In re Schmidt Amended Answer

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STATE OF WASHINGTON DEPARTMENT OF HEALTH SECRETARY OF HEALTH

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In the Matter of JERRY SCHMIDT

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No. M2012-896

Respondent.

FIRST AMENDED ANSWER TO NOTICE OF INTENT TO ISSUE CEASE AND DESIST ORDER

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Jerry Schmidt, by and through his counsel, answers the allegations made by the Unlicensed Practice Program (“the Government”) as follows: 1. FACTUAL ALLEGATIONS

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1.1

Admitted.

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1.2

Denied.

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1.3

Respondent exercises his right, protected under the Fifth and Fourteenth

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Amendments of the U.S. Constitution, not to provide information that might be used to

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incriminate him.

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1.4

Respondent exercises his right, protected under the Fifth and Fourteenth

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Amendments of the U.S. Constitution, not to provide information that might be used to

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incriminate him.

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1.5

Denied.

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1.6

Denied.

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2. ALLEGED VIOLATIONS

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2.1

Paragraph 2.1 states a conclusion of law not requiring an admission or denial; to

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the extent that Paragraph 2.1 cites various statutes and regulations, the statutes and regulations

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speak for themselves and require no admission or denial.

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2.2

Paragraph 2.2 states a conclusion of law not requiring an admission or denial; to

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the extent that Paragraph 2.2 cites a statute, the statute speaks for itself and requires no

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admission or denial.

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2.3

Paragraph 2.3 states a conclusion of law not requiring an admission or denial; to

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the extent that Paragraph 2.3 cites a statute, the statute speaks for itself and requires no

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admission or denial.

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3. AFFIRMATIVE DEFENSES

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FIRST DEFENSE: RWC 18.92.010

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3.1

The conduct alleged in the Government’s Notice of Intent to Issue Cease and

Desist Order does not fall within the statutory definition of the practice of veterinary medicine.

3.2

RCW 18.92.010 establishes a clear – and limited – definition of “veterinary

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practice,” which extends only to circumstances in which the Government has proven that a

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person has sought or accepted compensation for actions taken in the state of Washington for the

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remediation of “any animal disease, deformity, defect, wound, or injury.”

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3.3

Unlike human teeth, horses’ teeth continue to grow throughout most of their lives

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and they routinely develop sharp enamel points that can cut or ulcerate a horse’s cheek or

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tongue, potentially reducing the horse’s comfort and its ability to eat or to perform for its owner.

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3.4

The development of these sharp enamel points on horses’ teeth is a completely

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normal, predictable part of a horse’s aging process, similar to its growth of hair and hooves; it is

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also analogous to the growth of human fingernails and toenails.

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3.5

Because sharp enamel points on a horse’s teeth are a perfectly normal,

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predictable part of a horse’s aging process, these sharp enamel points cannot be considered a

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“disease, deformity, defect, wound, or injury,” any more than a shaggy mane, long hooves, or

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long fingernails are a “disease, deformity, defect, wound, or injury.”

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3.6

Thus, when a person does no more than to remove sharp enamel points from a

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horse’s teeth, they are not engaging in activity within the definition of RCW 18.92.010 and the

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law does not require such a person to hold a veterinary license in order to be paid for their work.

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3.7

Because the Government has not alleged that the Respondent engaged in activity

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that addressed any animal “disease, deformity, defect, wound, or injury,” this Court should rule

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that the Government has not established the legal foundation necessary for the issuance of a

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cease and desist order or for the assessment of penalties against the Respondent.

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SECOND DEFENSE: FREE SPEECH

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(U.S. Const. Amendment I; Wash. Const. Article I, § 5)

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3.8

The First Amendment of the U.S. Constitution, made applicable to the states

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through the Fourteenth Amendment, prohibits the Government from abridging citizens’ freedom

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of speech.

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3.9

Article I, section 5, of the Washington Constitution guarantees that “every

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person may freely speak, write and publish on all subjects, being responsible for the abuse of

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that right.”

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3.10

The Government’s Notice of Intent to Issue Cease and Desist Order alleges that

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the Respondent violated the law by sharing information about removing (or “floating”) sharp

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enamel points from horses’ teeth, including statements about the Respondent’s training and

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experience in this field; the Government has not suggested that any of the information allegedly

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shared was false, nor has the Government offered any reason that the sharing of truthful

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information should be considered an abuse of a citizen’s right to freely speak, write and publish

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on all subjects.

