Minnesota Horse Teeth Floating - Background
To Economic Opportunity:
Challenging Minnesota’s Occupational Licensing Of Horse Teeth Floaters
Veterinarians have captured Minnesota’s Board of Veterinary Medicine and are using its power to exclude competitors no matter how small the market or how low-risk the area of animal care. This is best illustrated by the crackdown on “horse teeth floaters”—individuals who manually file down points and level a domestic horse’s teeth. (Horses need to have their teeth “floated”—an important but painless procedure—because their modern diet is not sufficiently abrasive to maintain the evenness of their teeth. If the points are not floated, it may become painful for a domestic horse to chew or hold a bit.)
At the behest of veterinarians, Minnesota’s Board of Veterinary Medicine is demanding that horse teeth floaters either become licensed veterinarians (a costly and needless exercise) or pass an exam given by the International Association of Equine Dentistry (IAED), which has never been offered in Minnesota.
A lawsuit filed on August 16, 2006, however, will show the bankruptcy of the veterinarians’ occupational licensing scheme and the absurd lengths that a cartel will go in order to protect even this most obscure niche from competitors. The traditional occupation of a horse teeth floater offers a lifetime of opportunity for rural Minnesotans who love horses. But Minnesota’s Board of Veterinary Medicine keeps such entrepreneurs out of business and subjects them to fines and incarceration for practicing the occupation they love.
This lawsuit is the fourth case in IJ-Minnesota’s campaign to restore economic liberty as a civil right under both the Minnesota and U.S. Constitutions.
“Horse teeth floating” may sound like the punch line to a joke about a confused water polo player, but to Chris Johnson, from Hutchinson, Minn., it is serious business.
The State of Minnesota and its Board of Veterinary Medicine has put Johnson out of business. State laws irrationally classify horse teeth floating as the practice of veterinary medicine—even though veterinary schools hardly teach floating—and subject Chris to fines and possibly even jail time for practicing the occupation he loves.
Floating is the skill of manually filing down the points on a domestic horse’s teeth, which emerge because of their natural chewing technique and modern diet. Unless the teeth are regularly filed down, it becomes very painful for the horse. Horse teeth floating can be learned through hands-on training. No sedatives, invasive procedures or power tools are required, only a file, a wash bucket with disinfectant and common sense. In the late 20th century, the occupation of horse teeth floating grew rapidly in response to the increase in the number of horses kept for recreational uses and the changes in their diets.
The traditional occupation of horse teeth floating can offer a lifetime of opportunity for rural Minnesotans who, like Chris Johnson, love horses.
The veterinarians are proving that there is evidently no competitor too small for them to keep out using their considerable political clout. On August 16, 2006, Johnson joined with the Institute for Justice Minnesota Chapter in a lawsuit to demonstrate the bankruptcy of occupational licensing and the absurd lengths a government-protected cartel will go to in order to protect even the most obscure niche of its business. Johnson and the Institute for Justice Minnesota Chapter hope to restore his right to earn an honest living in the occupation he loves.
Why “Float” Horse Teeth?
Like humans, horses grow two sets of teeth in their lifetimes. A young horse begins with deciduous teeth but has a full set of up to 44 permanent teeth by the age of five. Unlike humans, it is natural for a horse’s teeth to continue to push through his gums or “erupt” until the horse loses his teeth or passes away.
In the wild, a horse will naturally offset the eruption of his molars by chewing grass. Grass contains silica, a natural abrasive that, along with the chewing motion, levels the horse’s teeth. Domestic horses, however, eat alfalfa, oats and less-fibrous feeds that are less abrasive and don’t require as much chewing as grass. This diet does not accomplish the natural leveling of a horse’s teeth. Sharp points may appear on the side of his molars—typically along the outside of the horse’s upper set of teeth and the inside of the lower set of teeth. These points may cause serious problems. The points prevent the horse from effectively grinding food using his natural lateral chewing motion. This may prevent the horse from properly digesting food and may lead to reductions in the horse’s weight and overall health.
