FYI…
https://www.govjustice.org/fighting-for-vocational-freedom/
Gotta love NY, or move. And boy, everyone is selling their houses around here.
Was it N.Y. or federal that did something similar with equine dentists? Dentistry, IMO, makes more sense, as it can involve drugs, invasive procedures etc.
I have been following this topic and it was MD board of chiropractic that sued a massage therapist threatening to pull her human license if she continued work on horses. Seems she ran afoul of the veterinary board.
http://equiery.com/judge-sides-with-equine-massage-therapist/
Mecedes Clements was represented by the Institute for Justice
https://ij.org/case/clemens-v-maryland-state-board-of-veterinary-medical-examiners-et-al/
This person is suing New York State, not the other way around.
Sorry, this is ridiculous on her part. Whose fault is it that she didn’t realize she couldn’t practice as an equine massage therapist in NY without a license?
“New York’s arbitrary, excessive, and unreasonable laws, however, stand in the way of Ms. Smith enjoying her New York and United States constitutional rights to pursue her passion and vocation…”
There are a lot of “arbitrary laws” and regulations in every state. That’s why you need to know what they are before you train to work in a particular profession. Alternatively, she could have attempted to have the law changed.
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when I was doing that the position was called Groom
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Suing the state is the only way to get this resolved…in a timely manner…not in the next millenia, which is why she is suing.
What you are suggesting is changing the statute. That route addresses “statutory law.” That route is fraught with fighting special interests…specifically the Veterinary Board (made up of vets) who have no interest in competition.
There is another route…which is to make “case law”…this is done by the courts that interpret statues. (Note: I am not an attorney)
Per the article:
The Law
According to the State, because Lori is neither a licensed veterinarian nor a licensed human massage therapist, she may not perform equine massage. Only licensed veterinarians (or a narrow group of exempt persons) may engage in “diagnosing, treating, operating, or prescribing for any animal disease, pain, injury, deformity or dental or physical condition.” Further, the term “massage” or “massage therapy” can only be used by persons licensed or authorized under the law to practice human massage.
The State reads two laws together to conclude that the only persons in New York who may massage animals are veterinarians or veterinary technicians under the supervision of a veterinarian. A typical licensed veterinarian, however, takes eight years of post-high school coursework, including four years a veterinary school that does not offer equine massage instruction.
…
…
New York’s application of the law produces absurd, arbitrary, and inconsistent results. According to New York, any farmers engaging in standard animal husbandry practices and pet owners providing routine care to their animals practice veterinary medicine illegally.
The State unfairly singled out Lori for enforcement, depriving her of her rights as a New York and United States citizen. As a result, the Government Justice Center has stepped to help Lori assert her rights, filing a lawsuit against the state in the Supreme Court for Albany County.
The topic of “professional licensure” is a hot topic these days…I serve on a board of professional licensure.
In the 1950’s only 5% of professions were regulated. Currently that number is up to 30%.
https://www.ftc.gov/policy/advocacy/economic-liberty
The Federal Trade Commission (FTC) does not look kindly on excessive state regulation of professions (specifically blue-collar professions) such as for hair braiding, flower arranging, make-up technician, sign language interpreter, nursery worker…and the list goes on)
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I was married to a lobbyist in NY for many years. Case law is not *the only" way to get this resolved. Laws in NY are changed every year; and it doesn’t necessarily require millenia to accomplish. I am not sure suing the state will be any faster than proposing new regulation or amending an existing law. But it would need more than one person to actually care about this and not sure there is sufficient interest in NY. Who knows?
I wouldn’t put horse massage therapy in the same bucket as hair braider or flower arranger, though. The lawsuit may result in NY being more specific about horse massage therapists but doesn’t mean it won’t still be regulated.
Regardless, she is suing the state, not NY state suing her. So you may want to change the heading of this post.
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She is suing the state because the state issued a cease and desist order with a threat of CRIMINAL prosecution…
Criminal??? For the crime of massaging a horse???
Not being a licensed veterinarian and faced with the threat of criminal charges,…
The courts are the only way to get your side of the story heard.
As far as lobbying…yeah…I’m sure she can pay their fees. (sarcasm here…)
I worked for a Fortune 50 multinational and worked with our lobbyists.
Our board of licensure also employs a lobbyist to make sure our board is aware of proposed statutory changes…and even then she’s missed some big ones.
Bottom line…trying to get laws changed is NOT easy…especially for an individual.
So the courts are the last recourse.
There are many other states that are over the top with this “professional licensure” position. If you want we can start a whole 'nother thread on that.
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You seem so shocked about this for some reason. If my hairdresser colored my hair without a license she would be threatened with “criminal prosecution” as well. Probably a fine or misdemeanor offense, but it’s “a crime” to practice many professions without a license.
The courts are a way of being heard, sure. It just may not end up with results that allow massage therapy without a license; and may not end up allowing this person to open a practice in NY.
