The Arkansas Lawyer Spring 2022 by Arkansas Bar Association

Lawyer

The Arkansas

A publication of the Arkansas Bar Association

Vol. 57, No. 2, Spring 2022

Inside: Animals and the Law

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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. Brett D. Watson David H. Williams Nicole M. Winters OFFICERS President Bob Estes President-Elect Joe F. Kolb President Elect Designee Margaret Dobson Immediate Past President Paul W. Keith Secretary Glen Hoggard Treasurer Brant Perkins Parliamentarian Brent Eubanks YLS Chair Payton C. Bentley BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay Robbins Director of Education & Operations Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Yan Chen Membership Administrator Janet K. Marshall Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2022, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 57, No. 2

features 10

Animals and the Law

Emotional Support Animals and Access to Public Facilities By Allan Gates and Cara Butler

Every Dog May Have Its Day—But Not In Court By Michelle Strauss

Possessing Nonnative (a/k/a "Exotic") Wildlife in Arkansas By James F. Goodhart

Animals and Taxes By Anthony A. (Tony) Hilliard

A Dog's Worth? By Bryce Jefferson and Drake Mann

Measuring Damages for Injury or Death of Livestock By Amie K. Wilcox

All Dogs Go to Heaven, But Some Have to Work to Get There By Marion Humphrey, Jr.

The Arkansas Veterinary Medical Examining Board By Regina Young

Cover photo: Rachel Moore's dog Benny Contents Continued on Page 2

Lawyer The Arkansas Vol. 57, No. 2

in this issue ArkBar News

2021-2022 Patron and Benefactor Members

Arkansas Access to Justice

Disciplinary Actions

In Memoriam

Arkansas Bar Foundation

columns

President’s Report Bob Estes

Young Lawyers Section Report Payton C. Bentley

Board of Trustees

District A1: Geoff Hamby, Jason B. Hendren, Timothy R. Scott, Kesha Zaffino District A2-A3: Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Kristin L. Pawlik, George M. Rozzell, Russell B. Winburn District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge District B: Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Jesse J. Gibson, Steven P. Harrelson, Michael M. Harrison, Rachel Hildebrand-Kane, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, Jessica Virden Mallett, William C. Mann III, Skye Martin, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, David S. Mitchell, Jr., Meredith S. Moore, John Ogles, Emily M. Runyon, Carter C. Stein, Danyelle J. Walker, Patrick D. Wilson, George R. Wise District C5: Melanie A. Beltran, Joe A. Denton, Todd C. Watson, William Z. White District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan Wilson District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, R. Margaret Dobson Delegate District C8: Carol C. Dalby, Amy Freedman, Wm. Blake Montgomery, Taylor A. King At Large Members: Paul W. Keith, Payton C. Bentley Liaison Members: Dean Theresa M. Beiner, Interim Dean Alena Allen, Denise Reid Hoggard, Gregory J. Northen, Judge Edwin A. Keaton, Curtis E. Hogue

The Arkansas Lawyer

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ArkBar News

2022 Arkansas High School Mock Trial Competition The annual Arkansas High School Mock Trial Competition was held on March 5, 2022, at the Pulaski County Courthouse. The Regional Competitions were held virtually February 12, 2022. Arkansas Supreme Court Chief Justice Dan Kemp presided over the final round. Bob Estes, Joe Kolb, Kandice Bell, Margaret Dobson, and Adrienne Griffis served as the scoring jury. Conway High School represented Arkansas at the National High School Mock Trial Championship May 5-7, 2022. The Mock Trial Subcommittee would like to thank all of the volunteers who helped make this possible. Members make our competition special by serving on the subcommittee, helping to start programs at their local high schools, volunteering as attorney-coaches, and serving as judges for the competition. With the 2022 competition year complete, the subcommittee has started planning for the 2023 competition year. In addition, Little Rock will serve as host for the National High School Mock Trial Championship in 2023. The Arkansas Mock Trial Foundation, Inc., is tasked with fundraising and hosting this endeavor. If you are interested in serving on the steering committee or sponsoring the event, contact Foundation Board President Jordan Tinsley (jordan@tyattorney.com). If you are interested in becoming a member of the Mock Trial Subcommittee or in volunteering for the competition, contact co-chairs Anthony McMullen (anthonylmcmullen@gmail.com) and Adrienne Griffis (agriffis@ddh.law).

Mock Trial Subcommittee Adrienne Morris Griffis, Co-Chair Anthony L. McMullen, Co-Chair Melanie A. Beltran Beverly I. Brister Robert S. Coleman, Jr. Amy Freedman Brooke J. Gasaway Sarah E. Greenwood Michael B. Heister Johnathan D. Horton Lori D. Howard Christopher M. Hussein Adam D. Jackson Gabriel D. Mallard William C. Mann, III Richard B. Marshall Judge Mary Spencer McGowan Robert Minarcin Barrett Moore Ashley E. Norman Constance B. Phillips Natalie E. Ramm 4

The Arkansas Lawyer

Casey N. Richmond Jordan B. Tinsley Timothy F. Watson, Jr. Matthew D. Wells Nicole M. Winters Regional Competition Judges Nathan Bogart Greer Bryant Brian Clary Robert Coleman Cecille Doan Brooke Gasaway Lauren Graham Kristen Green Christian S. Harris Hadley Hindmarsh Stuart Hindmarsh Nick Hornung Adam Jackson Nathan Johnson Joe Kolb Kendall Lewellen Joy Momin Barrett Moore

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Tammy Mullins Andrew Nadzam Sandi M. O'Brien Melissa N. Sawyer Tim Watson Matthew Wells Sarah Greenwood-Werley State Competition Judges Sarah Bayird Kaitlyn Brainerd Brian Clary Robert Coleman Jason Davis Hayley Ferguson Brooke Gasaway Nick Hornung Adam Jackson Alexander Jones Michael Kaiser Joy Momin Melissa N. Sawyer Jordan Tinsley Destiny Vinzant

Oyez! Oyez!

Board of Trustees Elections

APPOINTMENTS AND ELECTIONS Cynthia Nance, dean emerita and the Nathan G. Gordon Professor of Law at the U of A School of Law, was appointed to the Arkansas Public Broadcasting Service Commission by Gov. Asa Hutchinson. Karen Whatley has been appointed judge for the 7th Division Circuit Court in Arkansas’ 6th Judicial District by Gov. Asa Hutchinson. Price Gardner, a managing partner at Friday Eldredge & Clark, has been appointed to a second term on the Arkansas State University System Board of Trustees. WORD ABOUT TOWN J. D. Gingerich has accepted a position as Dean of the Institute for Court Management at the National Center for State Courts. Quattlebaum, Grooms & Tull PLLC announced that R. Ryan Younger has been named a managing member of the law firm. Preston Eldridge joins Abaca as chief compliance officer and senior vice president of operations. WLJ partner and sports law attorney Antwan D. Phillips successfully passed the 2022 National Basketball Players Association (NBPA) Agent Certification Exam and is now a Certified NBPA Player Agent – one of only two certified agents in the state of Arkansas. Ramsay, Bridgforth, Robinson and Raley LLP recently celebrated its 111th anniversary. The firm is the successor to the original firm of Coleman & Gantt, which was established as a general practice firm by W. F. Coleman and N. J. Gantt on March 1, 1911. Anthony A. Hilliard and four former members of the firm have served as President of the Arkansas Bar Association. Hall Booth Smith, P.C. announced that attorneys Todd Wooten, Tony A. DiCarlo III and Joseph C. Stepina have joined the firm in the recently-opened office in Little Rock. Lion Legal Services announced that Danielle Hasty has become a partner in the firm.

Fourth Annual Spend a Day with a Judge Contest The Legal Related Education Committee for the Arkansas Bar Association hosted its fourth annual Spend a Day with a Judge contest. The contest, available statewide to all high school students, typically has both an essay contest and a courtroom artist contest. The theme for the essay competition parallels the American Bar Association’s Law Day Theme. Law Day is celebrated annually on May 1st nationwide. This year’s theme was “Toward a More Perfect Union: The Constitution in Pictured from l to r: Meeks, Nguyen, Chief Justice Kemp, Times of Change.” Contest winners are selected in a Chittemsetty, and Futrell blind selection process, and are judged based on content, word choice, grammar, and mechanics. Top winners receive prizes which can include cash prizes, a gavel, and/or a certificate and, most importantly, the students get to “spend a day with a judge.” This year’s winners of the essay contest: first place, Srikar Chittemsetty from Bentonville; second place, Victoria Meeks from Maumelle; third place, Charity Futrell from Bergman. This year’s winners of the artist contest: first place, Nhu Nguyen from Fort Smith; second place,Victoria Meeks from Maumelle Host Judges were: Judge Amy Johnson, Judge Leon Johnson, Judge Shanice Johnson and Judge Shawn Johnson. Special thanks to Chad Cumming and Gill Ragon Owen, P.A. for hosting our breakfast and to Chief Justice Dan Kemp for hosting the students at the Arkansas Supreme Court.

Ballots for the 2022 ArkBar elections were counted on March 19, 2022, in contested races for positions on the Association’s Board of Trustees in Districts A2, A3 and B9-B15. The successful candidates are listed below. Thanks to all of the candidates for their willingness to serve and lead our Association. Congratulations to the following candidates: District A2, A3 Matthew Benson Jason Hatfield Michelle Jaskolski District B9-B15 Tim Cullen Jessica Virden Mallett Chase Mangiapane Skye Martin Stefan McBride Kathleen McDonald Jeremy McNabb Casey Rockwell George Wise Interested in Serving on the ArkBar Legislation Committee? The Board of Trustees will elect one member from each of the three state bar districts to the Legislation Committee at their June 17th meeting. If you are interested, email Jay Robbins at jrobbins@arkbar.com by June 3rd.

Back the PAC!

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Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

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6 The Arkansas Lawyer www.arkbar.com

PRESIDENT'S REPORT

Time to Celebrate

It has been a pleasure serving as your President over the last year. I am proud of the work we have done. As I said when I began this year as president, it is us together and not alone. Our Arkansas Bar Association offers the experience to advance the administration of justice and to foster and maintain high ideals of integrity, learning, competence and public service, which is so essential to our purpose as lawyers and judges. It is my distinct honor as President to present awards at our upcoming annual meeting to members who have made a difference in special volunteer roles this past year. All of our members deserve to be honored for supporting the Association with your membership. Together we work to accomplish common goals to improve the profession. For the first time since 2019, the ArkBar's Annual Meeting will be in person in Hot Springs, Arkansas, June 15-17. We look forward to getting together in person this year, hence our theme—Let’s Get Together! I hope you will join us. Our Annual Meeting co-chairs Kristin Pawlik and Patrick Wilson have planned three full days that will include a lot of your familiar favorites including Family Law, BXS Insurance and the prestigious Friday Firm reception. Also this year we have added the ABOTA Masters in Trial Program along with some mini-social networking events throughout the day. Be sure and stop by the new hospitality lounge on Thursday evening on your way back to your hotel after dinner. Get Together Wednesday afternoon for the Presidents’ Leadership Welcome

Bob Estes is the President of the Arkansas Bar Association. He is a solo practitioner in Fayetteville.

