to be able to continue in these sports.

3. Bills should be EASY TO UNDERSTAND. Make sure they are clear and concise. How much is due each month and when it is due should be clearly stated.

4. Provide SUFFICIENT DETAIL. Clients are more likely to pay if they understand what exactly they  are paying for.  You will need this for your records as well. If the board and care charge fluctuates every month, you should be able to describe why this occurs. Is the horse getting more supplements? Did the horse get worked more by a trainer? General guessing is not good enough.  

5. Simple PAYMENT INSTRUCTIONS. The purpose of a bill is to get payment. Make sure every bill states how clients are expected to pay. If you want payment to be mailed in, PROVIDE A SELF-ADDRESSED, STAMPED ENVELOPE for the checks return. I have found that it is much easier for clients to drop a check in an envelope that is provided with a stamp, than it is for them to find their own envelope and stamp. If you allow for PAYPAL payments, state on each invoice how they can go to a website to submit a payment online.

Good billing practices lead to getting paid by happy customers. Make it your goal for 2012 to implement some of these practices to improve your business.

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The Ban on Horse Slaughter Has Been Lifted

by Jill Elsey
December 1st, 2011

President Barack Obama has lifted a 5-year-old ban on funding horse meat inspections by signing a spending bill on Nov. 18 to keep the government afloat until mid-December. Texas previously had two horse slaughterhouses, which closed in 2006. The last slaughterhouse in American closed in 2007 in Illinois.  Since then the economy collapsed. Rescues became overwhelmed with unwanted horses and many horses became abused, neglected or abandoned.

http://bottomline.msnbc.msn.com/_news/2011/11/30/9114827-horse-meat-may-be-back-on-the-menu

The market for horse meat in Europe still continues, as does the debate on whether the United States should have slaughterhouses for exporting the meat. As it stands now no slaughterhouse is exists.  A state will have to approve the opening of a facility and the US Department of Agriculture will have to find money in its already trimmed budget to fund inspections. Whether slaughterhouses will return to Texas is uncertain. Former Kaufman, Texas Mayor Paula Bacon recently attended the International Equine Conference for Equine Welfare, Preservation and Public Health in Virigina. She spoke about the negative effects the slaughterhouse had on her town when it was up and running.

Please see my previous posts to learn more about laws effecting horse slaughter and unwanted horses.

Categories Animal Rescue, Horse Business, Horse Industry, Horse Laws, Laws, Unwanted Horses
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Break through Texas case! Sentimental Value Damages for Pets

by Jill Elsey
November 5th, 2011

The Medlen’s dog, Avery, escaped from their backyard and was picked up by animal control. Mr. Medlen went to the animal shelter to retrieve his but did not have enough money with him to pay the fees.  He was told that he could return for the Avery, and a “hold for owner” tag was placed on Avery’s cage, notifying employees that Avery was not to be euthanized.  A shelter employee, made a list of animals that would be euthanized the following day.  She put Avery on the list, contrary to the “hold for owner” tag.  Avery was put down the next day.  When the Medlens returned for the dog a few days later, they learned of his fate.

The Medlens sued the employee, alleging that her negligence proximately caused Avery’s death. They sued for Avery’s “sentimental or intrinsic value” because he had little or no market value and was irreplaceable.  The employee argued that the Medlens’ claim for intrinsic value damages on the grounds that such damages are not recoverable for the death of a dog.  The trial judge granted the special exception and ordered the Medlens to amend their pleadings to “state a claim for damages recognized at law.”  The Medlens filed an amended petition but reasserted that they were seeking damages for Avery’s “intrinsic value” only.  Strickland specially excepted again, and the trial judge dismissed the lawsuit.  The Medlens appealed.

The law in this matter comes from a case that is 120 years old. According to an 1891 supreme court case, dogs are treated differently under the law than other personal property.  See Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891).  For dogs, a party can only recover the market value, if there is any, or a special or pecuniary value determined by the usefulness or services of the dog.  Id. at 932. 

On appeal, the Supreme Court held, “We respectfully disagree with our sister court’s interpretation of Heiligmann and its holding in Petco regarding intrinsic value for loss of companionship.” The court went on to say:      

“Dogs are unconditionally devoted to their owners.  Today, we interpret timeworn supreme court law in light of subsequent supreme court law to acknowledge that the ‘special value’ of man’s best friend should be protected.  Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property the trial court erred in dismissing the Medlens’ action.”

The entire opinion may be read here: http://www.2ndcoa.courts.state.tx.us/opinions/PDFopinion.asp?OpinionID=22791

Categories Animal damages, Laws, News
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International Equine Conference Draws Political Attention

by Jill Elsey
October 27th, 2011

The International Equine Conference for Equine Welfare, Preservation and Public Health was held recently in Virigina.  The attendees included many legislators including: U.S. Reps. Jim Moran (D-VA), Ed Whitfield (R-KY), Elizabeth Weiner, projects assistant for Sen. Mary Landrieu (D-LA), Jayme Rosandich, aide to Rep. Dan Burton (R-IN), and former Kaufman, Texas Mayor Paula Bacon.