Out of curiosity I did a quick search and massage therapy is not allowed in many states unless by a vet or under vet supervision. Seems like this trade organization might already have some lobbying efforts already. https://iaamb.org/resources/laws-by-state/ Maybe they are funding the lawsuit. Although that seems unlikely.
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I am not “shocked”…I just find it a little over the top to charge someone criminally for massaging a horse. In “Board” lingo the official charge is “Practicing Without a License.”
Maybe the charge might be appropriate for someome impersonating a doctor…or lawyer…or one of the “learned professions” (this is a technical term applying to anti-trust legislation) but for horse massage???
But as you see see in the link posted in the IAAMB.ORG web site, it is all about following the money…most of these enforcement actions are driven by the veterinary boards.
I am very aware of the movement to exclude competitors in different areas of practice and have an interest in how these cases are adjudicated, thus why I posted the link.
About 15 years ago, I came upon a strategy paper by the AAEP on their web site where they were overtly targeting restricting “alternative practitioners” as a way for vets to make more money. I wish I had saved that file.
The FTC position is that these sorts of laws are anti-competitive to the detriment of the consumer.
Read up on the NC Dental Supreme Court Decision
https://en.wikipedia.org/wiki/North_Carolina_State_Board_of_Dental_Examiners_v._FTC
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She’d be okay if she got certified as a human masseuse and then practiced on horses. That doesn’t make sense.
She is certified, and it appears moving to the state that allowed the certification (NJ) would be an option, unless she one her goals is to change the law.
The “follow the money” argument has it’s limits.
A person who has spent years, and thousands of dollars, learning a profession in order to obtain a license to practice that profession is entitled to challenge persons without their level of knowledge and experience who wish to practice their are and thus compete with them. Be you a barber or a surgeon if the State says you must have a license to practice then that’s the law. It’s not discriminatory unless based upon some protected category (race, ethnicity, gender, etc.). It it’s genuinely neutral then it’s Constitutional.
It’s wildly fashionable for all manner of self-proclaimed “practitioners” of some “art” to claim that licensing, and enforcement of licensing, is somehow “discriminatory.” In fact, it is. But the Constitution does NOT outlaw “discrimination.” It outlaws “invidious discrimination.” It prohibits the drawing arbitrary classes and denial of right and privileged based upon that arbitrary categorization. If the State can show a rational basis for the action then it’s likely OK. The issue is not optics but reasonable exercise of the police power to protect a public interest.
We can disagree on just how lines might be drawn but that’s a matter for the legislature, not courts. The right to draw the line, however, is inherent in the sovereign power of the State.
G.
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Actually, I don’t think so, not in NY. No one can practice anything on horses except as a vet or under vet supervision. Not sure why there was a need to include “massage therapist” in any legal justification, and I would be interested to know how the state stated this (I would want to understand her quote of “the state reads these two laws together.”
The fact that the only reference to “massage therapy” in legislation is for humans seems irrelevant. There are any number of therapeutic treatments that would still be precluded by the only vets can practice medicine or more broadly defined as “diagnosing, treating, operating, or prescribing for any animal disease, pain, injury, deformity or dental or physical condition.” They would all be considered treatment of an animal whether there was a human equivalent mentioned somewhere else.
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If equine massage therapy is a “treatment”, it falls in the realm of veterinary medicine.
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Having seen some absolutely scary"massage practitioners", NOT on my horses, with a board and hammer in their hands, I’m all for licensing.
Also I don’t think a 6 week online course qualifies anyone for anything!
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I find the weirdest thing about this is that no veterinarian worth hiring has the time to do equine massage…
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The objective of professional licensure is “to protect public safety.”
The question is whether horse massage poses a problem that threatens public safety.
As you have so well stated, you would not hire the incompetent massage therapists, so the marketplace has taken care of this.
[quote=“pluvTwas a dangerous cliff, as they freely confessed,
Though to walk near its crest was so pleasant;
But over its terrible edge there had slipped
A duke and full many a peasant.
So the people said something would have to be done,
But their projects did not at all tally;
Some said, “Put a fence ’round the edge of the cliff,”
Some, “An ambulance down in the valley.”
But the cry for the ambulance carried the day,
For it spread through the neighboring city;
A fence may be useful or not, it is true,
But each heart became full of pity
For those who slipped over the dangerous cliff;
And the dwellers in highway and alley
Gave pounds and gave pence, not to put up a fence,
But an ambulance down in the valley.
“For the cliff is all right, if you’re careful,” they said,
“And, if folks even slip and are dropping,
It isn’t the slipping that hurts them so much
As the shock down below when they’re stopping.”
So day after day, as these mishaps occurred,
Quick forth would those rescuers sally
To pick up the victims who fell off the cliff,
With their ambulance down in the valley.
