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Judge refuses to rule in Fayetteville’s favor in Petland lawsuit

by Stacy Ryburn | January 25, 2023 at 6:00 a.m.
Petland is seen Nov. 23 at 637 E. Joyce Blvd. in Fayetteville. (File photo/NWA Democrat-Gazette/J.T. Wampler)

FAYETTEVILLE -- A Benton County judge denied the city's motion for summary judgment in a lawsuit with Petland, according to a Tuesday filing.

Benton County Circuit Judge Doug Schrantz said the city's ordinance banning retail sale of pets "appears to be in conflict" with two state laws but "questions remain."

"While providing an interesting history of the passage of Ordinance 6587 and affidavits of many persons offering their opinions about 'puppy mills,' intent is one thing, and the actual language used may mean something else," Schrantz wrote.

The two state laws Schrantz referred to are the Working Animal Protection Act of 2021 and the 1991 Arkansas Retail Pet Store Consumer Protection Act, also known as the Pet Store Act.

The Working Animal Protection Act says an ordinance or resolution shall not be enacted by a municipality that terminates, bans, effectively bans or creates an undue hardship relating to the job or use of a working animal or animal enterprise in commerce, service, legal hunting, agriculture, husbandry, transportation, ranching, entertainment, education or exhibition. It defines a "working animal" as one used for the purpose of performing a specific duty or function in commerce or animal enterprise, including human service, transportation, education, competition or exhibition.

The Pet Store Act requires certain guarantees from retail pet stores to the consumers who buy dogs and cats, according to the Arkansas Department of Health website. Breeding kennels and catteries are excluded from this act, as are animal shelters and incorporated humane societies. Retail pet stores are required to register with the Department of Health and to keep the registration current.

Petland sued the city in August over an ordinance the City Council passed 8-0 banning the retail sale of pets. The council vote took place in July; at the time, Petland was weeks away from opening its Fayetteville store southeast of Joyce Boulevard and Mall Avenue.

The city's ordinance 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. Schrantz issued a temporary restraining order that is still in effect prohibiting the city from enacting the ordinance.

Much of the discussion during the July 19 City Council meeting centered on high-volume breeding facilities commonly known as puppy mills. The city's animal services director said at the time puppies sold in retail outlets often come from such facilities, which put animals in deplorable conditions. The retail sale of the animals helps increase demand, she said.

City Attorney Kit Williams filed a motion for summary judgment Nov. 14 asking the judge to dismiss the case. Attorney George Rozzell, representing Samantha Boyle and her Boyle Ventures LLC, which owns Petland stores in Rogers and Fayetteville, filed a response to the motion Dec. 8. Boyle, who lives in Rogers, asked that the case be heard in Benton County.

"Petland Fayetteville is grateful for the interest in its case, but given the ongoing litigation, does not wish to comment further," Rozzell said Tuesday.

Williams said he is preparing to go to trial unless the City Council tells him otherwise.

In previous filings, Williams said the Pet Store Act had no relevance to the ordinance because the law provides guarantees to consumers, rather than empowering any pet store to operate in the state. He said the Working Animal Protection Act also had no bearing because the law only applies to animals used in commerce to perform a specific duty or function, not pets.

In his response, Rozzell said Petland cannot follow both the Pet Store Act and the city's ordinance because the law requires strict record-keeping of animals, and the city's animal shelter does not keep many records the law requires. Additionally, the ordinance violates the Working Animal Protection Act because Boyle Ventures operates a retail store that sells animals to the public and is clearly an animal enterprise, he said.


Print Headline: Judgment in city’s favor over pet store ordinance denied

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