Chris Johnson—Third Generation Floater
Chris Johnson lives in Hutchinson, Minn., about 60 miles west of Minneapolis, and is a third-generation horse teeth floater. His great-uncle floats teeth in Oklahoma. Johnson’s father, Jim, a floater for nearly 20 years who lives in Sacred Heart, Minn., taught Chris the trade.
Chris began training in horse teeth floating in March 2004. For the first five weeks, he observed his father floating for various clients. Before each job, Chris felt the horse’s teeth to find which teeth needed floating and, after Jim’s floating was complete, Chris touched the same teeth to learn the feel of properly floated teeth. Chris followed this practice on nearly 100 horses before floating his first horse teeth.
Most importantly, Jim instructed Chris on the safe methods of controlling the horse during the procedure by approaching the horse carefully, backing him into a stall, rubbing his face and waiting for the horse to display submission by lowering his head before beginning to float the horse’s teeth. Chris also learned to work on the side of the horse’s mouth opposite from where he stood, pulling the horse’s head towards him, thereby ensuring that if the horse pulled away, the horse would pull away from the file, an important precaution to avoid causing the horse discomfort or injury.
Working with his father, Chris floated the teeth of about 150 horses without incident and for a brief period of time was able to earn a living floating teeth. Unfortunately, in October 2004, Minnesota’s Board of Veterinary Medicine sent Jim Johnson a cease-and-desist letter, which caused Chris to stop working in November 2004. If he refused, he could have faced up to $3,000 in fines and one year in prison. Chris currently works as a night-shift supervisor for a food processing company; it is a job unrelated to his love of horses. If successful in this lawsuit, he and his father hope that Chris will return to his father’s on-going business.
The Captured Board of Veterinary Medicine
Government regulations that do nothing more than protect established interests from competition hurt both entrepreneurs who fill specialized niches and consumers who are forced to suffer higher prices, lower quality and fewer choices. Such protectionism is illustrated by the work of the Board of Veterinary Medicine, which is seeking to control and quash the traditionally unregulated occupation of horse teeth floating.
Like many occupational licensing boards, Minnesota’s Board of Veterinary Medicine is comprised almost entirely of practitioners. Five of the Board’s seven positions are set aside for licensed veterinarians, providing ample opportunity for capturing governmental power to advance the narrow economic interests of veterinarians and for reinforcing the profession’s orthodoxy.
Even though unregulated horse teeth floaters have practiced their craft safely for years, floaters like Chris Johnson often charge two to three times less than what veterinarians charge to file down horse teeth. Johnson can offer a more cost-effective service because, unlike veterinarians who typically use expensive sedatives and power tools, he calms the horse naturally and floats his teeth manually using a simple file. Because veterinarians can’t beat their competitors in the marketplace, they seek to beat them through occupational licensing laws.
Not surprisingly, King’s cease-and-desist letter in 2004 instructed Jim Johnson to stop floating or face prosecution for practicing veterinary medicine without a license. In response, the Johnsons and their customers mounted a legislative effort to expressly exempt horse teeth floaters from veterinary licensing laws—an exemption enjoyed by those who make a living dehorning cattle and castrating bulls. Unfortunately, King and his constituents (licensed veterinarians) feverishly opposed this legislation and succeeded in defeating the horse teeth floating exemption.
Minnesota’s Sunrise Act
As shown by the Board’s cynical actions, occupational licensing is the type of regulation that the regulated love. It reduces competition, allows for higher prices and removes pressure to innovate and improve quality. This occupation is ripe for regulatory capture because those most interested in establishing regulation are the very same individuals whom the licensing regime regulates and benefits.
The Minnesota Legislature recognized the problem of occupational licensing regimes in the late 1970s and established as State policy a narrow use of occupational licensing in Minn. Stat. Section 214. Known as the Sunrise Act, the statute states, “that no regulation shall be imposed upon any occupation unless required for the safety and well being of the citizens of the state.”
