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December News

 

  DOT changes regulations for taking service and emotional support animals on flights. The U.S. Department of Transportation (DOT) issued a final rule amending the Air Carrier Access Act (ACAA) regulations on the transport of service animals by air. The rule changes the definition of “service animal” to mean only a dog, regardless of breed. Previously, service animals under the ACAA were not limited to dogs. The animal must do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability (which is similar to the definition in the regulations for the Americans with Disabilities Act (ADA)). Most notably is the change in rules for emotional support animals; carriers are not required to recognize emotional support animals as service animals and may treat them as pets. The DOT noted that the change in rules was prompted by complaints and confusion over service animals rules, “the increasing frequency of incidents of travelers fraudulently representing their pets as service animals,” and “reported increase in the incidents of misbehavior by emotional support animals.” The rule becomes effective 30 days after the final rule is published in the Federal Register.

   U.S. House of Representatives passes Big Cat Public Safety Act. On December 3rd, the House passed the bipartisan bill (HR 1380) that would ban private ownership of big cats like lions and tigers. The bill also prohibits exhibitors from allowing public contact with cat cubs (an activity that leads to overbreeding of big cats according to experts). Existing owners of big cats would be grandfathered in, provided they comply with requirements (i.e., a ban on acquiring or selling cats and adherence to the no contact with the public rule) including registration with the U.S. Fish & Wildlife Service. One of the bill’s main authors, Illinois Democratic Rep. Mike Quigley stated that the legislation's passage is "one step closer to ensuring these animals are treated humanely and to keeping the public safe from dangerous big cats." The bill not only has support from prominent animal advocacy organizations, but the Fraternal Order of Police also supports the bill as captive large predators pose vast public safety threats. “Too often, law enforcement and first responders are the ones who end up in danger from these animals and, in a time when our first responders are already facing increased risk,” said Quigley. The bill now awaits Senate approval.

   Ohio legislature considers mandatory reporting law for vets and others. House Bill 33 would require veterinarians and social service workers to report suspected animal abuse the same way others are required to report any suspected abuse of children, vulnerable adults and the elderly. The bill would require veterinarians, social services professionals, and anyone licensed under Chapter 4757 (counselors, therapists, and social workers) to report “a violation involving a companion animal to an officer who is not a dog warden or deputy dog warden when that person has knowledge or reasonable cause to suspect that such a violation has occurred or is occurring.” Likewise, law enforcement officers and dog wardens are also under a reporting mandate with the proposed law. A person required to make a report under section 959.07 or 959.08 of the Revised Code is immune from civil or criminal liability in connection with making that report if the person acted in good faith when making the report. The bill has passed the Ohio house. Several states have mandatory reporting laws for vets, but very few address other professions (see Connecticut and Tennessee for examples of such laws). 

News archives

Cases

Are Texas vets entitled to practice telemedicine with animal patients they have not previously examined? The Fifth Circuit says not necessarily. Hines v. Quillivan, --- F.3d ----, 2020 WL 7054278 (5th Cir. Dec. 2, 2020). The plaintiff challenged Texas' physical-examination requirement that prohibits veterinarians from offering individualized advice to pet owners unless the vet previously examined the animal. Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing in-person veterinary medicine in 2002 due to his age and other ailments. He then transitioned to a practice based remotely through the Internet. In 2012, the Texas State Board of Veterinary Medical Examiners (the Board) investigated Hines and found he had violated state law. In 2013, Dr. Hines filed suit against the Board members claiming that the physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The district court then granted the motion to dismiss by the Board and the Court of Appeals found Hines failed to state a claim on appeal. Since that 2015 opinion, Texas revised its medical doctor laws, allowing them to engage in telemedicine, but did not do the same for veterinary practice laws. In addition to that change, a United States Supreme Court held that statements made by medical doctors could now be deemed "professional speech" (the "NIFLA" case). As a result of these changes, Hines brought the present suit arguing that the changes in Texas' telemedicine laws and the NIFLA case enabled him to pursue a new equal-protection claim and First Amendment claim. With regard to his protected speech claim, this Court found that subsequent caselaw does entitle Hines' claim to greater judicial scrutiny than his previous case allowed. Thus, remand to the district court to make the initial evaluation of whether Hines' conduct or speech is being regulated is required. On the equal-protection argument, using a rational-basis review, the court held that it is rational to distinguish between human and animal medicine because of the differences in training, schooling, and overall practice of the professions. The court found the state's proffered reason that animals cannot communicate their symptoms as humans can ordinarily was a persuasive rational basis. Ultimately, the court left it to the Texas legislature to expand any telemedicine changes to the veterinary practice code. The action was affirmed in part, reversed and remanded in part.

