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Let’s take the carriage-horse fight to court

January 13, 2015

Originally published in New York Daily News

The death sentence could be swift and absolute: If Mayor Bill de Blasio gets his way, New York’s horse-drawn carriage industry, after more than 150 years of thriving existence, will cease to exist on May 31, 2016.

If the Council enacts the mayor’s bill, on that day, 350 carriage industry workers will lose their jobs and 220 horses will face an uncertain future.

But another outcome is equally certain: a lawsuit challenging the ban. It will stand a very good chance of succeeding. Courts in New York and around the country have repeatedly ruled that banning a business goes too far when less-drastic regulations will serve the public interest.

Government has wide latitude to protect public health and safety — and, for that matter, horses. And the carriage industry is heavily regulated. As a result, the horses have what many humans would consider a dream job: They generally work six hours per day, they don’t work in extreme weather conditions and they receive five weeks of vacation every year, and get twice-annual health examinations.

The regulations work: Over three decades, even in the midst of Central Park traffic, there have been only four equine fatalities and no human deaths. The drivers take good care of their horses. No wonder: their livelihoods depend on them.

One driver put the question perfectly: “They have a job. I have a job. I am doing what I like. They are doing what they like. Why are you fixing something that needs no fixing?”

That is exactly what a judge will want to know: Why does the city need to destroy an entire industry when lesser measures are proven to protect the horses, drivers and the public?

Federal and state courts have struck down total bans on all manner of businesses and professions, from street-corner shoeshine stands to jitneys, ice-cream vendors and even casket sellers. Indeed, when the previous mayor sought to cap the size of sugary soda servings, a New York court struck it down as “arbitrary and capricious.”

The bill’s supporters contend no one will suffer because the drivers can simply do something else. De Blasio’s bill provides for job retraining for workers who are displaced by the ban, and the carriage drivers could be allowed to receive green-taxi medallions.

But such provisions are cold comfort to those who make their living in the industry.

But, as another driver put it, “I’m not going to be told what to do for a living.” That resolve is backed by both the state and federal constitutions, which have been construed to protect freedom of enterprise against excessive or irrational government interference.

The ramifications of the ban go far beyond horse-drawn carriages. One union leader who supports the drivers made that point: “The question should become for every other union, if some radical element gets in the mayor’s ear about my industry, what’s to stop them from banning my industry?”

It is ironic that if the horses were buildings, historic preservation ordinances could be wielded to protect their destruction — and Mayor de Blasio would quite likely be leading the charge. But because they are merely living things, part of a business, the mayor believes he can put them out to pasture and their drivers out of work to appease special-interest backers.

Fortunately, under our rule of law, being offended by an activity does not justify banning it. Should the Council unwisely do the mayor’s bidding, a legal challenge awaits. Taxpayers will be forced to not only bear the costs of the city’s folly but of defending against the inevitable legal challenge. My colleagues and I will be more than prepared to represent the drivers free of charge.

Bolick, who serves as vice president for litigation at the Goldwater Institute in Phoenix, has successfully challenged barriers to enterprise across the nation.



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