Lemon Law Attorney

The rules she writes will affect folks from Bruce Springsteen - who was involved in a Wellington dispute over an $850,000 horse (A Boss Hoss?) - to Palm Beachers who buy thoroughbreds, to the dad who spends a few thousand on a horse for his daughter to ride in Jupiter Farms.

Ms. Flack works for the Florida Department of Agriculture and Consumer Services. She is writing the rules - which will be the subject of a hearing Monday in Tallahassee - in large part because of legislation pushed by Earle Mack, a distinguished New York businessman and former ambassador to Finland who also owns a home in Palm Beach.

Mr. Mack says horse-trading can be “a treacherous industry.” He should know, since he’s been involved with it for 45 years and has been burned a time or two. As veterinary science has advanced, so has the ability of nefarious sellers to conceal medical problems or artificially enhance a horse’s performance. As Ambassador Mack colorfully says, in modern times “you’re not going to put some mustard on your horse’s” - ah, nether regions - “so he’s going to go faster.” Today, horses can be juiced up with steroids or the anti-inflammatory phenylbutazone.

So, Ambassador Mack pushed for legislation, passed last year, that he hoped would make it harder for the minority of dishonest horse sellers to conceal medical problems. He also hoped that the new law would make it harder for buyers and sellers to conceal their identities and to end a practice called “dual agency” in which a horse broker secretly takes a kickback from a seller while ostensibly representing the buyer.

Unfortunately, the rules Ms. Flack wrote to implement the law “to prevent unfair or deceptive trade practices” don’t accomplish all that Ambassador Mack wanted. The rules fall short, according to a public relations firm that represents Ambassador Mack, in areas “such as regulations on steroids and other performance-enhancing drugs and ownership disclosure.”

The rules Ms. Flack wrote certainly look weak. They don’t require a steroids test or a blood test of any kind. They don’t require the seller to provide a detailed medical history. They don’t even require the buyer and seller to be identified. No penalties, such as automatically voiding a dishonest sale, are specified. So, one civics lesson here is that, for both federal and state laws, a lot depends on how the implementing rules are written.

In a spirited defense of the rules, Ms. Flack said most things critics wanted - such as testing for steroids and specific penalties for infractions - were beyond the scope of the legislation. She didn’t want to write rules that would require expensive medical tests and make it impossible for people of modest means to buy and sell horses. And without specific authority in the law, she couldn’t require the state to pay for it.

She’s expecting people to be smart enough to insist on getting medical information and finding out who the real owners are. “I wouldn’t buy a used car from someone (if) I didn’t know the owner’s name,” Ms. Flack said. People spending tens or hundreds of thousands on a horse should have that much common sense. If they take the precaution of asking and are lied to, her rules would let them seek relief in court.

I still think she erred on the weak side. And Ms. Flack agreed that some rules “could have been stricter.” However, “We did not stretch the envelope because we really felt the Legislature needed to be more specific.”

She has a point. The statute she’s interpreting is barely 100 words long. So, there’s the second civics lesson. Lawmakers shouldn’t write mushy statutes that leave too many details up to the rule-makers.

The solution? First, critics should challenge the rules to try to stretch that envelope toward more strict disclosure and testing. I think the law would allow it.

But, ultimately, the Legislature would have to specifically authorize any comprehensive system. There needs to be much more discussion and back-and-forth between buyers who want more protection and sellers who don’t want more regulation. Call it legislative horse-trading.