Cruelty conviction affirmed where court finds search civilian-aided search and seizure reasonable. State v. Fay, --- A.3d ----, 2020 WL 7051326 (N.H. Dec. 2, 2020).  In this New Hampshire case, Christina Fay appeals her convictions on seventeen counts of cruelty to animals. In 2017, a search warrant executed at her residence resulted in the seizure of over 70 Great Danes. Police learned of the conditions at defendant's residence from defendant's prior employees, who gave accounts of floors covered in layers of feces, dogs being fed maggot-infested raw chicken, and dogs present with injuries/illness. Subsequently, the investigating Wolfeboro's police officer (Strauch) partnered with HSUS because the department did not have the resources to handle a large-scale animal law seizure. Strauch did not include in his affidavit supporting the search warrant's issuance that HSUS would be assisting the police, and the warrant itself did not explicitly state that HSUS was permitted to assist in its execution. On appeal, the defendant argues that the trial court erred in denying her motion to suppress by violating two of her constitutional rights: her right to be free from unreasonable searches and seizures and her right to privacy. As to defendant's argument that she had a right to be free from unreasonable searches and seizures, the court noted that it has not previously considered the extent to which it is constitutionally reasonable for the police to involve civilians when executing search warrants. The defendant argues that Strauch's failure to obtain express authorization for HSUS's aid from the magistrate who issued the search warrant was constitutionally unreasonable. The court found no instance in which a court has held that the failure to obtain express judicial authorization for citizen aid prior to the execution of a warrant rendered the subsequent search unconstitutional. The court concluded that the state did not violate the constitution by failing to obtain authorization for HSUS's involvement prior to the warrant's execution. Affirmed.

Buyer of sick dog unable to establish necessary evidence of racketeering activity for RICO case against franchised pet store and associated veterinarians. Cisneros v. Petland, Inc., 972 F.3d 1204 (11th Cir. 2020). Plaintiff Cisneros purchased a Shih Tzu puppy named "Giant" from Petland Kennesaw, a Kennesaw, Georgia franchise of Petland, Inc. She received a certificate of "veterinary inspection" and a limited health guarantee at the time of purchase. Several days later, problems arose with the puppy and she brought the dog back to the Petland affiliated veterinarian who prescribed antibiotics without making a diagnosis. Shortly thereafter, an emergency pet visit revealed the dog suffered from parvovirus. Cisneros called Petland who told her to take the dog back to the Petland vet if she wanted a refund. She did so and the dog died several days later. As a result, plaintiff alleged that actions were the intended result of a nationwide conspiracy involving Petland and its affiliates to sell unhealthy puppies from "puppy mills" where health conditions are rubber stamped by a network of "preferred veterinarians" and buyers are deceived by sales documents that distract from the fraud. Plaintiff broadly asserted three claims, the main one being violation of the federal RICO statute, 18 U.S.C. § 1962(c). The district court dismissed Cisneros's federal causes of action for failure to state a claim and declined to exercise supplemental jurisdiction over her remaining state-law claim, pursuant to 28 U.S.C. § 1367(c). After applying the six-fold test for a private plaintiff suing under the civil provisions of RICO, this Court found chiefly that Cisneros has alleged no facts that plausibly support the inference that the defendants were collectively trying to make money in pet sales by fraud, which is a common purpose sufficient to find a RICO enterprise. Even assuming that Cisneros has adequately pled fraud on the part of Petland Kennesaw, she has not alleged that its predicate acts constituted a pattern of racketeering activity. The action was affirmed in part, and vacated and remanded in part.

Case Archives

Articles

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).

When Cheaters Prosper: A Look at Abusive Horse Industry Practices on the Horse Show CircuitKjirsten SneedKentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 6 : Iss. 2 , Article 3 (2014).

Survey of Damages Measures Recognized in Negligence Cases Involving Animals, Alison M. Rowe, Kentucky Journal of Equine, Agriculture, & Natural Resources Law: Vol. 5 : Iss. 2 , Article 5 (2013).

Animal Consortium,  David S. Favre and Thomas Dickinson, 84 Tenn. L. Rev. 893 (2017).