Hearing set for late this week on request for a temporary injunction to keep a new law banning retail dog and cat sales from going into effect
A 12th Judicial Circuit Court judge last week denied Sarasota County’s petition to dismiss the lawsuit the owner of the community’s Petland franchise filed against the county last year, seeking to prevent a ban on retail sales of cats and dogs from going into effect on Jan. 27.
Late this week, a hearing was scheduled on Petland owner Lamar B. Parker Jr.’s request for a temporary injunction to stop the new county ordinance from becoming law until after the case has been heard.
Petland, which has a store on Fruitville Road, filed its complaint against the county in October 2016, saying the county’s new ordinance would violate numerous sections of the Florida Constitution. The county disputed the claims in the motion it filed on Nov. 22, 2016, asking the court to dismiss the complaint.
Following a Jan. 5 hearing, 12th Judicial Circuit Court Judge Frederick P. Mercurio issued a four-page order and gave the county 20 days to file an answer to the complaint. He then scheduled a hearing on the temporary injunction for 9 a.m. on Jan. 12, indicating that he had set aside 1½ days for arguments.
His ruling was expected after The Sarasota News Leader’s deadline for its Jan. 13 issue.
Regarding the county’s Motion to Dismiss, Mercurio wrote, “It is a hornbook principle of Florida law that in considering [such a motion], that the Court is constrained to a consideration of the four corners of the pleading, including any exhibits attached thereto, and is required to take as true all of the plaintiff’s well-pled factual allegations.”
Mercurio added, “A Court need not accept as true conclusory allegations, conclusions of law, or opinions asserted by the pleader. … The purpose of a motion to dismiss is to test the legal sufficiency of the pleading and not to determine issues of fact.”
He continued, “The test for sufficiency of a Complaint for declaratory judgment is not whether the Plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all.” Mercurio cited a Florida Second District Court of Appeal decision in 1993 as the basis for that finding. The plaintiff must show “‘that he is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that he is entitled to have such doubt removed,’” Mercurio added, citing the same Court of Appeal case, “X” Corp. v “Y” Person.
The day Mercurio issued his ruling , Assistant County Attorney David Pearce filed notice with the court that he planned to take the deposition of a corporate representative of BKG Pets Inc., the co-plaintiff in the lawsuit Parker filed. BKG is the name of the firm that does business as Petland Sarasota. The deposition was scheduled for the afternoon of Jan. 9 at the office of the Kirk Pinkerton law firm in Sarasota. Parker’s attorney is Thomas D. Shults of Kirk Pinkerton.
The County Commission’s 3-2 approval of the ordinance banning retail pet sales came at the end of a nearly 11-hour public hearing on Jan. 27, 2016. That was the culmination of about five years of work with county staff to craft the law, county resident Karen Ankerstar pointed out in a Jan. 9 telephone interview with The Sarasota News Leader.
Ankerstar and Russell Matthes, a board member of Sarasota in Defense of Animals (SDA), have been among the most visible proponents of the ordinance.
Passionate proponents of the ban
On Dec. 31 — less than a week before the first hearing — Ankerstar said about 50 people participated in a peaceful protest in front of Petland’s Fruitville Road store. The animal rescue organization wanted to show that county residents “haven’t forgotten about this,” Ankerstar added of the effort that went into gaining County Commission approval of the new law.
What she and other residents have contended, Ankerstar said, is that buyers cannot be certain of the circumstances in which the puppies and cats were born and reared before they reached Petland Sarasota.
“Our point is the source of the puppies and what is happening to the mothers and fathers that are caged for their entire lives,” she said.
Petland has maintained that it buys its animals from breeders who have been certified by the U.S. Department of Agriculture (USDA), Ankerstar continued. However, the USDA regulations to which breeders are required to adhere “are very minimal,” she added. Among them, for example, is that a dog have at least 6 inches of space between its nose and the bars of its cage, a situation in which no pet lover ever would allow an animal to live, she pointed out. For another example, USDA regulations allow animals to be “housed outside with additional bedding required only when temperatures drop below 35 degrees F,” according to the federal agency’s “Standards of Care.”
An excellent investigative article on puppy mills recently appeared in Rolling Stone magazine, Ankerstar noted, saying it makes clear why she and SDA members advocated for the Sarasota County ban on retail sales of dogs and cats.
In his public comments during the Jan. 27, 2016 public hearing on the proposed law, Parker told the County Commission, “We do not buy from substandard breeders.”
Nonetheless, a binder Parker entered into the record of the County Commission proceedings on Jan. 27, 2016, listing the breeders from whom he had purchased animals, included five who were on the U.S. Humane Society of the United States’ Horrible Hundred list.
The binder also showed that Parker had bought animals from a West Point, Iowa, breeder named Steve Kruse. A USDA report regarding a “routine inspection” of Kruse’s operation, conducted on Dec. 16, 2015, included this information: “After completing the review of the inspection report, [Kruse] and the inspectors began to speak about protective guards for heat lamps in the whelping areas.” It adds that “[Kruse] stopped this conversation” and indicated that he reproached them for walking through that area. “He reached back into a cabinet located next to him and pulled out an object that he threw across the table at the inspectors. One inspector reacted by raising her hands and the object bounced off her hands into her lap. The object was a quart-sized clear plastic bag containing two deceased puppies. … The supervisor stated that it was unacceptable to throw things at inspectors … As they walked out the door, the supervisor reiterated to [Kruse] that harassment, verbal abuse and other acts of intimidation by [Kruse] were not compliant with the regulations and would not be tolerated.”
The report added, “Interfering with the inspection process prevents the Secretary [of the USDA from enforcing] the Animal Welfare Act.”
Parker testified to the County Commission on Jan. 27, 2016 that he relied on USDA inspection reports and photos to determine where to purchase animals If he learned a breeder had received poor marks from federal inspectors, he noted, he would put that operation on a “Do Not Buy” list.
If the county implemented the ban, Parker told the commissioners in January 2016, “I think it would be extremely hard for me to keep the business in business.”
His complaint says Parker entered into a franchise agreement with Petland and acquired the Sarasota store in December 2014. The store has been open about 17 years, based on a comment Parker made to the County Commission on Jan. 27, 2016.
On Jan. 21, 2016 — almost exactly a week before the County Commission hearing — Jane Connors, a corporate spokeswoman for the company, told the News Leader in an email, “It’s important for the community to understand that the ban creates an environment with less healthy, family pets for purchase, opening up opportunities for those who sell animals on the black market.” She added of Parker, “The store’s owner and his staff have always taken great pride in their role to enhance the welfare of animals in the area.”
Nonetheless, numerous speakers during the Jan. 27, 2016 public hearing talked of buying puppies at Petland Sarasota and then having to spend thousands of dollars in veterinary medical bills on the animals after discovering the puppies had serious health issues. In some cases, the animals died.