Puppies 'N Love v. City of Phx.

283 F.Supp.3d 815

PUPPIES 'N LOVE, Frank Mineo, and Vicki Mineo, Plaintiffs,

v.CITY OF PHOENIX, et al., Defendants,

No. CV–14–00073–PHX–DGC

United States District Court, D. Arizona.

Signed October 18, 2017

Amanda Lucile Thatcher, Daniel Abraham Arellano, Kathleen Kelly Kahn, Randall Papetti, Robert Gerald Schaffer, Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for Plaintiffs.

Eric Michael Fraser, Osborn Maledon PA, Robert Aloysius Hyde, Thomas George Stack, Sharon K. Haynes, City of Phoenix Attorneys Office, Phoenix, AZ, for Defendants.

ORDER

David G. Campbell, United States District JudgePlaintiffs brought suit against Defendant City of Phoenix, challenging a City ordinance that prohibits pet stores from selling dogs and cats supplied by commercial breeders ("the Ordinance"). See Phoenix City Code § 8–3.06. Plaintiffs argued that the Ordinance violated the Dormant Commerce and Equal Protection Clauses of the U.S. Constitution as well as the Arizona Constitution's prohibition on special laws, and was preempted by state law. Doc. 1. The Court permitted the Humane Society of the United States ("HSUS") to intervene. Doc. 37. The Court granted summary judgment to Defendant and HSUS, ruling that the Ordinance did not violate the U.S. or Arizona Constitutions and was not preempted because it did not conflict with state law. Doc. 177.

While an appeal from this decision was pending before the Ninth Circuit, the Arizona Legislature enacted State Bill 1248. Contrary to the requirements of the Ordinance, the new law specifically allows pet stores to sell dogs and cats obtained from commercial breeders that meet certain requirements. A.R.S. § 44–1799.10. The law contains an express preemption provision, stating that any local ordinance that imposes stricter requirements on pet dealers "is preempted." A.R.S. § 44–1799.11.

In light of this new statute, Plaintiffs filed a motion to dismiss in the Ninth Circuit, arguing that the statute preempted the Ordinance and mooted this case, and that automatic vacatur of this Court's summary judgment was appropriate. Doc. 209–1 at 2–17. The City and HSUS opposed the motion, arguing the case was not moot because the statute did not preempt the Ordinance under the Arizona Constitution, and that automatic vacatur was not appropriate because Plaintiffs persuaded the Arizona Legislature and Governor to adopt the new statute. Id. at 75–97. In response, the Ninth Circuit remanded the case to this Court "for consideration of the effect, if any," of the new legislation. Doc 207–1. Thus, the case has been fully remanded to this Court for consideration of the new statute.

The Court held a status conference on May 17, 2017. The parties and the Court agreed that the parties would file supplemental memoranda and stipulated facts on the preemption and vacatur issues. The parties have since made these filings. Docs. 216, 217, 218, 221. Plaintiffs' counsel stated at the status conference that they did not need further oral argument. Defense counsel reserved the right to request oral argument, but have not done so. See Doc. 218. After considering the briefs, stipulated facts, and relevant cases, the Court finds that the new statute preempts the Ordinance and that the summary judgment in favor of Defendant and HSUS should be vacated.

I. Background.

Plaintiffs, their counsel, and their lobbyists drafted proposed legislation, contacted and met with legislators, and testified before the Arizona Legislature. Doc. 216 ¶¶ 1–9. Defendant and HSUS countered with a lobbying effort of their own. Id. ¶¶ 10–15. The Arizona Legislature ultimately enacted the proposed legislation and the Governor signed it into law. Doc. 216–1 at 30–31. The new law took effect on August 6, 2016, as A.R.S. §§ 44–1799.10 and 44–1799.11.

The statute provides that a pet store or dealer "may not obtain a dog or cat for resale or sell or offer for sale any dog or cat obtained from a person who is required to be licensed by the pet dealer regulations of the United States department of agriculture" and who either is not currently licensed or has violated various regulations. A.R.S. § 44–1799.10(A). Thus, if breeders are currently licensed by the Department of Agriculture and have not violated the specified regulations, the statute permits pet stores or dealers to acquire dogs and cats from them. The statute expressly preempts any local law that imposes stricter regulations than the statute or prohibits the sale of a dog or cat "based on the source from which the animal is obtained if obtained in compliance with § 44–1799.10." A.R.S. § 44–1799.11. The Ordinance—which provides that pet stores and dealers can only sell animals obtained from shelters or nonprofit rescue organizations—imposes stricter regulations than the statute. Doc. 177 at 7. The parties agree that the statute is designed to preempt the Ordinance. Doc. 209 at 2.

