Coalition to Ban Horse-Drawn Carriages

TESTIMONY OF JANE HOFFMAN    
ON BEHALF OF   
THE COMMITTEE ON LEGAL ISSUES PERTAINING TO ANIMALS    
WITH REGARD TO CHAPTER 4 OF TITLE 24   
OF THE RULES OF THE CITY OF NEW YORK     

DEPARTMENT OF HEALTH AND MENTAL HYGIENE

February 3, 2010

Good morning. My name is Jane Hoffman and I am here on behalf of the New York City Bar Association Committee on Legal Issues Pertaining to Animals. I appreciate this opportunity to address the proposed amendment of Chapter 4 of Title 24 of the Rules of the City of New York, relating to the health, safety, and well being of horses used in New York City’s carriage horse industry.

 In previous years, the New York City Bar has urged the City Council to enact legislation to ban carriage horse rides in New York City. We believe that an outright ban of carriage horse rides is necessary due to the dangerous and harsh conditions inherent in operating carriages in congested New York City streets and keeping horses in a crowded urban environment. However, until such a ban is enacted, we recognize the need to ameliorate some conditions through amendments to the existing Rules.

 The proposed amendments to the Rules provide some improvement in the conditions in which carriage horses live and work. Among other things, the proposed amendments provide a requirement that microchips be used for identification of horses, require an emergency protocol for horse stables, and ban smoking while occupying a horse carriage.

Unfortunately, some of the most important provisions, such as those relating to work, housing, furloughs, and water, are largely inadequate because they fail to conform to best practices advocated by the New York State Department of Agriculture and Markets, lack sufficient specificity, or fail to clearly state who has a particular legal duty.  Our testimony focuses on our primary concerns and is not meant to be comprehensive.

Work hours   
Section 17-330(g) of the New York City Administrative Code (the “Ad Code”) provides, “Carriage horses shall not be at work for more than nine hours in any continuous twenty-four hour period.” Rule 4-05 is inconsistent with the Ad Code insofar as it provides that carriage horses shall not be at work for more than 10 hours in any continuous 24-hour period, including travel to and from stables. Traveling to and from stables is work because it involves pulling a driver and a carriage. Therefore, Rule 4-05 should be amended so that it does not supersede the maximum working hours allowed by the Ad Code.    
 
 We note that the maximum workday permitted in order to qualify for voluntary certification by the New York State Department of Agriculture and Markets’ Horse Health Assurance Program (“NYSHHAP”) is four hours.  NYSHHAP is a certification program designed to promote equine health, care, and welfare through the use of certain “best management practices” or standards.

Housing    
With regard to housing, proposed Rule section 4-03(d)(2) provides that individual horse stalls shall be a minimum of 64 square feet. Although this is an increase of 24 square feet from the stable size required under existing rules, 64 square feet is less than half the stable size required for voluntary certification by NYSHHAP. The NYSHHAP Guidelines require that stalls be about 12 feet by 12 feet for mid-sized horses and 14 feet by 14 feet for draft horses and large warmbloods.  We recommend that the City adopt the NYSHHAP guidelines for stable sizes instead of the proposed requirement of 64 feet. In addition, there have been reports that carriage horses are unable to turn around in their stables because they have been tethered to their troughs. Therefore, the Rules should prohibit any implement or device that would restrict a horse’s free movement within the stall.

 The Health Code is conspicuously silent on the need to protect horses housed in existing stables from the risk that they will be trapped in a building if there is a fire or other emergency. Proposed section 161.21(b)(11) of the Health Code provides that as of January 1, 2011, “no new stables shall be equipped with stalls that are located above the first or street level floor of the stable.” In order to protect the horses’ safety in existing stables, we recommend making the provision applicable to existing and new stables alike. Because this safety measure is of such critical importance, with regard to new stables, we recommend that it be effective immediately.

Proposed section 161.21(b)(11) of the Health Code also provides, “Stalls shall be cleaned as often as necessary to prevent odors and other nuisance conditions.” Consistent with the NYSHHAP guidelines,  we recommend revising this rule to require that each stall be cleaned at least once daily, and more often if necessary to ensure the horse’s comfort and health and to prevent odors, protect human health, and prevent nuisances. The average horse produces 45 pounds of manure a day and clear guidelines mandating daily cleaning are necessary because manure poses serious health risks to horses and humans alike.

Furloughs   
Regular turnout in a safe pasture is necessary for a horse’s health and well being.  The proposed rules fall short of meeting this essential requirement and allow only a few weeks of rest per year during which there is no requirement that a horse be provided with turnout time.

Proposed Rule 4-03(e) requires that horses be provided a furlough for a minimum of one week at a time for a total of five weeks in a 12-month period during which the horse may not be worked in a rental horse business.  Although this provision seems like it may give the horses an opportunity for rest and turnout in a pasture, the furlough requirement is imprecise and could be easily exploited. There is nothing to ensure that a furloughed horse is not worked for a purpose not encompassed by the definition of “rental horse business.” For example, under the proposed regulation, it would be permissible to overwork a furloughed horse on a farm in Pennsylvania. Because of the risk that the horses will be worked during a furlough period, which is clearly intended to provide rest, we propose that the phrase “in a rental horse business” be deleted from the first sentence. We also recommend that the proposed rule be amended to ensure that horses receive adequate turnout time in a pasture during furloughs.

