Made in the Midwest: Missouri's Puppy Mill Problem and How It Should Be Fixed.

• Author: Schamel, Bailey M.

1. INTRODUCTION

   In 2012, the U.S. Humane Society began publishing a yearly Horrible Hundred list. (1) This list includes a compilation of puppy breeding and/or puppy brokering facilities known to violate the minimal animal care standards set by the federal government, and the most recent list was published in 2017. (2) For five straight years, since the Horrible Hundred's inception, Missouri has topped the list. (3) The problems with these breeders are often egregious; for example, one breeder had more than twenty-five dogs found underweight, sick, or injured in one year, and another breeder was twisting off the tails of puppies. (4) The United States has about 10,000 puppy mills, and approximately thirty percent of them are located in Missouri. (5) Missouri has a puppy breeding problem that must be addressed.

   This Note discusses the laws and regulations surrounding commercial dog breeding in Missouri and the United States generally and how these laws can be improved to prevent the issues currently facing the state and country. The federal Animal Welfare Act ("AWA"), the minimum standards it sets, and Missouri's Canine Cruelty Prevention Act ("MO-CCPA") are discussed at length in Part 11. Part III analyzes critiques of the MO-CCPA from those who opposed its passing and why these critiques exist. Finally, Part IV discusses what laws exist in other states and what Missouri should change to prevent the existence of numerous problematic puppy mills, which will hopefully remove it from the top spot on the Horrible Hundred list in the future.

2. LEGAL BACKGROUND

   Two major areas of law are important to the discussion of the puppy mill problem in Missouri--the AWA and the MO-CCPA. Both are discussed fully below.

   1. Animal Welfare Act

      The federal government promulgated the AWA and vested enforcement of its provisions in the United States Department of Agriculture ("USDA"). The AWA encompasses requirements regarding the transportation, purchase, sale, housing, care, handling, and treatment of animals intended to be kept as pets. (6) It applies to a wide variety of animals, including dogs. (7) Animal and Plant Health Inspection Service ("APHIS"), an agency of the USDA, has inspectors that examine licensed breeders for potential AWA violations. (8) These inspectors enforce USDA regulations through several methods: formal prosecution, suspension or loss of a license, monetary fines, cease and desist orders, or confiscation or euthanasia of animals. (9)

      The AWA applies to any person who deals animals. (10) A dealer is defined as any person "who buys or sells any dog, or negotiates the purchase or sale of any dog, for use as a pet...." (11) These animal dealers must be licensed with the USDA. (12) Breeders need a license if they have more than four breeding females on their premises, regardless of ownership. (13) Any person that breeds and sells dogs directly to a pet owner for the buyer's own use as a pet is exempt from these licensing requirements. (14) This kind of breeder avoids selling dogs to a store, like PetSmart or Pet Land, and sells directly to individuals who wish to buy a dog for companionship. However, these breeders must not buy any animals for resale, must do all sales face-to-face, and must not sell any animals to a research facility, dealer, or pet store. (15)

      To obtain a license from the USDA, breeders must meet certain minimum requirements. One of those requirements is the maintenance of a comprehensive veterinary care program that ensures the animals in the breeder's care receive adequate veterinary care. (16) To comply with the AWA and attain a license from the USDA, this comprehensive program must include a breeding facility, an attending veterinarian, a written program of veterinary care (when the veterinarian is only employed part-time and is not at the facility full-time), sufficient facilities, trained personnel, and a program kept updated with changes in operations. (17) Additionally, the attending veterinarian must have regularly scheduled visits to the facility and make written comments or recommendations. (18) If the veterinarian finds problems with the breeder, he or she may make recommendations for the breeder to fix the problems. (19) If the problems are not fixed, the veterinarian may report the breeder to the USDA, just as any concerned prospective buyer could.

      The AWA also has exercise requirements. (20) It requires breeders to "develop, document (in writing), and follow a plan that provides dogs with the opportunity to exercise." (21) The exercise plan must be reviewed and approved by a veterinarian and must be available for APHIS inspection. (22) Individually-housed dogs--i.e., dogs in their own cage or run (23)--that do not share a living space with other dogs are exempt from these exercise requirements if they are in a cage or run that is "two times the required floor space for that particular dog." (24) Required space for a dog is six inches longer than its length squared (the dog's length docs not include the tail). (25) When dogs are in group housing, no exercise opportunities are required if the cage or run is one hundred percent of the space required for each individual dog. (26) That is, if each dog requires four square feet of space and there are two dogs within the same enclosure, then as long as there are eight square feet in the enclosure, the dogs would need no additional exercise to comply with the AWA regulations.