II. Discussion.

A. Preemption.

The Arizona Constitution has a home-rule charter provision. Under this provision, "eligible cities may adopt a charter—effectively, a local constitution—for their own government without action by the state legislature." City of Tucson v. State , 229 Ariz. 172, 273 P.3d 624, 626 (2012). "The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible. Under it a city may provide for the exercise of every power connected with the proper and efficient government of the municipality where the legislature has not entered the field." City of Tucson v. Walker , 60 Ariz. 232, 135 P.2d 223, 226 (1943) (internal quotation marks omitted). "The City of Phoenix, as authorized by the Arizona Constitution, Article 13, Section 2, has adopted a charter permitting it to enact municipal ordinances." State v. McLamb , 188 Ariz. 1, 932 P.2d 266, 269 (Ariz. Ct. App. 1996).

As a charter city, Defendant "may exercise all powers granted by its charter, provided that such exercise is not inconsistent with either the constitution or general laws of the state." Jett v. City of Tucson , 180 Ariz. 115, 882 P.2d 426, 429 (1994) ; see also A.R.S. § 9–284(B). Defendant "is granted autonomy over matters of local interest." City of Tucson v. State , 235 Ariz. 434, 333 P.3d 761, 763 (Ariz. Ct. App. 2014). In a case decided only weeks ago, the Arizona Supreme Court again described the relationship between general state statutes and local ordinances adopted by charter cities:

Where the legislature has enacted a law affecting municipal affairs, but which is also of state concern, the law takes precedence over any municipal action taken under the home rule charter. But where the legislative act deals with a strictly local municipal concern, it can have no application to a city which has adopted a home rule charter. Whether or not an act of the legislature pertains to a matter of local or state-wide concern becomes a question for the courts when a conflict of authority rises.

State ex rel. Brnovich v. City of Tucson , 242 Ariz. 588, 399 P.3d 663, 673 (2017) (internal quotation marks omitted). The focus, as is evident from this language, is on the subject matter regulated by the state statute. The relevant inquiry "hinges on whether the subject matter is characterized as of statewide or purely local interest." Id. at 674 (internal quotation marks omitted). A court does not balance the evidence to determine whether the state or the city has a more pressing interest; the question is limited to the nature of the legislation's subject matter. Id. at 678–79.¹

The new statute at issue in this case concerns pet stores and dealers and where they may acquire the dogs and cats they sell to the public. This subject matter clearly implicates state interests. For years, Arizona has regulated the health of animals sold by pet stores and dealers ( A.R.S. § 44–1799.01 ); information such businesses must provide customers regarding the health of the dogs or cats they purchase (§ 44–1799.02); notices that must be posted by pet stores and dealers (id. ); records such businesses must keep regarding the pets they sell (§ 44–1799.03); conditions for housing animals (§ 44–1799.04); detailed procedures and remedies for customers who purchase unhealthy animals (§ 44–1799.05 to .07); and penalties that can be imposed on pet stores and dealers which violate state laws (§ 44–1799.08). These statutes, which have been in place for 20 years, clearly demonstrate a state interest in regulating pet stores and dealers and the animals they sell. In addition, the new statute specifically states that "[t]he regulation of pet dealers is a matter of statewide concern," A.R.S. § 44–1799.11, and the Governor's signing statement confirms this interest, Doc. 216–1 at 30–31.

Furthermore, the Arizona Supreme Court has held that "[m]atters involving the police power generally are of statewide concern," Brnovich , 399 P.3d at 675, and courts have repeatedly found that the regulation of domestic animals is an exercise of police power. See, e.g. , Reid v. Colorado , 187 U.S. 137, 147–48, 23 S.Ct. 92, 47 L.Ed. 108 (1902) (describing regulation of cattle as an exercise of the state's police power); Sentell v. New Orleans & C. R. Co. , 166 U.S. 698, 704, 17 S.Ct. 693, 41 L.Ed. 1169 (1897) (dogs are "subject to the police power of the state"); Simpson v. City of L.A. , 40 Cal.2d 271, 253 P.2d 464, 469 (1953) (police power extends to the licensing, keeping, and controlling of dogs); Greer v. Downey , 8 Ariz. 164, 71 P. 900, 901 (1903) ("a city charter, as an exercise of police power, may provide for the taking up and impounding of animals"). If state police power encompasses the licensing, keeping, and controlling of domestic animals, as these cases hold, it also encompasses how and by whom the animals are brought into the state and sold to the public.

What is more, to the extent Defendant historically has regulated domestic animals, it has done so pursuant to authority...