The greatness of a nation and its moral progress can be judged by the way its animals are treated.

-Mahatma Gandhi

 

On 30 November, the City of Las Vegas held a meeting to get public comment regarding the proposed city ordinance that would ban pet stores from selling dogs that were purchased from a so-called "puppy mill."

Elizabeth Gadley of KTNV was nice enough to post a few photos from the public meeting. Folks look as cheerful about the subject as you would expect¹⁾Hard for me to think of a public meeting topic that would have most of the attendees smiling; these are our times, unfortunately.:

 

Half the room stood up to speak about bill that would stop pet stores from getting pets from puppy mills. @KTNV pic.twitter.com/vpvjlmbwVC

— Elizabeth Gadley (@EGadleyKTNV) November 30, 2015

Packed house as @CityOfLasVegas considers bill that would keep pet stores from getting dogs from puppy mills. @KTNV pic.twitter.com/SQpvDlMkih

— Elizabeth Gadley (@EGadleyKTNV) November 30, 2015

 

You can read a media account of the meeting here.

The city only took public comment at the meeting and did not pass any regulations, making this the best time to evaluate the law (as in, before it will go into effect). Before we can discuss the constitutionality of the proposed ordinance, however, it is best to take a step back and look at what a puppy mill is.

 

What is a Puppy Mill?

 

In short, very distasteful. In essence, they are factory farms for producing puppies at the best profit margins. Imagine you were going to attempt to breed dogs for the most amount of money possible, how would you do it?

1. Keep the female dogs in a constant state of pregnancy to produce the maximum number of puppies during the mother's lifetime.
2. Store the dogs in the smallest confines possible in an effort to keep costs as low as possible.
3. Leave the dogs in the cages in order to keep labor costs minimal.

Distasteful indeed.

This is not the correct forum to be anymore graphic than my description above, but the pictures of a puppy mill are the most persuasive. Take a little time if you are unfamiliar to check out these links before continuing:

 

http://www.humanesociety.org/news/publications/whitepapers/puppy-mill-research.html?referrer=https://www.google.com/

http://www.vice.com/read/i-worked-for-a-puppy-mill-915

http://www.newsweek.com/investigating-puppy-mills-94245

http://usatoday30.usatoday.com/news/nation/2007-10-31-puppy-mills-main_N.htm

 

https://www.aspca.org/animal-cruelty/puppy-mills

 

That should be sufficient. The City of Las Vegas is righteous and moral in its attempt to cease the sale of puppy mill dogs by area pet shops, and this piece will continue under that assumption. Yet, an inquiry into the constitutionality of the proposed ordinance is a different matter.

 

What Does the Las Vegas Puppy Mill Ordinance Say?

 

First, I would like to thank the folks managing the City of Las Vegas twitter account for providing me the text of the ordinance²⁾Unfortunately, the link provided no longer functions. I printed off of the ordinance while I had the chance and will quote from my hard copy..

The ordinance is only a page and half long, the most important part being Section 1(A):

No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose³⁾??? of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization

The ordinance goes on in Section 1(B) to require pet stores to keep certification that their animals are not from puppy mills for one year. Section 2 declares if one section of the ordinance is unconstitional, than the rest of the ordinance remains good law. Section 3 repeals any part of the city code in conflict with the new ordinance, and Section 4 defines the punishment for violation of the ordinance⁴⁾a fine of no more than $1,000 or a jail term of not more than 6 months.

Seems simple enough, right? Think again; this is constitutional law we are talking about after all.

 

Applying the Phoenix Puppy Mill Law for Comparison of Constitutionality

 

Multiple media accounts have stated, erroneously⁵⁾I'm sure it was an accident, that the Las Vegas ordinance is similar to the one passed by Phoenix. They are correct in stating that each concerns the subject of pet stores selling puppy mill dogs, but there is a very important distinction between the laws, which we will get to in a moment.

The Phoenix law is important because its constitutionality was challenged in federal court by the disaffected area pet store. As much of an⁶⁾self-proclaimed expert as I am of constitutional law, it seems reasonable to rely on the analysis of the Arizona judge regarding the constitutional questions at hand⁷⁾His 36 page opinion also happens to be well-reasoned and thoughtful

First, let's take a look at the Phoenix law:

8-3.06 Prohibition on sale of dogs or cats:

A.    No pet shop or pet dealer shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from:

1.    An animal shelter;

2.    A private, nonprofit humane society or nonprofit animal rescue organization; or

3.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

B.    All pet shops and pet dealers shall maintain records, for a period of one year from the date of acquisition, listing the source of all dogs or cats under their ownership, custody or control. Records shall be immediately available, upon request, to law enforcement, code compliance officials, and any other City employees charged with enforcing the provisions of this section.

