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Petland lawsuit puts leash on Fayetteville’s animal ordinance for now

by Stacy Ryburn | August 23, 2022 at 1:00 a.m.
File photo/NWA Democrat-Gazette/DAVID GOTTSCHALK The city of Fayetteville logo is seen at City Hall on Feb. 14, 2017.

FAYETTEVILLE -- Petland is suing the city over an ordinance banning the retail sale or display of dogs and cats unless obtained from the city's animal shelter or a nonprofit rescue organization.

Attorney George Rozzell filed the lawsuit Thursday in Benton County Circuit Court on behalf of Samantha Boyle and her Boyle Ventures, which operates Petland stores in Rogers and Fayetteville. Boyle lives in Rogers and operates her principal place of business there and asked the case be heard in Benton County.

Benton County Circuit Judge Doug Schrantz signed a temporary restraining order Thursday prohibiting the city from enacting the ordinance, which would have taken effect Saturday. The restraining order will remain in effect until Nov. 17, when a hearing for a preliminary injunction is scheduled.

Fayetteville's City Council voted 8-0 on July 19 to approve the ordinance after about two hours of discussion. It prohibits the sale of dogs, cats, puppies and kittens in retail stores unless from or in cooperation with the city's animal shelter or another shelter or nonprofit organization approved by the city's animal services division.

An emergency clause that would have had the ordinance take immediate effect failed 4-4. Holly Hertzberg, Sarah Bunch, Sonia Gutierrez Harvey and D'Andre Jones voted in favor. Mark Kinion, Mike Wiederkehr, Sloan Scroggin and Teresa Turk voted against.

At the time, Petland was weeks away from opening its store on Joyce Boulevard. It got a business license from the city in December, according to the lawsuit. The store started selling puppies in late July, after the council had taken its vote, the lawsuit says.

Much of the discussion during the July 19 meeting centered around high-volume breeding facilities commonly known as puppy mills. Justine Lentz, the city's animal services director, said puppies sold in retail outlets often come from such facilities. Those facilities put animals in deplorable conditions, and the retail sale of the animals helps increase demand, she said.

The lawsuit says the city's ordinance is contrary to and inconsistent with Arkansas law, and that it's unconstitutional.

Pet stores and their procurement and treatment of animals is already regulated by the Arkansas Department of Health, the suit says. Cities don't have the power to regulate pet sales, it says. The lawsuit makes those claims based on the state's 1991 pet store act.

The ordinance also creates an undue hardship on Petland, according to the lawsuit. Petland references the working animals protection act of 2021. The law prohibits cities from regulating working animals or animal enterprises.

Additionally, the lawsuit alleges the city violated the state's civil rights act by causing Boyle lost business and customer relationships. It seeks attorney fees and additional damages awarded at trial.

City Attorney Kit Williams sent a letter to the City Council on Aug. 11 saying the council had the option to delay enforcement of the ordinance. Ambiguous language in the working animals protection act gave Williams pause, he said, because the term "animal enterprises" isn't defined in the law. He offered to negotiate a compromise with Petland to ensure its animals wouldn't come from high-volume breeding operations.

No council member took Williams up on his offer. Williams said he wants to research the matter further now that Petland has filed a lawsuit and brief council members on his findings.

Williams said Monday he believed the city isn't preempted from regulating pet stores. Additionally, the working animals protection act doesn't mention pet stores, and pets are the opposite of "working animals," he said.

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