Then an old sage remarked: “It’s a marvel to me
That people give far more attention
To repairing results than to stopping the cause,
When they’d much better aim at prevention.
Let us stop at its source all this mischief,” cried he,
“Come, neighbors and friends, let us rally;
If the cliff we will fence, we might almost dispense
With the ambulance down in the valley.”
“Oh he’s a fanatic,” the others rejoined,
“Dispense with the ambulance? Never!
He’d dispense with all charities, too, if he could;
No! No! We’ll support them forever.
Aren’t we picking up folks just as fast as they fall?
And shall this man dictate to us? Shall he?
Why should people of sense stop to put up a fence,
While the ambulance works in the valley?”
But the sensible few, who are practical too,
Will not bear with such nonsense much longer;
They believe that prevention is better than cure,
And their party will soon be the stronger.
Encourage them then, with your purse, voice, and pen,
And while other philanthropists dally,
They will scorn all pretense, and put up a stout fence
On the cliff that hangs over the valley.
Better guide well the young than reclaim them when old,
For the voice of true wisdom is calling.
“To rescue the fallen is good, but ’tis best
To prevent other people from falling.”
Better close up the source of temptation and crime
Than deliver from dungeon or galley;
Better put a strong fence ’round the top of the cliff
Than an ambulance down in the valley.
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G…I hear you.
As I stated many times before, I sit on a board of professional regulation. I have followed the case law on this and the list of decisions are lengthy. As a lawyer you know that facts of the case matter, so here are just a few cases for your reading pleasure.
In a lot of cases the question is indeed all about the money. I raise this issue here, on a horse board, because some people use “alternative therapies” (which include horse dentists) and people should be aware of limitations that are being raised in legislatures…and if you like your horse dentist, masseuse, chiropractor, etc this issue might be of interest.
The farrier lobby has managed to successfully exclude farriery from veterinary oversight.
The FTC does not look kindly upon using professional licensure as a barrier to entry, much as the medieval guilds did to exclude market participation.
https://www.ftc.gov/news-events/even…mers-workforce
For some occupations, licensing restrictions may be an appropriate policy response to protect public safety or satisfy other consumer protection concerns. For other occupations, however, it is questionable whether policy rationales for licensing – and for many of the particular license-related restrictions adopted in some states – are adequate to justify the costs to workers and consumers. This analysis is complicated by the fact that the costs of the restrictions are not always well understood. Some studies have found that the percentage of the U.S. workforce employed in occupations that require a license has grown substantially, and have suggested that license-based restrictions result in fewer jobs, higher consumer prices, and other economic harms.
In other cases some state licensing boards are very aggressive.The Oregon Board for Engineers cited a politician for saying he was an engineer in a political campaign ad, (he had an engineering degree, but did not have an engineering license).
In another case, the Oregon Board fined an engineer for measuring the cycle time for yellow-to-red light at intersections and cited him for practicing engineering without a license. In this case the engineer did not back down appealed the fine.
Mats Järlström v. Oregon Board of Professional Engineers
A question being debated in licensing boards everywhere is whether someone can use a professional title without licensure. It raises questions on protection of “free speech” vs “commercial free speech” and whether “the public” would be misled if claims are actually or inherently misleading, but rather potentially misleading.
The test for this has been decided by SCOTUS in the Central Hudson case.
https://caselaw.findlaw.com/us-supre…t/447/557.html
In Pennsylvania, an engineer was charged with practicing architecture without a license, when his fees for work he did work for a lawyer were less than the architect was charging…even though both professions were eminently qualified to do the work. The judge in this opinion had a great sense of humor.
Rosen v. PA Board of Professional Licensure
https://caselaw.findlaw.com/pa-commo…t/1000934.html
The instant appeal represents, in our view, an ongoing turf war between these two learned professions over the application of their professional disciplines to the design of buildings, and to the construction and renovation of buildings and structures within the Commonwealth of Pennsylvania. ”‚ On appeal, Petitioners concede that while these two professional disciplines are different, there are substantial areas which overlap relating to the design, construction and renovation of structures. ”‚ Petitioners further maintain that the purpose of the two professional regulatory statutes is to protect the public safety rather than to protect the private interests of one discipline over the other. ”‚ …
”ƒThe primary purpose of the Architects’ Law is to protect “the health, safety and property of the people of the Commonwealth ”¤.,””‰
…
Likewise, the primary purpose of the Engineers’ Law is also to “safeguard life, health or property”¤” 63 P.S. §”‚150(a). ”‚ …
Obviously, the purpose of these regulatory statutes is not to erect unreasonable barriers or boundaries between the two professions, or to carve out areas of “turf” for one profession at the expense of another. ”‚ …
…
So wait… we should all be allowed to do whatever we want because it is our passion? Heck with the laws that were very much there before we decided we wanted to follow our passion?
The article implies that she did not know this law existed or something…
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