      In addition to spacing requirements, the USDA has other regulations for enclosures. These enclosures must be "[d]esigned and constructed of suitable materials, [s]tructurally sound, [and k]ept in good repair...." (27) They must also "... [p]rotect animals from injury, [s]ecurely contain animals, [and k]eep animals dry and clean." (28) There cannot be any sharp points or edges, and the floors must keep feet and legs from falling through spaces in slats or mesh. (29) The dogs must have enough space to "[t]urn around freely, stand, sit and lie down in a normal comfortable position and [to] walk in a normal manner." (30) The enclosures must also be sheltered from extreme temperatures and weather (but outside enclosures are still allowed). (31) The USDA defines extreme temperatures as exposure to temperatures below forty-five degrees Fahrenheit or above eighty-five degrees Fahrenheit for more than four consecutive hours. (32) Dogs must also be kept in compatible groups, which means if they are housed with other dogs, they cannot fight. (33)

   2. Missouri's Canine Cruelty Prevention Act

      There are two important aspects of the MO-CCPA: the standards it sets and the enforcement scheme. Both are discussed fully below.

      1. Standards Set by the MO-CCPA

      Aside from the licensing regulations of the AWA, dog breeders in Missouri must comply with the MO-CCPA, which is enforced by the Missouri Department of Agriculture ("MDA"). (34) In November of 2010, Missouri voters passed Proposition B, then-titled the Puppy Mill Cruelty Prevention Act, by a narrow majority of fifty-two percent. (35) When then-Missouri Governor Jay Nixon signed the bill on April 27, 2011, he changed the name of the legislation to the MO-CCPA and eliminated the proposed act's fifty breeding dog limit. (36) He also changed the voter-backed law's requirements for floor space (twenty-five square feet for small dogs, thirty square feet for medium-size dogs, and thirty-five square feet for large dogs) and replaced them with requirements that tripled Missouri's previous minimum space requirements, (37) resulting in less space.

      First and foremost, dog breeders must apply for a license and comply with the standard of care requirements set out by the MO-CCPA. (38) This license expires annually. (39) To obtain a license in Missouri, breeders must have an inspection "by the state veterinarian, his designee, or an animal welfare official" to ensure the facilities meet the minimum standards. (40) After breeders are initially granted the license, they are still subject to, at a minimum, annual inspections or an inspection "upon a complaint to the department." (41) Any individual can complain to the department--concerned buyers, veterinarians, or concerned individuals who simply see the conditions of the puppy mill. The State may refuse to issue, renew, or revoke a license for a few reasons, including violations of the MO-CCPA, a conviction for any violation of federal or state law "relating to the disposition or treatment of animals," or a failure to follow the requirements set out by the AWA, which includes failing an annual inspection. (42) Operating without a license in Missouri is a Class A misdemeanor, which is punishable by up to one year in prison or a fine not to exceed $2,000. (43)

      The MO-CCPA covers "any person having custody or ownership of more than ten female covered dogs for the purpose of breeding those animals and selling any offspring." (44) "Covered," for purposes of the MO-CCPA, means any type of domestic dog. (45) No language in the statute mentions a restriction on male dogs. (46) It should be noted that, by statute, if a breeder has three or more intact females and is breeding dogs for commercial sale, a license is required. (47) The MO-CCPA has six major areas of regulation that must be met for each dog: sufficient food and clean water, veterinary care, sufficient housing, sufficient space in kennels, regular exercise, and adequate rest between breeding cycles. (48)

      The minimum amount of veterinary care required under MO-CCPA is an annual exam by a licensed veterinarian. (49) Additionally, the veterinary care requirement entails prompt treatment of serious injury or illness by a licensed veterinarian and humane euthanasia when necessary using lawful techniques that have been approved by the American Veterinary Medical Association. (50) To comply with the sufficient housing requirements of the MO-CCPA, Missouri breeders must provide a sanitary facility with a solid surface for the dog to lie...