A local approach to a national problem: local ordinances as a means of curbing puppy mill production and pet overpopulation.

AuthorKenny, Krysten
  1. INTRODUCTION

    "Puppy mill" has become a catchphrase synonymous with abuse and deplorable living conditions, conjuring to mind images of dogs crammed in wire mesh cages, matted with feces, and suffering from numerous untreated health problems. (1) Despite recent public attention to the issue and animal activists struggling to push for stricter regulation of commercial dog dealers, the federal agency in charge of the industry has failed to curb the rampant abuse through the inadequate regulations that are currently in force. (2) While the puppy mill industry churns out millions of puppies a year, millions of puppies and adult dogs are euthanized in shelters across the country after being let loose on the streets or abandoned to the system by their owners. (3)

    A growing number of local governments are trying to dampen the market for puppy mill dogs through the enactment of local ordinances that ban or severely limit the retail sale of cats and dogs. (4) By cutting off the ability of retail pet stores to sell their live products, these ordinances aim to curtail the demand for puppy mill dogs, thereby decreasing the supply and resulting in consumers turning to more humane places to get a new companion such as shelters, rescue groups, or small-scale breeders. (5)

    This paper will analyze the issues surrounding the potential for local ordinances to have an impact on puppy mills and pet overpopulation. Starting from the premise that local initiatives play a crucial role in changing public and governmental perception of the social and moral issues involved in the abusive puppy mill industry, this article argues that local ordinances that entirely prohibit the sale of dogs in pet stores--as compared to ordinances that regulate pricing of dogs sold by pet stores--should be utilized by more municipalities as a means of tightening market pressure on commercial dog dealers in the face of ineffective federal regulation.

  2. BACKGROUND INFORMATION

    Although "puppy mill" does not have a standard definition, the term generally refers to high volume breeding operations populated by poorly treated dogs that are bred at every opportunity, caged their entire life, and that receive minimal health care. (6) As in most businesses, profit maximization is the paramount concern of these enterprises.

    As of 2011, it is estimated that there are over seventy-eight million dogs owned in the United States, only twenty-one percent of which were adopted from animal shelters. (7) Over $2.13 billion were spent in the U.S. market in 2010 on live animal sales. (8) Despite the substantial amount of money involved in the sale of companion animals, approximately six to eight million dogs and cats enter shelters across the country each year; three to four million of those animals are euthanized in the shelter system. (9) Live animal sales only comprised 4.4 percent of the amount total spent in the pet industry in 2010. (10) The Humane Society of the United States estimates that in 2009 approximately one-third of the nine thousand pet stores across the country sold puppy mill born puppies and that between two and four million puppies produced by puppy mills are sold each year. (11) Meanwhile, it is estimated that half of the dogs and seven out of ten cats that enter the shelter system are euthanized due to a lack of homes. (12)

    While great strides have been made in animal advocacy and humane treatment in the last few decades, the problem of puppy mill exploitation and its connection to pet overpopulation has continued to vex local governments and animal advocacy groups. A new approach is necessary in the face of the failure of the current legal regime.

  3. FEDERAL REGULATION OF COMMERCIAL DEALERS

    The federal regulatory scheme that currently governs puppy mills is ineffective to ensure adequately humane treatment for dogs, making local action necessary. The federal government regulates commercial breeding operations under the Animal Welfare Act ("AWA"). (13) State governments (to a varying degree)--through anticruelty laws, health regulations, and lemon laws (14)--and local governments--often through zoning ordinances (15)--may impose additional and more restrictive regulations on puppy mills. (16)

    In 1966 and through subsequent amendments, Congress drew upon its enumerated commerce clause power (17) to regulate "the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using [animals] for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use." (18) The AWA was not an attempt at a federal anti-cruelty statute, but rather targeted regulation for very specific and nationally important animal activities. (19) The United States Department of Agriculture ("USDA") is tasked with enforcing the AWA. More specifically, the regulations and enforcement measures pertaining to the AWA are handled by the Animal and Plant Health Inspection Service ("APHIS") within the USDA. (20) While the purposes listed in the Congressional Statement of Policy imply an expansive reach for the Animal Welfare Act, (21) the legislation is riddled with exceptions and loopholes that severely reduce the effectiveness of the AWA in actually implementing care standards for various animals and industries. (22)

    Pursuant to the AWA, commercial dog dealers must apply for licenses from the USDA, comply with all applicable regulations from the agency, and undergo regular inspections to ensure compliance. (23) Dealers are defined as:

    any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog ... for ... use as a pet.., except that this term does not include--(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or (ii) any person who does not sell, or negotiate the purchase or sale of any ... dog ... and who derives no more than $500 gross income from the sale of other animals during any calendar year. (24) This exemption for retail pet stores is also built into the licensing provision which does not require any retail pet store or person who "derives less than a substantial portion of his income ... from the breeding and raising of dogs or cats on his own premises and sells any such dog or cat to a dealer or research facility" to obtain a dealer license. (25)

    APHIS has defined a retail pet store as any outlet that offers for sale at retail, but not wholesale, animals exclusively listed in the APHIS regulation, which includes dogs, cats, and various small animals. (26) Establishments that deal in dogs for hunting, security, or breeding purposes; exhibit wild or exotic pets; sell animals for research; sell animals wholesale; or exhibit pets in a room separate from the retail store are not covered by the retail pet store exclusion. (27) APHIS's definition of retail pet store has been challenged as overly inclusive and contrary to congressional intent because the agency has construed the statute and its own regulations as providing a blanket exemption, through the retail pet store exclusion, to individuals who breed and sell dogs within their home directly to consumers. (28) The U.S. Court of Appeals for the District of Columbia upheld APHIS's interpretation of retail pet store as consistent with the AWA, in part because it allowed the agency to focus its resources on wholesalers which the agency argued were at a higher risk of violating animal welfare standards. (29)

    APHIS regulations establish minimum care requirements that commercial dealers are required to meet in order to maintain their federal license. (30) These regulations specify standards for housing and sheltering of the animals, (31) feeding, (32) providing water, (33) exercising, (34) adequate veterinary care, (35) and sanitation. (36) For example, each dealer is required to have a formal arrangement employing an attending veterinarian. (37) This arrangement is supposed to "include a written program of veterinary care and regularly scheduled visits to the premises of the dealer." (38) Regulations require "[t]he use of appropriate methods to prevent, control, diagnose, and treat diseases and injuries, and the availability of emergency, weekend, and holiday care" and also require "[d]aily observation of all animals to assess their health and well-being ... so that timely and accurate information on problems of animal health, behavior, and well-being" can be communicated to the veterinarian. (39)

    The regulations provide very minimal standards of care for the dogs kept by commercial dealers; the largest problem, however, is that even these nominal standards are barely enforced and dogs are often subjected to a much lower standard of care. (40) Dealers are subject to inspections prior to licensing to ensure compliance with the AWA and regulations; once a license is obtained, dealers are inspected without prior notice at least twice a year. (41) Violations found during these inspections can result in suspended or revoked licenses, monetary penalties, or criminal penalties. (42) In the face of growing public opposition to puppy mills, the Office of the Inspector General conducted an audit of APHIS's inspections of problematic dog dealers and published the resulting report in May of 2010. (43) The report evaluated whether the Animal Care Unit effectively enforced provisions of the AWA against dealers that had a history of violations within the previous three years. (44)

    The report concludes that between the fiscal years of 2006 and 2008, the Animal Care Unit was ineffective in enforcing compliance by dealers with the AWA and corresponding regulations. (45) The report points to an overreliance on education and cooperation as a means of achieving compliance, which has resulted in "the agency...

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