A Summary of Retail Pet Sale Litigation

i Jan 27th No Comments by

What is the status of the retail pet sale ordinances being challenged in the courts? There have been a lot of changes and moving parts, so here is a comprehensive update.

The bottom line is that in the world of retail pet sale ordinances, the mill dogs have been winning unanimously in the courts. Every ordinance challenged has been upheld. The cities passing these ordinances are 6 for 6 (or 8 or 8) depending on how you count it.

In the latter part of 2015, we saw several significant legal decisions upholding retail pet sale bans that seek to prevent pet stores from selling dogs from puppy mills. The number of ordinances is growing nearly every week, with over 100 municipalities in the United States and Canada passing retail pet sale ordinances and several others considering them. Retail pet sale ordinances place restrictions on the type of animals that can be sold at pet stores, limiting pet stores to selling dogs and cats (and often rabbits) sourced from shelters and rescues instead of commercial breeders, commonly known as puppy mills.

Pet stores and the puppy mill industry have vigorously fought these ordinances by filing lawsuits across the country.

What’s going on with all of these lawsuits?

Here is a summary with what you need to know about the current status of these ordinances that have been challenged. There have been seven lawsuits brought in federal courts that raise claims under the United States Constitution and one lawsuit brought in state court in Florida. Every single lawsuit challenging a retail pet sale ordinance has been decided in favor of the cities that have passed the ordinances and courts have upheld the ordinances as constitutional.

East Providence, Rhode Island – Ordinance upheld; affirmed on appeal (First Circuit)  

  • The Court upheld the city of East Providence’s retail pet sale ordinance on summary judgment. The pet store that challenged the ordinance, Perfect Puppy, filed an appeal to the First Circuit Court of Appeals. The First Circuit affirmed on appeal, though the appeal was narrow only raising one issue (a federal and state law “Takings” claim).
  • East Providence’s ordinance prohibits the sale of dogs and cats in pet stores, while allowing pet stores to work with shelters and rescues to provide space and care for adoptable animals.

Cook County, Illinois – Ordinance upheld; appeal pending (7th Circuit)

  • The Court upheld Cook County’s ordinance by granting Cook County’s motion to dismiss for a failure to state a claim. The Court first dismissed the lawsuit in May, but gave the plaintiffs one last opportunity to amend their complaint. The plaintiffs amended their complaint, and after consideration, the Court again dismissed the complaint because it failed to state a claim. The plaintiffs have appealed the District Court’s decision, but the briefing schedule has been delayed in light of some procedural motions that have been filed.
  • The status of enforcement of the Cook County ordinance is a bit complicated. The ordinance is now in effect in Cook County in all areas except for Hoffman Estates (which has been “stayed” (i.e., delayed) pending appeal), and Orland Park, Chicago Ridge, Bridgeview, Arlington Heights, and Lincolnwood, which have opted out in favor of passing their own ordinances. TPMP is working with volunteers and trustees in Arlington Heights, which has not yet decided how they want to approach the issue, to persuade them to pass a strong ordinance. We have also been providing information to Cook County to assist in enforcing the ordinance against any stores that are currently not in compliance.
  • Cook County’s ordinance requires pet stores to source dogs, cats, and rabbits from municipal-run (federal, state, or local) animal shelters, rescue organizations, or breeders that meet certain restrictions, specifically, those that hold a Class A USDA license (i.e., no brokers) or possess five or fewer breeding females. There are other restrictions in place to try to prevent breeders from finding a loophole around these breeding restrictions.

Sunrise, Florida – Ordinance upheld; no appeal 

  • Sunrise’s ordinance was upheld on summary judgment. This decision was not appealed and is now final.
  • Sunrise’s ordinance prohibits pet stores from selling dogs and cats unless they obtain their dogs and cats from a “Hobby Breeder” (defined as breeding no more than a total of one litter per calendar year) or an animal shelter or animal rescue organization.