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3.11

The Respondent does not admit any of the Government’s allegations, but even if

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the Government could prove its allegations related to the sharing of truthful information, that

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sharing of truthful information would constitute speech protected under the First Amendment of

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the U.S. Constitution and Article I, section 5, of the Washington Constitution.

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3.12

Insofar as RCW 18.92.010 makes it a criminal offense for a citizen to share

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truthful information with other citizens, including truthful information about the speaker’s

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training and experience related to horses, the statute violates both the First Amendment of the

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U.S. Constitution and Article I, section 5, of the Washington Constitution.

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3.13

Insofar as RCW 18.92.010 makes it a criminal offense for a citizen to speak

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about a specified subject without first obtaining a license from the Government, the statute

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creates a prior restraint on speech that violates both the First Amendment of the U.S.

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Constitution and Article I, section 5, of the Washington Constitution.

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THIRD DEFENSE: RIGHT TO EARN A LIVING

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(U.S. Const. Amendment XIV)

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3.14

The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution

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states that no citizen may be deprived of life, liberty, or property without due process of law;

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courts have long held that this provision protects a citizen’s fundamental right to earn a living in

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a common occupation free from unreasonable governmental interference.

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3.15

Floating horses’ teeth is a basic animal husbandry task that has been performed

by non-veterinarians for hundreds of years in order to allow domesticated horses to enjoy more

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FREEDOM FOUNDATION P.O. Box 552 Olympia, Washington 98507 (360) 956-3482

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comfortable, more productive, and longer lives.

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Writing in 1905, one veterinarian scholar observed that this task was not usually

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undertaken by veterinarians, stating: “The veterinarian consigns dental operations to others

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because it is rather beneath the dignity of the learned veterinarian to float the teeth of horses; not

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because it is difficult, tedious or dangerous, but because animal dentistry is regarded as a trifling

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accomplishment that the uneducated can master.” See Veterinary Surgery, Vol. I by Louis

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Adolph Merillat p. 16-17, Daniels Co. Press, Chicago, 1905.

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3.17

Lay floaters typically learn their trade by apprenticing for months under a highly

experienced floater or by pursuing a more formal set of academic and practical courses offered at a lay equine dental academy.

3.18

These formal training courses – which sometimes include instruction by licensed

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veterinarians – dedicate weeks or months exclusively to preparing students to safely and

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thoroughly float horses’ teeth.

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3.19

Most veterinary schools dedicate far less than one percent of their regular

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curriculum to instructing their students about floating horses’ teeth; some schools devote as

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little as one-half hour of classroom lecture out of a four-year course of study comprising

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thousands of hours’ worth of classroom time.

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3.20

Several veterinary schools (including the Washington State University College of

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Veterinary Medicine) actually rely on non-veterinarians to teach their students about floating

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horses’ teeth, despite the presence of many highly-trained veterinarians on the faculty.

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3.21

Recent graduates from veterinary school are almost never adequately prepared to

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float horses’ teeth without supervision; if a veterinarian wishes to become proficient in this skill

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they will usually attend continuing education courses focused on this topic or they may attend

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one of the same lay equine dental academies at which lay floaters learn their trade.

3.22

Even if this Court determines that sharp enamel points on horses’ teeth constitute

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a “disease, deformity, defect, wound, or injury,” it would still be perfectly lawful for almost

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any person in Washington state – including the Respondent – to float horses’ teeth, regardless

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of their education or competence; the offenses that the Government has alleged (which are

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established in RCW 18.92.010) consist of (1) suggesting to the public that the floater is a

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veterinarian and (2) accepting any “fee, compensation, or reward, promised, offered, expected,

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received or accepted directly or indirectly” in exchange for work that addresses “any animal

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disease, deformity, defect, wound, or injury.”

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3.23

Even though the work itself is lawful, in order to lawfully accept compensation

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of any sort for providing Washington’s horse owners with this traditional animal husbandry

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service, the Government maintains that the Respondent must obtain a Washington veterinarian’s

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license.

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3.24

One cannot obtain a Washington veterinarian’s license until one has graduated

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from a veterinary college and passed the state-mandated veterinarian examination.

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18.92.070.

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3.25

RCW

It is a significant burden for any person (especially one of Respondent’s age) just

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to establish the prerequisites necessary to gain admission to a veterinary school, much less to

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complete all of the coursework required to graduate; for example, one must complete (and pay

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for) 64 semester credit hours at an undergraduate institution before the Washington State

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University College of Veterinary Medicine will even consider an applicant as part of its highly-

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selective admission process.

