A dispute over Maryland’s ban on retail dog sales is headed to the 4th U.S. Circuit Court of Appeals.
The federal appellate court will decide whether the 2021 law discriminates against out-of-state dog breeders or legitimately restricts sales by abusive operations known as “puppy mills.”
The plaintiffs, a group of pet stores, dog breeders and brokers, filed notice of appeal Thursday in U.S. District Court in Maryland. They want the 4th Circuit to overturn U.S. District Judge Ellen L. Hollander’s September decision dismissing the case.
Hollander found the law did not violate the Constitution’s commerce or equal protection clauses, though she acknowledged that the ban may be based on overgeneralizations about large dog breeders.
“It is clear that the General Assembly was motivated by the interest in protecting Maryland consumers and animal welfare,” Hollander wrote. “And, plaintiffs have failed to plausibly allege that the Act discriminates against out-of-state breeders and brokers in its effect or in its purpose.
Jonathan Kagan, one of the lawyers for the pet stores and breeders, said the case presents an issue of first impression because it deals with a statewide ban on retail pet sales, rather than a local ban.
“The main focus of the appeal is going to deal with the commerce clause and (the law’s) effect on out-of-state breeders and brokers,” he said in an interview.
The businesses challenging the law include Just Puppies Inc., with locations in Towson and Rockville; Charm City Puppies LLC in Columbia; a dog breeder based in Missouri; and a dog broker, which re-sells animals purchased from breeders, also based in Missouri.
The lawsuit claims the retailers will go out of business as a result of the law because they obtain their puppies from breeders and brokers in other states. The stores claim dog sales represent 90 to 95 percent of their business. The suit also argues that the ban unconstitutionally benefits in-state breeders.
Hollander concluded that the ban will have a minimal effect on out-of-state breeders, which she said can change their business models to better accommodate buyers in Maryland.
“Out-of-state brokers and breeders may need to change their sales strategy,” Hollander wrote. “But, as noted, the Act does not prevent breeders and brokers located outside of Maryland from selling cats and dogs to Maryland consumers.”
Kagan said the plaintiffs believe the law creates an unconstitutional burden on out-of-state businesses.
“There is no way an out-of-state breeder can now bring their puppies to Maryland to introduce them to the Maryland market, and that’s where the Maryland breeders now have an advantage,” he said.
The Maryland Attorney General’s Office did not respond to an email requesting comment on the appeal.
The challenge to the 2021 law came after the pet stores lost a constitutional challenge to a 2018 Maryland law that curtailed animal sales at retail stores that were “open to the public.”
The General Assembly passed the 2021 law to close a loophole in the original legislation. Retailers began selling pets by appointment only in an effort to evade the law’s limitation on businesses that were “open to the public.”
In her September opinion, Hollander acknowledged that the 2021 law would shutter some retail pet stores that previously sold cats and dogs, and that it would push some Maryland consumers to travel to other states unregulated online pet sales
“But, whatever the Act’s soundness, that is a judgment committed to the legislature,” she wrote.
Late Friday afternoon, the attorney general’s office announced that its consumer protection division had reached a settlement with Just Puppies Inc. and owner Mitchell Thomson over the sale of dogs after the 2018 law went into effect.
The settlement requires Just Puppies to stop selling dogs in Maryland, refund customers who bought puppies with certain medical conditions, and pay $100,000 in civil penalties.