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Brown v. New York State Racing and Wagering Board

January 13, 2009

IN THE MATTER OF CHRIS BROWN, RESPONDENT,
v.
NEW YORK STATE RACING AND WAGERING BOARD, ET AL., APPELLANTS.



APPEAL by the New York State Racing and Wagering Board, in a proceeding pursuant to CPLR article 78 to enjoin it from preventing the petitioner from practicing routine equine dental care without a license, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court (Roy S. Mahon, J.), entered July 12, 2007, in Nassau County, as, after a hearing, denied that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the proceeding as time-barred, granted the petition, and enjoined it from preventing the petitioner from practicing routine equine dentistry.

The opinion of the court was delivered by: Dillon, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO and DANIEL D. ANGIOLILLO, JJ.

(Index No. 12103/06)

OPINION & ORDER

This appeal raises a simple question that lends itself to a less than simple answer. We are asked to determine whether individuals must be licensed veterinarians to lawfully provide certain dental services to horses. Apparently, no New York appellate court has ever addressed this issue. We hold, based upon our interpretation of Education Law article 135, that the practice of routine equine dentistry, as performed by the petitioner, does not require a veterinary license.

I. Relevant Facts

The petitioner, Christopher Brown, has been engaged in the practice of routine equine dentistry since 1975. Brown has never been licensed by the State of New York in veterinary medicine nor in veterinary technology. In 1975, Brown obtained a Certificate from the Cornell Cooperative Extension Program in Equine Management and Dentistry. He also possessed a license as a "veterinary assistant" issued by a nonparty, the New York Racing Association, Inc. (hereinafter the Racing Association), from 1973 to March 8, 2006, when Brown failed to renew the license.

A veterinary assistant works under the supervision of a licensed veterinarian. As a veterinary assistant, Brown performed routine equine dentistry and maintenance on thoroughbred race horses stabled at New York Racing Authority race tracks such as Aqueduct, Belmont, and Saratoga. Routine equine dentistry and maintenance was defined by Brown as consisting of the filing and floating (i.e., smoothing) of horses' teeth and the removal of baby caps from horses' mouths, using various types of files and an oral speculum to keep the horses' mouths open. It also includes the visual inspection of horses' mouths, and if cuts are discovered, the application of salt, a tincture of myrrh, or baking soda. Brown does not administer medications or drugs. According to deposition testimony in this case, unlike human teeth, horse teeth never stop growing; thus, periodic trimming of the teeth is required. Routine equine dentistry also enables horses to better chew and digest oats and to more comfortably and authoritatively bite down on their bits while racing.

During his career, Brown has worked on thoroughbreds owned by, among others, the Queen of England and the Crown Prince of Saudi Arabia, and upon various winners of the Kentucky Derby and the Belmont Stakes. The record does not contain any information that Brown's routine equine dentistry and maintenance has ever been deficient. To the contrary, his services have been requested by many of the greatest owners and trainers in thoroughbred racing and by veterinarians.

Brown was directed by letter dated July 11, 2005, to appear for an "investigative interview" at the office of the appellant, the New York State Racing and Wagering Board (hereinafter the Racing and Wagering Board). He also was directed to bring with him to the interview any documents qualifying him to perform work as an equine dentist.

The investigative interview was conducted on December 1, 2005. Brown testified under oath as to his training and experience in equine dentistry. He produced a copy of his veterinary assistant license. At the conclusion of the interview, the investigator advised Brown that absent a veterinary technician license issued by the New York State Education Department (hereinafter NYSED), which Brown never obtained, he could no longer practice equine dentistry. The investigator made clear, however, that his instruction not to perform equine dentistry was not an official decision on the issue, as the matter was not yet resolved.

On July 15, 2006, Dr. James Hunt, the veterinarian who supervised Brown at the time, was advised by the Racing and Wagering Board that Brown could no longer work as a ...


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