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Federal judge upholds Maryland’s ban on retail dog sales

Hollander cites state's interest in curtailing 'puppy mills'

Maryland’s ban on retail pet stores selling dogs while allowing nonprofit canine rescue shelters to continue with sales does not violate the constitutional guarantee of equal treatment under the law, a federal judge ruled Friday in a victory for the state in what officials describe as a fight against abusive “puppy mills.”

U.S. District Judge Ellen L. Hollander called Maryland’s statutory distinction between stores and shelters “rationally related” to the state’s “legitimate” goal of preventing animal cruelty by squelching the retail market for puppies whose parents were abused by breeders.

Hollander said the General Assembly, in enacting the ban that took effect July 1, validly concluded that retail stores often buy dogs from abusive dog breeders – known as “puppy mill operators.”

“Protecting consumers and addressing irresponsible animal breeding are indisputably legitimate state interests,” Hollander wrote in a memorandum opinion.

“By removing pet stores and brokers from the supply chain for cats and dogs, the act makes it more difficult to acquire these pets from perceived puppy mills,” added Hollander, who sits in the federal courthouse in Baltimore. “At a minimum, the act removes Maryland pet stores as a source of income for puppy mills, thereby advancing the General Assembly’s goal of preventing animal cruelty.”

In her decision, Hollander dismissed a constitutional challenge to the law brought by Maryland pet store owners who said the statute’s distinction between retailers and shelters lacked a rational justification and was rooted in the legislators’ effort to score political points at the stores’ expense.

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

The store owners have denied the allegation 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 Maryland Office of the Attorney General, which defended the law, said in a statement Monday that “the district court properly recognized – as it had once before – that Maryland’s prohibition on the sale of dogs and cats by retail pet stores is an appropriate exercise of the state’s authority and obligation to ensure the welfare of animals and to protect Maryland consumers.”

Jonathan P. Kagan, the store owners’ lead attorney, did not immediately return messages seeking comment Monday on Hollander’s decision.

The stores’ lawsuit followed 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.”

Hollander upheld the 2018 law last year, saying – as she did Friday – that the statute was 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 2020 decision was on appeal, the General Assembly passed and Gov. Larry Hogan signed the 2021 law. The new statute closed 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 4th U.S. Circuit Court of Appeals vacated Hollander’s decision on a joint motion by the store owners and the attorney general’s office.

In their most recent 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, 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 Maryland Attorney General Brian E. Frosh, in the state’s successful 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 dismissed the stores’ lawsuit in Just Puppies Inc. et al. v. Brian E. Frosh, Maryland Attorney General, No. 1:21-cv-01281-ELH.