Motion notes year-long amortization period as well as lack of requirement for sales of dogs and cats in the business’ franchise agreement
An attorney for Sarasota County has asked the 12th Judicial Circuit Court to dismiss a complaint filed by Lamar Brad Parker Jr. and BKG Pets Inc. that seeks to overturn the retail pet sales ban that is scheduled to go into effect in the county on Jan. 27, 2017.
In the county’s Nov. 22 response to the complaint, Assistant County Attorney David Pearce points out that because the ordinance approved by the County Commission on Jan. 27 provided for a one-year amortization period, BKG Pets and Parker — the owner of the franchise — “had a whole year in which to sell off their remaining stock of live cats and dogs or any other personal property related to the business.”
BKG Pets does business as Petland Sarasota, according to Parker’s complaint.
Furthermore, Pearce notes that “the ordinance does not call for the seizure of any unsold animals or other personal property.” Therefore, the law does not result in a “taking” of personal property, as Parker and BKG Pets argue in their complaint.
Pearce also writes that the ordinance “is a consumer protection measure designed to limit circumstances where a consumer purchases a sick animal. … By requiring consumers to purchase directly from the breeder,” he continues, the law makes it necessary for a person to visit the breeder’s operation, “instead of being insulated [from information about the breeder] through a sale by way of a commercial establishment.” He adds that at least one court — the Colorado Supreme Court, ruling in 1977 — “holds that consumer protection goals are a legitimate interest.”
Moreover, Pearce contends, the new ordinance “distances Sarasota County residents from the moral taint of puppy mills that ship high volume exports to the County. … A moral condemnation of matters involving fundamental dignity is a legitimate local public interest,” he adds, as set forth in a Maryland Supreme Court ruling in 1989.
Finally, Pearce argues, “[T]his ordinance reduces taxpayer expenditures. The Board’s findings in the ordinance detail that public shelters are the default caregiver for sick or abused animals, and the care for unwanted dogs and cats is born at taxpayer expense.”
Specific points
In responding to the complaint’s allegation that the ordinance will prevent Parker from fulfilling his obligations in the franchise agreement he signed with Petland, Pearce points out that the agreement states, “‘[Petland-Ohio] reserve[s] the right to decide the types of pets [Petland-Sarasota may] carry.’” Pearce adds, “Nothing else in the Franchise Agreement discusses the type or quantity of pets sold.”
Pearce also notes that Parker’s lease agreement for the Petland store says that the tenant “shall occupy and use [the premises] for the purpose of a pet store specializing in the sale of pets, pet supplies, related items, and related services, and for no other purpose.” Pearce contends that the agreement “does not specifically [his emphasis] obligate [Parker] to sell cats or dogs; rather, the language creates generic [his emphasis] obligation to sell pets.”
Pearce points out that after Jan. 27, 2017, the store still could sell “rabbits, rats, mice, gerbils, ferrets, birds, fish, reptiles, etc., [as well as pet supplies], related items (presumably cleaning supplies, etc.), and related services (presumably such as pet grooming, obedience training, pet care, etc.).”
Parker was among the numerous speakers who addressed the County Commission during its Jan. 27 public hearing on the proposed ordinance before the board voted 3-2 to approve the ordinance. (Commission Chair Alan Maio, Vice Chair Paul Caragiulo and Commissioner Charles Hines voted for the ordinance; Commissioners Carolyn Mason and Christine Robinson opposed it.)
Parker told the commissioners that passage of the law would lead to many of his employees losing their jobs.
Additionally, Pearce notes that the lease agreement requires Parker to comply with local law. Therefore, Pearce writes, “the contract itself negates any alleged obligation to sell cats or dogs.”
As for the complaint taking exception to the exemption for “hobby breeders,” Pearce writes that Parker and BKG Pets are asking the Court to second-guess the County Commission’s findings of fact in the ordinance. Pearce contends that the complaint omits or downplays “the pertinent parts of the definition” of a hobby breeder in the ordinance, and he then cites sections of the law that apply to those breeders.
Further points
In his 33-page motion, Pearce goes on to respond to the various other articles of the Florida Constitution that Parker and Petland’s attorney — Thomas Shults of the Kirk Pinkerton firm in Sarasota — referenced in the complaint.
For example, Pearce argues that the complaint fails “to state a cause of action for equal protection or substantive due process violations.”
Citing a number of judicial precedents, Pearce writes, “A local ordinance which bans pet stores from selling cats or dogs is rationally related to a legitimate governmental purpose, and thus such an ordinance does not violate the Equal Protection Clause.”
Moreover, he continues, “While there was a time when the Due Process Clause was used to strike down laws that were thought unreasonable or unwise, it is now well established that in reviewing economic and social legislation courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”
He further argues that the county has not violated the procedural due process rights of Parker and the business, because the county has complied with state law in providing “both fair notice and a real opportunity to be heard before depriving a person of the substantive rights.”
Pearce adds, “Stated another way, the requirements of due process are flexible, and the procedural protections afforded to a person flow from the demands of a particular situation,” citing a 2001 Florida Supreme Court decision.
Moreover, Pearce writes that Parker and Petland “wrongly contend that the retail sales ban in the ordinance is preempted or inconsistent [with the state statute that] governs local animal control and cruelty ordinances.” Pearce argues that while Parker and Petland claim such ordinances “must have language that mirrors state law … [t]hat is not a proper reading of the law. Rather, the first sentence of [the statute in question] grants express authority for local governments to regulate in this field.”
Pearce says the plaintiffs’ assertion also “flies in the face of the second sentence of [the statute’s subsection], which discusses conflict between state and local law. If local government did not have room to legislate, there would be no need for a second sentence,” Pearce adds. “It would be superfluous.”
That second sentence of Florida Statute 828.27(7) says, “Notwithstanding the provisions of this subsection, the governing body or any county or municipality is authorized to enact ordinances prohibiting or regulating [specific action regarding] any domesticated animal …”
Pearce further points out that before a revised Florida Constitution was ratified in November 1968, “county governments only had those powers as authorized by general or special law. After ratification, however, the Florida Constitution authorized charter counties to exercise home rule authority.”
Sarasota County adopted a home rule charter in 1971, he notes.
“The revised … Constitution … does not create new powers, but rather distributes power from the State to the counties as political subdivisions of the State,” he adds.