FAYETTEVILLE — The city’s ordinance banning the retail sale of pets does not violate state law and has sufficient rationale, City Attorney Kit Williams argued in a summary judgment motion in a lawsuit involving the Petland retail store.
Williams filed the motion Nov. 14 in Benton County Circuit Court. The request was in response to a lawsuit filed against the city in August by Samantha Boyle and Boyle Ventures, which operate Petland stores in Rogers and Fayetteville. Boyle lives in Rogers and asked to hear the case in Benton County.
The Fayetteville City Council voted 8-0 on July 19 to ban the retail sale of pets. It bans the sale of dogs, cats, puppies, and kittens in retail stores unless it is in partnership with the city’s animal shelter or another animal shelter or nonprofit organization approved by the city’s Animal Welfare Department.
An emergency clause, which would have put the ban into effect immediately, failed 4:4. Holly Hertzberg, Sarah Bunch, Sonia Gutierrez Harvey and D’Andre Jones voted in favour. Mark Kinion, Mike Wiederkehr, Sloan Scroggin and Teresa Turk voted against.
Benton County District Judge Doug Schrantz signed an injunction in August barring the city from enacting the ordinance. The city agreed to forego an injunction hearing and instead filed a summary judgment motion.
Much of the discussion during the July 19 Council meeting revolved around large-scale breeding facilities, commonly known as puppy mills. Justine Lentz, the city’s animal welfare director, said puppies sold in retail stores are often from such facilities. These facilities put the animals in deplorable conditions, and the retail sale of the animals helps drive demand, she said. The council heard from a number of animal welfare advocates who described the negative effects of mass breeding on the health and behavior of pets, putting both the animals and their owners at risk.
At the time, Petland was weeks away from opening his Joyce Boulevard store.
The lawsuit states that the city’s ordinance contradicts and is inconsistent with Arkansas law and is unconstitutional.
Boyle’s attorney, George Rozzell of Fayetteville, has until December 5 to respond to the city’s motion for summary judgment.
“We have reviewed the city’s application and disagree with its premises, both legally and factually,” Rozzell said. “We look forward to submitting our response in accordance with the Rules of Procedure.”
State law says cities can make ordinances with any reasonable basis for doing so, Williams said. Williams cited a 1991 Supreme Court case in which the court ruled that cities can enact ordinances on any basis that has a lawful purpose.
The mere possibility of public harm is sufficient for a city to issue an ordinance, the court ruled in this case. The judiciary does not review the wisdom or accuracy of a city’s ordinance, and only a city ordinance that is “entirely arbitrary and capricious” and “without any indication of an intentional and lawful purpose” can be held unconstitutional, the decision said .
In his motion, Williams said the ordinance does not violate two state statutes that Rozzell accused the city of violating. One statute, the Arkansas Pet Shop Consumer Protection Act, has no relevance to the regulation, Williams said. The law offers guarantees to consumers rather than authorizing a pet store to operate in the state, he said.
Another state law, the Workplace Animal Welfare Act, also does not affect the ordinance, Williams said. The law only applies to animals used commercially to perform a specific task or function, not pets, he said. The bill’s sponsor, State Rep. Craig Christiansen, R-Bald Knob, told his co-legislators before the bill passed that it was not intended to cover puppy factories, nor to hinder a city’s ability to control them. Fayetteville’s ordinance is intended to prevent puppy factory outlets from having a place in town to sell their animals, Williams said.