Reception to honor presidents of the Association, Bar Foundation and Judicial Council. We are honoring not only the current Presidents of the Arkansas Bar Association, Arkansas Bar Foundation, and Arkansas Judicial Council but also those who held that position for the previous two years. Issues surrounding the pandemic prohibited holding our Annual Meeting in person those years, and we want to take this opportunity to recognize those individuals who would have been in office at the time of those two meetings. Each year, the Association honors members celebrating 50 years of practice at the Annual Meeting in Hot Springs. This year, the 50-year honorees will be recognized during the Award Luncheon on Thursday, June 16, from 12:00 p.m. – 1:00 p.m. Again, because we could not meet in person the last couple of years, this year we will honor members who are celebrating this milestone beginning with the 20192020 bar year. Launching in 2020, the Arkansas Bar Association Legal Hall of Fame honors Arkansas’ greatest lawyers, most revered institutions, most treasured traditions and other legends of the Bar. We hope you will join us as we honor the Inaugural Arkansas Legal Hall of Fame Class at the Arkansas Governor’s Mansion, September 15, 2022, at 6:00 p.m. Seating is limited, so register early at www.arkansasbusiness.com/ events/9/legalhalloffame. Please see the list of honorees on page 40. In the fall of 2020, the Arkansas Bar Commission on Diversity and Inclusion (“ABCDI”) developed a survey to benchmark attitudes and understandings

of Association members related to concepts of diversity, equity, and inclusion (“DEI”) within the Association. The Commission launched the survey in February 2021. The survey remained “live” though March 2021. This year, we released the results of the two reports summarizing members’ responses to the survey. The first report focused on members’ perceptions and experiences as they relate to DEI. The focus of the second report was members’ comments and suggestions on how to address both real and perceived issues related to DEI. It is my hope and the Commission’s hope that the results presented will be a useful tool for the Association as it continues its efforts to build a stronger, more dynamic, and resilient organization that meets its mission to serve all Arkansas lawyers. The Arkansas Bar Association continues to offer more benefits to help your practice and grow the profession. I hope that you take maximum advantage of these member benefits. We are excited to offer a new Members Health Plan (MHP) to cover you and your employees' health benefits with some great financial benefits for your law firm. This plan was designed to help with the increasing cost of healthcare benefits while also giving you access to a broader choice of health care benefits. Visit https:// arkbar.memberbenefits.com/employergroups/ to request a free quote today. I want to thank you for your membership, your fellowship, and for the opportunity of being your ArkBar President this year. Your leadership and support are invaluable to our profession. ■

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

124 th

A NNUA L MEETING

Let’s Get Togeth Together! er! Please Join Us

June 15-17, 2022 Joint Meeting with the Arkansas Judicial Council Hot Springs Convention Center

NEW SOCIAL EVENTS  NATIONAL SPEAKERS Early Registration Ends June 5th In-Person or Livestream* (*Selected Tracks) Join us in Hot Springs for over 19 hours of CLE and three days of networking. Highlights include: • Family Law • ABOTA Masters in Trial • Plenary Tom Goldstein, co-founder and publisher of SCOTUSblog • ARJLAP JourneyWELL room full of activities that promote well-being in numerous dimensions for overall wellness • Lots of fun social events including Mocktails and Mimosas, Presidents’ Leadership Welcome Reception, Tea with the Judges, Friday Firm Reception, Bridge Street LIVE block party, Evening Hospitality Suite, and a shuttle to Oaklawn

 8

The Arkansas Lawyer

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YOUNG LAWYERS SECTION REPORT

Great Accomplishments, Now Let's Get Together! As the 2021-2022 Bar Year closes on another difficult year, I wanted to reflect on all the things the Young Lawyers Section was still able to accomplish and to provide information about the 124th Annual Meeting. Past Year’s Achievements On August 18, 2021, I spoke on behalf of YLS at the 1L orientation at the University of Arkansas at Fayetteville School of Law. I welcomed the 1Ls to the profession and discussed the many benefits of being a Student Member of the Arkansas Bar Association. Prior to speaking to the 1Ls, the Association had 16 1L Student Members. After speaking to the 1Ls, this number drastically increased to 104 1L Student Members. On September 30, 2021, I recorded a brief video at a local recording studio in Fayetteville, Crisp Recording Studios, that covers the many benefits of being a Member of the Association. I also spoke about my experiences on the Legislation Committee and the vital role our Association plays in advocating and advancing the practice of law. This video was sent to the new Members of the Association and the new admittees who passed the Bar Exam. In addition to the Membership Drive through the video, YLS participated in the Association-wide Membership Task Force competition that was held from February 11 – March 11, 2022. YLS Executive Council was the overall committee winner with the greatest number of renewals or new members joining during the time of the contest! Each YLS Executive Council member will receive one free on-demand CLE credit with the Arkansas Bar Association to be used by June 30, 2022. This spring, YLS helped in the effort, along with the Young Lawyers Division of the American Bar Association, the Arkansas

Payton C. Bentley is the Chair of the Young Lawyers Section. He is an attorney at the Clark Law Firm, PLLC.

Bar Association, Center for Arkansas Legal Services, and Legal Aid of Arkansas, to recruit volunteers to provide pro bono legal assistance to the victims of the tornados and storms in Northeast Arkansas. YLS created the Arkansas Disaster Assistance Manual that provides all Arkansans with the resources needed to know what steps to take after a disaster. YLS updated the Statute of Limitations Handbook; its last update was in 2017. The Statute of Limitations Handbook contains 14 chapters covering all subject areas and miscellaneous issues. Make sure to check out the updated Statute of Limitations Handbook on the Association’s website in the Publications section. The updated Handbook now includes hyperlinks directly to the statutes and rules for ease of use for our Members! On May 14, 2022, YLS conducted our Annual Wills for Heroes Clinic. This year’s clinic was again virtual enabling YLS to recruit more volunteer attorneys and to help Arkansans across the State. This statewide event included over 30 volunteer attorneys assisting over 40 First Responders and their families in providing simple estate planning documents. Thank you to all our volunteers! Annual Meeting YLS is excited that the 124th Annual Meeting on June 15-17 is back in person this year! YLS will have its section meeting on June 15th from 2:00 p.m. to 3:00 p.m. In addition to conducting our section business, YLS will present awards at our award ceremony to four individuals who always answered the call and selflessly volunteered their time to help accomplish all the great things YLS did this year. •Zach Trail, District Representative, will receive a YLS Award of Excellence for his work on the Statute of Limitations

Handbook updates (taking on two chapters) and his work in planning and participating in the Wills for Heroes Clinic. •Frank LaPorte-Jenner, District Representative, will receive a YLS Award of Excellence for his work on the Statute of Limitations Handbook (taking on the longest chapter) and for his work in planning and participating in the Wills for Heroes Clinic. •Caroline Kelley, Secretary/Treasurer, will receive a YLS Award of Excellence for her work as Secretary and Treasurer of YLS, for participating in the Wills for Heroes Clinic, and for chairing the YLS Annual Meeting Reception. •Will Ogles, Chair-Elect, will receive the Judith Gray Ryan Outstanding Young Lawyer Award for his work as Chair-Elect in answering every request I had of him, for his work on the Statute of Limitations Handbook (taking on two chapters), and for Chairing the Wills for Heroes Clinic in helping plan, recruit volunteer attorneys and First Responders, and make sure the Clinic was executed flawlessly. YLS will be in good hands next year under the leadership of Will Ogles! Also on June 15th, YLS will host its YLS Mixer from 8:00 p.m. to 11:00 p.m. at The Trough Bar and Grill located at 833 Central Avenue, Hot Springs, featuring D.J. Courier Coleman. Please come join us to celebrate being back in person! On June 16th, YLS is sponsoring the Hospitality Lounge in Horner Hall Lobby where you can wind down after the day with light refreshments and a casual atmosphere. We look forward to seeing you in Hot Springs! It has been an honor and privilege to serve as YLS Chair this past year, and I look forward to seeing what all YLS will accomplish in the future! ■

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Animals & The Law Editor’s Note This edition of The Arkansas Lawyer is dedicated to animals and the law. The role of the law related to animals has remained constant in many ways over decades. Some of the articles in this edition reflect those unchanging legal concepts about the valuation and regulation of animals. However, no one can deny that the importance of animals in our lives, particularly our household pets, has grown astronomically over the last two decades. The emotional support role of animals is tremendous and with that enhanced role comes more scrutiny of how animals are treated by veterinarians and the public. Recent examples are the questions of how to hold the government responsible for its role in seizing animals1 and the recoverability of damages for emotional distress resulting from the conduct of a doggy daycare.2 The pace of new legal issues related to pets and other animals in our society is sure to increase even more rapidly in the coming years, and this edition provides insight into the current status of the most common issues of animal law. The reader will also note that this issue has an unusual humorous and fun side that is sometimes difficult to achieve in a magazine dedicated to law and lawyers. Even in the context of important and serious legal issues that are themselves no laughing matter, the description of a person’s relationship to animals can bring a smile. For example, many pet owners will be relieved to know that since 1916,

“The importance of pets in the practices of our very members is revealing as their stories and photos in this special edition reveal. Animals indeed have a special place in the law and in our lives, and this special edition hopes to accentuate that sentiment.” Rosalind and Kirby Mouser's Charles the Law Dog, aka Charles Bark-Ly, aka Charlie. “His specialty is emotional support. He began coming to the office with me during the pandemic. When clients began coming back I discovered that 94% of them loved him (the other 6% didn’t like any dogs or thought they smelled like cat). He gets a treat when we get to the office after we open mail and then we walk around outside the building (security sweep). Charlie gets to read his P-Mail. We come inside and he stations himself under my desk until clients arrive.” Wm. Kirby Mouser

The Arkansas Lawyer

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the following conduct has not been sufficient to establish incompetency: It was shown that she possessed a great fondness for pets, particularly cats and dogs, and that she kept a good many of these about her, and talked to them in a childish way … 3 The importance of pets in the practices of our very members is revealing as their stories and photos in this special edition reveal. Animals indeed have a special place in the law and in our lives, and this special edition hopes to accentuate that sentiment. Endnotes: 1. Siegel v. State, 2021 Ark. 228, 635 S.W.3d 313. 2. Pennebaker v. Furry Feet Retreat, Inc., 2021 Ark. App. 138, 620 S.W.3d 879. 3. Beaty v. Swift, 123 Ark. 166, 184 S.W. 442, 443 (1916). In fact, more recently, the Arkansas Supreme Court seemed to hold that leading an imaginary dog and talking to a little green man was not, in and of itself, sufficient evidence of insanity to avoid criminal responsibility. Hill v. State, 249 Ark. 42, 46, 458 S.W.2d 45, 48 (1970). ■

William J. Ogles and his dog Prince Louis “Louis loves coming to the office and helping his dad work on cases, and is a great listener. Louis joins his dad’s strongly held belief in zealous representation for all clients…except when it comes to the mail man.”

Tonisha “Toni” Cox and her dog Mr. Brown “Mr. Brown is a major stress reliever. He’s always happy to see me, and he’s my audience for my trial team rehearsals. He’s a great listener.”

Elijah Cummins with his cat Newton “During the classes that were entirely online, Newton helped me stay sane. He would always sneak around my computer (off-camera) and demand attention.”

Mary Claire McLaurin and her dog Lola Pearl “To my family’s dismay (or maybe disgust?), I make up songs about her and regularly and loudly proclaim that she is my best friend. Dogs are natural stress relievers and the perfect excuse to exchange a work project for the outdoors. What else am I gonna do with the money I make, but spend it on dog treats?”

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Nicole Winters’ cats Calli and Zella

LaPorte-Jenner family with dogs Tony and Zoey“ “The LaPorte-Jenner household is full of attorneys, so our dogs Tony and Zoey always dress sharp in case they have to make a court appearance. Tony is well versed in Fourth Amendment searches through our garbage, and Zoey is our general Zoe-counsel.” Karen K. Hutchins’ dogs Teddy and Winston

Lori D. Howard’s dogs Moxie Loo and Mollie Sue “They are always there—always giving me kisses or letting me hug them when I need them most! They are my most wonderful office assistants, paid in cookies and treats. I sometimes bring them as well when I am going to meet with kids in my office, serving as an ad litem, and they have been helpful in keeping some of my kid clients calm.”