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

Date of Addition/Revision/Deletion - Section 8-3.06

+1    Addition on 12-18-2013 by Ordinance No. G-5873, eff. 1-17-2014

 

Section A and B are very similar to the Las Vegas ordinance, which we will deal with first (Section C will come soon, not to worry).

That's right, now it is time to get out our pocket constitutions!⁸⁾Get out from under the desk, it's going to be ok.

Article I, Section 8 Clause 3 of the U.S. Constitution states that the Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Much of our discussion going forward will concern just those first three words.

 

Puppy Mill and the Dormant Commerce Clause

 

Is the ordinance constitutional? You are going to be sorry you asked..Kidding, please don't go! I promise we will get through this without too much pain⁹⁾I will skip the really trying parts.

Before we move on to the Commerce Clause analysis, I can hear our loyal readers shouting at their ithings¹⁰⁾trademark pending "I remember that GMO discussion regarding the Supremacy Clause. How can these municipalities regulate interstate commerce in this instance?" Great question! The difference here is that the federal law regulating the treatment of animals, the Animal Welfare Act, states that it "shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated¹¹⁾Subsection 2143(a)[1]. Thus, the answer to your question is that the states are permitted to regulate in this arena, so long as the rest of the constitution is abided by.

..Like the Commerce Clause above.

Now we need to define to the so-called Dormant Commerce Clause. Judge Campbell, the author of the Phoenix decision, explains it better than I can:

The Clause also contains a “‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.”...This negative aspect has come to be known as the “dormant Commerce Clause.”... Courts “analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach.”...“The first tier asks whether the Ordinance ‘either discriminates against or directly regulates interstate commerce.’” ...If so, the Ordinance is subject to strict scrutiny – a “virtually per se rule of invalidity[.]”...The second tier has come to be known as the Pike balancing test. Under Pike, the Court asks whether the burden the Ordinance imposes on interstate commerce is “clearly excessive in relation to the putative local benefits.” (citations omitted, emphasis added)¹²⁾Puppies 'N Love et al v. Phoenix, City of, F.Supp.3d . 2015 WL 4532586 (D. Ariz., 2015), p. 8 link

I will spare you anymore Commerce Clause discussion¹³⁾we could go deep into this rabbit hole; there is a reason the Phoenix opinion is 36 pages long, it is the bold part above that really is pertinent to our discussion. The Las Vegas law, like the Phoenix law, will not be subject to strict scrutiny¹⁴⁾because it does not directly regulate interstate commerce, but instead will be evaluated by the Pike balancing test.

We will assume, for sake of brevity, that the ordinances being discussed only incidentally affect interstate commerce. With that being so, the ordinance will be upheld "unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit."¹⁵⁾Id. at 28.¹⁶⁾This is where my more conservative friends get upset about judicial activism, and they have a point here. The judge will now evaluate the the effectiveness/value/purpose of the law, and if it is to her liking, then the law will obviously pass the balancing test. If the law seems frivolous in effectiveness/purpose/value then she will say that it does not pass the balancing test. One could argue these are evaluations that should be made by the legislature. If anyone dares to tell you that constitutional law is not political, that judges are just "referees," for example, stop taking that person seriously at once.

Judge Campbell weighs the factors of the Pike test in favor of Phoenix. He concludes:

“The modern law of what has come to be called the dormant Commerce Clause is driven by concern about ‘economic protectionism, that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” The Ordinance is not an act of economic protectionism. It is a legitimate attempt to curb the problems associated with the inhumane treatment of animals and local dog homelessness and euthanasia. (citation omitted) ¹⁷⁾Id. at 30.

There is no reason to think the the proposed Las Vegas ordinance would not pass a similar evaluation, given that the need to curtail the inhumane treatment of animals and help find homes for homeless animals is no less serious here. A similar law in Chicago was also recently upheld.

 

Where the Las Vegas Puppy Mill Ordinance May Have Some Constitutional Trouble..

