Accept Community Development Committee of the

Transcription

Tressler1
Attorneys at Law
305 West Briarcliff Road
Post Office Box 1158
Bolingbrook, Illinois 60440
LLP
George A. Marchetti
630-343-S203
gma rchetti@tresslerllp.com
I630 J 7 s9-osoo
Fax(630)7S9-8SD4
www.tresslerHp.com
MEMORANDUM
TO:
Ron Mentzer
City of Warrenville
FROM:
George Marchetti
David Freeman
DATE:
November 16, 2015
RE:
Puppy Mill Ordinance
In response to your email of November 16, 2015, the Cook County "puppy mill" case (Missouri
Pet Breeders v. County of Cook, 2015 WL 2448332 (N.D. Ill. 2015, a copy of which is attached) is
of limited relevance because the case involved a County rather than a home rule municipality.
Prior to the Missouri Pet Breeders decision, the Illinois Appellate Court had held that home rule
municipalities lacked the same broad authority with respect to animal control that counties
5
possess under state law. See, County of Cook v. Village of Bridgeview, 2014 IL App (1 ') 122164
(2014), attached.
However, the legal authority of a home rule municipality to pass a "puppy mill" ordinance was
upheld ten days ago in the case of Porker Pet Shop, Inc. v. City of Chicago, 2015 WL 6756288
(2015), a copy of which is attached. Thus, there is now legal authority which would support a
home rule municipality's "puppy mill" ordinance. Of course, some legal risk still remains
because the Parker Pet Shop case could be appealed or an Illinois court could decline to follow
the federal court's decision in that case.
Should the City decide to enact a "puppy mill" ordinance, we would strongly suggest that the
City follow the City of Chicago's ordinance. Copies of both the original and substitute City of
Chicago ordinance regarding "puppy mills" are attached.
Should you have any further questions, please call.
178215
California I Illinois I New Jersey I New York
Missouri Pet Breeders Association v. County of Cook, ••• F.Supp.3d •••• (2015)
··············-··············-·····································································
[8] ordinance was not void for vagueness.
2015 WL 2448332
Only the Westlaw citation is currently available.
United States District Court,
N.D. Illinois, Eastern Division.
Missouri Pet Breeders Association, Starfish
Motion granted.
West Headnotes (33)
Ventures, Inc. d/b/a Petland of Hoffman Estates,
Dan Star, and Janet Star; Happiness Is Pets of
Arlington Heights, Inc., Ronald Berning; J &
[l]
J Management, Inc. d/b/a Petland of Chicago
To sue in its own right under Article III, an
organization must establish that it has, itself,
suffered a concrete and particularized injury that
is traceable to defendants' challenged actions
and would be redressed by a favorable decision.
U.S.C.A. Const.Art. Ill, § 2, cl. l.
Ridge, and James Maciejewski, Plaintiffs,
v.
County of Cook, Toni Preckwinkle,
and Donna Alexander, Defendants.
No.14 C 6930
Signed May 21, 2015
Synopsis
Background: Association of pet breeders and three pet stores
brought action against county, president of the county board
of commissioners, and director of county animal & rabies
control, alleging that a county ordinance regulating the sale of
dogs, cats, and rabbits by pet stores in the county violates the
United States and Illinois Constitutions. Defendants moved
to dismiss for lack of standing and failure to state a claim
Cases that cite this headnote
[2]
[ l] association had Article III standing to sue on behalf of its
members;
[2] plaintiffs lacked standing to raise Foreign Commerce
Clause challenge;
[4] ordinance was not preempted by federal law;
[5] ordinance did not violate equal protection;
[6] ordinance did not violate Commerce Clause;
[7] ordinance did not violate Contract Clause; and
Associations
'r··· Actions by or Against Associations
Association of pet breeders had Article III
standing to bring suit, on behalf of its
members, raising constitutional challenge to
county ordinance regulating sale of dogs, cats,
and rabbits in county pet stores; alleged loss
of sales that members would experience if
ordinance took effect was a concrete and
i1nminent injury, association sought to protect
interests germane to its purpose, and association
could represent interests of its members without
their individual participation. U.S. Const. Art. 3,
§ 2, cl. I.
Holdings: The District Court, Matthew F. Kennelly, J., held
that:
[3] county had home rule authority, under Illinois
Constitution, to regulate animal breeding and sales;
Associations
Actions by or Against Associations
[3]
Associations
0--'-'- Actions by or Against Associations
An association has Article III standing to sue
on behalf of its members when (1) its members
would otherwise have standing to sue in their
own right; (2) the interests it seeks to protect are
germane to the organization's purpose; and (3)
neither the clai1n asserted nor the relief requested
requires the participation of individual members
in the lawsuit. U.S. Const. Art. 3, §, 2, cl. I.
Missouri Pet Breeders Association v. County of Cook,~~- F.Supp.3d ---- (2015)
[4]
Associations
c.;;y.,,- Actions by or Against Associations
[7]
Declaratory Judgment
·w~" Representative or class actions
When an association seeks a declaration,
injunction, or some other form of prospective
relief, it can reasonably be supposed that the
remedy, if granted, will inure to the benefit
of those members of the association actually
injured; accordingly, individual participation is
not normally necessary, to establish Article III
standing to sue on behalf of me1nbers, when an
association seeks prospective or injunctive relief
for its members. U.S. Const. Art. 3, §,2, cl. 1.
To determine whether a municipality has
exceeded its home rule powers under the Illinois
Constitution by legislating in an area of statewide
concern, courts consider the nature and extent
of the problem, the units of government which
have the most vital interest in its solution, and the
role traditionally played by local and statewide
authorities in dealing with it. Ill. Const. art. 7, § 6.