In addition, Rule 4-03 provides no space or housing requirements for furloughs that are not located on the stable premises. The proposed provision merely allows some stables to furlough horses on site if the stables have pasturage of a certain area but it does not require minimum pasturage for furloughs off premises. In order to ensure horses are properly housed and cared for when not in a stable under the jurisdiction of the City, we recommend a requirement that stables used to house horses during furloughs be certified by NYSHHAP.

We also recommend that records of dates and locations of furloughs be provided to the Department of Health and Mental Hygiene annually, as a condition of licensure, in addition to the requirement that such records be provided upon request. This recommendation is consistent with the existing requirement in Rule 4-02(a)(4) that, upon license renewal, the location of the stables where the horse is kept must be provided.

Water   
Working horses need access to plenty of fresh and clean water at all times to maintain health. According to NYSHHAP, an average horse consumes five to 15 gallons of water a day, which is equivalent to approximately a quarter- to a half-gallon of water per hour.  The Comptroller’s audit noted that this vital requirement is not being met while horses are at work. 

Proposed rule 4-04(b) provides, “While at work, horses shall be provided with adequate supplies of potable water and shall be allowed to drink.” The proposed rule should be revised to provide that horses must be provided water both at work and during rest periods and to define the ambiguous and subjective phrase “adequate supplies” to mean “no less than five to 15 gallons of water a day for each horse.” The rule should be redrafted in the active voice to make it clear that the burden to provide water is on the horse’s owner because drivers cannot leave the horses while they are working to fill the troughs with water (see Rule 4-05(a)). The burden to ensure that a horse has the opportunity to drink should be on the driver during work periods and the stable owner during rest periods.

Existing Rule 4-04(b) only requires “Troughs shall be cleaned daily,” and no amendment has been proposed despite the well-documented fact that the troughs located in public places frequently become dirty from human trash and animal waste throughout the day or that water in the troughs freezes in winter. Therefore, this rule should be amended to provide that horse owners shall ensure that troughs are kept clean and free from trash and waste throughout the day; thoroughly cleaned at least once per day; and filled with water in a liquid state throughout the year. Because drivers cannot leave the horses to clean the troughs (see Rule 4-05(a)), the rules should clearly assign the duty to keep the troughs clean to the owners and the duty to notify the owners if the troughs appear dirty to the drivers.

Some additional concerns    
In addition to these fundamental concerns, we also suggest that Rule 4-06 be revised to prohibit drivers from “engaging in any activity,” in addition to those already listed, that could distract the driver. We note that the film Blinders documented carriage horse drivers reading books while navigating horses through heavy city traffic—an activity that puts both horses and the public at risk.

The requirement in Rule 4-07(c) that “training course materials” including manuals and the broad category of “printed materials” used in the Department’s training course be confidential and that tests and answers be confidential even after the test violates Public Officers Law section 87, which only allows the Department to withhold “examination questions or answers which are requested prior to the final administration of such questions.” Notably, examinations and answers for other permits and licenses relating to animals are made public without adverse effect, e.g., the New York State Department of Environmental Conservation discloses its test questions and answers for the wildlife rehabilitator examination prior to examination as a study tool. 

The definition of veterinarian should be revised so that it is consistent with Article 135 of the Education Law. Rule 4-02(a)(7) requires a health certificate from a veterinarian as a condition of licensure. Proposed Rule 4-01 defines “veterinarian” as a “person currently licensed to practice veterinary medicine in the United States.” In New York, only persons licensed or exempt under Article 135 of the Education Law may practice veterinary medicine.  Thus, the definition must be revised accordingly.

We disagree with the Department’s interpretation of Ad Code 17-330(n) which provides that after the initial veterinarian examination, horses shall receive a veterinary examination “thereafter at intervals of not more than one year.” Clearly, this provision means that horses must have examinations that are one year or less than one year apart. The Department mistakenly believes that this provision “limits such examinations to no more than one per year” and, for that reason, states that it cannot adopt the Advisory Board’s recommendation that horses be examined by a veterinarian at least twice per year. In actuality, requiring two examinations per year, would be consistent with the Ad Code because they would inherently occur at “intervals of not more than one year” since they occur in the same year.

 Thank you again for this opportunity to address some of our concerns.

 1.  NYSHHAP Standards and Certification Manual 21 (Feb. 2008).
 2.  Id. at 34.
 3.  Id. at 41.
  4. Id.
 5.  Id. at 43.
  6. We recommend that the furlough requirement be moved to the section relating to horse care; it appears now in the housing section.
  7. NYSHHAP, Equine Water Needs http://www.agmkt.state.ny.us/nyshhap/infodocs/Fast%20Facts%20Equine%20Water%20Needs.pdf (viewed on January 20, 2010).
 8.  City of New York, Office of the Comptroller, Audit Report on the Licensing and Oversight of the Carriage-Horse Industry by the Departments of Health and Mental Hygiene and Consumer Affairs (June 27, 2007), available at http://comptroller.nyc.gov/bureaus/audit/PDF_FILES/MH07_092A.pdf.
 9.  N.Y. Education Law § 6702(1).

To honor
Bobby II Freedom
previously known as Billy
ID# 2873 rescued by the Coalition to Ban Horse-Drawn Carriages and Equine Advocates on June 25, 2010 from the New Holland auctions.

In memory of
Lilly Rose O'Reilly
previously known
as Dada ID# 2711
R.I.P.August, 2007