Overview of New York Livestock Law

Morrisville State CollegeDecember 4, 2012

By Cari B. Rincker, Esq.

Like Any Good Lawyer, I Have A Disclaimer

• I am an attorney licensed in New York but may not be your attorney unless you have signed a retainer with Rincker Law, PLLC– No attorney-client relationship/privilege

• This purpose of this presentation is for informational purposes only and not to render you legal advice– If you have questions relating to your particular situation,

you are highly encouraged to consult an attorney licensed in New York

– Laws continually change

Overview

• Lien Law• Livestock Animal

Cruelty Law• Business

Organizations• What is “Agriculture

Law”?

Questions

• I will take questions at the end of each section• We have a lot to cover so Q & A time will be

brief• If there is time at the end, I will take more

questions within scope of material• Remember that Q & A is not confidential or

attorney-client privileged and should not be considered legal advice

Lien Law• Very strict filing and service requirements

– Will be thrown out for procedural error– Can be amended within certain time period

• Strict procedure for foreclosure– Duration of lien– Priority of Liens– Assignment of Liens– Waiver of lien after payment

• Recommended to involve an attorney– Statutes are very technical

Mechanics’ Lien• “A contractor, subcontractor, laborer, materialman,

landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, * * * shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved * * *.” N.Y. Lien Law Section 3

Lien on Mare/Cow and Foal/Calf• Sections 160 & 162

of NY Lien Law– Owner of a stallion

or bull shall have a lien on each mare or cow “served” together with the foal or calf for the amount agreed upon at the time of service

Lien on Mare/Cow and Foal/Calf

• Exception: misrepresentation of stallion or bull’s pedigree

• Notice: Owner of stallion or bull must post statement and certificate in a conspicuous place in each locality where animal kept for service

Lien on Mare/Cow and Foal/Calf• Must file (written) Notice of Lien within 20 mos.– Filed pursuant to NY UCC Section 9-501(a)(2)

(agriculture liens) with the NYS Secretary of State– Specify the person against whom the claim is made– Amount owed– Description of the property (i.e., Identification or

Registration No.)– Notice of Lien must be properly served – Duration of lien is 18 mos.

Lien on Bailee of Animals• What is a “bailment”?– Who is a “Bailee” and “Bailor”?

• Section 183 of NY Lien Law– Applies to veterinarians,

boarding stables (“stableman’s lien”) or another type of bailment

– Has a lien upon the animals or other types of personal property kept in their possession for the amount due until sum is paid

Lien on Bailee of Animals

• Applies only to animals actually kept – not just maintained – e.g., hire neighbor to feed

horses/livestock• Doesn’t apply to a stable keeper

who takes horse around the country and enters him/her in races

• Lien isn’t automatic – must be an express or implied agreement

Notice of Sale• Service must be made upon

the owner and all other lien holders pursuant to the NY UCC– Mailed by certified mail to the

last known address– Notice Requirements

• Nature of debt and itemized statement of claim

• Description of personal property (e.g., livestock)

• Estimated value of property• Amount of Lien at the date of

notice

Notice of Sale• Demand payment be

made not less than 10 days from service– Must state time and

place where property will be sold

– Owner can dispute validity of lien

• Sale must be properly advertised

Truckman’s Lien

• Section 187 of NY Lien Law– Lien upon property in

his/her possession– Can retain personal

property in possession until paid

Truckman’s Lien• If unpaid after 30 days after demand letter,

trucker may give owner 15 days notice via registered mail to last known address that if the amount due and owing isn’t paid then he will be entitled to redeem such property at a public sale including expense for storage, insurance or protection of property– Debt paid first– Trucker must give additional proceeds to owner

Questions on Livestock Lien Law

Farm Animal Welfare Law

• New York Animal Cruelty Law

• Search and Seizure of Livestock

• Get a Plan For Your Farm

New York Animal Cruelty Law

• Livestock Animal Cruelty Law is primarily a State Law Issue– Applicable Statute in NY:

N.Y. Agri. & Mkts Law § 350 et seq.

• Federal Laws– Animal Welfare Act

Definitions (Section 350)• “Animal,” as used in this article,

includes every living creature except a human being

– “Farm animal”, as used in this article, means any ungulate, poultry, species of cattle, sheep, swine, goats, llamas, horses or fur-bearing animals...

– “Companion animal” or “pet” means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section.

Definitions“Torture” or “cruelty” includes every act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted.–Act or failure to act

Felony Animal Cruelty (aka “Buster’s Law”)

Section 353-a proscribes aggravated animal cruelty– No justifiable purpose– Intentionally kills or causes serious

physical injury to a companion animal• Intended to cause extreme physical pain;

or• Especially depraved or sadistic

Exceptions: hunting, trapping, fishing, dispatch of rabid/diseased animals, or properly conducted scientific tests

(My cat, Felicity)

Misdemeanor Animal Cruelty• Section 353 proscribes:– Overdriving, overloading,

unjustifiable maiming, mutilation or killing any animal

– Depriving any animal of “necessary sustenance, food or drink . . .”• “Sustenance” includes

shelter and veterinary care to maintain health and comfort.

