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02-09-09 -- PROFESSIONAL DOG BREEDERS FILE FEDERAL CIVIL SUIT
Allege New Dog Law Violates Rights
Press Release
By: Robert Yarnall, President, American Canine Association, Inc.
21 South Limerick Drive, Royersford, PA 19468
610-858-1154

ROYERSFORD (PA) – The Professional Dog Breeders Advisory Council, Inc., along with Clymer & Musser Law Firm in Lancaster, Pennsylvania, announced today the filing of a federal civil action against Dennis Wolff, Secretary of the Pennsylvania Department of Agriculture.

The federal civil suit alleges that the recently enacted changes to Pennsylvania’s Dog Law, enrolled as Act 119 of 2008, violates numerous rights guaranteed under the United States Constitution, including discriminating against out-of-state kennel operators, providing for the entry into a home of a kennel owner without probable cause, creating disparate regulatory schemes for similarly situated kennels, and eliminates due process rights when official action of the Department of Agriculture is taken.

“Since the inception of House Bill 2525, now Act 119 of 2008, the Professional Dog Breeders, along with other organizations, have expressed sincere concerns about the constitutionality of many of the new law’s provisions,” said Bob Yarnall, Jr., President of the American Canine Association, Inc. and board member of the Professional Dog Breeders Advisory Council, Inc. “Unfortunately the Governor, in his desire to shut legitimate commercial kennels down, included a host of constitutionally prohibited requirements into a law that should be designed to protect the health, safety and welfare of dogs – not unnecessarily trample the rights of humans.”

The federal civil action alleges that Act 119 is clearly violates Article I of the United States Constitution, which gives the United States Congress the sole authority to regulate interstate commerce. Under the new law, out-of-state dog breeders must pay a $300 premium over the amount paid by Pennsylvania dealers to obtain a dealer license from the Pennsylvania Department of Agriculture. Further, if the Department revokes or refuses an out-of-state dealer license, the dealer must immediately, “cease and desist from operating a kennel including boarding, buying, exchanging, selling, offering for sale, giving away, or in any way transferring dogs.”

According to the complaint, the Department’s effort to regulate interstate commerce constitutes economic protectionism, which is a regulatory measure designed to benefit in-state economic interests by burdening out-of-state competitors, as well as discriminating against out of state dealers by charging them a higher fee for a kennel license than those charged to instate dealers. State laws that have the “practical effect” of regulating business outside of the state constitute per se violations of the Commerce Clause.

The Professional Dog Breeders also contend that Act 119 unconstitutionally subjects kennels and dealers to searches by agents of the Department of Agriculture without a proper warrant. Under the new statute, any kennel owner who refuses admittance to a State Dog Warden creates per se probable cause for the issuance of a search warrant. If a kennel owner refuses entrance for an inspection, the Act creates probable cause for issuance of a warrant based on the mere fact that the owner denied entrance. The Act also empowers the Department and its employees to enter the “premises of any person for the purpose of investigation,” including any home or other building in which a dog is kept.

It is a generally held principle of law that the warrantless search of a home or business is presumptively unreasonable, and the test for reasonableness of probable cause is the need to search against the invasion the search entails. Warrants are necessary and a tolerable limitation on the right to enter upon and inspect commercial premises. Act 119 allows the Department and its agents to enter into not only the business premises but the homes of kennel owners without a constitutionally sufficient search warrant. According to the filing, the Director of Dog Law
Enforcement, Jessie Smith, has stated at meetings that if a kennel owner has any pet dogs in their home, then the home is subject to search under the new dog law. The filing alleges that such laws violate the Fourth Amendment to the United States Constitution.

A third constitutional deficiency that the Professional Dog Breeders raise in their federal action relates to the procedure governing the Department’s issuance of “cease and desist” orders under Act 119. The Act requires that when the Secretary of Agriculture issues a cease and desist order, the owner of a kennel must immediately stop operating a kennel, acquire no additional dogs, notify the department before euthanizing any dogs, and permit state dog wardens to inspect the kennel without a warrant. Such actions, under Act 119, result from the mere receipt of a
cease and desist order from the secretary.

