Initially passed in 1966, the AWA carved out retail pet stores, which would not be subject to USDA licensing and inspection requirements. The rationale for this carve-out was because the consumer had the opportunity to check an animal’s health and condition in person in the store before buying the animal. Technology has changed all of that, allowing retailers who use the internet, mail and phone sales to escape any kind of inspection by the consumer or the government.
Under the proposed rule, a person who breeds more than four female dogs, cats and/or small exotic or wild mammals must open their doors either to the public or to APHIS inspectors, who will also require a license.
We’ve all seen storefronts with adorable puppies and kittens staring at us and waiting to be taken home. It’s hard to resist those big round eyes looking up at you — unless you stop to think about where these animals have probably come from.
The animals sold in pet stores most likely come from puppy mills — places where profit trumps the welfare of the animals. Taking home one of these puppies or kittens will only fuel the ongoing misery that the parents live in. Here’s a graphic example of an investigation into the true source of the animals sold in Petland, a large retail outlet for live animals:
In an effort to stop supporting puppy bans, local jurisdictions have begun passing laws to ban the sale of live animals in pet stores. Just yesterday, Toronto became the second city in Canada, after Richmond, British Columbia, to pass such a ban. In the United States, at least three cities have passed pet store bans — South Lake Tahoe, West Hollywood and Lake Worth in Florida.
I am an adamant supporter of these bans. But it is not a stand alone solution. These bans must be coupled with public education about the rationale for the bans — that buying an animal from a store profits puppy mills. And as I’ve harped on before, we need to tackle the overpopulation issue from all angles — supply side and demand side — with well crafted spay/neuter laws and breeding regulations, and stronger animal abuser and puppy mill laws.
Although officials may understand your position in relying on the written statements, the law does provide for a civil penalty of up to $250 for noncompliance. This goes for the staff member’s animal cruelty conviction and the director’s neglect conviction, because the law makes it clear that it is your duty to update the statements if anything changes. The law imposes the same duty to obtain these statements for Virginia poundsand shelters.
Short of employing a company to do expensive background checks, or going to each courthouse to comb through criminal records, how are pounds, shelters and rescues supposed to check on the accuracy of these statements? One solution would be the creation of an animal abuser registry. In fact, Delegate Daniel W. Marshall, III from Danville introduced two bills earlier this year that would establish registries – much like Virginia’s current sex offender registry – for animal abusers and domestic abusers.
The animal abuser bill would require adults convicted of felony animal cruelty or animal fighting to register in person with the sheriff of the county or city where they live, and to re-register annually. The sheriff would have to notify every residence and business within a ½ mile radius of the abuser’s residence within ten days of the initial registration. The abuser’s information would also be kept in a central registry with the State Police, and posted publicly on the State Police website.
As a former public defender who struggled with the implications of sex offender registration on my clients, I have to give some credence to people like Wayne Pacelle of HSUS who have reservations about registries such as these. But I do think that well crafted registries can serve a function. This is particularly so with animal abuse registries, when jurisdictions like Virginia impose duties on rescues, pounds and shelters to report and update personnel information. Registries would also help to track puppy mills, dog fighting rings and animal hoarders.
Unfortunately, Virginia’s proposed animal abuser registry would track only Virginia residents, and only felony cruelty and animal fighting convictions. The first jurisdiction to pass legislation creating an animal abuser registry was Suffolk County, New York last year. I applaud efforts to be tough on animal abusers. But registries are being created in a piecemeal way, locality by locality or state by state. Although free and easy to access, it would be incredibly time-consuming to check each one of these registries. A much more practical solution is to have a nationwide registry that could track felony and misdemeanor cruelty, neglect and abuse convictions – a cause that some have already voluntarily taken up.
My last post talked about Indiana’s failed attempt to use tax evasion laws against owners of a puppy mill. One of the greatest weaknesses with the Indiana officials’ plan was that they sold the 240 seized dogs to the Humane Society of the United States for a mere $300. In a sting operation, Department of State Revenue officials had purchased two dogs from the puppy mill at $225 a piece, and the Department estimated the value of each dog at $300 when calculating what the owners owed in taxes, penalties and interest. Based on the tax court’s ruling, I doubt that a more realistic price tag would have helped the officials’ case, but at least it would have helped negate the argument that the Department wasn’t really looking for tax revenue to fill its coffers.