Ashley Stepps’ dog Gizmo

Skye Martin and her dog Indy

Lauren Spencer’s dog Rosebud

Leslie Copeland’s cat Emma

Deborah Bliss’ dogs Delilah, Jensen and fosters “Having dogs around is an antidote to the stress that can build up from wrangling with the law.” Cathy Underwood's “associates” Daisy, Paddi and husband Glen

The Arkansas Lawyer

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Caroline Kelley’s dog Louis in his office uniform

Fred and Sharon Ursery with their dogs “When I was to be featured in The Arkansas Lawyer as bar President my law partner Kevin Crass said ‘just make sure they don’t mention your dogs.’ I told that to Don Hollingsworth and he had this fake cover made up and our office staff delivered this fake to Kevin complete with his mailing label. He fell for it hook, line and sinker.” Fred Ursery

Jennifer Davis’ dogs Arlo and Kimber

George Carder and his Boxer, Juris

“They absolutely keep me sane! No matter how long the day, how unhappy the client, or how frustrating practice can be, they are always thrilled when I walk in the door. They always provide me love and support. Everyday I strive to be the person my dogs believe I am.” “Please meet Carder Law Firm’s “Chief of Security,” Juris Prudence. She filled our home and office with love and protection. Juris had her favorite clients and was always so happy to see them. Adoptions were her favorite. She loved little people. Juris crossed The Rainbow Bridge in 2017 after dedicating 10 years of her life for us. Rest In Peace sweet girl.”

Rachel Moore and her dog Benny (Featured on cover) “Mini goldendoodle, Benoit (Benny) Sauvignon Blanc, attorney at paw. Due to potty training, he comes to work with me most days. While I was nervous at first about how he would behave in the office and whether he would be a distraction, he’s actually come to be the most popular employee in the building! In a high-stress job, he is a calming presence—a great comfort to not only the office staff, but also our clients. He’s basically our emotional support puppy. I highly recommend getting an office dog!”

John V. Phelps’ dog Daisy Jo “I hope there is a quantum dimension somewhere close where all dogs go when they pass. They gather up, frolic, and laugh but periodically glance back over their shoulders at those of us they left. Somehow along the way, their spirits blend. Later a part of each comes back into our lives. Just a part, a sometimes glance of recognition, a sideways smile, and a lick of eternity’s hope. This is my beloved dog, Daisy Jo. But now and again she is Lady, Bella, Prissy, and Jake. Dogs are ours forever.”

Anton Janik’s dogs Farrah and Pharaoh

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Emotional Support Animals and Access to Public Facilities

By Allan Gates and Cara Butler Allan Gates and Cara Butler are attorneys with Mitchell Williams Law Firm in Little Rock. Allan is pictured with his dog Lucy and Cara is pictured with her dog McCoy.

magine you are in charge of a facility that is open to the public—perhaps a church, a restaurant, a hardware store, or an apartment building. A woman enters with a dog on a leash. She says the dog is a service dog or emotional support animal, and she asks that the dog be allowed to accompany her in your facility. What do you do? Are you required to accommodate the request? Are you prohibited from accommodating the request? Are you allowed to ask questions to determine whether the woman has a bona fide basis for making the request? Does it make any difference if the dog is wearing a special vest or harness? Our starting point is that in the absence of a specifically applicable statute or regulation, the proprietor of a privately owned establishment in Arkansas has no legal obligation either to accommodate or refuse to accommodate a person seeking to enter a public premises with an emotional support animal. The trick is that there are specifically applicable statutes and regulations, the most important ones being the Americans with Disabilities Act (“ADA”), The Fair Housing Act (“FHA”), The Air Carrier Access Act, and the Arkansas Department of Health Regulations for Food Service Establishments. The Americans with Disabilities Act The ADA requires places of public accommodation to make “reasonable modifications” to accommodate those with a disability.1 Such modifications include permitting “the use of a service animal by an individual with a disability.”2 Thus, it is important to understand the difference between service animals and emotional support animals. First, the ADA limits “service animals” to dogs and miniature horses.3 Second, the animal must be “individually trained to do work or perform tasks for the benefit of an individual with a disability.”4 Examples of such tasks include guide dogs for the visually impaired and dogs trained to alert a person with diabetes when his blood sugar is low or to detect the onset of a seizure. But, service animals are not limited to physical disabilities and can also be used to benefit those with psychiatric, mental, or intellectual disabilities.5 For example, an animal may be trained to sense an anxiety attack and take a specific action to

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help lessen its impact. Such a definition potentially creates confusion regarding whether emotional support animals qualify as service animals. Thus, the ADA expressly precludes emotional support animals by stating that “emotional support, wellbeing, comfort, or companionship do not constitute work or tasks.”6 What questions can you ask an owner about her service dog? Since it is often difficult to spot the difference between an emotional support animal and a service animal, business owners may wonder what questions, if any, they can ask the owner of the animal. A business owner or her staff may only ask whether a dog is a service dog if it is not obvious that the dog is trained to perform a task for an individual with a disability.7 If this is not obvious, staff may only ask: “(1) is the dog a service animal required because of a disability?” and “(2) what work or task has the dog been trained to perform?”8 However, staff should not ask for documentation, require the dog to demonstrate the task, or inquire about the disability.9 Although a covered entity may not require documentation to show that the animal has been certified, service animals are not exempt from general laws and public health requirements, such as vaccination requirements.10 The Fair Housing Act and the Air Carrier Access Act The ADA is not the end of the analysis for all businesses. Some businesses such as apartment complexes and airlines may have to consider additional laws to clearly determine whether an emotional support animal is a reasonable accommodation. Although the ADA excludes emotional support animals, the FHA has a more expansive definition for animals that qualify as reasonable accommodations. Specifically, the FHA explains that an assistance animal includes an animal “that provides emotional support that alleviates one or more identified effects of a person’s disability.”11 Thus, entities that are subject to the FHA must accommodate emotional support animals. For example, in Castillo Condo. Ass'n v. U.S. Dep't of Hous. & Urban Dev., HUD filed a charge of discrimination

against a condominium association when it refused to allow a resident who suffered from anxiety and depression to keep his emotional support animal, and the First Circuit held that there was substantial evidence that these actions were unlawful.12 Further, assistance animals may extend to animals other than dogs. At one time the Air Carrier Access Act also required airlines to accommodate emotional support animals, but that is no longer the case. Instead, the Act now more closely aligns with the ADA, requiring airlines to only accommodate service animals. Interestingly, the Department of Transportation announced that this change was partly due to the fact that a majority of reported airline incidents with animals involved emotional support animals.13 Food Service Establishments What about restaurants or public dining halls? The Arkansas Health Department Regulations Pertaining to Food Establishments generally prohibit any live animals being allowed on the premises of a retail food establishment.14 But the regulations make three relevant exceptions. First, a patrol animal accompanying a police or security officer is allowed in a food establishment’s offices, dining, sales, and storage areas. Second, service animals controlled and utilized by a disabled employee or customer are allowed in areas not used for food preparation which are usually open to customers, such as dining and sales areas. Third, pets are allowed in common dining areas of institutional care facilities such as nursing homes at times other than during meals if the area is separated from food preparation and storage areas and all surface areas are cleaned before the next meal service. In addition to the three exceptions in its regulations, the Health Department also allows a food establishment to apply for a “Dog Friendly Patio” waiver which, if granted, authorizes the business to permit its customers to bring leashed dogs onto outdoor dining areas. Conclusion In summary, individuals with disabilities are generally allowed to take their service animals into virtually any public space. Emotional support animals, on the other

hand, are entitled to special accommodation only in the context of tenants in FHA regulated housing. The biggest difficulty lies in determining whether an animal is genuinely a service animal, or merely an emotional support animal. Most people are not well equipped to identify the line between a service animal that is supporting an individual with a genuine emotional disability and an emotional support animal that is providing genuine comfort and support to an individual who is not disabled. Making that determination is complicated by the fact that the ADA limits the questions one may ask in determining the bona fides of the request for access and by the fact that there is no commonly recognized certification or registry that would help identify qualified service dogs. Thus, this question cannot be resolved by looking for a special vest or asking for documentation. Instead, proprietors and staff must rely on a thoughtful, limited inquiry into the tasks performed by the animal that an individual wants to bring into a public facility. Endnotes: 1. 28 C.F.R. § 36.302(a). 2. 28 C.F.R. § 36.302(c)(1). 3. 28 C.F.R. §§ 36.104, 36.302(c)(9). 4. 28 C.F.R. § 36.104. 5. 28 C.F.R. § 36.104. 6. 28 C.F.R. § 36.104. 7. 28 C.F.R. § 36.302(c)(6). 8. https://www.ada.gov/regs2010/service_ animal_qa.html. 9. 28 C.F.R. § 36.302(c)(6); https://www. ada.gov/regs2010/service_animal_qa.html. 10. https://www.ada.gov/regs2010/service_ animal_qa.html. 11. https://www.hud.gov/program_offices/ fair_housing_equal_opp/assistance_animals. 12. 821 F.3d 92, 98 (1st Cir. 2016). 13. https://www.transportation.gov/ sites/dot.gov/files/2020-12/Service%20 Animal%20Final%20Rule%20FAQs.pdf. 14. Arkansas Department of Health Rules & Regulations Pertaining to Food Establishments § 6-501.115(A), accessible at: https://www.healthy.arkansas.gov/ images/uploads/pdf/Food_Establishments_ Rules_and_Regulations.pdf. ■

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Every Dog May Have Its Day—But Not in Court

By Michelle Strause I. Introduction Throughout American legal tradition, the family pet has been viewed as chattel.1 Courts have customarily treated the dog the same as the rocking chair or automobile in the context of divorce. Pets are an integral part of our individual households and pet popularity has continued to increase in our society.2 It should therefore come as no surprise that attitudes about the legal status of our four-legged friends are beginning to change as well. For a couple who love and care for their pets, splitting up is already difficult, complete with highly charged emotions; finding out their beloved companions are subject to disposal like property can be extraordinarily distressing. While Arkansas still considers pets personal property, a growing number of states are beginning to take account of animals’ interests during the divorce process.3 Michelle Strause is a family practice attorney and mediator; recently retired from litigation, she owns and operates Mediation Central.