Regrettably, Minnesota’s Board of Veterinary Medicine ignored the State’s policy when it applied veterinary licensing statutes to horse teeth floaters. This litigation is premised on the Sunrise Act because the unregulated practice of horse teeth floating does not harm or endanger the health, safety and welfare of citizens of the State or their property. The potential for harm from unregulated floating of horse teeth is remote and the public will not benefit by assurances of initial and continuing occupational ability of horse teeth floaters. And, most importantly, consumers are effectively protected by the workings of a competitive marketplace with access to courts to recoup damages. Given these factors and the higher prices charged by veterinarians to float horse teeth, the overall cost-effectiveness and economic impact of applying veterinary licensing statutes is negative for citizens of the State and inconsistent with the State’s public policy on occupational licensing as established in the Sunrise Act.
Statewide Problem of Over-Regulation of Occupations
Despite the Sunrise Act, Minnesota is one of the most heavily regulated states and ranked 33rd in economic freedom. It regulates more occupations than all but 12 other states including 31 occupations that were regulated by fewer than nine other states. And between 1998 and 2004, the number of Minnesotans in a regulated occupation increased by more than 18 percent.
There are significant costs to over-regulation. Minnesota’s occupational licensing regimes generate a windfall of $3 billion from consumers to members of regulated occupations, which annually reduces Minnesota’s economic growth by $1 billion. Despite these costs, the Institute for Justice Minnesota Chapter’s recent report on economic over-regulation in the state, The Land Of 10,000 Lakes Drowns Entrepreneurs In Regulations, reveals that no hard evidence exists to demonstrate that such regulation actually improves public health and safety beyond what free markets and legal remedies would otherwise achieve.  In other words, taxpayers and consumers spend a lot of money for no real benefit.
The Regulation of Floaters in the United States
There are at least five million horses in the United States. With approximately 155,000 horses, Minnesota ranks ninth in the nation. Minnesotans—especially those in rural areas—have good reason to be concerned about irrational regulations that affect horses, horse owners and those who work with them. The regulation of horse teeth floaters is at a tipping point. Idaho, Louisiana, Nebraska and North Carolina enacted legislation to restrict the practice to veterinarians. California and Tennessee, the states with the second- and third-largest populations of horses, also restrict floating to veterinarians. But a concerted effort in Virginia recently resulted in the enactment of legislation that liberalized the regulation of floaters. As a result, Virginia joined Connecticut, Illinois, Maryland, Florida and Vermont in exempting floaters from veterinary regulation or subjecting them more relaxed regulation.
Minnesota’s Horse Teeth Floating Licensing Regime
Leaving aside exceptions for which Chris cannot qualify, Minnesota restricts entry into the occupation of horse teeth floating to: (1) licensed veterinarians; and (2) those with a certificate for passing an exam specifically about horse teeth floating from the International Association of Equine Dentistry (IAED) who also are indirectly supervised by a licensed veterinarian.
The law is absurd for two reasons. First, despite the enormous cost to attend veterinary school, veterinarians typically never learn to float horse teeth proficiently and are not tested on proficiency in horse teeth floating when they take the licensure exam. The 28 veterinary schools and colleges in the U.S. offer a generally uniform curriculum of classroom, laboratory and clinical education that is designed to prepare graduates for the general practice of veterinary medicine. The annual cost to attend the University of Minnesota’s College of Veterinary Medicine, for example, is $19,000 for Minnesota residents—and students graduate with an average debt of $95,000. Floating a horse’s teeth is a skill that requires hands-on training and common sense about treating a large animal—not four years of veterinary school that teaches little about horse teeth floating.