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3.26

If admitted to veterinary school, a student must complete (and pay for) four years

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FREEDOM FOUNDATION P.O. Box 552 Olympia, Washington 98507 (360) 956-3482

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of study in order to graduate from that program, but only a relatively small percentage of that

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study will focus on equine health, and only a fraction of a fraction of a percent of that study will

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involve learning to float horses’ teeth.

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3.27

The expenses associated with obtaining all of this education can easily run into

the hundreds of thousands of dollars.

3.28

Thus, in order to lawfully accept payment for a traditional animal husbandry

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service that almost any citizen could already provide for free, RCW 18.92.070 requires citizens

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to undertake a minimum of six years of study – potentially including hundreds of thousands of

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dollars in educational expenses – that have almost nothing to do with the traditional animal

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husbandry occupation in which the citizen would like to earn a living.

3.29

The incredible burden of obtaining a Washington veterinary license is not

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reasonably related to any legitimate interest the Government might have in preventing citizens

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from being paid for otherwise lawful animal husbandry services that have traditionally been

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provided by non-veterinarians.

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3.30

Therefore, the Government cannot apply this licensure requirement against the

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Respondent without violating his constitutional right to earn a living in a common occupation

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free from unreasonable governmental interference.

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FOURTH DEFENSE: EQUAL PROTECTION

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(U.S. Const. Amendment XIV)

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3.31

The Fourteenth Amendment of the U.S. Constitution establishes that states must

provide citizens with the equal protection of the laws.

3.32

RCW 18.92.060 exempts certain persons from the requirement of obtaining a

veterinarian’s license before they may lawfully be paid for providing work that the statute

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defines as the practice of veterinary medicine.

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3.33

Specifically, the statute allows veterinary technicians or veterinary medication

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clerks to accept compensation for certain work performed while “acting under the supervision

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and control of a licensed veterinarian.” RCW 18.92.060(6).

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3.34

The statute also allows those employed by an animal owner to accept

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compensation for work they provide while “employed in the conduct of the owner’s business.”

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RCW 18.92.060(7).

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3.35

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The education required for licensure as a veterinary technician does not include

any practical experience floating horses’ teeth; horse teeth floating is not a skill taught at any of the schools in Washington that offer a degree in veterinary technology.

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3.36

Insofar as RCW 18.92.060(7) allows animal owners’ employees accept payment

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for work that the statute defines as the practice of veterinary medicine, there is no statutory

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requirement that the employee have any education or training related to working with animals

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and there is no requirement that a veterinarian oversee the work the animal owner’s employee is

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doing.

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3.37

The law at issue subjects to criminal penalties a group of similarly-situated

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people (non-veterinarians), but it irrationally grants preferential treatment to some (veterinary

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technicians and animal owners’ employees) while leaving others (traditional animal husbandry

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workers) at risk of prosecution.

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3.38

The Government has no legitimate interest in selectively applying laws that make

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it a criminal offense for non-veterinarians to be paid for animal husbandry work that could

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lawfully be done for free.

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3.39

Even if the Government a legitimate interest in exempting some non-

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FREEDOM FOUNDATION P.O. Box 552 Olympia, Washington 98507 (360) 956-3482

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veterinarians from the licensure requirement if they are to be paid for animal husbandry work

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that anyone could do for free, there is no rational basis for extending that exemption to vet techs

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and animal owners’ employees, while continuing to make it a criminal offense for traditional

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animal husbandry workers to be paid for doing the exact same work at the request of the exact

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same animal owners.

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3.40

Thus, RCW 18.92.060 violates the Fourteenth Amendment of the U.S.

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Constitution by denying traditional animal husbandry workers, including the Respondent, the

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equal protection of the laws.

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RESPECTFULLY SUBMITTED this 28th day of May, 2013.

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____________________________________ David Roland, pro hac vice Jonathan Bechtle, WSBA #39074 Attorneys for Respondent

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PROOF OF SERVICE

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I certify that I served a copy of this document by U.S. Mail on the following parties or their counsel of record on the date below:

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Gail Yu, Assistant Attorney General Office of the Attorney General P.O. Box 40109 Olympia, WA 98504-0109 Telephone: (360) 586-9190 Fax: (360) 586-3564

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I further certify under penalty of perjury under the laws of the state of Washington that

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the foregoing is true and correct.

DATED this ___ day of May, 2013, at Olympia, Washington.

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____________________________________ David Roland, pro hac vice Attorney for Respondent

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