On a much more optimistic note, a federal jury recently awarded $330,000 in damages to Thomas Russell’s family, whose nine-year-old black lab named Lady was killed by police officers executing a search warrant. Two officers entered his house to search based on a search warrant in a drug investigation. Russell offered to lock Lady in a room, but the police refused. They entered the house with guns drawn and shot Lady as she rounded the corner wagging her tail. The police claimed they shot Lady in self-defense. The police found no drugs or other evidence during the search. The family sued the officers and the City of Chicago, alleging excessive force, false arrest, and infliction of emotional distress. On top of the $330,000 in damages, the jury awarded $2,000 in punitive damages against the officer who shot Lady and $1,000 in punitive damages against that officer’s supervisor.
As I’ve mentioned before, Virginia does not allow emotional distress damages for injury or harm to pets in negligence cases. But the word is still out on whether a Virginia plaintiff could recover damages for emotional distress to companion animals injured or killed by willful, intentional or outrageous torts. With the Russell case, Illinois joins the list of states – which include Florida, Idaho, Kentucky and Louisiana – that will allow damages in those situations. With each state that rules in favor of plaintiffs in these cases, Virginia and other states may just be getting that much closer to valuing companion animals beyond their mere “replacement value.”
Virginia and Kristin Garwood operated Breezy Valley Dairy Farm in Mauckport, Indiana, a family farm that had been in the Garwood family for thirty years. In 2007, the rising price of grain and falling price of milk put the farm in financial jeopardy. Virginia decided to supplement the family’s income by selling dogs. She started the dog breeding business by buying a pregnant Cocker Spaniel and selling her four puppies for a total of $400. She also sold two of her own Australian Shepherd’s puppies for $150. That same year, Virginia bought 34 more breeding dogs, but could not breed all of them immediately due to health issues.
In 2008, Virginia purchased even more breeding stock, and sold 52 dogs for a total of $4,144. Animal control received a complaint about the treatment and sale of one of Garwood’s dogs. When animal control officials investigated the Garwoods in October 2008, Virginia was uncooperative.
In late 2008 and early 2009, a friend of the Garwoods shut down his dog breeding business and gave the Garwoods dogs that were either “undesirable breeds” or incredibly unkempt. Virginia treated, groomed and sold the dogs, and gave most of the proceeds to her friend. Two more complaints trickled to animal control, and animal control reported the Garwoods as a possible puppy mill to the Office of the Attorney General (AG).
At the time, Indiana did not have a puppy mill statute and Indiana law did not define the term “puppy mill.” There were no laws that criminalized actions like the Garwood’s breeding and dog selling practices. Taking a page about Al Capone from the history books, the authorities looked to tax evasion laws as a way to go against the Garwoods.
In early 2009, the AG and the Indiana Department of State Revenue began investigating the Garwoods for state income and sales tax evasion. The authorities even went so far as to set up an undercover “sting operation” to buy two puppies from the Garwoods for $550. The Garwoods gave no receipts, but claimed orally that sales tax was included in the price.
The authorities now had what they needed to move in on the Garwoods. On May 29, 2008, the Department of State Revenue issued “jeopardy assessment” notices, demands, vouchers and warrants against the Garwoods. The officials concluded that Virginia and Kristin each owed over $142,000 in taxes, penalties and interest.
In the early morning hours of June 2, 2008, the authorities served the Garwoods with the jeopardy assessment documents, and demanded immediate payment in full of all tax, penalties and interest. Not surprisingly, the Garwoods were unable to pay in full.
The tax officials, assisted by the Indiana State Police and 60 volunteers from the Humane Society of the United States (HSUS) and the Missouri Humane Society seized all 240 dogs, including pets and farm dogs. The authorities also seized $1260 in cash, $1325 in checks, tax returns, and records showing that the Garwoods made over $25,000 from selling dogs.
The next day, the Indiana authorities sold all 240 dogs to HSUS for a total of $300. A local news channel posted photos on its website showing the crowded conditions and stacked cages that the dogs lived in.