The Professional Dog Breeders allege because a cease and desist order ends all business transactions of a kennel, a kennel owner is placed out of business without any meaningful opportunity to be heard or to appeal the decision of the secretary. Further, Act 119 contains no timeframe in which the Department must act on providing administrative review; this omission otherwise gives the Department unilateral authority to economically destroy a kennel which seeks an appeal of a cease and desist order, which violates the Due Process Clause of the Fourteenth Amendment to the United State Constitution.

The Breeders also raise an Equal Protection issue in their federal civil complaint. The Equal Protection clause of the Fourteenth Amendment protects against arbitrary government action by requiring similar treatment of those who are similarly situated. The suit alleges that Act 119 targets and singles out commercial kennels for treatment and scrutiny far different from all other kennels that are also regulated. The law includes an additional 12 pages of requirements solely for commercial kennels, including 27 different additional areas of regulation.

Only commercial kennels must:

1. Satisfy a 12 point requirement for primary enclosures;

2. Provide detailed amount of floor space for each nursing dog;

3. Conform to housing requirements of dogs based on sex;

4. Maintain a written program of veterinary care;

5. Comply with heating and cooling requirements for housing facilities;

6. Comply with ventilation requirements for housing facilities;

7. Comply with lighting requirements for housing facilities;

8. Comply with moisture requirements for housing facilities;

9. Follow detailed directives on cleaning of primary enclosures;

10. Abstain from stacking primary enclosures when dogs are less than 12 weeks old or more than two rows high and limit the height of the uppermost primary enclosure;

11. Provide for smoke alarm and fire extinguishers and sprinkler systems;

12. Provide for daily removal of various forms of dirt;

13. Comply with detailed cleaning requirements for primary enclosures;

14. Follow methods of sanitation or primary enclosures and food and water receptacles;

15. Conform surrounding grounds and buildings to various guidelines;

16. Institute a program for control of insects;

17. Permanently retain records;

18. Maintenance of veterinary records;

19. Seek the intervention of a veterinarian in order to euthanize dogs;

20. Refrain from stacking primary enclosures for dogs older than 12 weeks of age;

21. Provide floor space for dogs over 12 weeks of age and additional dogs;

22. Provide specific type of flooring in primary enclosures;

23. Follow guidelines for entry ways into primary enclosures;

24. Establish exercise requirements for dogs;

25. Provide for outdoor exercise for dogs;

26. Follow directives on administration of rabies vaccination; and

27. Have dogs examined by a veterinarian once every six months.

The Breeders believe that if animal welfare were the true goal of the new law, then the laws applying to commercial kennels would equally apply to all similarly situated entities, such as private kennels, boarding kennels, nonprofit kennels and rescue network kennels. Instead, these extensive and new requirements only apply to commercial kennels, further evidencing that the real goal of the new law is to drive commercial kennels out of business. According to Yarnall, “If the true goal was to protect the health, safety and welfare of dogs, then wouldn’t these new rules be good for all the dogs in Pennsylvania – regardless of location - not just some of them?”

Finally, the suit alleges that the Pennsylvania Department of Agriculture violated the Federal Privacy Act by requiring anyone seeking a kennel license to submit their social security number on an application. The Federal Privacy Act was designed to protect citizens against the improper use of a citizen’s social security number by governmental entities. No government entity may require someone to submit their social security number without notifying individuals whether the disclosure is mandatory or voluntary. In its 2008 kennel license application, the Department of Agriculture required the submission of the applicant’s social security number, failing to explain the statutory authority that requires disclosure or whether the disclosure would be voluntary.

The suit seeks to have the federal courts declare certain provisions of Act 119 found in sections 209, 219, 901, 207(a.3), (h) and (i) unconstitutional as they violate the Commerce clause and the Privileges and Immunities clause, the Fourth Amendment, and the Due Process and Equal Protection clauses of the Fourteenth Amendment of the United State Constitution, respectively. The suit asks the federal court to prevent the department of enforcing these provisions of the new law, to require the Department of Agriculture to reimburse all excess fees charged to out-of-state breeders, and to prevent the Department of collecting social security numbers in violation of the Federal Privacy Act.

“The Association takes this necessary action in order to provide for the uniform application of the law, to preserve the rights of our members, and to invite the Department of Agriculture to work with us to promote the best breeding operations in the nation – based on a collaborative effort, instead of a punitive one,” said Yarnall. “We have and will continue to support appropriate changes that will improve kennel conditions.”
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