Petland’s attorney seeking a stay of judge’s order allowing new retail pet sales ban to go into effect

Petland Sarasota is continuing to offer dogs for sale while its attorney also has asked for an expedited appeals court hearing on a motion to overturn the judge’s decision

The Petland store in Sarasota is on Fruitville Road. Rachel Hackney photo

Early one afternoon this week, about half a dozen people gathered near the rear of the Petland store on Fruitville Road in Sarasota. In cages lining a nearby wall, puppies of various breeds were dozing, oblivious to the onlookers.

In one kennel, though, a young golden retriever playfully nipped at the leg of the Akita puppy enclosed with it. Though a woman moved closer to watch them, they paid her no mind. She soon moved on to a different cage, where a drowsy, reddish-brown pit bull terrier was stretching her limbs.

About 10 days earlier — on Jan 23 — 12th Judicial Circuit Court Judge Frederick P. Mercurio had declined to stop Sarasota County’s new ordinance banning retail sales of dogs and cats from going into effect as scheduled on Jan. 27.

On Jan. 27, Lamar B. Parker Jr. — who purchased the Petland Sarasota franchise in 2014 — and BKG Pets Inc., which does business as Petland Sarasota, appealed Mercurio’s order to the Second District Court of Appeal. They also announced through a press release that they would continue to sell dogs and cats.

Kristen Parker addresses the County Commission on Jan. 27, 2016. News Leader photo

“Petland Sarasota respectfully disagrees with the Court’s decision,” the press release said. “[W]e continue to believe that this Ordinance will ultimately be found unconstitutional,” it added. “In the interim, Petland Sarasota will continue to operate as it has since 1999, when it first opened its doors in Sarasota.”

Kristen E. Parker, chief operating officer of BKG Pets, signed the release.

In late October 2016, Parker and BKG Pets brought suit against the county, arguing that the law violates a number of provisions of the Florida Constitution.

After the News Leader provided a copy of the Petland Sarasota press release to county staff on Jan. 27, county spokesman Jason Bartolone said staff would have no comment, even on the News Leader’s request for information about enforcement of the ordinance.

It is standard practice for the Office of the County Attorney not to issue any statement regarding an issue when litigation is pending.

Morgan Bentley. Contributed photo

Then the News Leader sought a response from Sarasota attorney Morgan Bentley of Bentley & Bruning. He represented advocates of the new law during the Jan. 27, 2016 public hearing when the county commissioners voted 3-2 to approve it, with a one-year amortization period.

“It’s not unexpected that an appeal would follow from a denial of this type,” Bentley wrote in an email, referring to Mercurio’s refusal to issue the temporary injunction the Parkers had requested. “The interesting issue is, as far as I know, there hasn’t been a stay order granted for the duration of the appeal,” Bentley added.

It was not until four days later — Jan. 31 — that the Parkers’ attorney, Thomas D. Shults of the Kirk Pinkerton firm in Sarasota, filed a motion with the 12th Judicial Circuit Court, seeking a stay of the county law until the appeal has been heard.

As of The Sarasota News Leader’s publication deadline this week, Mercurio had not ruled on the motion for the stay.

Additionally, on Jan. 31, Shults filed a motion with the Second District Court of Appeal, seeking an expedited hearing of the appeal. The Office of the County Attorney has not opposed that, court records show. On Feb. 2, a notation in the case docket on the Second District Court of Appeal website said the court had granted the motion, “to the extent that the parties may adhere to their mutually agreed-upon briefing schedule. However, the court will not on its own attempt to enforce the expedited schedule.”

In his motion for the stay in the 12th Judicial Circuit Court, Shults argued that granting it would serve both parties by preventing “the possibility of inconsistent results arising from further proceedings occurring in the trial court while the appeal is pending.”

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

In the county’s answer, Assistant County Attorney David Pearce wrote that, as with any motion, the person filing it “must show good cause as to why the Court should grant the relief sought.” Citing Shults’ argument, Pearce added, “There is no mention [of] what those inconsistent results might be.”

Pearce continued, “This case is in its infancy. The parties should be allowed to conduct discovery in preparation for summary judgment or a trial. Granting a stay of proceedings will result in an unnecessary delay.”

What about the continuing sales?

As for Petland continuing to sell dogs and cats without a stay of Mercurio’s order in place, Bentley told the News Leader that

perhaps the Parkers “have decided to fight any fines through the Code Enforcement process.” He added that the situation “will have to be addressed.”

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.

Further, the ordinance says, “Any Person who willfully refuses to sign and accept a Citation issued by an Officer shall be guilty of a misdemeanor of the second degree,” as provided for by the Florida Statutes.