The conference focused on two main topics: (1) America’s Wild Horses and Burros and (2) Slaughter. Madeleine Pickens, whom I had the pleasure of sitting with at the recent Women’s Horse Industry Networking Expo where I was asked to speak, was present to champion her cause for saving the mustang at her wild horse eco-preserve, Mustang Monument.  Reps. Jim Moran and Ed Whitfield spoke about the American Horse Slaughter Prevention Act, S.B. 1176/H.R. 2966, which has not yet been passed. Paula Bacon spoke about the negative effects that horse slaughter had on her town of Kaufman, Texas before it was shut down.

This is the first year this conference has been held. It is surely an event to keep your eye on in the future. It is important for all horse owners to participate in forums for discussion and communication about equine issues. Especially, ones where politicians and law makers are present. For more detail about the recent event, please click here.

Categories Animal Rescue, Horse Industry, Horse Laws, Horse Rescue, News, Uncategorized, Unwanted Horses
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How long is a non-profit veterinary clinic required to maintain records regarding the animals it treats?

by Jill Elsey
October 14th, 2011

This topic was recently discussed on one of the animal law listservs that I follow and contribute to. I think it is good information, so I am posting the conclusion of discussions.

The Texas Administration Code requires Texas veterinarians to maintain patient records for a period of five years from the date of last treatment.   A separate provision identifies a five year period for retention of rabies vaccination records. 22 Tex. Admin. Code §573.51.

Also, Texas Occupation Code § 801.359(a) provides that “The board [State Board of Veterinary Medical Examiners] shall require each veterinarian to maintain a recordkeeping system for controlled substances as required by Chapter 481, Health and Safety Code.”  Texas Health and Safety Code § 481.067(a) provides that “A person who is registered to manufacture, distribute, analyze, or dispense a controlled substance shall keep records and maintain inventories in compliance with recordkeeping and inventory requirements of federal law and with additional rules the director adopts.” This section further provides in subpart c that “A record required by this section must be made at the time of the transaction that is the basis of the record. A record or inventory required by this section must be kept or maintained for at least two years after the date the record or inventory is made.”  This two year provision also appears in 21 CFR 1304.4(a) which requires that records be kept for at least 2 years from the date of each inventory or record.

Veterinarians are also required to register with the Texas Department of Public Safety and the Drug Enforcement Administration as outlined in a publication found at on the website of the Texas Board of Veterinary Medical Examiners.

See also: http://www.tbvme.state.tx.us/documents/agency/Controlled%20Substances.pdf

Categories Animal Rescue, Horse Business, Laws, Record Retention, Veteriarians
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Rescues Save the Date!

by Jill Elsey
October 4th, 2011

      ”LAWYERS TO THE RESCUE”

Sponsered by the Houston Bar Association Animal Law Section

Legal Seminar for Attorneys, Legal Assistants, Law Students and the Animal Rescue/Welfare Community

Topics:

  • Adoption Contracts
  • Liability Exposure
  • Tax Reporting & Consequences/Fundraiser Limitations
  • Employment
  • Kennel Licensing/Building Permits
  • Feral Feeding Ordinanct/Registration
  • Van Dusen Tax Case (Chartitable Deductions)

FRIDAY, NOVEMBER 11, 2011 at SOUTH TEXAS COLLEGE OF LAW

Garrett-Townes Auditorium 1303 San Jacinto, Houston, Texas 77002

Check-in 10:30 am    Seminar 11:00 am – 4:00 pm    Lunch will be provided

Early Registration:

$50-Animal Rescue Personnel

$95- Member of the HBA or State Bar of Texas Animal Law Section

$125- Licensed Attorneys

Email: Clarissa Bauer at wildhorsespirit@msn.com

 

Categories Animal Rescue, business plan, Contracts, Employment Issues, Equine Insurance, Equine Liability, Horse Business, Horse Rescue
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Law Effecting Horse Slaughter

by Jill Elsey
September 9th, 2011

In past years, the Agricultural Appropriations Act has included a legislative rider that prevented the USDA from paying the salary of any employee to inspect horse processing facilities.  This back room provision was included at the urging of animal rights activists and has had severe consequences on the horse industry.  The rider effectively ensures no facilities can humanely process horses within the United States.  As a direct result of this legislative rider, the Government Accountability Office has found the unintended consequences include a sizeable negative economic impact on the horse industry and incidents of inhumane treatment of horses has risen.  The facts are in, the restriction is hurting industry and hurting animal welfare. Issues concerning unwanted or unusable horses are further discussed in a previous Blog.

AQHA is urging voters to make their voices heard.  If you would like to contact your Senator below and click on the their website to email or call them and urge them to vote against any amendment restricting the USDA from inspecting horse processing facilities.