Phoenix, Arizona – Ordinance upheld; appeal pending (9th Circuit)

  • Phoenix’s retail pet sale ordinance was upheld on summary judgment. The pet store that brought the lawsuit, Puppies ‘N Love, has appealed the decision to the Ninth Circuit Court of Appeals. The parties will be filing their briefs through March 2016, so this appeal will most likely not be decided until at least the middle of 2016.
  • Phoenix’s ordinance prohibits pet shops or pet dealers from selling dogs or cats unless they are obtained from an animal shelter or a private, nonprofit humane society or nonprofit animal rescue organization.

Chicago, Illinois – Ordinance upheld; appeal pending (7th Circuit) 

  • Chicago’s Companion Animal and Consumer Protection Ordinance was upheld when the Court granted the City’s motion to dismiss. The two pet stores and Missouri breeder challenging the ordinance have filed an appeal. Although they asked for a stay of enforcement pending the appeal, the Court denied this request. The city of Chicago is now moving forward with plans to enforce the ordinance. The parties will be filing their briefs on appeal through the end of March 2016.
  • Chicago’s ordinance allows retailers to sell only dogs, cats, and rabbits sourced from municipal-run (federal, state, or local) animal control centers or shelters, rescue organizations, or humane societies.

New York City, New York – Ordinance upheld; appeal pending (2nd Circuit) 

  • The Court granted the City’s motion to dismiss upholding New York City’s ordinance against a challenge from a pet store industry group. The losing parties have appealed but the City has moved to dismiss the appeal because it was filed after the deadline.
  • New York City’s ordinance is a bit different than the other ordinances challenged in that it is less restrictive and places limitations on the types of breeders that can source pet stores (no brokers and a record of no direct United States Department of Agriculture violations).

San Diego, California – Lawsuit dismissed; no decision on merits of ordinance

  • There was also a lawsuit in San Diego brought against the city and various animal welfare groups and advocates involved with passing the ordinance, but the claims against animal welfare groups were dismissed and the pet store owner bringing the suit ultimately dropped it against the city of San Diego. While this is a win, the court did not actually rule on the ordinance itself.

How does this work? What is the appeals process? 

In federal court, a party must file their initial lawsuit in the appropriate district court. Then, the losing parties have the right to appeal the district court’s decision to their local court of appeals. During the appeal, the parties will submit a total of three briefs arguing their cases, and then will likely argue their cases orally before a panel of judges. These appeals often take several months. If the pet stores lose on appeal, it will in all likelihood be the last word on the matter and a definitive ruling. The parties will have the option of petitioning the United States Supreme Court for review, but it is extremely unlikely that the Supreme Court would agree to hear any of these cases as the Supreme Court agrees to hear a very small percentage (less than one percent by many estimates) of the cases petitioned for review.

When will all of this be final?

It is hard to say, but based on the current schedules (which can change), a reasonable estimate is that most of these appeals should have a decision around summer to fall of 2016. It is important to note that the decision in a federal court of appeals is not binding on the cases that are outside of its circuit – there are 13 different federal court of appeals circuits. For example, the federal appeals court in Chicago (7th Circuit) will still make its own determination on the appeals for the Cook County and Chicago ordinances and will not be required to follow the decisions on appeal in Phoenix and New York because they are in a different circuit.

Can these ordinances be enforced?

That depends on the jurisdiction. In Cook County, the ordinance is partially stayed pending the appeal, and is enforceable in all other parts of Cook County other than the cities that have opted out (listed above). In Chicago, the ordinance is now enforceable and city officials are preparing to enforce it. Whether an ordinance is enforceable pending appeal depends on if the losing parties have asked the courts to stay/delay enforcement pending appeal, whether the courts have granted that request, and how/whether the city has decided to enforce its ordinance.

