A Summary of Retail Pet Sale Litigation

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.