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II. Pets in Arkansas—The Bundle of Sticks, But No Fetch Arkansas currently makes no distinction between living and nonliving personal property in divorce litigation; family pets are allocated as any other personal property.4 Property is generally distributed based on whether it is marital or separate property.5 Generally, separate property includes property owned before marriage, purchased with nonmarital funds or acquired by gift. Marital property consists of property acquired during the marriage or property to which both spouses contribute to the purchase.6 McKinnis illustrates the strong emotions and disagreements which can surface when parties litigate the issue of ownership of a family pet. Randy and Brenda McKinnis were married for three years. During that time, two golden doodles, Max Von Doodle and Zoey Belle, were brought home about a year apart. The purchase, training, maintenance and grooming of the dogs were paid by Brenda using her premarital bank account. When divorce became inevitable and property division was discussed, the two very strongly disagreed about the dogs. According to trial testimony, both parties referred to the pets as family. When the parties moved from their home, Brenda attempted to take both dogs; when Randy realized she was taking the dogs, he emotionally confronted her and attempted to block her exit. The

police ultimately allowed Brenda to take the dogs when she left. At trial, testimony and documentary evidence revealed Brenda paid for the dogs out of her premarital account. Brenda maintained the pets were her separate nonmarital property but asked in the alternative for an unequal division in the event the dogs were found by the court to be marital, pursuant to Ark. Code Ann. § 9-12-315(a) (1)(A). Randy contended the pets were marital property, subject to division or court-ordered sale. The court ultimately agreed with Randy and found the dogs to be marital but awarded them to Brenda as an unequal distribution because the court found that Brenda primarily contributed to the acquisition and the preservation of the dogs. Randy appealed to the Arkansas Court of Appeals, and the appeal resulted in affirmation of the lower court’s assessment about the dogs. The Court of Appeals did not, however, agree with the court’s assessment on money issues. The case was remanded for further proceedings.7 Needless to say, this became a very expensive divorce, both financially and emotionally. When sentient living marital property becomes the subject of acrimonious proceedings like McKinnis, courts can order the pets sold, divided, or awarded to one spouse. Under present law, the courts in Arkansas really have no other options.8 New legislation would be required to allow for any other considerations. III. Other States Some states have abandoned the traditional property law approach in favor of a system that considers the best interests of the pets themselves. The number of states that have done this is small, about four at the time of writing.9 With the burgeoning popularity of dogs as lifelong companions, there is a definitive shift taking place where the modern trend may one day soon be the majority approach. Alaska has mandated that courts consider the “well-being of the animal” in divorces.10 Illinois11 and California have both adopted this approach. New York courts have adopted an approach that requires consideration of what is “best for all concerned.”12 When considering which

party should be granted custody of the pet, their courts consider the likelihood of where the [pet] will prosper, where it will have a better chance to love and be loved, and which party can better meet the pet’s physical and emotional needs.13 Karis Nafte, veteran dog behaviorist, mediator and pet custody specialist, points out there is a much better way. Nafte instructs judges, mediators, and lawyers on what to look for in determining a dog’s best interests. She urges couples to first try to agree on the overriding principle of finding the best solution for their pet, giving their pet the best life available under the circumstances, and to try to resolve pet custody issues rather than litigation. She notes shared custody should not be the go-to solution, it being primarily for the benefit of the humans involved, not the animals. It should be employed only if the parties can agree, get along well and, most importantly, if the pet can tolerate it.14 If there are no children involved, the parties need to be reminded that shared custody will require continued contact with their ex for years to come. Most of the time, shared custody does not work, not in the long run. During separation and divorce, family pets may react to the emotions of the couple by engaging in behaviors unusual for them: excessive chewing or barking, urinating in unusual places or other signs of stress. There is a mistaken belief their pet is “angry at them” or somehow “upset” by the other partner; this is an all-too-common tendency to inappropriately humanize the pet. Nafte assures us that dogs are animals with beautifully simple emotions; they excel at reflecting stress in their environment through their behavior. They can sense if their person is upset; they read body language and they commonly show initial intolerance to new places and unfamiliar routines. They cannot be assigned complicated emotions such as anger, shame, guilt, or resentment. Personalizing our pets is a mistake, especially when it comes to dog custody.

routine, as well as their bond with children or other pets in the household. Medical history and cost considerations can also be discussed.15 Nafte recommends that lawyers and mediators handle the issue of the family dog first in negotiations. Approaching the issue head-on helps the couple find possible early success in mediation on a very emotional issue; it also prevents the couple from weaponizing or bargaining with their pet later in the mediation. Endnotes: 1. Harold W. Hannah, Animals as Property: Changing Concepts, 25 S. Ill. U.L.J. 571 (2001). 2. Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1, 19 (2006). 3. See generally, Jared Sanders, Who Gets the Pet in the Divorce? Examining a Standard for the New York Legislature to Adopt, 37 Touro L. Rev. 499 (2021). 4. See generally McKinnis v. McKinnis, 2020 Ark. App. 479, 612 S.W.3d 730. 5. See generally Ark. Code Ann. § 9-12315. 6. See generally Ark. Code Ann. § 9-12315. 7. The author served as both trial and appeal counsel in McKinnis. 8. McKinnis v Mckinnis, supra note 4. 9. Sanders, supra note 3. 10. Alaska Stat. Ann. § 25.24.160 (a)(5). 11. S.B. 1261, 100th Gen Assemb., Reg. Sess. (Ill. 2018) (also known as Public Act 100-0422); Cal. Fam. Code § 2605 (also known as AB 2274). 12. Travis v. Murray, 42 Misc. 3d 447, 455, 977 N.Y.S.2d 621, 628 (2013) (quoting Raymond v Lachmann, 264 A.D.2d 340, 341 (1st Dept 1999)). 13. See generally, Mitchell v. Snider, 41 N.Y.S.3d 450 (Civ. Ct. 2016). 14. Nafte, Karis, Interview by Michelle Strause. January 27, 2022. 15. Nafte, Karis, Three-Part Pet Custody Course, www.whokeepsthedog.com. ■

IV. Best Practice Resolution through mediation is by far the best solution for dog owners who love their pets. The mediator’s questions should focus on the pet’s age, breed, exercise and Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Possessing Nonnative (a/k/a “Exotic”) Wildlife in Arkansas

By James F. Goodhart

H James (Jim) Goodhart has served as General Counsel for the Arkansas Game and Fish Commission since 1997. He is pictured here with an AGFC resident, Tia, a speckled kingsnake (Lampropeltis holbrooki).

istorically, the Arkansas Game and Fish Commission (“AGFC”) has regulated the possession, breeding, and management of many “captive-reared” wildlife species.1 In 1944, the citizens of Arkansas approved Amendment 35 to the Arkansas Constitution, which advanced a new science-based approach for the conservation and regulation of wildlife in Arkansas.2 Since then, Arkansas courts, as well as the Arkansas Attorney General, have recognized that Amendment 35 authorizes AGFC to administer regulations for a broad range of wildlife, which includes captive-reared, nonnative or “exotic” wildlife.3 For many years, AGFC has restricted the importation of various captive wildlife species and required permits for their private possession, breeding, and sale.4 Justifications for these regulations include preventing introduction of invasive species, parasites, and diseases harmful to native wildlife and/or agriculture; protecting public safety, especially from dangerous species and zoonotic diseases; protecting native wildlife from over-exploitation and commercialization; and protecting global wildlife from over-exploitation.5 The possession of live wildlife in captivity is generally prohibited, except in accordance with a list of enumerated exceptions.6 Additionally, AGFC has adopted possession restrictions that apply to certain individual captive, nonnative wildlife species.7 Currently, the bulk of AGFC’s regulations for captive wildlife fall under four main topics: 1. 2. 3.

Wildlife Importation Permit Requirements; Wildlife Breeder/Dealer Permit Requirements; Species-specific Regulations, including primarily: Box Turtles; Cervids; Large Carnivores; Large Primates; Rabies-Vector Species; Venomous Reptiles; and Waterfowl/Game Birds; and Unrestricted, Permitted, and Prohibited Captive Wildlife Species Lists.8

Before bringing any captive wildlife into Arkansas or transporting it through the state, a person must apply to receive a Wildlife Importation Permit, unless the particular species is exempt due to listing in the Unrestricted Captive Wildlife Species List.9 When applying for the permit, the owner of the captive wildlife must submit written documentation showing the origin and destination of each animal 18

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and indicating it has been certified by an accredited veterinarian to be free of diseases and parasites that may pose adverse risk to native wildlife and complies with all applicable animal health requirements adopted by AGFC and the Arkansas Livestock and Poultry Commission.10 Species listed in the Prohibited Species List may not be imported, except pursuant to certain narrow limitations.11 A permit is not necessary merely to move legallyowned captive wildlife intrastate or to return wildlife to Arkansas after it has been temporarily moved out-of-state for less than 30 days.12 To “rear, breed, propagate . . . or offer for sale” particular wildlife species, an individual must apply for and receive a Wildlife Breeder/Dealer Permit.13 As with the Wildlife Importation Permit, an applicant for a Wildlife Breeder/Dealer Permit should consult the Unrestricted, Permitted, and Prohibited Captive Wildlife Species Lists to determine whether a particular species is exempt from the permit requirement or cannot be permitted at all.14 AGFC has adopted specific regulations restricting private ownership of white-tailed deer, elk, and other cervids, including nonnatives like moose, caribou, sika deer, fallow deer, red deer, axis deer, and mule deer.15 Many of these regulations are intended to prevent the spread of Chronic Wasting Disease (CWD), which is a contagious prion disease that causes fatal, neurological degeneration in cervids.16 Importation of deer, elk, or any other cervids is generally prohibited.17 Additionally, subject to limited exceptions, it is illegal to import into Arkansas or possess mountain lions or any large carnivores, including African lions, tigers, leopards, snow leopards, jaguars, and bears.18 Likewise, since 2013, apes, baboons, and macaques cannot be imported or possessed in the state, except pursuant to certain narrow limitations.19 Primates (other than apes, baboons, and macaques) that are approved in the Permitted Captive Wildlife Species List may be eligible for import and possession as long as the particular primate is registered with the local county sheriff within 30 days of acquisition and applicable AGFC regulations are met, including caging and

care requirements.20 In 2019, AGFC approved regulations requiring a Venomous Reptile Possession Permit beginning July 1, 2021, for individuals wishing to possess any “medically significant venomous reptile species,” whether native or nonnative to Arkansas.21 This permit applies to captivereared venomous snake species that are native to Arkansas (e.g., timber rattlesnakes, copperheads, etc.) plus exotic reptile species, such as beaded lizards, Gila monsters, and various cobras and vipers. Exceptions exist for possessing native venomous reptiles in accordance with a Commission-issued Scientific Collection Permit, a Conservation Education Permit, or the provisions for native wildlife pets under Code 09.14. The Venomous Reptile Possession Permit addresses specific requirements for the facility and caging (i.e., animal enclosures secured with locking mechanisms, rooms modified to be escape-proof, and “Venomous Reptile” labelling and posted warning signs), reporting and recordkeeping, inspections, and transportation. A variety of nonnative wildlife species may be kept as personal pets in accordance with Code 09.02. Animals must have been purchased from an AGFC-permitted Wildlife Breeder/Dealer, brought into Arkansas with a Wildlife Importation Permit, or purchased from a legal owner that registered the sale with AGFC.22 However, this requirement does not apply if the animal is among the species designated on the Unrestricted Captive Wildlife Species List.23 Unrestricted species include common types of birds (such as certain canaries, cockatoos, finches, macaw, parrots, peafowl, etc.), ferrets, geckoes, gerbils, guinea pigs, hamsters, lizards, mice, nonvenomous snakes (including some species of pythons and Boa constrictors), sugar gliders, and tortoises. If the species is listed on the Permitted Captive Wildlife Species List, a Wildlife Breeder/Dealer Permit is required to breed any animals.24 Otherwise, without that permit, males and females must be kept in separate enclosures unless they have been neutered to prevent reproduction.25 Each species on the “Permitted Captive Wildlife Species List” has undergone evaluation by the Commission and determination that it “does not pose a significant risk to human

health and safety, native fish and wildlife health or populations, or agriculture, and that [it] can be safely confined in a humane manner.”26 These species include different types of birds (including chukars, ostriches, some species of parakeets, pheasants, and ravens), frogs and toads, venomous snakes, and exotic mammals, such as giraffes, some monkeys, water buffalo, and zebra. For more information about possessing nonnative wildlife in Arkansas (including copies of FAQ fact sheets, importation guidance, permit applications, and wildlife pet restrictions), visit www.agfc.com/en/ wildlife-management/captive-wildlife/ or contact AGFC at 800-364-4263 or AskAGFC@agfc.ar.gov. Endnotes: 1. See 1917 Ark. Acts 133, § 8 (codified as Ark. Code Ann. § 15-41-104(b); repealed by 1999 Ark. Acts 1557, § (3)) (“The commission may establish rules and regulations governing the propagation of game, fish, and fur-bearing animals in captivity upon private premises and authorize the sale or exportation from the state thereof upon permits to be issued by the commission.”); see also 1943 Ark. Acts 146, § 9 (codified as Ark. Code Ann. § 15-44-101; repealed by 1999 Ark. Acts 1557, § 109). 2. The initiated petition was approved during the General Election of November 7, 1944, and became effective on July 1, 1945. Amendment 35 provides, in part: “The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of eight members….” Ark. Const. amend. 35, § 1. 3. See Delancy v. State, 356 Ark. 259, 151 S.W. 3d 301 (2004) (affirming conviction for illegal importation and possession of captive-reared elk); Farris v. Ark. State Game & Fish Comm’n, 228 Ark. 776, 310 S.W.2d 231 (1958) (holding valid AGFC regulation