 

So everything's dandy right? The Phoenix law got the sign-off from a federal judge, so there is no reason to to think the Las Vegas ordinance will have any legal trouble...or is there?

Recall earlier that I claimed the Phoenix law differs from the Las Vegas ordinance in one major regard. Allow me to reproduce Section C of the Phoenix Ordinance:

C.    This section does not apply to:

1.    A person or establishment, other than a pet shop or pet dealer, which displays, sells, delivers, offers for sale, barters, auctions, gives away, brokers or otherwise transfers or disposes of only dogs and cats that were bred and reared on the premises of the person or establishment;

2.    An animal shelter;

3.    A private, nonprofit humane society or nonprofit animal rescue organization; or

4.    An animal shelter, nonprofit humane society or nonprofit animal rescue organization that operates out of or in connection with a pet shop.

D.    Nothing in this section shall prevent a pet shop or pet dealer from providing space and appropriate care for animals owned by an animal shelter, nonprofit humane society or nonprofit animal rescue agency and maintained at a pet shop for the purpose of adopting those animals to the public.

The proposed Las Vegas ordinance copied Sections A and B from Phoenix, but left out the above text. Why? Well, I am happy to speculate. Of the 36-page opinion quoted above in our Dormant Commerce Clause discussion, more than 2/3rds of it addresses the constitutionality of Part C. Any serious constitutional challenge to the ordinance would concern the municipalities creating an economic climate that favors local sellers to the detriment of out-of-state sellers.¹⁸⁾Judge Campbell upheld Section C above as constitutional, by the way.

Perhaps the City of Las Vegas thought the best way to avoid a constitutional challenge would be to delete the most controversial language of the Phoenix ordinance¹⁹⁾Or maybe their copy/paste functions as well as mine. Politically, this seems like the best course of actions and the city attorney should be commended on his cleverness.

But this may have unintended consequences.

Chew on this question: Based on the quoted language of the Las Vegas ordinance above²⁰⁾No pet shop shall display, sell, deliver, offer for sale, barter, auction, give away, broker or otherwise transfer or dispose of a dog or cat except for a dog or cat obtained from an animal shelter, nonprofit humane society, or nonprofit animal rescue organization, what is the definition of "pet shop"?

The purpose of Section C of the Phoenix ordinance is to clarify what businesses the new ordinance would apply to. There is no language in the Las Vegas ordinance addressing this issue.

This is a big deal, honest. If you breed your own dog and sell a puppy to a neighbor, are you a pet shop? If not, how many dogs would you have to sell before you would be classified as a pet shop? Are only shops with business licenses considered pet shops?²¹⁾And so on, and so on.

There's a constitutional law theory called the Vagueness Doctrine that may come into play here. The Legal Information Institute will assist us with a definition:

1) A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable.  Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.²²⁾Source

A word on the practicalities of constitutional law before we continue. A law or ordinance is never unconstitutional on its face; meaning, the legislature/city council cannot pass a law that is unconstitutional upon ratification. A court must declare a law unconstitutional for it to be so. My point being that all laws are constitutional until a court says otherwise.

So, for the sake of this conversation, neither of these ordinances, as passed, are unconstitutional. I am only saying that there may be a risk that a court might declare the ordinances unconstitutional.

The City of Las Vegas, while cleverly²³⁾I mean that in the true connotation of the word omitting the disputed language from the Phoenix case, may have opened the door to a different constitutional issue. One might say that it makes more sense²⁴⁾in terms of risk, not to mention good law/clarity to just include language similar to Section C of the Phoenix ordinance as a federal judge has already declared it constitutional. Why open a fresh can of worms with little legal precedent?

 

That was fun, right? I appreciate you sticking around and spending a little time with us on the Clear Counsel blog. If you are thinking of adopting, I highly recommend the Nevada SPCA²⁵⁾That little dog in my avatar came from there. They even post photos online of the dogs (and other animals) available for adoption. Look at those cute faces and tell me your home would not be improved with a little fury friend!

http://www.nevadaspca.org/adoptable-animals/adoptable-dogs

 

A couple more links for further reading:

 

http://lasvegas.suntimes.com/las-news/7/104/18721/puppy-mill-regulations-map

 

http://www.abajournal.com/magazine/article/anti_puppy_mill_legislation_across_the_country_is_dogging_pet_stores/