Federal court upholds PA dog law

A federal judge today upheld the constitutionality of key provisions in the state's year-old law governing commercial dog kennels.

The Professional Dog Breeders Advisory Council, which represents Pennsylvania's commercial kennels, two New Jersey pet store owners (Susan Inserra and Nat Sladkin) and a Pennsylvania dog breeder (Nathan Myer), sued the Commonwealth on an array of constitutional grounds alleging, among other things, that kennel inspections constituted unlawful search and seizure and that the kennel license revocation procedure violates kennel owners' due process rights.

In a ruling yesterday, U.S. District Judge Sylvia H. Rambo, of the Middle District, rejected those claims and found that the state has the authority to conduct unannounced inspection of regulated industry such as dog kennel operations and that the Secretary of the Department of Agriculture has the authority to revoke licenses under appeal. The plaintiffs attorney said his clients had not yet decided whether to appeal.

Rambo struck down one section of the law regarding fees paid by out-of-state dog dealers as a violation of the interstate commerce clause. That means out-of-state dealers including pet stores, brokers and rescues will no longer have to pay the $300 fee. It was unclear if they would have to still apply for a license.

Outgoing Agriculture Sec. Dennis Wolff, who was named in the suit, did not return a call seeking comment.

[Wolff, who advocated for the legislation on behalf of Gov. Rendell, has joined Versant Strategies, the lobbying firm now representing the Pennsylvania Professional Dog Breeders Association, whose members include some 300 commercial kennels.]

The new dog law, which applies to breeders who sell 60 or more dogs a year or sell dogs to pet stores, establishes higher standards for large kennels among them, larger cage sizes, mandatory exercise, veterinary exams for breeding dogs. It also bans wire cage flooring and stacking of cages. The structural changes under the new law goes into effect on Oct 9.

Enforcement of the license revocation appeal provision of the law was suspended after the lawsuit - and the threat of an injunction to halt enforcement of the entire law - was filed in February. In an order filed in U.S. District Court, the state allowed commercial breeders appealing their license revocations to continue to operate pending the outcome of the case.

Under the law, the department has the right to issue cease and desist orders restricting breeders from selling or buying more dogs while their revocation cases are on appeal. At the time it had issued two such orders; one against Derbe Eckhart's Almost Heaven kennel in Lehigh County, the bureau and the other against Daniel Esh of Scarlet-Maple Farm in Lancaster County. The two are among the largest breeders in the state and both have long, troubled histories including multiple dog law violations. Eckhart has twice been convicted on animal cruelty charges.

It was unclear when the state would begin enforcement of that provision again.

Kevin Harley, a spokesman for Attorney General Tom Corbett, said Corbett was pleased with the ruling because the newly-strengthened law "adequately protects the health and welfare of dogs housed in large kennels," as well as consumers who purchase puppies raised in Pennsylvania.

Attorney Len Brown III, of Lancaster-based Clymer and Musser, who represented the plantiffs, said he was pleased the judge found for his clients' on the out-of-state license fees but was disappointed in the rest of the ruling.

 "This law will destroy families who have been in this industry for years," said Brown, adding it also would harm consumers by driving business out of the state.

Jonathan Lovvorn, chief counsel for the Humane Society of the United States, called the ruling a "fantastic victory" for thousands of dogs suffering in commercial kennels in Pennsylvania.

"They threw everything at the law, including the entire Bill of Rights, and failed on all counts except out-of-state dealers," said Lovvorn, whose group was one of a number of other animal welfare organizations that filed a friend of the court brief in support of the state.

Garen Meguerian, a Chester County-based attorney who worked on the case, pointed out that Rambo in her ruling, used information provided by dog breeders to support the state's case.

To wit:

According to Plaintiffs there are over 2,600 kennels in the Commonwealth, most of which earn their profit from the sale of puppies. (Doc. 15 at 12.) On average, a female dog in a kennel will be impregnated
every seven to eight months, with at least fifteen-percent of all female dogs in a
kennel birthing at one time. (Id.) The apparent goal is to ensure that “at all times
female dogs . . . are either bred and carrying puppies or birthing puppies and
prepared for being bred again.” (Id. at 13.) Kennels try to “maintain a constant
stream of puppies for sale, [meaning] female dogs must be continually bred and
puppies born and sold.” (Id.) Many of these female dogs are kept in kennels their
entire lives and are never permitted outdoors. Puppies born from these dogs sell for
between $250 to $550 if sold between eight and twelve weeks old. Puppies more
than seventeen weeks old are deemed “worthless” by breeders.8 (Id.) Given the
prevalence of dog kennels, and the enormous profit they tend to generate, the
Commonwealth has provided a rational basis for ensuring some sort of regulation of
the industry.

Both parties agree that the purpose of the Dog Law and Act 119 is “to
protect the health, safety and welfare of dogs.” The state has a legitimate interest in
protecting domestic animals, and the statute in question is rationally related to this
objective. The Dog Law, as amended by Act 119, sets minimum standards that dog
breeders and kennel owners must abide by. These standards relate to such things as
dog licenses and tags, kennel conditions, the transportation of dogs, inspections of
dogs and the premises in which they are kept, as well as various other tasks not in
question here.

In a footnote in her 33-page ruling, Rambo notes, "Plaintiffs fail to elaborate at what exactly becomes of these 'worthless' dogs, but it seems apparent that the state has an interest in ensuring whatever action is taken is carried out humanely."