Puppies, Puppies, Puppies: Why Georgia Should "adopt" a Progressive Puppy Lemon Law and Engage in Much-needed Statutory Reform

• Publication year: 2020

Puppies, Puppies, Puppies: Why Georgia Should "Adopt" a Progressive Puppy Lemon Law and Engage in Much-Needed Statutory Reform

Jonathan T. Tortorici
University of Georgia School of Law

PUPPIES, PUPPIES, PUPPIES: WHY GEORGIA SHOULD "ADOPT" A PROGRESSIVE PUPPY LEMON LAW AND ENGAGE IN MUCH-NEEDED STATUTORY REFORM

Jonathan T. Tortorici^*

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The Georgia Animal Protection Act—a set of animal protection laws that has remained unchanged for nearly two decades—was passed to promote animal welfare across the state. Although the Act was progressive at its inception, its failure to curb the atrocious conditions created by puppy mills has become increasingly apparent, resulting in serious consequences for both consumers and dogs. Georgia must amend its animal protection laws to shift the costs of puppy mills to where they belong: on pet sellers. Among other innovative solutions to this problem, many states have enacted "puppy lemon laws" that generally provide pet purchasers with the option to return, exchange, or be reimbursed for reasonable veterinary expenses for their "sick" puppy. But traditional puppy lemon laws may be put to better use as cost internalization tools rather than as mere consumer remedies.
This Note advocates for a puppy lemon law that provides the consumer with just one remedy: reimbursement for reasonable veterinary costs after purchasing a sick puppy from a pet seller. Traditional puppy lemon laws have many weaknesses, and the true utility of such laws may be in deterring pet sellers from supporting puppy mills in the first place. By enacting a progressive puppy lemon law that considers all of the interested parties, alongside the other recommendations in this Note, Georgia can secure its position as a state with model animal welfare laws and—most importantly—can save lives.

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Table of Contents

I. Introduction....................................................................433

II. The Current State of the Law in Georgia.................434

A. THE FEDERAL ANIMAL WELFARE ACT........................434
B. THE GEORGIA ANIMAL PROTECTION ACT...................436
C. THE GEORGIA DEPARTMENT OF AGRICULTURE'S ANIMAL PROTECTION RULES: CHAPTER 40-13-13.....................437
D. HOUSE BILL 144........................................................439

III. Connecting Law to Economics: Cost Internalization............................................................441

IV. Categorical Approaches Taken by Various States. 443

A. MINIMUM STANDARDS OF HEALTHCARE....................443

1. Standards Prescribed by Law..........................444
2. Organizational and Industry Standards........445

B. PUPPY "LEMON LAWS" ..............................................447

1. Florida's Puppy Lemon Law............................448
2. The Proposed Puppy Lemon Law in the Georgia Petland Bill.........................................450

C. REGULATIONS ON SELLING ANIMALS AT PET STORES 450

1. Total Bans on the Retail Sale of Dogs.............452
2. Rescue-Only Alternative...................................452

V. Proposals for Georgia..................................................453

A. AMENDING THE GEORGIA ANIMAL PROTECTION ACT . 454

1. Mandatory Vaccinations and Microchipping.. 454
2. A Progressive Puppy Lemon Law Proposal ..... 456
3. No "Preemption Clauses"..................................461
4. Additional Recommendations..........................462

B. UTILIZING PUBLIC DATABASES TO INCREASE TRANSPARENCY AND SPREAD AWARENESS................463

VI. Conclusion....................................................................465

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I. Introduction

"Man's best friend." For centuries, this outmoded phrase has been used to refer to everyone's favorite fluffy companion.¹ A recent study found that 67% of U.S. households own a pet; collectively, these households own nearly 63.4 million dogs.² But how humane is the production of these pets? While federal and state legislation typically provide for the bare minimum levels of care associated with large commercial breeders, the laws "explicitly exclude small-volume breeders,"³ something worth considering when scrolling through the various advertisements for pets found on websites like Craigslist. In 2008, following an investigative report on the Oprah Winfrey Show of the commercial pet industry, Americans became more aware of the atrocious conditions in "puppy mills."⁴ Puppy mills are commercial breeding facilities that "mass produce purebred puppies in poor to horrifically bad conditions of housing and care."⁵ Unfortunately, this practice—which prioritizes profits at the expense of animal welfare—is not a new concept.⁶ While the federal Animal Welfare Act of 1970 (the AWA) sought to address the issues raised by puppy mills, scholars have critiqued the AWA as not only ineffective, but ironically counterproductive to animal welfare.⁷ While states reserve the discretion to pass more effective

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regulations of the commercial pet industry, many states fail to do so because they rely on the AWA.⁸ Although the Georgia Legislature has enacted the Georgia Animal Protection Act⁹ —and the Georgia Department of Agriculture has promulgated rules pertaining to animal protection¹⁰ —the statutory language still leaves too much room for abuse in the commercial pet industry. Such mistreatment of dogs has been going on long enough; it is time for Georgia to match the efforts of other progressive states and help these animals that cannot advocate for themselves.

