County also seeking court’s dismissal of three counts in the Petland complaint filed in 2016
Sarasota County Attorney Stephen DeMarsh has won approval of the County Commission to hold a closed meeting on Sept. 13 regarding litigation the owners of Petland Sarasota filed against the county last year over a law banning retail sales of dogs and cats.
Mediation in that case has been scheduled for Friday, Oct. 6, Assistant County Attorney David Pearce pointed out in an Aug. 29 memo to the commission. The Office of the County Attorney sought the Sept. 13 session, he added, “for the purpose of discussing settlement negotiations and strategy related to litigation expenditures.” Such private sessions are allowed under Section 286.011(8) of the Florida Constitution, though a transcript of the proceedings has to be made public record “upon conclusion of the litigation,” the state law points out.
With no objection from any county commissioner on Aug. 30, DeMarsh said the Sept. 13 session would be scheduled for noon.
Additionally, the county has asked the 12th Judicial Circuit Court to dismiss three of the counts in the Petland lawsuit, which has argued that the county’s retail pet sales prohibition violates a number of the business’ constitutional rights.
On Aug. 31, Pearce filed a Motion for Summary Judgment, arguing that BKG Pets — which does business as Petland Sarasota — and Lamar B. Parker Jr. — an owner of the Petland store — “do not have a constitutionally-protected interest to sell live cats and dogs …”
Furthermore, 12th Judicial Circuit Court Judge Frederick Mercurio has scheduled an Oct. 23 hearing in the case to address motions Petland and the county have filed regarding disclosure of the business’ financial records.
In early June, BKG Pets and Parker Jr. filed a Motion for Protective Order, saying that some of the documents the county has asked them to produce include “information protected as trade secrets pursuant to Florida law” and “confidential business information and personal individual information regarding taxes, income and payroll.” On July 7, Pearce responded to the motion, writing that the county is seeking the materials “relevant to Plaintiffs’ inventory, income, and expenses in order to determine: (1) whether the ordinance materially impairs obligations under the franchise agreement and lease; (2) whether the ordinance has resulted in a taking of Plaintiffs’ property, including its franchise agreement and lease [as alleged in the original complaint]; and (3) potential damages.”
Subsequently, on Aug. 24, the county filed an objection to the court’s effort to refer the financial records dispute to a magistrate. Pearce wrote, “The County believes that the matters set forth in the pending Motions deserve the Court’s attention.”
The Oct. 23 hearing on that issue is scheduled to last only 15 minutes, according to Mercurio’s Aug. 24 notice to the parties.
Petland and Parker filed their original complaint against the county in October 2016; they amended the complaint in May to add a count alleging that the retail pet sales ban is a violation of Florida’s antitrust law because the county regulation allows “hobby breeders,” animal shelters and animal welfare organizations to continue sales of dogs and cats.
The hobby breeder exemption was added to the ordinance the County Commission approved in January 2016 because commissioners said the focus of their action was preventing the sale of animals obtained from “puppy mills” and similar businesses that produce large quantities of puppies and kittens without adequate concern for the animals’ health and welfare. Their goal, they pointed out, was not to stop county residents from breeding and selling purebred animals at the residents’ homes.
Filed on May 4, Petland’s amended complaint says, “The Ordinance unlawfully eliminates or restrains the ability of Petland and retail pet stores to engage in trade or commerce” and eliminates the businesses’ ability to obtain “a profit from such sales.”
Motion for partial summary judgment
In the motion he filed on Aug. 31, Assistant County Attorney Pearce writes that the county’s action focuses on Counts III, IV and V of the amended Petland complaint, “which rely on Article I, Section 2 of the Florida Constitution concerning basic rights …”
Count III argues that the retail pet sales ban violates Petland’s right to equal protection, Pearce continues. The Petland complaint contends that the business has been intentionally treated differently from other entities, especially hobby breeders, Pearce adds. “While the right to engage in a lawful business or occupation enjoys constitutional protection,” he points out, “such right may be limited when justified by the benefit to the public, and thus is not a fundamental right under the Florida Constitution.”
Moreover, Pearce argues, federal cases considering violations of the U.S. 14th Amendment’s Equal Protection Clause “are relative and persuasive to determine whether Florida’s Equal Protection Clause has been violated.”
Pearce then cites federal case rulings that found economic and social regulations “are not recognized as affecting a fundamental right …” He adds, “Consumer protection goals are a legitimate interest. … The Board of County Commissioners could reasonably conclude that an exemption for Hobby Breeders furthers the goal of consumer protection because purchase of a cat or dog from the location where it has been bred or reared allows a consumer to directly observe the conditions under which that animal was born and raised.”
Regarding County IV, which deals with substantive due process, Pearce points out, “Federal and state courts have specifically rejected federal substantive due process claims involving ordinances prohibiting the sale of cats or dogs at pet stores.” He cites several relevant cases to bolster his argument.
“Despite categorizing the right to property and right to contract as basic substantive rights or fundamental rights,” Pearce continues, “Florida courts have upheld legislation affecting these property rights where the legislation does not seize property without compensation.”
He also notes that, “to the extent there are property interests affected by the [county] ordinance, courts have recognized amortization periods as viable and equitable means to reconcile competing private and public interests.”
The county had a yearlong amortization period before the retail pet sales ban went into effect in January of this year.
Finally, Pearce writes, Count V of the Petland complaint “fails to state a cause of action for a procedural due process violation.”
The 11th Circuit Court, he points out, “has established three elements that must be satisfied to state a claim alleging a violation of procedural due process: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process.”
As he had discussed earlier in the motion, he continues, “there is no constitutionally-protected interest in the sale of cats and dogs.”
Moreover, Pearce writes, the county has not yet begun enforcement of the sales ban, “which would trigger … [a] challenge.” Additionally, he argues, “The ordinance has no retroactive effect. It does not declare past sales unlawful.”
He also contends that no legal precedent exists for a party to claim it “has some sort of vested rights prior to the adoption of a new ordinance.”
County staff and the County Commission had discussed the adoption of a pet sales ordinance prior to Parker and BKG Pets entering into their franchise agreements for the Sarasota store, he adds.
Finally, the county ordinance provides mechanisms for enforcement, including county Code Enforcement proceedings, Pearce writes. The latter, Pearce explains, would enable Petland and Parker “to be heard before a fine would ever be imposed.”