Fayetteville asks for judgment in lawsuit over retail sale of pets
— The city’s ordinance banning the retail sale of pets doesn’t violate state law and has sufficient rational basis, City Attorney Kit Williams argued in a motion for summary judgment in a lawsuit with the retail store Petland.
Williams filed the motion Nov. 14 in Benton County Circuit Court. The motion was in response to a lawsuit filed in August against the city by Samantha Boyle and Boyle Ventures, which operates Petland stores in Rogers and Fayetteville. Boyle lives in Rogers and asked the case be heard in Benton County.
Fayetteville’s City Council voted 8-0 July 19 to ban the retail sale of pets. It prohibits the sale of dogs, cats, puppies and kittens in retail stores unless from or in cooperation with the city’s animal shelter or another shelter or nonprofit organization approved by the city’s animal services division.
An emergency clause that would have had the ban take immediate effect failed 4-4. Holly Hertzberg, Sarah Bunch, Sonia Gutierrez Harvey and D’Andre Jones voted in favor. Mark Kinion, Mike Wiederkehr, Sloan Scroggin and Teresa Turk voted against.
Benton County Circuit Judge Doug Schrantz signed a temporary restraining order in August prohibiting the city from enacting the ordinance. The city agreed to waive a hearing on the temporary restraining order, and instead, filed the motion for summary judgment.
Much of the discussion during the July 19 council meeting centered on high-volume breeding facilities commonly known as puppy mills. Justine Lentz, the city’s animal services director, said puppies sold in retail outlets often come from such facilities. Those facilities put animals in deplorable conditions, and the retail sale of the animals helps increase demand, she said. The council heard from
a number of animal-welfare advocates who described the negative ramifications of mass breeding on pet health and behavior, which endangers the animals as well as their owners.
At the time, Petland was weeks away from opening its store on Joyce Boulevard.
The lawsuit says the city’s ordinance is contrary to and inconsistent with Arkansas law, and it’s unconstitutional.
Boyle’s attorney, George Rozzell of Fayetteville, has until Dec. 5 to respond to the city’s motion for summary judgment.
“We have reviewed the city’s motion and disagree with its premises, both legally and factually,” Rozzell said. “We look forward to submitting our response in compliance with the rules of procedure.”
State law says cities can pass ordinances with any rational basis for doing so, Williams said. Williams cited a state Supreme Court case from 1991 in which the court ruled cities can pass ordinances with any rationale that has a lawful purpose.
The mere possibility of public harm is enough for a city to pass a regulation, according to the court’s decision from that case. The judiciary doesn’t review the wisdom or rightness of a city’s regulation, and only a city regulation that is “utterly arbitrary and capricious” and “void of any hint of deliberate and lawful purpose” can be deemed unconstitutional, the decision says.
In his motion, Williams said the ordinance doesn’t violate two state laws Rozzell accused the city of violating. One law, the Arkansas retail pet store consumer protection act, has no relevance to the ordinance, Williams said. The law provides guarantees to consumers rather than empowering any pet store to operate in the state, he said.
Another state law, the working animal protection act, also has no bearing on the ordinance, Williams said. The law only applies to animals used in commerce to perform a specific duty or function, not pets, he said. The sponsor of the law, state Rep. Craig Christiansen, R-Bald Knob, told his fellow legislators before the law’s passage it wasn’t meant to cover puppy mills, nor impede a city’s ability to control them. Fayetteville’s ordinance is meant to prevent outlets for puppy mills to have a place in the city to sell their animals, Williams said.