Why City of San Diego Proposed Ordinance section 42.0706 is Unconstitutional
The “puppy” Ordinance prohibiting the sale of cats, dogs and rabbits at pet stores is
1) It Is Void for Vagueness: It reads “prohibit the sale of dogs, cats, and rabbits in retail businesses, pet stores, or other commercial establishments within City Limits”. As written, it is difficult to understand what is and is not included under “other commercial establishments”. That could mean a veterinary clinic, an animal hospital, a farm. An average person may also be afraid to sell a dog or cat or a rabbit to another person (a pet is considered property) for fear that he/she may be violating the law. The US Constitution allows the sale of personal property between individuals.
Generally a statute is void for vagueness and unenforceable if it is too vague for the
average citizen to understand. There are several ways, senses or reasons a statute might be
considered vague. In general, a statute might be called void for vagueness reasons when an
average citizen cannot generally determine what persons are regulated, what conduct is
prohibited, or what punishment may be imposed.
2) Violates the Dormant Commerce Clause: The pets sold at the commercial
establishments, specifically the puppies, are bred by nationally recognized AKC certified breeders, meaning the best of the best. By limiting the sale of puppies to municipal animal shelters, the humane society or non-profit rescue organizations, the Ordinance is limiting or closing down altogether access to the market place in the City of San Diego by out of state participants. The Supreme Court in multiple cases has ruled this practice as unconstitutional. It is difficult to justify any legitimate reason why in-staters should have access to a state’s resources that is denied to out-of-staters. All the out-of-state breeders are highly reputable and follow all federal and state law, including the Animal Welfare Act, and are duly licensed by the United States Department of Agriculture.
In addition to being unconstitutional, the ordinance would in effect result in the loss of several jobs of the employees of the pet stores who sell the animals affected. These businesses all pay sales taxes, state and federal income taxes and property taxes. All that would go away because of this ordinance.
The stores that sell puppies are highly specialized in the care and handling of puppies. Whereas puppies sold in animal shelters or the humane society are mixed with other animals such as birds, snakes, rats, in huge numbers. The establishments that sell puppies only have a few at any one time and each puppy receives extensive individual attention, which is not possible in the large animal shelters. All puppies that arrive at the puppy stores are eventually sold, whereas puppies that are put up for adoption at the humane society or animal shelters may eventually if not adopted, be destroyed. It is better to let the market place handle this situation.
Current law such as the “Puppy Lemon Law” as well as the self-regulation of reputable professional breeders, all of which employ veterinary doctors, ensure the welfare of the puppies.
This ordinance is unnecessary and I urge a “no” vote.
By David Salinas, President
San Diego Puppy Inc.