Second, for Minnesotans like Chris Johnson, the IAED certificate requirement is a false alternative to securing a veterinary license. Founded in 1987, the International Association of Equine Dentistry is a private certification organization headquartered near Dallas. A candidate who wishes to take the IAED exam ordinarily must become an IAED member nine months before an examination, pay $200, and be sponsored by an IAED member. Sponsorship in this case is not a formality; it requires an IAED member to oversee and supervise a significant portion of the candidate’s horse teeth floating activities for at least nine months. The candidate must float the teeth of 250 horses before qualifying to take the IAED exam, which can be an insurmountable barrier for would-be floaters in Minnesota like Chris Johnson because the IAED does not have any members in Minnesota to sponsor local exam candidates. Not only that, it is illegal for those who do not own their own horses (or enjoy full time employment with a veterinarian or horse owner), to float without a veterinary license unless they float gratuitously when no veterinarian is available. So, to abide by the law in Minnesota, you must break it—a Catch 22 for people like Johnson.
Complicating matters even further, the IAED exam has never been given in Minnesota. And no lay floater has any guarantee of finding a licensed veterinarian who is willing to indirectly supervise him.
This is an improper delegation of government power to a private organization because the State of Minnesota has empowered the IAED to exclude Chris Johnson from practicing his occupation without setting any standards governing the certification process. Specifically, the Board has not published any rules governing how the IAED establishes the qualifications to become a member, prerequisites to enroll in training or experiences necessary to take a private certification examination. Even worse, the Board has not published any rules governing the examinations’ curriculum, scoring, pass-rate, timing, location, costs or reporting used by the IAED or other professional equine dentistry associations.
Likewise, the requirement of indirect supervision by a licensed veterinarian only delegates to another private party the unconstrained legal power to act as a gatekeeper to the occupation of equine teeth floating.
Faced with no real options, Chris Johnson has joined with the Institute for Justice to challenge Minnesota’s occupational licensing of horse teeth floaters.
The Constitutional Right to Economic Liberty
Under article 1, sections 2 and 7 of the Minnesota Constitution and the 14th Amendment to the U.S. Constitution, Minnesotans have the right to economic liberty—to earn an honest living in any lawful occupation subject only to reasonable regulation. Moreover, judicial review of regulations affecting the right to economic liberty can be a potent weapon against laws that exist for the predominant purpose of advancing parochial economic protectionism.
Reasonable regulation requires “equal protection”—treating likes alike—and that laws be based on a rational basis or reasonable relationship to attaining the law’s purpose of protecting the public’s health and safety. Minn. Stat. 156.001 violates both these constitutional principles.
First, the law arbitrarily does not afford horse teeth floaters the same freedom from veterinary licensure requirements as is enjoyed by those who offer horseshoeing, tail docking, dehorning and castration services. Simply stated, the skill level, requisite knowledge and risks of injury from floating teeth are no greater than those associated with these other services; and, therefore, the regulatory distinction between floating and any of the other four practices is not justified. Because Minnesota law treats dissimilarly the occupation of horse teeth floating to how it treats similar occupations, it violates the equal protection requirement of the state and federal constitutions.
Secondly, the law’s requirements of obtaining a veterinarian license or an IAED certificate are not tied to the legitimate goal of protecting the horse or the horse owner from malpractice by an unlicensed horse teeth floater. Specifically, one can graduate from veterinary school without taking a class focused on teaching floating—when floating is taught as part of the core curriculum it is often taught as a tiny fraction of a general large animal medicine course; therefore there is no basis for requiring someone to become a veterinarian if all he wants to do is float teeth because veterinary school does not teach proficiency in floating. Similarly, the IAED’s requirement that a candidate float the teeth of 250 horses under the supervision of an IAED member, and there are none in Minnesota, is so fundamentally unfair in its content that it is unreasonable for the government to require a floater to go through the process of obtaining an IAED certificate. This fundamental unfairness reveals that Minnesota’s law lacks a substantial connection to any legitimate public purpose.