Federal Courts Uphold Pet Sale Ordinances

i Jul 27th No Comments by

Retail pet sale bans have gained significant momentum in the past few years as a highly effective way to fight the puppy mill industry, with more than 75 jurisdictions in the U.S. and Canada passing ordinances prohibiting the retail sale of commercially-bred dogs and cats (and rabbits in some cases). These ordinances typically require pet stores that wish to sell animals to source those animals from rescue organizations or shelters. Not surprisingly, the puppy mill industry is feeling the pressure from these regulations, and has brought challenges in federal court to fight them. To date, five federal lawsuits have been filed in East Providence, Rhode Island; Phoenix, Arizona; Sunrise, Florida; Cook County, Illinois; and Chicago, Illinois.

We are thrilled to see that the courts are confirming what we have believed all along – that pet store ordinances are a lawful use of a city’s power to promote animal welfare and protect its citizens by regulating the sale of puppy mill dogs at pet stores. We are now 4 for 4 with four federal courts that have upheld retail pet sale ordinances against constitutional challenges:

East Providence, Rhode Island

  • On March 31, 2015, the federal district court for the District of Rhode Island became the first of the federal courts considering challenges to retail pet sale bans to issue a decision. In a lengthy opinion on summary judgment, the Court upheld the city of East Providence’s retail pet sale ordinance, which prohibits the sale of dogs and cats in pet stores. It does allow pet stores to work with shelters and rescues to provide space and care for adoptable animals. It is similar to the ordinance at issue in Chicago, and the constitutional claims are nearly identical. While the federal district court in Chicago is not required to follow this decision, it should be very persuasive and is very encouraging. Read the opinion here.
  • The pet store that challenged the ordinance, Perfect Puppy, has filed its appeal to the First Circuit Court of Appeals.

Cook County, Illinois

  • On May 21, 2015, federal judge Matthew F. Kennelly upheld the Cook County Companion Animal and Consumer Protection Ordinance against a challenge from two area pet stores, Happiness is Pets and Petland, and the Missouri Pet Breeders Association. The Judge granted the County’s motion to dismiss on all claims, including a challenge under the Commerce Clause, Equal Protection Clause, federal and state law preemption, Contracts Clause, and vagueness. The plaintiffs were given one last opportunity to amend their complaint, though the Judge stated that it was “highly unlikely” that they would be able to cure the defects in their complaint. The plaintiffs filed their amended complaint on June 11, and the last response brief was filed on July 21.
  • The State’s Attorney’s press release is available here, and you can read Judge Kennelly’s opinion here.

Sunrise, Florida

  • On June 25, 2015, Judge Robert N. Scola, Jr., of the Southern District of Florida, granted the city of Sunrise’s motion for summary judgment on the two federal claims at issue, challenges arising under the Commerce Clause and Equal Protection Clause. Read the Sunrise decision here.

Phoenix, Arizona

  • On July 27, 2015, the federal district court for the District of Arizona ruled in favor of the city of Phoenix’s retail pet sale ban on all federal and state law claims granting summary judgment for the city, as well as for the Humane Society of the United States, which intervened as a party in the lawsuit. The Court found that Phoenix’s retail pet sale ordinance did not violate the Commerce Clause or the Equal Protection of the U.S. Constitution. Read the opinion here.

Chicago, Illinois 

  • In Chicago, two pet stores, Pocket Puppies and Park Pet Shop, and a Missouri breeder have challenged the Chicago Companion Animal and Consumer Protection Ordinance.  The parties are currently submitting their briefs on the city of Chicago’s motion to dismiss. The Puppy Mill Project has filed a joint Amicus brief with The Humane Society of the United States in support of the city’s motion to dismiss.

Charges Filed in Puppy Mill Bust

i Jul 26th No Comments by

Three months after the initial bust at Adrian’s Puppy Paradise, a notorious puppy mill in St. Anne, Illinois, in Kankakee County, charges have been filed against owner Louise Gutierrez after 81 dogs were rescued from her home.

