TO: Mayor and Commissioners
FROM: Noel Pfeffer, City Attorney
DATE: March 15, 2016
Title
ORDINANCE NO. 07-16 RESTRICTING THE RETAIL SALES OF CATS AND DOGS (SECOND READING)
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Recommended Action:
Recommendation
Motion to Adopt Ordinance No. 07-16, prohibiting the retail sale of cats and dogs in the City with the exception of sales or transfers by animal shelters, animal rescue organizations, including shelters and rescue organizations that operate out of, or in connection with, pet stores.
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Background:
Ordinance No. 07-16 makes it unlawful for a pet store or other retailer to display, sell, trade, deliver, barter, lease, rent, auction, give away, transfer, offer for sale, or otherwise dispose of dogs or cats in the City of Delray Beach, except for animal shelters and animal rescue organizations, as such terms are defined in the ordinance, either operating on their own or out of or in connection with a pet store. Any pet store selling cats and dogs under this exemption must post and provide the buyer with a Certificate of Source that provides a description of the dog or cat and certifies that it received the dog or cat from an animal shelter or rescue operation.
This ordinance will become effective on its passage at second reading. However, pet stores that have a local business tax receipt and presently sell cats and dogs will have six months to amortize their inventory and come into compliance. Each violation of the ordinance will result in a $400 fine.
Similar ordinances have been passed in several local municipalities including Deerfield Beach, Sunrise, Lauderhill, North Miami, Palm Beach, Tamarac, Homestead, Jupiter, Hypoluxo, Cutler Bay, Sunny Isles, Bal Harbour Village, Juno Beach, Palm Beach Gardens, Pompano, North Miami Beach, Miami Beach, North Lauderdale, Wilton Manors, Aventura, Surfside, Greenacres, Coconut Creek, Coral Gables, and Lake Worth.
A summary of recent litigation regarding municipal ordinances which regulate the sale of dogs and cats is as follows:
City of Palm Beach Gardens
On July 10, 2014, the City of Palm Beach Gardens adopted an Ordinance banning the retail sale of dogs and cats. A local pet store filed suit alleging, among other matters, violations of substantive due process. The Court on December 17, 2015 granted the City’s motion for summary judgment and found the ordinance bears a rational relationship with the city’s concerns for the health, safety, and welfare of animals and does not violate substantive due process. The Court also rejected arguments by the pet shop regarding vested rights.
City of Sunrise, Florida
On April 22, 2014, the City of Sunrise enacted Ordinance No. 577, which added a new section to the City’s Code of Ordinances entitled “Retail Sale of Dogs and Cats.” Among other things, the Ordinance bans the sale of dogs and cats that are not bred by their seller or purchased from a “Hobby Breeder.” In June of 2015, the Federal court granted the City’s Motion for Summary Judgment. The Ordinance did not create a Commerce Clause issue because Congress, through the Animal Welfare Act, authorized the states to regulate animal welfare. The Ordinance does not violate the Equal Protection Clause because the pet store is not treated differently than similarly situated entities and, in any event, the Ordinance is rationally related to a legitimate governmental purpose.
City of East Providence, Rhode Island
Due to public concern about puppy mills, the City of East Providence, Rhode Island passed an ordinance banning pet stores located within its limits from selling dogs and cats unless those animals were owned by a city animal shelter or animal control agency, humane society, or non-profit rescue organization and the pet store maintained those animals for the purpose of public adoption. In its Amended Complaint, Plaintiff, a pet store, raised numerous challenges to the ordinance under the Constitutions of the United States and of Rhode Island, claiming that it violated the dormant Commerce Clause, the Contract Clause, the Takings Clause, and Plaintiff’s equal protection and due process rights, and that it was preempted by state statute. Plaintiff and Defendant both sought summary judgment to all challenges. Plaintiff’s motion was denied and Defendant’s motion was granted as to all counts in Plaintiff’s Amended Complaint except Count Three, the Takings claim, which was remanded to the Rhode Island Superior Court.
City of Phoenix, Arizona
The City of Phoenix passed an ordinance regulating pet stores. Under the Ordinance, pet stores may not sell dogs or cats obtained from persons or companies that breed animals. Pet stores may sell only animals obtained from animal shelters or rescue organizations. A pet store filed suit claiming that the Ordinance violates the dormant Commerce Clause of the United States Constitution by closing the Phoenix market to out-of-state breeders and giving an economic advantage to local breeders. The Court found for the City of Phoenix.
City of Deerfield Beach, Florida
After the ordinance was adopted in Deerfield Beach, the attorney for the national pet retailer, Petland Inc., which operates a store in Deerfield Beach, sent a letter to the city threatening legal action on the grounds of inverse condemnation, regulatory taking and claims under the Bert J. Harris Act. The letter asked the city to either repeal or amend the ordinance to allow for pet stores to sell cats and dogs obtained from commercial breeders licensed by the U.S. Department of Agriculture. Petland, Inc. has not taken any further action.