The tax court began its analysis by pointing out that the state’s power to pursue a “jeopardy assessment” is very limited, and warranted in only four situations – when the taxpayer is about to: (1) quickly leave the state; (2) remove property from the state; (3) conceal property in the state; or (4) do any other act that would jeopardize collection of taxes.
The Indiana tax officials were not arguing the first two points – that the Garwoods were trying to leave the state or take property out of the state. Rather, they relied on the last two prongs – concealing property in the state and actions jeopardizing tax collection – to justify the jeopardy assessments.
Arguing that the Garwoods were concealing property, the officials pointed to Virginia’s refusal to cooperate with animal control officers, and the fact that the dogs could easily be sold in bulk or set free. The tax court dismissed these arguments out of hand, calling them “specious non sequiturs” (ouch!).
The officials relied heavily on the fourth prong to justify the jeopardy assessments. In deciding what kinds of actions could constitute “any other act that would jeopardize collection of taxes,” the officials consulted IRS publications and guidelines. The officials then pointed to several facts to justify seizing the dogs – the Garwoods advertised the dogs in local newspapers, bred and sold the dogs, failed to register as a retail merchant, failed to prepare and file sales tax returns, and failed to report the income on their tax returns.
Once again, the tax court ignored these arguments. In a dismissive footnote, the tax court gave no weight whatsoever to the IRS guidelines. The tax court concluded that these facts merely showed the Garwoods were not paying taxes, but not that they were jeopardizing collection efforts.
At the end of the opinion, the tax court gratuitously scolded the authorities for the media hype surrounding the case. The court also pointed out a serious flaw with the case – the officials sold the 240 dogs to HSUS for a mere $300. In the tax court’s mind, this showed that the state wasn’t actually motivated by filling its coffers with tax revenues, but instead wanted to shut down a puppy mill. The huge gap between the $300 price tag and the $142,000 tax bill against Virginia and Kristin Garwood didn’t help matters.
This case shows the incredible need for strong laws aimed at puppy mills. Fortunately, Indiana passed a puppy mill statute in 2009 that requires commercial dog breeders to register with the state and keep basic records, and imposes minimal standards of care on the breeders. But Indiana’s puppy mill statute still may not address most critical issue posed by the Garwood case – the need to give authorities the power to seize dogs caught up in abusive or neglectful circumstances.
Over-population of companion animals is a huge problem, and puppy mills are the big bad boys contributing to this over-population dilemma. Puppy mills are not an issue due to just sheer numbers. Puppy mills’ focus on profit rather than health and welfare of the animals lead to abuse and neglect, unethical breeding practices, poor socialization, disease and health, behavior and genetic problems.
It’s difficult to say which way the political wind is blowing when it comes to puppy mills and commercial breeders. Over the last several years, many states have made major progress in passing puppy mill statutes – including in the puppy mill capital, Missouri, which passed Proposition B in 2010. Virginia passed its puppy mill law in 2008. Just last month, Texas became the next state to pass a puppy mill law.
the requirement to have a veterinarian visit and examine each dog at least one time a year;
explicit requirements to have continuous water and outdoor access;
prohibitions against stacked cages; and
limits on the number of intact dogs and breeding cycles
Just when things start looking miserable, other jurisdictions have come along to attack puppy mills on the demand side. South Lake Tahoe and West Hollywood in California and Lake Worth in Florida have outlawed the sale of dogs and cats in pet shops. San Francisco has long been planning to do the same. Not to be outdone, San Francisco proposed outlawing pet shops from selling not just cats and dogs, but all mammals and birds. But wait, the new version of San Francisco’s bill goes even further – to ban the sale of any kind of pet – mammal, bird, reptile, fish, you name it.
To really strike a blow against puppy mills and over-population, states and localities need to attack aggressively from the supply side and the demand side. I applaud San Francisco’s efforts. In a time when some seem to be weakening their laws designed to combat puppy mills from the supply side, it is refreshing to see San Francisco be so aggressive on the demand side. One way to make San Francisco’s proposed bill even better would be to include the internet in the definition of a “pet shop,” in order to eliminate the practice of online puppy scams.
Today, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) proposed a rule that redefines the definition of “retail pet store” under the Animal Welfare Act (AWA) in order to shut a loophole that has allowed retailers to sell animals “sight unseen” via the internet, by mail or over the phone.
Companion Animal Law Blog 