Part II of this Note begins with a discussion of the current state of the law in Georgia pertaining to the retail sale of dogs. Next, Part III identifies the overarching problem with much of the law in this area: a lack of cost internalization on breeders and pet sellers. Part IV subsequently addresses the various categorical approaches that other states have taken to address this issue. Finally, Part V explores proposals for how Georgia, specifically, should respond to this issue and amend its existing laws. Part VI briefly concludes.

II. The Current State of the Law in Georgia

After households across the United States experienced a significant increase in pet ownership during the 1920s, state legislatures and municipal governments actively passed numerous laws regulating the purchase and sale of dogs.¹¹ Today, American dog law has arguably been "primarily or wholly intended to promote human interests" while only "secondarily or incidentally enhancing the well-being of the animals."¹²

A. THE FEDERAL ANIMAL WELFARE ACT

The AWA, as briefly mentioned above, applies to the sale of dogs in interstate commerce and—according to the accompanying

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congressional statement of policy—is intended to provide for three goals: (1) "humane care and treatment" of animals used for research or exhibition purposes; (2) "humane treatment of animals during transportation in commerce; and" (3) protection for owners from "theft of their animals."¹³ Under the AWA, the Secretary of Agriculture is responsible for promulgating the standards "to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors."¹⁴ To enforce these statutory minimums, the AWA requires dealers and exhibitors of animals to have a valid license authorizing them to engage in the sale of animals in interstate commerce,¹⁵ and the Secretary of Agriculture is responsible for investigating and inspecting the facilities.¹⁶ Critics cite numerous shortcomings of the AWA, ranging from lenient penalties¹⁷ to loopholes in the text.¹⁸ Although a deeper analysis of the AWA is beyond the scope of this Note, which focuses on the production and sale of dogs solely within the state of Georgia, the limitations of the federal regulations are analogous to the structural issues found within the Georgia-specific legislation discussed in the following sections.

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B. THE GEORGIA ANIMAL PROTECTION ACT

The AWA and the Georgia Animal Protection Act (the GAPA) function concurrently with one another; indeed, the state legislation instructs the Georgia Commissioner of Agriculture to "cooperate" with the U.S. Secretary of Agriculture in "carrying out" the AWA.¹⁹ Analogous to the federal structure, the GAPA provides for a licensing mechanism where each person acting as a pet dealer or operating a kennel, stable, or animal shelter must have "a valid license issued by the Commissioner" or risk prosecution for a misdemeanor.²⁰ Licenses may be suspended or revoked for, among other things, failing "to possess the necessary qualifications" or "to provide proper facilities" for the animals.²¹ The GAPA also outlines several important processes related to the regulation of dogs, ranging from required microchip identification scanning²² to the appropriate euthanasia procedures for animal shelters.²³

More pertinent to the discussion of the sale of dogs is the section of the GAPA describing unlawful acts.²⁴ The statute provides several acts or omissions that violate the GAPA, such as failing to keep certain premises "in a good state of repair, in a clean and sanitary condition, adequately ventilated, or disinfected when needed;" to administer "humane care for any animal;" or "to take reasonable care to release for sale, trade, or adoption only those animals that appear to be free of disease, injuries, or abnormalities."²⁵ Any person violating the provisions of the GAPA

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is guilty of a misdemeanor,²⁶ except as otherwise provided in the statutory law for animal cruelty²⁷ and dogfighting.²⁸

A final noteworthy aspect of the GAPA is that the article is "cumulative" and allows municipalities in Georgia to enact and enforce local ordinances, so long as they "are not in conflict" with the GAPA's provisions.²⁹ As a result, several counties have additional regulations pertaining to the sale of dogs; these municipal regulations are concurrent with the GAPA, similar to the concurrent nature of the Federal AWA and...