NYC horse carriage

Abandonment of Animals

• Section 355 proscribes an owner/possessor/bailor of an animal: – from leaving it to die in a

public place; or– Leaving an animal in a

public place for more than three hours he receives notice that he is left disabled

Poisoning Animals

Section 360 indicates that poisoning farm animals is a misdemeanor– Don’t need to know the

substance is poisonous so long as he/she intends that livestock animal be exposed to the substance

– Includes toxic levels of drugs

Selling Disabled HorsesSection 358 proscribes:

“any person holding an auctioneer's license knowingly to receive or offer for sale or to sell at public auction, other than at a sheriff's or judicial sale under a court order, any horse which by reason of debility, disease or lameness, or for any other cause, could not be worked in this state without violating the law against cruelty to animals.”

Sale of Livestock for PrizesSection 358-a proscribes the sale of sheep, goats, horses, cattle, or swine as a prize or to offer in exchange for “nominal consideration” in any “game, drawing, contest, sweepstakes or other promotion…”

Transportation of Farm Animals

“28-Hour Law”: When transporting livestock (including horses) animals for more than 28 hrs, section 359 requires that animals be given 5 consecutive hours of rest along with available food and water– Exception: prevented by

storm or inevitable accident

Transportation of Horses

Section 359-a(1) enumerates specific requirements for every vehicle utilized to transport more than six horses.

Vehicle Requirements for Transporting More Than 6 Horses

• The interiors of compartments containing horses shall be constructed of smooth materials, containing no sharp objects or protrusions which are hazardous;

• The floors shall be of such construction or covered with abrasive material so as to prevent horses from skidding or sliding;

• There shall be sufficient apertures to insure adequate ventilation;

• There shall be sufficient insulation or coverings to maintain an adequate temperature in the compartment containing horses;

• Partitions of sturdy construction shall be placed a maximum of ten feet apart in vehicles which do not have stalls;

Vehicle Requirements for Transporting More Than 6 Horses

• Doorways shall be of sufficient height to allow safe ingress and egress of each horse contained in the compartment;

• Each compartment containing horses shall be of such height so as to allow sufficient clearance above the poll and withers of each horse in the compartment;

• Ramps sufficient for loading and unloading horses shall be provided if the vertical distance from the floor of the compartment containing horses to the ground is greater than fifteen inches; and

• There shall be at least two doorways for ingress and egress, which shall not be on the same side.

• No more than one tier.

Issuance of Warrants

• Pursuant to Section 372, police officers “peace officers” can obtain warrants to search farms upon showing a magistrate that there is reasonable cause animal cruelty – Can use (video) cameras. – Informants can be used

“Peace Officers” in New York

• Duly incorporated societies for the prevention of cruelty to animals CPL 2.10(7)

• “Confidential investigators and inspectors” as designated by the NYS Dept. of Agric. & Mkts CPL 2.10(6)

• Policemen for “horse racing” CPL 2.10(29)

Who is a NOT a “Peace Officer” in New York?

Who is Not a “Peace Officer”?– PETA, HSUS or ASPCA

(national organization)– Mercy for Animals– New York Farm Bureau – Concerned neighbor

Seizure of Farm Animals

• Pursuant to Section 373, any police officer or officer or peace officer with a valid warrant may lawfully take possession of any animal that for more than 12 successive hours has been confined or kept in unhealthy conditions without necessary sustenance, food or drink

Duty to Cooperate With Farm Search

Section 369 proscribes the interference or obstruction of a search by a police officer or duly incorporated society for the prevention of cruelty to animals with a valid warrant

Constitutional Rights• Fourth Amendment offers protection from

unreasonable searches and seizures from the Government

– “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Does the Fourth Amendment Apply?

• Government Conduct– Publically paid police officers (on or off duty)– Private individual acting at the direction of the

police– Privately paid police deputized with the power of

arrest– Humane society deputized with police powers

Does the Fourth Amendment Apply?• Person must have a “reasonable expectation

of privacy”– Automatic standing• Owner of premises• Live on premises• Overnight guests

– Sometimes have standing• Present when search took place• Own property (animals) that are being seized

– No standing• Areas outside home or barn• Aerial photography

Is there a Valid Search Warrant?SNAP– S – Warrant must be

precise on its fact (specificity)

– N – Neutral and detached magistrate

– A – Oath or Affirmation from P/O to judge

– P – Probable Cause • More than mere suspicion

Examples When No Warrant Is Needed

• A police officer can search a property in exigent circumstances where there is probable cause and when evidence may be lost, destroyed, or may dissipate if a warrant is obtained– Emergency

• Consent is freely given – P/O must stay within scope of consent

• If something is in plain view– P/O must already be lawfully on premises

What If A Non-Police Officer Visits Your Farm and Asks To Look Around?