Accordingly, because veterinarian training provides no education in horse teeth floating and the IAED certificate process is so fundamentally unfair, the law also violates the substantive due process requirement of the state and federal Constitutions.
Privileges or Immunity Clause of the 14th Amendment
After the Civil War, emancipated slaves counted economic liberty as among their most cherished civil rights. To protect entrenched white businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens by regulating entry into trades and businesses. The federal government moved to curtail these abuses by passing the Civil Rights Act of 1866 and the 14th Amendment to protect economic liberty among the “privileges or immunities of citizenship.”
In the 1873 Slaughterhouse Cases, however, the U.S. Supreme Court effectively read the Privileges or Immunities Clause out of the Constitution by a 5-4 vote. That decision gave states carte blanche to enact Jim Crow-era laws that restricted economic opportunities for black Americans. Relying on Slaughterhouse, states continue to regulate entry into trades and professions. These onerous restrictions often far exceed what is necessary to protect public health and safety, thus revealing their real purpose—the protection of special interests.
After 130 years of ignoring the Privileges or Immunities Clause, the Supreme Court breathed new life back into this constitutional provision in May 1999. In Saenz v. Roe, the Court used the clause to strike down a California law that limited welfare benefits for new residents. Although Saenz dealt specifically with the right to travel as being protected by the Privileges or Immunities Clause, the Court’s decision cracks open the door for its reestablishment as the primary constitutional protection for economic liberty, as it was originally intended.
Similarly, Chris Johnson has a right to work for a living in the common occupations of the community—a right that is of the very essence of personal freedom and for which the 14th Amendment was enacted to secure.
Unconstitutional Delegation of Government Power
Founded upon the requirements of substantive due process and the separation of powers, Minnesota has long recognized that it is unconstitutional to enact “an open-end type of regulation which gives to a private party the arbitrary right . . . to make a law operative on his own terms.”
Minnesota’s horse teeth floating statute does just that. Minn. Stat. Section 156.075 vests the government’s power in private parties by requiring would-be horse teeth floaters to obtain private certification from the IAED and a letter from a licensed veterinarian acknowledging indirect supervision of their activities.
The leading Minnesota case, Remington Arms Co. v. G. E. M. of St. Louis, holds that delegations of governmental power to private parties should be struck down unless there is a compelling reason for the delegation and the end the legislature seeks can be accomplished in no other practicable way. Remington Arms reflects a widely held rule of law that the judicial branch reviews delegations of state power to private parties carefully.
Knocking Down Barriers to Economic Liberty
Apparently there is no competitor too small for veterinarians to use their political clout to squash. This case shows the bankruptcy of occupational licensing and the absurd lengths that a cartel will go to in order to protect even the most obscure niche of its business.
The lawsuit, Johnson v. Minnesota Board of Veterinary Medicine, is the fourth case in the IJ Minnesota Chapter’s campaign to restore economic liberty as a basic civil right under both the Minnesota State and U.S. Constitutions. In Anderson v. Minnesota Board of Barber and Cosmetologist Examiners, the organization freed hairbraiders from the State of Minnesota’s onerous cosmetology licensing regime. In Crockett v. Minnesota Department of Public Safety, it successfully stopped the government from enforcing a blanket ban on advertising, soliciting or using the Internet to conduct lawful, direct sales of wine. In Dahlen v. Minneapolis, IJ-MN is currently challenging the city’s arbitrary licensing of sign hangers. The Institute for Justice Minnesota Chapter seeks to restore constitutional protection for the right to economic liberty—the right to earn an honest living in the occupation of one’s choice free from excessive government regulation.
The Institute for Justice has scored victories for entrepreneurs across the nation including:
IJ-Minnesota filed the case of Johnson v. Minnesota Board of Veterinary Medicine on August 16, 2006, in the First Judicial District Court for McLeod County. The lead attorney in this case is Lee McGrath, executive director of the Institute for Justice Minnesota Chapter.