Kay Bailey Hutchison

202-224-5922

Texas
Commerce, Justice, Science (Ranking), Military Construction and Veterans Affairs, Defense, Energy and Water Development, Labor, HHS and Education, Transportation/HUD

Categories AQHA, Horse Industry, Horse Laws, News, Unwanted Horses
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Independent contractor vs. Employee

by Jill Elsey
September 6th, 2011

A worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where and how the work is done. Employing an independent contractor is much simpler than hiring an employee because there is far less paperwork. If an employee has been mischaracterized as an independent contractor, the employer may be subject to federal and state penalities that can include back taxes that should have been witheld, as well as interest and penalties. (More on the employer consequences to follow in a later post.)

The IRS uses three characteristics to determine the relationship between businesses and workers:

  • Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
  • Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
  • Type of Relationshipfactor relates to how the workers and the business owner perceive their relationship.Listed below are factors that are considered in every case:

1. Instruction: An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.

2. Training: An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.

3. Integration: An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.

4. Services Rendered Personally: A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.

5. Hiring, Supervising & Paying Helper: Independent Contractors select, hire, pay and supervise any helpers used and are responsible for the results of the helpers’ labor.

6. Continuing Relationship: An Independent Contractor is usually hired to do one job of limited or definite duration and has no expectation of continuing work.

7. Set Hours of Work: A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.

8. Full-time Required: A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.

9. Location Where Services Performed: Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.

10. Order or Sequence Set: A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.

11. Oral or Written Reports: An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.

12. Payment by the Hour, Week or Month: An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.

13. Payment of Business/Travel Expense: Independent Contractors normally pay all of their own business and travel expenses without reimbursement.

14. Furnishing Tools & Equipment: True Independent Contractors usually have a substantial financial investment in their independent business.

15. Realize Profit or Loss: An independent contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.

16. Working For More Than One Firm At One Time: An Independent Contractor often works for more than one client or firm at the same time and is not subject to a non-competition rule.

17. Significant Investment: True Independent Contractors usually have a substantial financial investment in their independent business.

18. Making Service Available To The Public: An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.

19. Right To Discharge Without Liability: If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.

20. Right To Quit Without Liability: An Independent Contractor is legally responsible for job completion and, on quitting, becomes liable for breach of contract.

Categories Contracts, Employment Issues, Horse Business, Horse Industry
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Horse Sales Laws

by Jill Elsey
August 31st, 2011

Three states have laws pertaining to horse sales that all trainers need to know.  These laws will apply to you, if you:

                  (1) sell a horse to a buyer in one of these states;

                  (2) buy a horse from a seller one of these states;

                  (3) act as an agent for a buyer or seller from one of these states;

                 (4) receive a commission in connection with a horse sale or purchase that took place in one of these states, or where one of the parties lived in one of these states.

In 2008, Kentucky passed a law making dual agency unlawful.  In Kentucky for show horse transactions over $10,000:

 (A) Each sale, purchase or transfer must be accompanied by a written bill of sale that includes the purchase price and is signed by buyer and seller. 

(B) It is unlawful for an agent to represent both the buyer and the seller in a transaction unless the agent discloses the dual representation in advance in writing and both buyer and seller agree to the dual agency in writing. If an agent represents both the buyer and the seller, buyer and seller can request copies of all financial records relating to the transaction.

(C) It is unlawful for an agent to accept payment or any item of value worth more than $500 from anyone other than his principal unless (a) the agent and the person making the payment disclose the compensation in writing to both the buyer and the seller AND (b) the agent’s principal consents in writing to the payment.

Ky. Rev. Stat. Ann §230.357

 In 2010, Florida passed a law that:

 (A) Prohibits dual agency in horse sale transactions unless the horse buyer and the horse owner know in advance and agree to the dual representation in writing.

(B) States that an agent or trainer cannot recommend that their client purchase a horse in which the agent/trainer has an ownership interest unless the client is aware of the ownership interest prior to the sale.

(C)  Requires the disclosure of relevant medical conditions, defects, and surgeries; the conduct or alterations that could affect the performance of a horse; and the need for a written bill of sale or similar documentation.

Fla. Stat. §535.16

 Most recently in August 2010, California passed a new law that requires:

 (A) The buyer be provided with a written bill of sale that includes the purchase price and is signed by the seller and the buyer (or their authorized agents).

(B) If you pay a commission (or anything worth $500 or more) to the buyer’s or seller’s agent in connection with a sale, you must: (i) provide a written statement describing the commission or item of value to the person whose agent will receive it, and (ii) the person whose agent will receive the commission or item of value signs the statement or otherwise agrees in writing. (Note: You will not be able to enforce a commission agreement unless: (i) the agreement is in writing; (ii) the person required to pay you has signed the agreement; and (iii) you met all the disclosure requirements for agency and commissions.)

(C) If an agent for the buyer or seller or dual agent in a transaction receives a request, they must provide copies of all financial records in possession of control of the agent that pertain to the transaction.

(D) Any violation of this section, allows for a recovery of treble damages.

CA Business & Professions Code § 19520-19526

 To ensure that you are compliant with these and other regulations, contact National Equine Escrow.

 

Categories Commission, Contracts, Horse Import/Export, Horse Laws, Horse Sales, Horse Trainer, Horse Transactions, Laws, Leases
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