Frosh seeks dismissal of challenge to state’s puppy mill ban on dog sales

Maryland’s ban on retail pet stores selling dogs while allowing nonprofit canine rescues and shelters to continue with sales beginning July 1 does not violate the constitutional guarantee of equal treatment under the law, the state’s attorney general has told a federal court in Baltimore.

In papers filed last week in U.S. District Court, Brian E. Frosh called the distinction constitutionally justified as a rational way to prevent animal cruelty by squelching the retail market for puppies whose parents were abused by breeders.

The Maryland General Assembly, in enacting the ban this year, concluded that retail stores often buy dogs from abusive dog breeders – known as “puppy mill operators,” Frosh wrote in the filing co-signed by Assistant Maryland Attorney General Ryan R. Dietrich.

Frosh’s filing came in the state’s motion to dismiss a constitutional challenge to the law brought by Maryland pet store owners who say its distinction lacks a factual basis and is an unjustified attack on retailers to score political points – an argument the state rejects.

“There are ample facts that provide a rational basis for the state’s decision to ban the offer of sale of dogs by retail pet stores while at the same time not prohibiting sales by nonprofit rescues and shelters,” Frosh wrote.

“The General Assembly heard testimony in support of the 2021 act…that retail pet stores and brokers drive the puppy mill industry, and that Maryland’s prior regulatory scheme was not sufficient to protect animals or consumers because of certain perceived loopholes,” Frosh added. “Critically, the General Assembly heard testimony regarding the horrors and effects of irresponsible breeding, and that retail pet stores remained the avenue through which puppy mills were able to thrive.”

The stores challenging the 2021 law, Senate Bill 103, are Just Puppies Inc. in Towson and Rockville and Charm City Puppies LLC in Columbia.

Both retailers have denied the allegation that they purchase dogs from puppy mills or their brokers. The stores stated in court papers that they derive 90 to 95% of their gross revenues from the sale of dogs and 5 to 10% from the sale of pet accessories, thus the ban will drive them out of business.

The stores’ lawsuit follows their failed constitutional challenge to a slightly less restrictive Maryland law to curtail the retail sale of dogs. That 2018 statute applied to retail stores that were “open to the public.”

U.S. District Judge Ellen L. Hollander upheld the law last year as rationally related to the state’s legitimate goal of preventing harm to dogs by reducing the market for “puppy mill” operators. Hollander cited General Assembly testimony that the mills often sold their puppies to retail pet stores.

While Hollander’s decision was on appeal, the General Assembly passed and Gov. Larry Hogan signed the 2021 law. The new statute closes the open to the public loophole, which retailers had cited in seeing prospective dog purchasers by appointment only.

In light of the new law and the retailers’ renewed constitutional challenge, the 4^th U.S. Circuit Court of Appeals vacated Hollander’s decision on a joint motion by the store owners and Frosh’s office, which defends state statutes.

In their new complaint, the owners stated the 2021 ban on retail dog sales belies the earlier constitutional justification that the legislature’s goal was to discourage puppy mills.

“The (2021) law was based on numerous fallacies and a bare animus against retail pet stores that sell puppies and the out-of-state breeders that supply the animals,” wrote the store’s attorneys, Jonathan P. Kagan, Meagan C. Borgerson and Heather K. Yeung of the Annapolis firm Kagan Stern Marinello & Beard LLC.

“There is no legitimate state interest in banning retail pet store sales, as no studies, reports, surveys, audits, or any other evidence has been shown whatsoever to support the purported interest in reducing ‘puppy mills’ through a ban,” they added. “Maryland’s retail pet stores do not source their dogs from unlicensed and uninspected sources or ‘puppy mills.’ ”

But Frosh, in the state’s motion to dismiss, quoted from the U.S. Supreme Court’s 1993 decision in Federal Communications Commission v. Beach Communications Inc. that a legislature need not produce evidence but may base economic policy choices on “rational speculation” regarding what is occurring in the business world.

“In any event, as the legislative record from both the 2018 and 2021 legislative sessions demonstrates, the General Assembly’s policy choices were based on ample evidence that prohibiting the sale of dogs by retail pet stores (entities that are motivated by profit) but allowing sales by nonprofit rescues and shelters (entities that are not) would further the state’s interest in public safety and the humane treatment of animals,” Frosh wrote. “Because plaintiffs have not overcome the presumption of validity that attaches to economic legislation such as the 2021 act, plaintiffs’ equal protection claim must fail.”

Hollander has not stated when she will rule on the state’s motion to dismiss.

The case is docketed at the U.S. District Court in Baltimore as Just Puppies Inc. et al. v. Brian E. Frosh, Maryland Attorney General, No. 1:21-cv-01281-ELH.