The Institute for Justice
The Institute for Justice is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication and outreach, IJ secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by government.
The Institute for Justice Minnesota Chapter litigates under the State and Federal constitutions to reinvigorate economic liberty, preserve property rights, promote educational choice and defend the free flow of information essential to politics and commerce. For more information, contact:
John E. Kramer
 In this context, “floating” means to make a surface level or smooth. For example, a mason floats fresh cement to make a new sidewalk level.
 Minn. Stat. § 214.001 subd. 2.
 Amela Karabegovic et al., Fraser Inst., Economic Freedom of North America: 2004 Annual Report 32.
 State of Minn. Office of Auditor, Occupational Regulation: A Program Evaluation Report (Feb. 1999).
 Alexandra Broat et al., Rethinking Occupational Regulation: A Program Evaluation Report 2, 13, 19 (Dec. 2004) (prepared for the State of Minnesota Office of the Legislative Auditor).
 Id. at 3, 13, 22.
 See /images/pdf_folder/city_studies/MN-barrier-study.pdf.
 Conn. v. Gabbert, 526 U.S. 286, 291-92 (1999) (observing the liberty component of the 14th Amendment includes due process right to choose one’s field of private employment); Lowe v. SEC, 472 U.S. 181, 228 (1985) (citizens have a right to follow any lawful calling subject to licensing requirements that are rationally related to their fitness or capacity to practice the profession); Greene v. McElroy, 360 U.S. 474, 492 (1959) (observing right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the liberty and property concepts of the 5th Amendment”); Fosselmann v. Comm’r of Human Services, 612 N.W.2d 456-62 (Minn. 2000); Brooks v. Boilermakers, 114 N.W.2d 647, 654 (Minn. 1962) (noting an individual’s occupation is property within the meaning of Constitution); Sweet v. Comm’r, 702 N.W.2d 314, 320 (Minn. Ct. App. 2005) (recognizing one’s property and liberty interests in pursuing private employment).
 See, e.g., Craigmiles v. Giles, 312 F.3d 220, 225-27 (6th Cir. 2002) (holding Tenn. statute requiring casket merchants to obtain funeral director licenses violated merchants’ due process and equal protection rights because its predominant purpose was to protect funeral directors from competition).
 In re Estate of Turner, 391 N.W.2d 767 (Minn. 1986) (Minn.’s rational basis test requires a genuine and substantial distinction between those inside and outside challenged class and legitimate statutory purpose).
 Floating teeth is less dangerous than removing tails or extracting horns or testes. Tail docking is invasive and prone to infection. http://www.ag.state.co.us/commissioner/press/2005/TailDocking.html (last visited 07/12/06). Castration can be invasive and is risky, particularly where the extraction is done through a scrotal incision (for adult animals); even tie-off procedures (for younger animals) can cause extreme pain. www.nda.agric.za/docs/Beef-castrate.pdf (last visited 07/12/06). Dehorning is also invasive in that nerves and blood vessels permeate the horn, necessitating clamping with risks of brain damage and infection. http://www.omafra.gov.on.ca/english/livestock/beef/facts/info_dehorn.htm (last visited 07/12/06).
 In re Estate of Turner, 391 N.W.2d 767 (Minn. 1986)
 Saenz v. Roe, 526 U.S. 489 (1999) (holding that 14th Amendment protects right to travel by: allowing citizens to move freely between states, securing the right to be treated equally in all states when visiting, and securing the rights of new citizens to be treated like long-time citizens of a state).
 Truax v. Raich, 239 U.S. 33 (1915) (holding the right to work for a living in the common occupations of the community is of the very essence of the freedom and opportunity secured by the 14th Amendment)
 Remington Arms v. G. E. M. of St. Louis, Inc., 102 N.W.2d 528, 534-36 (Minn. 1960) (holding legislature may not enact an open-ended regulation giving one private party the right to make law).
 Id. at 534-35 (emphasis added).