• Ask for identification• Ask for the warrant• Read the warrant• Ask if the visitor has

camera/video equipment• Take notes during farm

inspection• Call your lawyer

Seek Counsel Before An Issue Arises• Find an attorney you

know and trust – Who will you want to call

in an emergency?• Speak to him/her about

concerns specific to your livestock operation

• Formulate a defense strategy for your horse farm with the advice of counsel

Get a Plan For Your Farm• Know Who You Hire• Employment Handbook

– Have animal handling policies put in place

– Enumerate procedures on what to do

• Train employees on a regular basis

• Participate in voluntary livestock animal welfare programs

• Protect public image• Fix “Broken Windows”

Start Building a Defense• Have a relationship with industry experts

– Veterinarian– Nutritionists– Cornell University Cooperative Extension Specialists

• Keep records of visits/recommendations• Keep records of noted improvements/compliance with said

recommendations • Maintain feeding, breeding, and health records• Record body condition scores• Take photographs• Keep diaries• Build written record

Questions on NY Livestock Animal Cruelty Law?

Business Structures for Farms

• Sole Proprietorships• Partnerships– General Partnerships– Limited Partnerships

• Corporations• Limited Liability Companies• Trusts• Cooperatives

Sole Proprietorship• No filing requirements – Exception: Certificate of Assumed Name (d/b/a) if

appropriate• Example: Farmer Joe d/b/a “Blackacre Horses” or

Farmer Jane d/b/a “Dairy Website Design Co.”• Must file in every county in New York that there is a

regular conduct of business (“doing business”)

– No other costs to form or maintain business entity• No liability shield (i.e., unlimited personal

liability)

Partnerships• 2 Kinds of Partnerships– General Partnerships– Limited Partnerships

• Where at least two people go into business together for profit

• Must file a certificate with county clerk in each county in which partnership is “doing business” if using an Assumed Name

General Partnerships• Default Partnership Rules

except if there is a Partnership Agreement – I have written several

articles and blogs on general partnership agreements

• Personal liability – Joint & Several Liability– Partners are agents of the

partnership

Limited Partnerships• At least one “general

partner” and one “limited partner”– Limited partners do not

have unlimited liability – Limited partners cannot

participate in the management of the limited partnership

– General partners are the management

Corporations• Formed by filing a document with the NYS

Department of State called a “Certificate of Incorporation”

• Owners are call “shareholders”– Personal liability shield

• Exception: Piercing corporate shield if alter ego

• Shareholders elect a Board of Directors which elects officers

• Two Types of Corporations: – C Corporations– S Corporations

Limited Liability Companies• Formed by filing a document with

the NYS Department of State called a “Articles of Organization”– Publication cost

• Pass through tax treatment (S- Corp)

• Operating Agreement• Shareholders have liability shield

for LLC debt– Unless “corporate shield” can be

pierced– Important to pay attention to

“corporate formalities”

Trusts• Living Trusts– 2 Types• Revocable • Irrevocable

– Avoids probate– Who are the parties?• Trustmaker• Trustee• Beneficiaries

Deciding Which Business Structure is the Best For Your Livestock Enterprise?

• Think about your business plan– Capitalization– Long-term goals– Expected profits– Number of business partners– Overhead expenses

• Get the advice from accountant and counsel

Questions on Business Structures?

What Is “Agriculture Law?”

• As you can see from today’s presentation, agriculture is nearly every type of law – it’s just geared towards a specific industry.– Agriculture law overlaps

with a myriad of practice areas

– Definition of “agriculture” is broad.

So You Wanna Be An Ag Lawyer?• Feel free to contact me if you have questions about a career in

agriculture law• You must have a bachelors degree to apply to a U.S. law school

– Bachelors degree in anything– No prerequisites like vet school

• Don’t have to be a practicing lawyer simply because you have a law degree

– Journalism– Lobbying– Business

• Law school is a huge commitment from a financial, emotional, and social standpoint– Make sure it’s right for you

So You Wanna Be An Ag Lawyer?

• First Friday of every month at 2pm ET

• Email me to RSVP at cari@rinckerlaw.com

• Via Skype– Cari.Rincker

Questions About Anything We Have Covered?

Contact Me• Send Me Mail: 535 Fifth Avenue, 4th Floor, New York, NY 10017• Call Me: (212) 427-2049 (office)• Email Me: cari@rinckerlaw.com• Read My Food, Farm & Family Law Blog:

www.rinckerlaw.com/blog• Tweet Me: @CariRincker @RinckerLaw• Facebook Me: www.facebook.com/rinckerlaw • Link to Me: http://www.linkedin.com/in/caririncker • Skype Me: Cari.Rincker