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

prohibiting sale of game fish raised in privately-owned waters); Ark. Atty. Gen. Opinion No. 2000-216, 2000 WL 1505420 (Sept. 20, 2000) (concluding AGFC is authorized to adopt and enforce regulation of privately-owned, nonnative wildlife “as long as the particular regulation reasonably tends to promote the protection and conservation of this State’s wildlife resources, and is not discriminatory or violative of the United States Constitution”); compare Noe v. Henderson, 373 F. Supp. 2d 939 (E.D. Ark. 2005), aff'd, 456 F.3d 868 (8th Cir. 2006) (holding that AGFC was not precluded by the Federal Migratory Bird Treaty Act from requiring a permit for private possession or sale of captive-reared mallard ducks). AGFC defines “wildlife” to mean “[a] ll wild birds, mammals, fish, reptiles, amphibians, other wild aquatic forms, and all other wild animals, regardless of classification, whether resident, migratory or imported, protected or unprotected, dead or alive, and shall extend to and include any and every part of any individual species of wildlife, including animals living in a captive state.” AGFC Code 01.00-C (emphasis added). 4. In 1943, AGFC became authorized to issue permits for Game Breeder’s and Game Bird Breeder’s Permits. In the 1980s, AGFC began requiring a Commercial Nongame Breeder’s Permit for individuals to privately raise any nongame animals. In 2000, the Game Breeder’s and Nongame Breeder’s Permits were combined to become the Wildlife Breeder/Dealer Permit. That same year, AGFC promulgated a regulation requiring a Wildlife Importation Permit for persons wanting to bring wildlife into or through Arkansas. Current regulations applicable to captive wildlife are contained in Chapter 09.00 of the Arkansas Game and Fish Commission Code (“AGFC Code”), which can be accessed at: https://apps.agfc. com/regulations/09.00/. 5. See https://www.agfc.com/en/ news/2018/09/26/captive-wildliferegulation-changes-proposed/. 6. See AGFC Code 09.01. The list of exceptions includes species referenced in Addendum R1.01—Unrestricted Captive Wildlife Species List; accredited members of the Association of Zoos and Aquariums; holders of specified permits issued by AGFC or the U.S. Fish and Wildlife Service; and persons holding wildlife captive in 20

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compliance with other specific regulations. 7. See AGFC Code 09.02 (restricting possession of mountain lions, large carnivores, primates, medically-significant venomous reptiles, and other species not excepted under Code 09.01 or Addendum R1.01, and outlining requirements concerning acquisition, maintenance of enclosures, recordkeeping, and health conditions). 8. See generally AGFC Code Chapter 09.00. Fact sheets, permit applications, and various other informational materials for captive wildlife can be accessed at https:// www.agfc.com/en/wildlife-management/ captive-wildlife/. 9. See AGFC Code 09.10 and Addendum R1.01. Nearly 100 species are designated as “unrestricted.” 10. AGFC Code 09.10 Addendum A F1.04 (B)-(C); see also Arkansas Livestock & Poultry Comm’n Regulations for Arkansas Health Requirements Governing the Entry of Livestock, Poultry, and Exotic Animals, https://www.agriculture.arkansas. gov/wp-content/uploads/2020/05/Entry_ Requirments_.pdf. 11. AGFC Code 09.10(G) and Addendum R1.03. Presently, the Commission has listed 31 separate species as generally prohibited, including bats, box turtles, coyotes, foxes, raccoons, various rodents, skunks, waterfowl, plus various exotic mammals, such as apes, baboons, cervids, hippopotamus ibex, oryx, “big cat” members of the genus Panthera, rhinoceros, and warthogs. 12. AGFC Code 09.10. 13. AGFC Code 09.07. Requirements for a Wildlife Breeder/Dealer Permit are set forth in AGFC Code Addendum F1.03. 14. See AGFC Code 09.07(F) and Addenda R1.01, R1.02, and R1.03. 15. See e.g., AGFC Code 05.26, 09.11(H), and 09.14. 16. Chronic Wasting Disease was first discovered in Arkansas elk and deer in February 2016. For more information about CWD and its presence in cervids, see https:// www.agfc.com/en/hunting/big-game/deer/ cwd/. 17. AGFC Code 09.11 and Addendum R1.03. 18. AGFC Code 09.02 and Addendum R1.03; see also Ark. Code Ann. §§ 2019-501 to -511. Possession of mountain lions or any large carnivores is prohibited, except in accordance with exemptions

available to institutions accredited by the American Zoos and Aquarium Association, registered nonprofit humane societies, veterinary hospitals or clinics, holders of U.S. Department of Agriculture Wildlife Exhibition Permits, and holders of AGFC Wildlife Breeder/Dealer Permits issued prior to 2007. 19. AGFC Code 09.11 and Addendum R1.03; see also Ark. Code Ann. §§ 20-19-601 to -610. Exemptions allow for importation and/or possession of apes, baboons, and macaques in limited circumstances involving accredited zoos, research facilities, wildlife sanctuaries, circuses, persons temporarily holding or transporting the animal(s) into or through the state for 10 days or less, and for all primate owners who registered their animal(s) with the local county sheriff prior to March 2014. 20. Ark. Code Ann. §§ 20-19-605 and -606 and AGFC Code Addendum F1.03(F). 21. See AGFC Code 01.00-C for the definition of “Medically-Significant Venomous Reptile Species,” Code 9.17 for applicable regulations, and Addendum F1.08 for permit requirements. A Wildlife Importation Permit is required to import any of these species into the state and a Wildlife Breeder/Dealer Permit is needed before venomous reptiles may be bred and/or sold. The Venomous Reptile Possession Permit is not required for hand-captured native wildlife pets in accordance with AGFC Code 09.14. 22. AGFC Code 09.02(G). 23. AGFC Code Addendum R1.01. Currently, this list references 98 separate species that are exempt from any permits for breeding, selling, or importing. 24. AGFC Code Addendum R1.02. Presently, this list identifies 68 species designations that are potentially eligible to receive permits for breeding, selling, or importing subject to the terms of a Wildlife Breeder/Dealer Permit or Wildlife Importation Permit. 25. AGFC Code 09.02(F). 26. AGFC Code Addendum R1.02(A)(68); see also AGFC Code 09.07(F). ■

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Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Animals and Taxes

By Anthony A. (Tony) Hilliard

Anthony A. (Tony) Hilliard, JD CPA, former President of the Arkansas Bar Association, practices tax, estate planning, probate and corporate law with the Ramsay, Bridgforth, Robinson & Raley LLP law firm in Pine Bluff, Arkansas. He is pictured with his wife Mary and dog Annie.

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n 2020 my wife, Mary, and I decided to get a puppy. Mary, newly retired, grew bored cooped up by herself during the pandemic. I wanted a manly-man hunting dog. Mary wanted a Maltese. We compromised and got a Maltese. After learning the price, I strongly suggested we start breeding Maltese. Mary then asked the most important question every person must consider before entering into any new enterprise: “What do you know about breeding dogs?” I knew you needed a boy dog and girl dog, but not much else. Annie (because we got her on our Annie-versary) is now a happy, spoiled dog, fixed and costing us more money on vet bills and special diet food, with no chance of ever deducting those expenses on our taxes. Pets don’t qualify as a dependent. The federal and Arkansas tax codes allow business deductions for activities entered into with the intent to make a profit.1 However, the codes limit hobby deductions to the gross income from the hobby.2 Hobby income includes all gains from the sale or other disposition of property and all other gross receipts derived from such activity reduced by the cost of goods sold.3 The IRS knows high income taxpayers will often report “business losses” for taxpayer activities not engaged in for profit.4 Several years ago Dr. Knudsen, an OB/GYN physician, and his wife decided to raise parrots. Dr. Knudsen spent his spare time working in their exotic animal breeding operation called El Rancho Exotica (“Exotica”). Mrs. Knudsen managed Exotica. Mrs. Knudsen completed 32 hours of business courses but did not hold a business degree. She had no formal training in animal care or zoo science. Dr. and Mrs. Knudsen believed a great market existed for parrots trained to eat from the owner’s hand. The Knudsens read several books, attended a seminar on hand raising parrots, and read “Bird Talk” magazine as well as met with its editor on raising parrots. Otherwise, the Knudsens had no experience in raising parrots for profit. Further, they had no business plan or economic projections to show they could make a profit in the business. Eventually they expanded Exotica to include different types of birds, camels, llamas and other exotic animals on a farm they bought to support Exotica. As you would expect, between 1995 and 2002 the Knudsens wrote off over $2,860,000 in tax losses from Exotica.5 The Knudsens noted that they also expected the appreciation in value of the animal assets as the herd or flock grew in number would generate profits for them. The Tax Court agreed that “profit” for this purpose includes appreciation of the assets over several years but noted the huge expenses the Knudsens incurred in feed and other expenses made it highly unlikely they would ever make a profit with Exotica.6 After reviewing the relevant factors the Tax Court concluded that the Knudsens had no specific knowledge related to the breeding of animals, had not consulted with experts, had not taken the time to learn how to make the business profitable and had

"... the best advice any lawyer can give to a client preparing to enter a new enterprise but worried about the hobby-loss rule is approach the enterprise in a business-like manner."

failed to prove they were making a concerted effort to make the business profitable. The IRS maintained, and the Court agreed, that the Knudsens’ animal breeding was a hobby which meant the Knudsens could not deduct Exotica’s losses.7 The Code presumes that if gross income from the activity exceeds deductions for three of the past five consecutive tax years, then unless the IRS determines otherwise, the activity is engaged in for profit.8 The Code is more generous with horse breeding, training, showing or racing and allows the presumption that the taxpayer engaged in the horse enterprise for profit if gross revenues from the enterprise exceeded tax deductions from the enterprise for two of the seven consecutive years, including the tax year in question.9 However, many other factors also help determine the hobby status of an enterprise. A recent cattle ranching case gives excellent insight into the factors used to determine whether a taxpayer may deduct losses from an enterprise. Paul Wicks owned Wicks and Associates, a highly profitable oil and gas inspection company. His income averaged almost $1,000,000 a year and he employed up to 80 employees during this time.10 The Court also found it important that the company had a separate checking account and one employee had an accounting degree, used Quickbooks accounting software and handled accounting duties.11 Wicks bought a cattle ranch in 1997. As of the tax year ending December 31, 2015, Wicks had not made a profit in a single year for the prior 18 tax years and had lost over $807,000 in those 18 years.12

To determine if Wicks’ cattle ranch was a hobby and ineligible to deduct the losses, the Court looked to nine factors set out by Treasury Regulation Section 1.183-2(b). 1. Business like manner.13 Wicks had not prepared a business plan or financial projections, used QuickBooks or any other accounting software, created a separate bank account for the enterprise, executed any written contracts, formed a business entity, marketed or promoted his cattle operations, insured his cattle against catastrophic loss, consulted a financial adviser or even tracked anything related to profits and losses of his cattle operation.14 The Court noted that Wicks “employed a variety of sophisticated financial practices in running Wicks and Associates.”15 The court found that while his operations are similar to other ranchers, his “rudimentary” records and failure to use sophisticated business practices favors the IRS determination that the cattle ranch was not operated in a business like manner.16 2. Expertise of the Taxpayer or his Advisers.17 The Court found the evidence showed Wicks engaged in “self-education” by attending seminars but didn’t seek “any formal cattle ranching education or hire paid consultants or experts.”As such, the Court determined this factor was neutral.18 3. Time and Effort Expended in Carrying on the Activity where the activity does not have substantial personal or recreational aspects.19 The IRS argued that because Wicks had a full-time occupation, this factor favored determining the cattle ranch was a hobby. However, the Court noted Wicks worked three to four days a week at the ranch “which entails hard physical labor, and [the

