[ SHOWGSD-L ] PROFESSIONAL DOG BREEDERS FILE FEDERAL CIVIL SUIT,Allege New Dog Law Violates Rights

  • From: stormy435 <stormy435@xxxxxxx>
  • To: "showgsd-l@xxxxxxxxxxxxx" <showgsd-l@xxxxxxxxxxxxx>
  • Date: Tue, 10 Feb 2009 11:18:49 -0800

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.Â?

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, Â?cease and desist from operating a kennel including
boarding, buying, exchanging, selling, offering for sale, giving away, 
or in any way transferring dogs.Â?

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,Â? 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?Â?

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 Â? 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.Â?

--
Stormy Hope
carpoc.org
GSDCA Member
And more clubs

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