Complaint filed in 12th Judicial Circuit Court cites articles of the Florida Constitution in challenging the County Commission’s split approval of the ordinance
Contending that the retail pet sales ordinance the Sarasota County Commission approved in January violates numerous sections of the Florida Constitution, the owners of Petland in Sarasota have filed a complaint against the county, seeking to nullify the law.
In the meantime, they have asked the 12th Judicial Circuit Court in Sarasota to stop the ordinance from going into effect on Jan. 27, 2017, to enable their arguments to be heard first. The case has been assigned to Judge Rochelle Curley, court records show.
Sarasota attorney Thomas D. Shults of the Kirk Pinkerton firm told The Sarasota News Leader that because the County Commission discussed the potential for amending the ordinance following its Jan. 27 vote, his clients wanted to allow time for such action. That was why they waited until Oct. 28 to file the complaint.
The plaintiffs are Brad Parker Jr., owner of Petland Sarasota, and BKG Pets Inc., which does business as Petland Sarasota.
The board’s last action on the ordinance was on June 21, when Commissioner Christine Robinson renewed her concerns about potential adverse impacts of the ordinance on breeders of purebred animals and on veterinarians who have engaged in pet transactions at their clinics. However, following a discussion about the possibility of negative repercussions, Chair Alan Maio, Vice Chair Paul Caragiulo and Commissioner Charles Hines reiterated their support for the measure they approved in January. Only Commissioner Carolyn Mason joined Robinson in approving Robinson’s motion incorporating amendments to the law.
Both Mason and Robinson are leaving the board because of term limits. A swearing-in ceremony will be held on Tuesday, Nov. 22, in Sarasota, for new Commissioners Nancy Detert and Mike Moran. Hines also won re-election to the board this year.
During the commission’s almost 11-hour public hearing on Jan. 27, Parker told the commissioners that he believed their goal was to stop substandard animals from being sold in the county. However, he said, such transactions would not cease upon passage of the ordinance, even though his business most likely would have to close. “We do not buy from substandard breeders.”,
Moreover, Parker pointed out, county residents still will be able to pursue transactions with so called “puppy mill” breeders online, as nothing in the ordinance will prevent that.
Since he bought Petland in December 2014, he continued, his records showed that approximately 20,000 people each month were coming into his store, and 4,000 of them were purchasing animals.
Parker added that if the ordinance passed, “A lot of my employees will lose their jobs … Our model is not designed to support the staff we have if we do not sell puppies. I’ve done the math on it.”
If the ordinance goes into effect, the complaint says, that will result in a “taking” of the property of Petland and Parker; in that event they are seeking damages exceeding $15,000.”
Asked for any comment from the county about the lawsuit, spokesman Jason Bartolone reiterated to the News Leader on Nov. 16 the remark he has made in the past in such circumstances: “Sarasota County does not comment on pending litigation.”
Details of the legal action
The complaint says that when Parker entered into a franchise agreement with Petland in December 2014 and acquired the Fruitville Road store, he also entered into a sublease agreement. The latter requires the tenant “to use the premises as a store specializing in the sale of pets, including dogs and cats,” the complaint points out. All of those transactions take place face-to-face, the complaint adds. The store advertises on the internet, but it “does not engage in selling or consummating any sale of animals over the internet,” the complaint says.
Furthermore, the ordinance the County Commission approved “does not provide for or permit the payment of compensation to Petland or Parker as a result of the prohibition on the retail sale of dogs and cats,” the complaint points out.
Among its constitutional challenges, the complaint cites Article I of the Florida Constitution, which says that “[n]o person shall be deprived of life, liberty, or property without due process of law,” and Article X, which, it argues, “provides in pertinent part, that ‘no private property shall be taken except for public purpose and with full compensation …’”
Additionally, the complaint contends that the County Commission “did not cite as a ‘Finding of Fact’ or otherwise attempt to justify the retail sale prohibition upon any alleged inhumane treatment of dogs or cats at retail pet stores such as Petland.” It points out that the board also did not cite any Finding of Fact to justify the sales prohibition by referencing retail pet stores that are in some manner substandard or those with animals that have been mistreated, neglected or are in poor health.
However, the complaint says, the ordinance provides a specific exemption for owners of dog- and cat-breeding facilities. Therefore, the complaint continues, the ordinance “infringes upon the fundamental rights of Petland and Parker under the articles of the Florida Constitution pertaining to the right of equal protection. The complaint adds that the ordinance’s Findings of Fact “are not determinations or actual findings of fact, but rather are recitations amounting only to conclusions which purport to justify the disparate and unequal treatment of pet store retail sellers.”
Further, the complaint says that Florida Statute 73.041 prohibits governments from taking private property “for the purpose of abating or eliminating a public nuisance.” Yet, in its “Findings of Facts,” the complaint continues, the County Commission “stated that a purpose of the Ordinance is to ‘… help abate nuisance created by animals that interfere with the enjoyment of property or the peace and safety of the community.’”
Additionally, the complaint points to Article VIII of the Florida Constitution, which prohibits counties from enacting ordinances that are inconsistent with general law or that “conflict with the provisions thereof.” Citing Florida Statute 828.27, it argues that the only authority the county has from the state in enacting a law regarding animal control or cruelty relates to penalties for violations. Therefore, the ordinance is inconsistent with state law because its ban of retail sales “is not identical with any provision” of Statute 828 or any other state law.
Moreover, the complaint contends, the ordinance’s granting of enforcement authority to the Sheriff’s Office, county Code Enforcement Division staff and others “goes far beyond the limited authority of Counties to appoint such enforcement agents for the purpose of investigating violations of Chapter 828, Florida Statutes.”
County staff worked with individuals and nonprofit organizations for about three years to draft an ordinance before the board approved the measure staff provided it in January. The issue of potential liability was addressed in an April 2, 2014 memo that Assistant County Attorney David Pearce prepared for the board.
Pearce wrote, “If current businesses are not allowed to continue operating as nonconforming uses or for a significant amortization period, there are legitimate concerns that Sarasota County may be potentially liable for impairment of an obligation of a contract under Florida law, or for an inordinate burden on an existing use under the [Bert] Harris Act.” The Harris Act says, “When a specific action of the governmental entity has inordinately burdened an existing use of real property,” the owner of that property “is entitled to relief, [which could] include compensation for the actual loss of the fair market value of the real property” resulting from the government action.
In fact, Pearce anticipated lawsuits from local pet sale businesses. He pointed mostly to federal cases in providing counsel to the commission. In consideration of a potential due process challenge, however, Pearce did discuss two Florida Court of Appeal rulings: “To establish that an executive act violates substantive due process, a plaintiff must show that the conduct: (1) violates a fundamental constitutional right; and (2) shocks the conscience of the court.”
He added, “It is unlikely that such an attack on an ordinance would succeed. 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 cited a federal case for that assertion, Prieto v. Metropolitan Dade County, which was decided by the U.S. District Court for the Middle District of Florida in 1989.
Pearce did point out in his memo that the courts have expressed their aversion to any action by a governing body that “diminishes the value of a contract,” citing a 1987 Florida Supreme Court decision. Yet, he noted, none of the relevant Florida cases he reviewed incorporated “the cautionary language by the United State Supreme Court” in a 1997 ruling which said, “The States must possess broad power to adopt general regulatory measures without being concerned that private contracts will be impaired, or even destroyed, as a result.”