IRS] points to no evidence demonstrating that this physical labor has substantial personal or recreational aspects for [Wicks].” Therefore, the Court found this factor favors Wicks trying to make a profit.20 4. Expectation that Assets used in Activity may Appreciate in Value.21 The Court ignored the cattle breeding since the calves went into inventory, not capital, and his equipment was depreciating. However, the Court determined Wicks purchased and improved most of his land for the cattle business with the reasonable expectation of the “appreciation of … the value of the capital improvements made on the land,” which factor favors Wicks.22 5. The Success of the Taxpayer in Carrying on Other Activities.23 The Court noted Wicks was very successful with Wicks and Associates, but was not employing any of the business skills that made Wicks and Associates successful except the same work ethic he uses at Wicks and Associates. The Court determined this factor was neutral.24 6. Taxpayer’s History of Income or Losses with Respect to the Activity.25 The Court found that Wicks’ failure to make any profit over the course of 18 years indicated the lack of a profit motive but also acknowledged that for the tax years in question, Wicks had demonstrated a drought and depressed cattle market beyond his control contributed to his losses, which must also be considered.26 7. The Amount of Occassional Profits Earned.27 While the Court found this factor favored the IRS because Wicks had never earned a profit on his cattle operations, it also acknowledged “that small farming operations are not, generally speaking, lucrative

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businesses.”28 8. The Financial Status of the Taxpayer.29 The regulation provides that substantial income from other sources “may indicate the activity at issue is not engaged in for profit, especially where losses from the activity generate substantial tax benefits and there are personal or recreational elements involved.”30 However, the Court found no evidence of a personal or recreational element to the cattle ranching. The Court found this factor indicates the cattle ranch is for profit.31 9. Elements of Personal Pleasure or Recreation.32 The IRS conceded raising cattle generally lacks significant recreational aspects and presented no evidence that Wicks engaged in cattle ranching for personal or recreational purposes.33 After examining all the factors, the Court determined that Wicks was engaging in the cattle ranching for profit and the IRS should refund the taxes it collected prior to the case when it disallowed the losses.34 Bearing the above elements in mind, the best advice any lawyer can give to a client preparing to enter a new enterprise but worried about the hobby-loss rule is

Visit our new location for your litigation needs.

approach the enterprise in a business-like manner. Develop a budget and project if the enterprise will be profitable. Keep detailed and accurate records with corresponding receipts. Either bring relevant experience to the enterprise or hire an expert to advise how to make the enterprise profitable. Adapt and adjust if the enterprise fails to make a profit. Finally, try to make a profit at least three out of every five years if at all possible. Endnotes: 1. I.R.C. § 162 and Ark. Code Ann. § 2651-423. 2. I.R.C. § 183 and Ark. Code Ann. § 2651-424(c). 3. Treas. Reg. § 1.183-1(e). 4. See IRS IRC §183 Audit Guide Rev. 6/09. 5. See Knudsen v. C.I.R., T.C. Memo 2007340. 6. Id. 7. Id. 8. I.R.C. §183(d). 9. Id. 10. Wicks v. United States, 304 F. Supp. 3d 1079, 1086 (N.D. Okla. 2018). 11. Id.

12. Id. 13. Treas. Reg. § 1.183-2(b)(1). 14. Wicks, 304 F. Supp. 3d at 1095. 15. Id. at 1096. 16. Id. 17. Treas. Reg. § 1.183-2(b)(2). 18. Wicks, 304 F. Supp. 3d at 1095. 19. Treas. Reg. § 1.183-2(b)(3). 20. Wicks, 304 F. Supp. 3d at 1098. 21. Treas. Reg. § 1.183-2(b)(4). 22. Wicks, 304 F. Supp. 3d at 1098. 23. Treas. Reg. § 1.183-2(b)(5). 24. Wicks, 304 F. Supp. 3d at 1098. 25. Treas. Reg. § 1.183-2(b)(6). 26. Wicks, 304 F. Supp. 3d at 1099. 27. Treas. Reg. § 1.183-2(b)(7). 28. Wicks, 304 F. Supp. 3d at 1099. 29. Treas. Reg. § 1-183-2(b)(8). 30. Wicks, 304 F. Supp. 3d at 1099. 31. Id. At 1100. 32. Treas. Reg. § 1-183-2(b)(9). 33. Wicks, 304 F. Supp. 3d at 1100. 34. Id. ■

CLARK LAW FIRM, PLLC 121 W. SOUTH STREET FAYETTEVILLE, AR 72702 (479) 856-6380

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Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

A Dog’s Worth?

By Bryce Jefferson and Drake Mann1

n February 2013, Newell Gill filed a complaint in Lincoln County against Frankie Newby.2 Gill alleged that he, three friends, and Gill’s two “Treeing Walker” coon dogs, Buck and Smoke, had gone camping in the White River National Wildlife Refuge to hunt raccoons. Around 9 o’clock at night, Buck and Smoke signaled that they had treed a raccoon. But the dogs had run onto private land. Landowner Newby appeared at the campsite, allegedly drunk, and threatened to shoot the dogs—and Gill, too, if he tried to get them. Gill nevertheless went looking for the dogs, found Buck, and returned to camp, whereupon Newby shot Buck behind the shoulder with a high-powered rifle. “Plaintiff had Buck on a leash. When Buck fell, his nose touched plaintiff ’s boot. . . . Buck died in those woods on that night. He was four and a half years old. Plaintiff had him since he was a puppy.” Dogs arouse strong emotions in humans. We erect monuments to them.3 They are man’s best friend.4 If you want a friend in Washington, get a dog.5 They inspire almost-poetic judicial writing. In a case establishing that dogs could be subject to larceny, Justice Battle wrote: They are possessed of many elements of value and utility to the human race—the most valuable, “ranking among the noblest representatives of the animal kingdom, and being justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection and above all for their natural companionship with man,” being true and faithful to their masters under all circumstances.6 But, in the end, “[d]ogs are property.”7 Dog owners can sue for the conversion of a dog. In Elliott v. Hurst,8 the defendant responded to an ad offering wolf-hybrid dogs for sale; she saw that one of the dogs, Rambo, had an infected leg and urged the plaintiff to have Rambo’s leg treated. The plaintiff agreed, but the veterinarian ultimately had to amputate Rambo’s leg. The defendant falsely claimed that she was authorized to

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pick up Rambo; she “personally took possession of the dog and by her own account, gave it to an exotic pet farm where he was euthanized.” The plaintiff testified he paid $1,400 for Rambo and could have sold him for $3,000, but conceded that he did not believe “the three-legged dog” was worth as much and never gave Rambo a post-surgical value. The trial court awarded the plaintiff $1,400 in compensatory damages and $25,000 in punitive damages, but the supreme court reversed because there was no evidence of the dog’s market value “at the time and place of the conversion.” By far, most of the reported cases involving dogs and their value arose in suits against railroads. From 1897, when the Supreme Court established that dogs are property, until the early 1940s, there were at least 24 reported cases in which dog owners sued railroads for negligently killing their dogs.9 Trains have killed “pointer dogs,”10 pointer bitches,11 “an Irish setter dog,”12 and just plain “hunting dogs.”13 One plaintiff recovered $80 for a “hog dog”—one that he used to hunt both his own hogs and to hunt hogs “for everybody else that needed his services,” for which he earned $5 per day.”14 Plaintiffs have recovered damages ranging from $2515 or $5016 to as much as $250 for a dog that took ribbons and prizes.17 One $250 jury award was for a “bloodhound bitch” that had “performed feats in tracing and finding escaped prisoners.” Once, she caught an escapee “after tracing him for about seven or eight miles and swimming a quarter of a mile; found him in the hollow of a cypress tree in a lake.” On the day she was killed, she was attempting to trail a man and “seemed unconscious of the approach of the train.”18 When a person kills a dog intentionally, the defendant’s intent seems to influence the jury’s assessment of the dog’s value. In Tallman v. State,19 for example, a jury convicted the defendant of malicious mischief for killing a dog with a shotgun. The defendant said he killed it “under necessity . . . to prevent injury to his

"Dogs arouse strong emotions in humans. We erect monuments to them. They are man’s best friend. If you want a friend in Washington, get a dog."

Statue of Balto in Central Park, New York

person from an attack.” The jury didn’t buy it, convicted him, and found the dog was worth $200, a remarkable sum in 1921 (equal to about $2,800 today). The applicable statute called for that amount to be trebled and assessed as damages in favor of the animal’s owner. On the other hand, in McDaniel v. Johnson,20 when the defendant shot the plaintiff ’s “registered pointer bird dog . . . to protect his cattle from attack by the dog,” the jury found the dog was worth only $20. When Newell Gill asked his jury to compensate him for the loss of his property—for the market value of Buck as a dog, he also claimed that he had a heart condition and that, as a result of Frankie Newby’s threatening to kill Buck and him— an unarmed man—with a high-powered rifle, he suffered chest pain and, “knowing that he came close to death himself, coupled with Buck’s shooting” he also suffered “mental anguish when involuntary thought processes [brought] the incident to mind.” For Buck as property, a unanimous jury awarded Newell Gill $5,000; for Gill’s own personal injury, $15,000; for the tort of outrage, $25,000; and $100,000 in punitive damages. Was the jury expressing itself on the subject of drunkenness or unsafe firearm handling? Perhaps. Or perhaps the jury thought that a man should not treat another man like a dog.

Endnotes: 1. Bryce Jefferson is a second-year law student at the University of Arkansas at Little Rock William H. Bowen School of Law. Drake Mann is a shareholder and director of Gill Ragon Owen, P.A. 2. Gill v. Newby, Lincoln County Circuit Court, case no. CV-2013-10-2. 3. Statue of Balto, Central Park, New York City, Wikepedia, https://en.wikipedia. org/wiki/Statue_of_Balto; Statue of Pedro, Maple Hill Cemetary, Helena, Ark., My Delta World, https://mydeltaworld. com/2019/08/20/pedro-is-waiting/. 4. https://en.wikipedia.org/wiki/George_ Graham_Vest. The “man’s best friend” epigraph is attributed to Missouri lawyer and politician George Graham Vest from his closing argument in Burden v. Hornsby, a suit for damages by the owner of a hunting dog, Old Drum, against the sheep farmer who shot and killed him. A statue of Old Drum stands on the Johnson County, Missouri, courthouse lawn. 5. President Harry S. Truman (maybe); https://quoteinvestigator.com/2010/05/23/ washington-dog-truman/. 6. State v. Soward, 83 Ark. 264, 268, 103 S.W. 741, 742 (1907), quoting Sentell v. New Orleans & C. R. Co., 166 U.S. 698 (1897). 7. St. Louis S. W. R. Co. v. Stanfield, 63 Ark. 643, 643, 40 S.W. 126, 126 (1897). 8. 307 Ark. 134, 817 S.W.2d 877 (1991).

