With Sarasota County business having lost its appeal to put a retail pet sales ban on hold, focus of litigation back in 12th Judicial Circuit Court

Notice of October mediation filed in the case

The Second District Court of Appeal is located in Lakeland. Image from the court’s website

The Florida Second District Court of Appeal has formally acknowledged the end of an appeal of a 12th Judicial Circuit Court judge’s ruling in January, which allowed a Sarasota County ban on the retail sales of dogs and cats to remain in effect while a Sarasota pet store fights the law in court.

The Court of Appeal docket in the Petland Sarasota case shows no indication of the business having sought a written opinion following the court’s June 16 per curiam affirmation that it agreed with 12th Circuit Judicial Court Judge Frederick Mercurio. On Jan. 23, Mercurio ruled that Petland Sarasota did not meet the necessary judicial standards in its request for him to issue a temporary injunction that would have put the county law on hold during the litigation.

The per curiam decision meant the majority of the Appeal Court judges concurred with Mercurio’s ruling.

On July 6, the Appeal Court issued a Mandate in the case. The Mandate is the legal device for closing the appeal and transferring the jurisdiction back to the 12th Judicial Circuit Court.

In the meantime, on June 28, the attorney for the Petland franchise in Sarasota and the business’ owner filed a Notice of Mediation in the Circuit Court. Thomas D. Shults of the Kirk Pinkerton law firm in Sarasota wrote that the mediation would be held at 9 a.m. on Aug. 15 at the Kirk Pinkerton offices. However, in a July 19 filing, the date was moved to Oct. 6, but with the same starting time, court records show.

Assistant County Attorney David Pearce is handling the litigation for the county.

The County Commission approved the retail pet sales ban on Jan. 27, 2016 on a 3-2 vote, with then-Commissioners Carolyn Mason and Christine Robinson in the minority. The ordinance called for a one-year amortization period.

Lamar Brad Parker is the owner of Petland Sarasota. File photo

Petland and franchise owner Lamar Brad Parker filed their complaint against the county in October 2016, arguing that the county’s retail pet sales ban violates a number of provisions of the Florida Constitution. Among those, Petland and Parker say the law “does not provide or permit for the payment of compensation” to them for “the deprivation of their rights,” that it discriminates against retail businesses because it allows hobby breeders to continue to sell animals, and that it attempts “to take the private property of the Plaintiffs for the purpose of abating or eliminating a purported public nuisance.”

The county filed a counterclaim against Petland and Parker on Jan. 24 — the day after Mercurio issued his order denying the motion for the temporary injunction. It asked for a mandatory injunction against Petland and Parker to keep them from violating the county law. County spokesman Jason Bartolone told The Sarasota News Leader earlier this year that that pending litigation is serving as the county’s means of enforcing the retail pet sales ban.

Animal sales continue at Petland

Regardless of the Court of Appeal decision, Petland has continued to sell dogs in its store in the Target Shopping Center on Fruitville Road.

Sarasota attorney Morgan Bentley of Bentley & Bruning — who represents advocates of the new law — explained to the News Leader last month that while the county ordinance provides for penalties for violations, he expected Sarasota County’s traditionally cautious approach would keep it from pursuing those penalties while the litigation is underway.

The Petland Sarasota website features a number of dog breeds, saying, “We receive our puppies from only the most caring, responsible breeders in the country. Petland wants to raise the bar when it comes to taking care of not only our little puppies, but the parents they came from.”

When a News Leader reporter visited the store in June, an employee said the animals available for sale all came from U.S. Department of Agriculture-certified breeders.

The nonprofit Sarasota in Defense of Animals has used this photo of inhumane puppy mill cages in notices to its members. Image courtesy SDA

However, animal advocates who worked with county staff in crafting the new law contend that the federal standards are not stringent enough to ensure quality care of dogs and cats. Supporters of the ban also have provided documentation to the News Leader, showing that at least one of the breeders from whom Petland has bought animals has been cited for violations while undergoing U.S. Department of Agriculture inspections.

The county law has been referred as a “puppy mill ban,” because of the cruel circumstances in which some breeding operations in the United States produce puppies. Parker of the Petland Sarasota franchise maintained in testimony to the County Commission in January 2016 that he visits the farms of the breeders from whom he purchases animals to make certain of the quality of the conditions.

Dispute over financial records

Among other recent actions in the legal case, in early June, Petland and Parker filed a Motion for Protective Order in the 12th Judicial Circuit Court, 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.” The motion points out that the Florida Legislature enacted an exemption to the public records act — Chapter 119 of the Florida Statutes — to protect “the confidentiality of trade secret information that might come into the hands of a public agency, such as Sarasota County …”

Therefore, Parker and Petland ask that if the court deems that the information must be turned over to the county, that the court also “enter an appropriate order requiring Sarasota County to maintain the confidentiality of such information and limiting its use and dissemination.”

An August 2015 USDA report on Iowa breeder Steve Kruse included this image of a dog at his facility. A binder Brad Parker of Petland provided the County Commission in January 2016, with details about the breeders from whom he had purchased animals, noted that Kruse was among those breeders.
Image from the USDA

On July 7, Assistant County Attorney Pearce responded to the protective order 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.”

Pearce cites Florida Rule of Civil Procedure 1.280 as the “governing rule on discovery,” adding his assertion that the rule allows for the county to seek the type of information Petland and Parker do not want to disclose.

Pearce writes that the plaintiffs “contend they will suffer monetary losses from the loss of sales of puppies and kittens, adverse impacts to business reputation, and a taking of personal property. … The County questions the impact of its ordinance on the business. When evaluating a case to determine whether there has been a regulatory taking, the courts must look at the property as a whole.”

As he has in prior documents he filed in the case, Pearce points out that the new law does not prevent Petland from selling pets other than dogs or cats, nor does it stop the business from selling pet supplies and related services, such as grooming and obedience training.