As case continues in Circuit Court, Petland continues to sell animals
Florida’s Second District Court of Appeal has affirmed the 12th Judicial Circuit Court’s refusal to allow the Petland Sarasota store to continue selling animals while Petland pursues litigation to overturn Sarasota County’s ban of retail pet sales.
The appeal court issued a per curiam affirmation on June 16, an unsigned opinion reflecting that the majority of the justices agreed with the Jan. 23 order of 12th Judicial Circuit Court Judge Frederick Mercurio. In his ruling, Mercurio wrote that Petland’s request for a temporary injunction to stop the new county law from going into effect on Jan. 27 did not meet the judicial standard for issuing such an injunction.
According to Florida Rules of Civil Procedure, Mercurio pointed out, a court must consider whether a temporary injunction will meet specific tests before deciding to grant one. Along with the likelihood of irreparable harm, they are the unavailability of an adequate remedy of law; the likelihood of a case’s success, based on its merits; and consideration of the public interest.
In regard to the Petland case, Mercurio wrote, “there appears to be an adequate remedy of law in the form of damages.
Thomas D. Shults of the Sarasota law firm Kirk Pinkerton, who is representing Petland franchise owner Brad Parker Jr. and Petland in the case, did not respond to multiple requests from The Sarasota News Leader for comment this week on the Second District Court’s decision.
On June 28, a News Leader reporter visited the Petland Sarasota store in the Target Shopping Center on Fruitville Road. The reporter saw numerous puppies and young dogs for sale. When the reporter asked if the animals had been obtained from breeders, a store employee responded that all of the canines were obtained from United States Department of Agriculture-certified breeders and that each had papers that allowed a buyer to check with the individual breeder.
(Although Petland has asserted the U.S. Department of Agriculture (USDA) certification as support that its animals are not from “puppy mills,” proponents of the county law have countered that the federal government regulations are minimal. For example, one USDA stipulation is that a dog have at least 6 inches of space between its nose and the bars of its cage; animal lovers say that is vastly insufficient.)
When the News Leader asked for a response from Sarasota County about the appeal court ruling, spokesman Jason Bartolone wrote in a June 28 email that the county does not comment on pending litigation. However, he noted, “The county does have a counterclaim for injunctive relief pending in circuit court, and our method of enforcement at this time is to pursue this remedy through the pending litigation.”
The News Leader also contacted Sarasota attorney Morgan Bentley of Bentley & Bruning, who has been representing advocates of the new county law. Bentley wrote in a June 27 email, “It is true that the appeals court has upheld the trial court’s decision.” A certain period of time is allowed for Petland to file motions for rehearing its petition for the temporary injunction, Bentley added, but that is relatively short. If Petland does take that step, and the court does not allow a rehearing, he continued, the county could begin enforcing its ordinance.
“That said,” Bentley pointed out, “there is still a ways to go in the trial court case so the county may decide to put off enforcement in an abundance of caution. More of a practical question than a legal one, and will be up to the county to decide. Personally, I think the county could begin enforcement and then simply waive the fines if the trial court does not ultimately go its way. But again, that is up to the county.”
Animal advocates fight for enforcement
On June 27, Sarasota in Defense of Animals emailed a bulletin to supporters, saying the county “should be raking in $15,000 to $30,000 per day” by enforcing the new retail pet sales ban against Petland. The penalty for violating the law is $500 per day for each dog and cat for sale in the store, the bulletin notes.
The section of the county ordinance regarding administration and enforcement of the new law says, “The Animal Services Director, Animal Services Officers and [county] Code Enforcement Officers shall investigate complaints of alleged violations,” which are considered civil infractions.
It also says, “Each day of any such violation shall constitute a separate and distinct offense” and “A separate and distinct offense occurs per Animal.”
The maximum penalty provided for in the ordinance for a civil infraction is $500.
Sarasota in Defense of Animals — which is a nonprofit rescue organization — is urging its supporters to contact the County Commission — by writing letters, calling the members or emailing them — “and politely asking them to fine Petland while [the] lawsuit is pending in the courts …”
It provides the U.S. mail address, phone number and email address for the Board of County Commissioners.
Petland adds a new count to complaint
In the meantime, on May 1, Petland and Parker petitioned the 12th Circuit Judicial Court for approval to file an amended complaint against Sarasota County; they wanted to add another argument to their allegations that the ordinance the County Commission approved on a 3-2 vote in January 2016 violates state laws. Mercurio agreed to the petition on May 3.
Filed on May 4, Count IX of the amended complaint says the county’s “conduct in this matter violates the Florida Antitrust Act.” The amended complaint also includes additional statements “regarding the price fixing and anti-competitive effects” of the county law.
One argument in the original complaint is that the county law does not provide for any compensation to Petland, even though Parker testified during the January 2016 public hearing that the ban would have a severe negative impact on his business. The suit also says that in discussing whether to approve the new law, the County Commission cited no “Finding of Fact” that the ordinance was justified “upon any inhumane treatment of dogs or cats at retail pet stores such as Petland.”
Furthermore, the complaint alleges that because the law exempts owners of dog- and cat-breeding facilities, it infringes upon Parker’s and Petland’s right to equal protection under the Florida Constitution.
Counterclaim and response
On Jan. 24 — one day after Mercurio refused to issue the temporary injunction — the Office of the County Attorney filed the county’s counterclaim against Petland and Parker, along with the answer to the original Petland complaint.
Assistant County Attorney David Perce pointed out in the counterclaim, “As a charter county, the County has broad powers … to enact ordinances that are not inconsistent with general law. … If [Petland and Parker] continue their sale of live dogs and cats beyond the one-year amortization period [for the new county law] … they will be in violation of Section 14-53(a)(1) of the Sarasota County Code of Ordinances.” The amortization period expired on Jan. 27, Pearce noted.
“Irreparable harm is presumed for a violation of the Code,” he added.
Therefore, the county sought a mandatory injunction against Petland and Parker to keep them from violating the county retail pet sales ban, as well as a prohibitive injunction against them for future violations of the law.
On June 12, Petland and Parker filed their response to the counterclaim. They argued that the county had failed to provide sufficient facts to support its assertions. Moreover, they repeated their view that the retail pet sales ban “violates several provisions of the Florida Constitution on its face or as applied [to Petland and Parker].”