9. Twelve of the cases were reported in the 1920s, clearly a dangerous time to be a dog near a railroad track. 10. Missouri P. R. Co. v. Henry, 172 Ark. 778, 290 S.W. 359 (1927). 11. St. Louis, I. M. & S. Ry. Co. v. Fuller, 112 Ark. 608, 165 S.W. 949 (1914). 12. St. Louis S. W. R. Co. v. Stanfield, 63 Ark. 643, 40 S.W. 126 (1897). 13. Missouri P. R. Co. v. Chase, 180 Ark. 857, 23 S.W.2d 256 (1930). 14. Lancaster, receiver of the Texas & Pacific Railway Company v. Kaler, 204 S.W. 854 (Ark. 1918). 15. Missouri P. R. Co. v. Green, 172 Ark. 423, 288 S.W. 908 (1926); El Dorado & B. R. Co. v. Knox, 90 Ark. 1, 117 S.W. 779 (1909); Missouri P. R. Co. v. Foresee, 181 Ark. 471, 26 S.W.2d 108 (1930). 16. Missouri P. R. Co. v. Bain, 170 Ark. 594, 280 S.W. 625 (1926); St. Louis-San Francisco Ry. Co. v. Sloan, 171 Ark. 70, 283 S.W. 24 (1926); Missouri P. R. Co. v. Brooks, 165 Ark. 466, 265 S.W. 46 (1924); Missouri P. R. Co. v. Greene, 177 Ark. 217, 6 S.W.2d 26 (1928). 17. Missouri P. R. Co. v. Edwards, 178 Ark. 732, 14 S.W.2d 230 (1928). 18. St. Louis, I. M. & S. R. Co. v. Philpot, 72 Ark. 23, 77 S.W. 901 (1903). 19. 151 Ark. 108, 235 S.W. 389 (1921). 20. 225 Ark. 6, 278 S.W.2d 657 (1955).■

Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

Measuring Damages for Injury or Death of Livestock

By Amie K. Wilcox

Amie K. Wilcox is an attorney at Friday, Eldredge & Clark LLP in Little Rock. She is pictured with her dog Hamilton.

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umans’ relationship with animals—particularly in light of millennials’ bonds with pets—has evolved in recent decades. This article focuses on historical trends for evaluating damages for injury or death of animals—which, until recently, has been limited to livestock. Traditionally, the measure of damages for animals has been based on that animal’s objective economic value, measured by comparing the market value of the animal prior to the loss or destruction to its current value (if any). This general rule in Arkansas dates back to 1888, where a Supreme Court of Arkansas judgment included an assessment of interest between the time of the injury and the time of trial, against a railroad company for the death of the Plantiff ’s leased mule.1 “[I]n the cold, unsympathetic eye of the law, sentimental value is not recognized as a basis for damages.”2 For nonfatal injuries, Arkansas courts have allowed two measures of damages: (1) the difference between the value of the animal preceding and following illness, plus cost of care or (2) the difference between the value of the animal preceding illness and following recovery, plus a sum for the loss of time, care, attention, and other necessary expenses or losses caused by the sickness, including value of usage lost for working animals. While these two general rules should reach the same result, the latter was intended for cases where it may be difficult for the jury to assess the actual value of the sick livestock. These rules originated from a case wherein cattle became sick after eating cotton seed hulls and meal made from rotten cotton seed.3 Other states have allowed damages based on inferior breeding to valuable stock. A Nebraska court awarded damages for the impregnation of a purebred Hereford cow by a trespassing purebred Angus bull on the value difference of the cow as a purebred registered Hereford for breeding purposes before and after breeding. In this case, the Court did not necessarily consider the purebred Angus bull to be “inferior stock,” but based its damages award on evidence that the calf produced would have no value in the purebred market.4 Interestingly, despite the defendant’s claim that plaintiff was contributorily negligent or assumed the risk based on known malfunctions of his “hot wire” fence, the Court rejected these claims and found that the plaintiff had the right to use his pasture without erecting a fence strong enough to keep out trespassing bulls. In a case that did involve valuable 13-month-old heifers bred by a “scrub” bull, a Kansas court held that the jury could take into consideration the loss in production of thoroughbred calves sustained by the premature breeding considering evidence that the heifers should not have been bred until two years old.5 The Kansas court framed this loss of production as a separate and distinct injury apart from the depreciation of value.

Damages will not be awarded where the harm claimed is too speculative. For example, damages are generally not available for unborn livestock, as they are regarded as having no value apart from their dams. However, this value may be considered by measuring the value of the dam immediately before and after losing the unborn stock.6 In a case involving an ostrich breeding operation, Plaintiffs brought an action for damages against Airship International Ltd, which had piloted an air advertisement for Anheuser-Busch, Inc., in a low flyover above plaintiff ’s ostrich farm.7 Plaintiffs alleged that the airship’s “loud noise and frightening appearance startled their ostriches, causing them to run wildly about in their enclosures and bump repeatedly into the fences of their pens, resulting in injury.” Plaintiffs claimed that after the fly-over, the ostriches ceased exhibiting breeding behavior for the remainder of the season. The damages claim was based on profits lost from a decrease in the average number of healthy baby ostriches. The Court declined to “bury its head in the sand” and ignore its precedent to allow the recovery of the value of estimated offspring that would have been produced “but for the airship invading their ostriches’ conjugal nest” because the Plaintiff ’s only proof of injury to the birds “is that they lost that loving feeling during the remainder of the 1992 breeding season.” Doctrines related to damages where animals are involved are quickly evolving. In addition to general livestock and pets, these traditional formulas must be updated with modern considerations when considering cases where there is injury or death of high-value animals like exhibition livestock, valuable breeding stock, horses trained specifically for activities like roping or barrel racing, and skilled dogs trained for hunting. Endnotes: 1. St. Louis, I. M. & S. RY. Co. v. Biggs, 50 Ark. 169, 6. S.W. 724 (1888). 2. City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. App. 1932); see Missouri, K. & T. R. Co. v. Crews, 120 S.W. 1110 (Tex. App. 1909) (“Courts have uniformly held that he cannot recover a fanciful price therefor, such as he might place upon it on account of a sentiment attaching to, or for any other special reason.”).

3. Hartgrove & Clegg v. Southern Cotton Oil Co., 72 Ark. 31, 77 S.W. 908 (1903). 4. Fuchser v. Jacobson, 290 N.W.2d 449 (Neb. 1980). 5. Matthews v. Langhofer, 110 Kan. 36 (1921). 6. See Texas Pipe Line Co. v. Sheffield, 99 S.W.2d 684 (Tex. App. 1936) (considering the value lost after cattle drank water contaminated by a broken oil pipeline, causing them to abort their calves); Moorman Mfg. Co. v. Barker, 40 N.E.2d

348 (Ind. App. 1942) (reversing a lower court’s instruction to the jury that damages may be based on the value of the litter of pigs lost due to inadequate feed sold by defendant); S. A. Gerrard Co. v. Fricker, 27 P.2d 678 (Ariz. 1933) (denying a claim for damage by reason of loss of increase in number of bees in an apiary on speculative and uncertain grounds). 7. Winingham v. Anheuser-Busch, Inc., 859 F. Supp. 1019 (N.D. Tex. 1994). ■

At Public Notice Agency, we have one important mission: place all legal notices for firms like yours, saving you money and time while ensuring accuracy. Our team uses innovative technology to place your notices in qualified newspapers. We confirm scheduled publication, manage accounting, and provide you with proofs along with one invoice. INTERESTED? EMAIL US! INFO@PUBLICNOTICEAGENCY.COM OR BY PHONE (501) 823-9002 Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

All Dogs Go to Heaven, But Some Have to Work to Get There A Perspective on the Use of Dogs in Law Enforcement Their Welfare and Efficacy By Marion Humphrey, Jr.

T Marion Andrew Humphrey, Jr. advocates for social justice through youth leadership development, community organizing, and legal work. He is a recent law graduate from the University of Arkansas. He is pictured here with his cousin's dog Max.

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he use of dogs as law enforcement originates a few thousand years ago, when they were used as message carriers and guards for Egyptian armies, then as guards for naval docks for 14th century France, and later in 1895 Paris to curtail gang influence.1 By 1911, New York’s Long Island Residential District maintained 16 police dogs that ran loose from 11 P.M. thru 7 A.M. overnight tasked with attacking and holding down any person not in uniform until their handler showed up.2 Clearly, the dogs have had little say in their use as law enforcement, but has the benefit of their use outweighed any potential burden to them or potential citizens subject to their use? The use of police dog corps has often been met with controversy. In a survey conducted by Washington University in St. Louis in the 1960s, while the majority of public respondents fully accepted canine corps, Black survey participants from dozens of U.S. metropolitan areas complained that dogs had been used throughout their neighborhoods at much greater rates.3 Recently, challenges to their use have shed more light in legal and nonlegal environments.4 This article explores the use of drug-sniffing dogs by police forces and provides comment and perspective on some implications regarding their welfare and use. Danger to Police Dogs Make no mistake, the dangers involved in police dog work are endless. Police dogs often risk being shot, suffering back and hip injuries, and experiencing overpronounced wear and tear.5 Fire rescue dogs in California experience everything from laceration and abrasions to weight loss and fatigue during even safe and benevolent search and rescue missions.6 The conflicts of dogs used in law enforcement with suspects and bystanders, which led to over 32,000 emergency department visits in Europe from 2005-2013,7 place them in danger of retaliation from all attending persons. In a 2015 study of almost 100 dogs killed on duty, while some were stabbed or shot, the most common cause of death for police dogs was being left in hot police cars.8 In addition to the common dangers, drug-sniffing dogs experience even higher risks of harm. Through inhalation and ingestion, drug-sniffing dogs are more likely to be exposed to toxic agents that can result in numerous negative health effects, such as cardiac depressions, clinical depression, seizures, hypertension, and loss of consciousness, among others.9 In most situations of ingestion, humans must quickly respond to reduce the negative impacts of drugs in the dogs’ systems, sometimes even having to perform emergency surgery.10

Dogs’ reliability and efficacy Due to the temperamental nature of most dogs, trained and untrained, people often challenge the efficacy of their drug-sniffing capacity. This may be for good reason. In a 2014 research study of various dog breeds, hidden drug samples were registered by dogs a high majority of the time. During simulated police examination trials in the same study, however, dogs made false alerts (i.e., no drugs present) and/or misses in and around cars close to 40% of the time.11 This same study cites that potential reasons behind these mistakes in identifying and apprehending drug supplies include tactics used by dog handlers, the nature (passive or active) of the dog’s alert, the reliability of the dogs involved, and the reason behind the dogs’ use.12 One important conclusion from the study was that false alerts, fewer correct indications, and longer search times occurred when the trial handlers knew these trials sought to find drugs that were present. This suggests that police handlers have some impact on creating circumstances that elicit dog responses. Recent studies have even shown dogs’ rearing—not just their training—could impact their efficacy rates. A December 2021 study of 100 German shepherd dogs through three different experiments showed that dogs suckled by, raised in the presence of, or raised without their mothers demonstrated shifting efficacy in narcotics detection.13 Recent court decisions involving drug dogs The courts, too, have considered the use of drug-sniffing dogs, particularly in vehicular police stops. The United States Supreme Court held in Rodriguez v. United States that even a de minimis extension of a traffic stop to bring in a drug dog was unreasonable, and that authority for a seizure on the basis of a traffic violation has long ended “when tasks tied to the traffic infraction are—or reasonably should have been—completed.”14 Recently, in United States v. Traylor, however, reasonable suspicion based upon the officer’s previous investigation of Traylor’s vehicle and knowledge of the previous vehicle owner’s involvement in

drug trafficking allowed the court to approve prolonging the stop to wait for a drugsniffing dog to arrive.15 The officer’s prior knowledge of Traylor’s association to a red Dodge Charger and its previous involvement and ownership by someone who had parked at two separate residences where drug trafficking was reasonably believed to have occurred provided the “totality of the circumstances” sufficient to decide “whether the detaining officer had a ‘particularized and objective basis’ for suspecting legal wrongdoing.”16 The Arkansas Court of Appeals, too, has recently sided with officers’ ability to use dogs at will as long as they arrived within the normal time frame of a legitimate stop. The officer in Mickens v. State stopped Mickens due to his vehicle’s license plate light being out.17 One major issue of concern here involves the officer’s reason to call the dog to begin with. When he was not given consent for a search, the officer immediately called for a drug-sniffing dog. His stop of the car had nothing to do with drugs, he did not claim that he reasonably suspected other wrongs by Mickens, and he ended up only giving Mickens a warning. Yet, because the dog arrived before he concluded writing the warning, the court held that the dog’s alerting to narcotics was lawful.18 Finally, in Wheeler v. City of Searcy, the Eighth Circuit Court of Appeals withheld qualified immunity from police officers who previously used a dog-sniffing search for the issuance of an arrest warrant based on false information.19 In that case, the officers

signed an affidavit used later to produce an arrest warrant that acknowledged that a victim’s body had been disposed of at a particular location.20 The officers knew, however, that the cadaver dogs had merely shown an interest in the area (near a deer stand) and that no physical evidence of a dead body was discovered during the search. Thus, the Court held that the officers were not entitled to qualified immunity.21 Conclusion For those who seek at least a partial end to the use of drug-sniffing dogs by law enforcement, an end might be in sight. One reason is legalized marijuana. Because dogs cannot distinguish between amounts of cannabis, when states legalize cannabis police departments may be forced to send drug-sniffing dogs into early retirement when marijuana is at issue.22 Another reason is the cost. The purchase and training of new dogs to sniff narcotics may cost upwards of $15,000.23 Thus, the reduction of dogs on the force ultimately may be advantageous to law enforcement and city budgets. So why are dogs so frequently used? One major reason, other than their efficacy, may be financial. According to a 2020 report, local, state and federal law enforcement agencies have reported $68 billion through civil forfeiture of civilian property.24 At times, law enforcement agencies, through civil actions, seize property with or without a criminal conviction of the defendant as the end result of a search predicated by a K-9 dog sniff.25