20827_988376711195651_7742276856173601198_n

Even though the dogs at Adrian’s were kept in deplorable conditions, the Illinois Department of Agriculture continually found that Adrian’s passed inspection and the living conditions were deemed satisfactory due to such minimal standards that exist for breeding dogs and cats.

Kankakee County State’s Attorney, Jamie Boyd, charged Gutierrez with 71 counts of failure to provide humane treatment and care of animals. This comes shortly after Kankakee County passed an ordinance creating more stringent standards for housing cats and dogs for breeding in response to the situation at Adrian’s Puppy Paradise. The County added 40 new requirements for breeders geared at keeping cats and dogs in more humane conditions. Read about coverage of the ordinance here.

In April, 2015, 81 dogs and two cats were seized from Adrian’s Puppy Paradise after over a year of investigation from The Puppy Mill Project and other animal rescue groups. Animal Rescue Corps, a national animal protection organization experienced with conducting puppy mill rescues, led and coordinated the response effort with assistance from Kankakee County Animal Control and The Puppy Mill Project. The dogs were evaluated, treated, and have been placed with rescue groups for adoption.

11058693_988376594528996_5796460640247593344_n

Wire flooring will no longer be permitted under a new Kankakee County breeding ordinance. Wire flooring is permissible under federal and state laws regulating breeding dogs.

Adrian’s Puppy Paradise had been the subject of years of complaints to Kankakee County Animal Control. “We want the community to know we will not tolerate the inhumane care of animals,” said Kankakee County State’s Attorney Jamie Boyd in a press release issued by Kankakee County Animal Control. “This was an effort that was many years in the making and required teamwork from a number of different rescue groups and governmental entities, but we all found a way to get the best result for these dogs and free them from a life of horror – they’ll only know love from now on,” said Janie Jenkins of The Puppy Mill Project. For more coverage, click here.

Veterinary Professionals Take a Stand Against Puppy Mills

i Feb 26th No Comments by

Veterinarians take an oath to help animals. We trust them to keep our beloved pets healthy, and care for them when they are ill. Surprisingly, many of the major veterinary professional associations, including the Chicago Veterinary Medical Association, have opposed legislative efforts taking place across the country to prohibit the retail sale of dogs and cats from puppy mills in pet stores – laws that would help animals and have a significant impact in fighting the mass cruelty of the puppy mill industry. This has led many to ask the question, do these groups really reflect the views of the veterinary community?

VPAPM LogoA new group, Veterinary Professionals Against Puppy Mills (“VPAPM”), has been formed by two Chicago veterinarians, Dr. Scott Rovner and Dr. Jane Lohmar, to stand up to puppy mills. Drs. Rovner and Lohmar are leading the charge to take on the problem puppy mills. Along with support from the National Association of Veterinary Technicians of America (NAVTA), VPAPM’s goal are to educate consumers about where to obtain pets. They also support legislative efforts to ban the retail sale of dogs, cats, and rabbits in pet stores, transitioning those stores to humane models. The Puppy Mill Project applauds and appreciates Drs. Rovner’s and Lohmar’s courage in taking a stand against puppy mills and speaking up for what is best for animals, setting a wonderful example and embodying the values we believe the veterinary community should uphold.

Learn more about VPAPM on their Facebook page.

More coverage on VPAPM here.

Chicago City Officials will Fight Lawsuit Challenging Companion Animal Ordinance

i Feb 20th No Comments by

Chicago City Clerk Susana A. Mendoza and Mayor Rahm Emanuel have issued a compelling statement in support of the Chicago Companion Animal and Consumer Protection Ordinance, vowing to fight the lawsuit recently filed in federal court. City Clerk Mendoza, Mayor Emanuel, and 49 members of the Chicago City Council took a stand against puppy mills and animal cruelty when they supported this ordinance. Enforcement of the Ordinance will be delayed while this matter is litigated in federal district court. Read the full press release here.

The city of Chicago plans to file a motion to dismiss the lawsuit at the end of March.