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Due to some evidence of the unreliability of drug-sniffing dogs’ true reports in certain situations, a strong claim for their retirement from law enforcement exists. Beyond that, the welfare of these animals deserves greater consideration. Dogs should enjoy a life free from undue and unnecessary risk of harm to them in law enforcement. As a strong dog lover, this author believes all persons committed to the welfare of animals should commit to discontinuing the use of dogs in a workforce that causes them such potential danger and stress. Endnotes: 1. William F. Handy, Marilyn Harrington & David J. Pittman, The K-9 Corps: The Use of Dogs in Police Work, 52 J. Crim. L & Criminology & Police Sci. 328 (1961). 2. Id. 3. Id. 4. Kevin Maimann, Time to Cancel Police Dogs, Experts Say, Vice News, July 6, 2021, available at https://www.vice.com/en/article/ z3xqzy/time-to-cancel-police-dogs-experts-say. 5. Patrico G. Balona, Proposed law to care for retired police dogs 'huge,' Volusia K-9 handlers say, The Daytona Beach News-Journal, Sept. 29, 2021, available at https://www.news-journalonline.com/ story/news/2021/09/29/retired-police-dogswould-get-care-under-proposed-floridalaw/5814363001/. 6. Lori E. Gordon & Ben Ho, Injuries and illnesses among human remains detection– certified search-and-recovery dogs deployed to northern California in response to the Camp Fire wildfire of November 2018, 256 J. Am. Veterinary Med. Ass'n 322 (2022). 7. Randall T. Loder & Cory Meixner, The demographics of dog bites due to K-9 (legal intervention) in the United States, 65 J. Forensic Leg. Med. 9 (2019). 8. Christopher Ingraham, The surprising reason more police dogs are dying in the line of duty, The Washington Post, Nov. 20, 2015, available at https:// www.washingtonpost.com/news/wonk/ wp/2015/11/20/the-surprising-reason-morepolice-dogs-are-dying-in-the-line-of-duty/. 9. Ryan M. Llera & Petra A. Volmer, Toxicologic hazards for police dogs involved in drug detection, 228 J. Am. Veterinary Med. Ass'n 1028-1032 (2006). 10. Genevieve Dumonceaux & Val Beasley,

Emergency treatments for police dogs used for illicit drug detection, 197 J. Am. Veterinary Med. Ass'n 185 (1990). 11. Tadeusz Jezierski et al., Efficacy of drug detection by fully-trained police dogs varies by breed, training level, type of drug and search environment, 237 Forensic Sci. Int'l 112 (2014) . 12. Id. 13. Azhar F. Abdel Fattah, Enas N. Said & Mayada R. Farag, Narcotic detection efficacy and behavior of police dogs are affected by rearing system, weaning time, and maternal bond, 33 Rendiconti Lincei Scienze Fisiche E Naturali 185 (2022) (available at: https://link.springer.com/ article/10.1007/s12210-021-01041-w?utm_ source=xmol&utm_medium=affiliate&utm_ content=meta&utm_campaign=DDCN_1_ GL01_metadata). 14. Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). 15. United States v. Traylor, 14 F.4th 804 (8th Cir. 2021). 16. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). 17. Mickens v. State, 2020 Ark. App. 280, at 4. 18. Id. at 8-9. 19. Wheeler v. City of Searcy, Arkansas, 14 F.4th 843 (8th Cir. 2021). 20. Id. at 846-847. 21. Id. at 854. 22. Chris Roberts, Marijuana Legalization is Retiring Police Dogs. Why That’s Good–And Why All Drug K9 Units Should Go, Forbes, May 30, 2021, available at https://www. forbes.com/sites/chrisroberts/2021/05/30/ marijuana-legalization-is-retiring-police-dogswhy-thats-good-and-why-all-drug-k9-unitsshould-go/?sh=495a49263695. 23. Denise Lavoie, Since the nose doesn’t know pot is now legal, K-9s retire, AP News, May 29, 2021, available at https://apnews. com/article/va-state-wire-police-marijuanamarijuana-legalization-253af1ba6e54106008 5108e027b367c1. 24. Daryl James, The Police Dog Who Cried Drugs at Every Traffic Stop, Reason Foundation, May 13, 2021, available at: https://reason.com/2021/05/13/the-policedog-who-cried-drugs-at-every-traffic-stop/. 25. Id. ■

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The Arkansas Veterinary Medical Examining Board

By Regina Young

Regina Young is an attorney at Wright Lindsey Jennings in Little Rock. She frequently represents veterinarians in matters before the Arkansas Veterinary Medical Examining Board. She is pictured with her dog Nellie.

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he practice of veterinary medicine in Arkansas is regulated by the laws established in the Arkansas Veterinary Medical Practice Act (“the Act”).1 The Arkansas Veterinary Medical Examining Board, which is commonly referred to as the Vet Board, is the state agency that administers the veterinary statutes in the Act. The Vet Board is responsible for determining the qualifications and fitness of applicants to practice veterinary medicine, and its primary activities include administration of the Written State Jurisprudence Exam to qualified veterinary applicants; granting and annual review of all veterinary licenses and veterinary technician certificates; monitoring of mandatory continuing education requirements of licensed veterinarians; and the investigation of complaints from the general public alleging violations of the Act and Regulations. Previously a stand-alone state board, the Vet Board was placed under the umbrella of the Arkansas Department of Agriculture as part of the large-scale reorganization of Arkansas state government under the Transformation and Efficiencies Act of 2019. The Vet Board operates under the leadership of its director, Cara Tharp, and consists of five board members—four licensed veterinarians and one member of the public—appointed by the Governor to serve terms of five years each. Consistent with the Act, the Vet Board accepts written public complaints against veterinarians and veterinary technicians that are made within one year of the alleged violation. Veterinarians and technicians receive notice of the complaint and are provided an opportunity to respond. Many retain legal counsel for representation in responding to a complaint, and an optional license defense endorsement to a professional liability policy will pay for attorney’s fees to respond to a complaint against a veterinarian. The Vet Board’s complaint committee—which consists of the director, one board member, and the Board’s attorney—reviews every public complaint and makes a written recommendation about the complaint to the full board. The recommendation, which is redacted to protect the identity of the complaint and licensee, is typically to dismiss, offer a consent agreement to the licensee, or conduct a disciplinary hearing on the complaint. After the complainant committee presents its recommendation, the Board discusses each complaint and votes on the complaint committee’s recommendation. According to Tharp, most public complaints involve allegations of incompetence, gross negligence, or other malpractice on the part of the veterinarian. It is not unusual for the Board to make a finding that while the

veterinarian’s treatment of the pet did not involve incompetence or negligence, the veterinarian failed to keep complete medical records. When the Board discovers this violation in its review of the complaint record, it typically imposes a civil penalty and orders continuing education in the area of record keeping.2 In 2019, there were 22 public complaints submitted to the Vet Board; 18 public complaints were submitted in 2020; and 15 public complaints were submitted in 2021. The Vet Board can make its own motion to initiate a complaint, which typically occurs when information is obtained about the practice of veterinary medicine without a license. The majority of public complaints against veterinarians that the author defends involve allegations of incompetence, gross negligence, or other malpractice in the practice of veterinary medicine, where the animal suffers an adverse medical outcome during the course of treatment.3 In most cases defended by the author, it is speculation on the part of the pet owner as to what caused the adverse outcome, especially in situations involving the death of a small pet during or after surgery, and there is a lack of proof of malpractice on the part of the veterinarian. Bad outcomes sometimes happen that do not involve malpractice, and this can be difficult for some pet owners to accept. The other type of complaint that the author sees with some frequency involves

allegations of cruelty to animals where the pet owner believes excessive restraint was used by the veterinarian or an assistant. These types of allegations are difficult to prove, and in the author’s experience are usually dismissed. The author has also seen situations involving a fee dispute between a pet owner and the veterinarian escalate, leading to a Board complaint by the pet owner. Pet owners who file a Board complaint also usually post negative social media reviews about the veterinarian, and sometimes include negative social media reviews by other pet owners against the same veterinarian in support of their Board complaint. Tharp spends a lot of her time in her role as the director listening to pet owners who call to discuss filing a complaint. She says client communication between a pet owner and the veterinarian plays a huge role in whether the client decides to proceed with a formal, written complaint. In highly emotional situations involving a pet with a poor prognosis or a pet that dies, it is especially important for the veterinarian to communicate with the owner, and Tharp encourages that communication when appropriate. Before the pandemic, the Board’s meetings were held in person in Little Rock. Since March of 2020, the Board has conducted all of its meeting by Zoom. Tharp said that the transition was seamless for the most part and that the Board has completely settled into virtual meetings.

According to Tharp, virtual meetings have been positive all-around and are more efficient and especially convenient for Board members who do not live in central Arkansas. The Vet Board’s meetings are open to the public and a calendar of meetings can be found on the Arkansas Department of Agriculture’s website, along with a meeting agenda. The public can subscribe to notifications and publications from the Vet Board by completing and submitting an online form on the website. Tharp reported that meeting attendance by the public has increased since moving to a virtual platform, which she views as a positive since it contributes to greater transparency about the Board and its actions. Endnotes: 1. Ark. Code Ann. §§ 17-101-101, et seq. 2. As an example of an appeal of a civil penalty, see Zepecki v. Ark. Veterinary Med. Exam. Bd., 2010 Ark. App. 187, 375 S.W.3d 41, later appeal, 2013 Ark. App. 697, 430 S.W.3d 803. 3. For an example of the standards applicable in a civil cause of action for such issues, see McAdams v. Curnayn, 96 Ark. App. 118, 239 S.W.3d 17 (2006). ■

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Please show your support when renewing your membership by adding a sustaining contribution on your membership form for the 2022-2023 Bar Year that begins July 1, 2022. For questions, contact Michele Glasgow at 501-801-5661 or mglasgow@arkbar.com. Vol. 57 No. 2/Spring 2022 The Arkansas Lawyer

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Articles inside

The Arkansas Veterinary Medical Examining Board

A Dog's Worth?

Possessing Nonnative (a/k/a "Exotic" Wildlife in Arkansas

Every Dog May Have Its Day—But Not In Court

Emotional Support Animals and Access to Public Facilities

Animals and Taxes

Animals and the Law

Measuring Damages for Injury or Death of Livestock