[8]
[5]
Municipal Corporations
W"" Local legislation
Illinois Constitution gives home rule units the
broadest powers possible. Ill. Const. art. 7, § 6.
Federal Civil Procedure
In general; injury or interest
Federal Civil Procedure
Rights of third parties or public
~""' Local legislation
[9]
Animals
'""'"' Breeding and Registration
In addition to the constitutional limitation
on standing, courts also impose prudential
limitations on the class of persons who
may invoke federal jurisdiction; among these
pn1dential restrictions is the general rule that
a litigant must assert his own legal rights and
cannot assert the legal rights of a third party.
Because both state and local governments have
a vital interest in animal control, and the Illinois
legislature has not barred local governments
fro1n exercising their home rule powers in this
area, county had ho1ne rule authority, under
Illinois Constitution, to regulate animal breeding
and sales. Ill. Const. art. 7, § 6.
1 Cases that cite this headnote
[6]
Commerce
<,~. Regulation and conduct in general;
particular businesses
[10]
Illinois pet stores and Missouri-based association
of pet breeders lacked standing to raise a Foreign
Commerce Clause challenge to Illinois county
ordinance regulating sale of dogs, cats, and
rabbits in pet stores; Missouri breeders did not
have any personal interest in whether foreign
breeders were allowed to sell pets to pet stores in
Illinois, and pet stores and their owners failed to
allege that they actually purchased animals from
foreign breeders. U.S. Const. Art. 3, §,2, cl. I.
°"·""" Nature and scope of legislative power in
general
To determine whether a local law is preempted
by Illinois law, courts must determine whether
the legislature has specifically limited the
concurrent exercise of this power or specifically
declared that the state's exercise of this power is
exclusive.
!
i
Missouri Pel Breeders Association v. County of Cook,··· F.Supp.3d •••• (2015)
[11]
is never a role for evidentiary proceedings.
U.S.C.A. Const.Amend. 14.
Stales
<,~"'· Preemption in general
Federal preemption occurs in three situations: (1)
when Congress has expressly stated that a federal
statute preempts state or local law; (2) when a
[15]
pervasive scheme of federal regulation makes it
reasonable to conclude that Congress intended
exclusive federal regulation of the area; and (3)
when state or local law actually conflicts with
federal law.
Constitutional Law
sP'" Statutes and other written regulations and
rules
A law need not completely eliminate the
perceived problem to satisfy the rational-basis
standard on equal protection challenge. U.S.C.A.
Const.Amend. 14.
[12]
Animals
v,..., Statutory regulations
[16]
Counties
('"" Ordinances and by-laws
Constitutional Law
.~.-.,,_, Domestic animals and pets
County ordinance regulating sale of dogs, cats,
and rabbits was not preempted by Animal
Welfare Act; Act expressly contemplated state
and local regulation of animals, and there was
no showing that it was physically impossible to
comply with both federal and local regulations.
7 U.S.C.A. § 2143(a)(8).
Breeder-size and type limitations in county
ordinance regulating pet stores' sale of dogs,
cats, and rabbits were rationally related to
a legitimate government interests in reducing
number of animals sold in county that were
obtained from mass-breeding facilities, and in
protecting animals from improper use, abuse,
neglect, inhumane treatment and health hazards,
and thus ordinance did not violate Equal
Protection Clause, even if it did not include all
animals fro1n mass-breeding facilities. U.S.C.A.
Const.Amend. 14.
[13]
Constitutional Law
~,\ . ,, Equal protection
Constitutional Law
"'' "" Statutes and other written regulations and
rules
An ordinance is presumed to be valid and
will be upheld on equal protection challenge
if there is any reasonably conceivable state of
facts that could provide a rational basis for the
classifications. U.S.C.A. Const.Amend. 14.
[17]
Commerce
Powers Ren1aining in States, and
Limitations Thereon
To prevail on a so-called "dormant" commerce
clause claim, plaintiffs must, as a threshold
matter, demonstrate that the law or regulation
burdens interstate commerce. U.S. Const. Art. 1,
§ 8, cl. 3.
[14]
Animals
*''·"~ Statutory regulations
Civil Rights
v"" Trial in general
No evidentiary proceedings are necessary,
in detennining whether law violates equal
protection, if lawmakers have presented some
conceivable rational basis for a law, because
outside the reabn of heightened scrutiny there
[18]
Commerce
-;,~ . . . Local matters affecting commerce
Missouri Pet Breeders Association v. County of Cook,
m--
F.Supp.3d
Nmmm
(2015)
Commerce
it~·~
Preferences and Discriminations
If a law or regulation burdens interstate
commerce, a court must categorize the law's
effects: laws that expressly discriminate against
interstate commerce are virtually per se invalid,
and laws that are facially neutral but have a
powerful disparate effect on interstate commerce
are considered discriminatory, whereas, laws
that are facially neutral but have only incidental
or indirect effects on interstate commerce are
upheld unless the burden imposed on such
commerce is clearly excessive in relation to the
putative local benefits. U.S. Const Art. 1, § 8,
cl. 3.
(21]
A regulation that shifts business to out-of-state
firms at the expense of in-state firms is not the
type of harm the Commerce Clause prohibits.
U.S. Const Art. 1, § 8, cl. 3.
(22]
"'-=· Regulation and conduct in general;
Allegations that county ordinance regulating pet
stores' sale of dogs, cats, and rabbits would
prevents out~of-state breeders from having
physical access to market demand for pureand specialty-breed animals in the county were
too speculative to state a claim that ordinance
violated Commerce Clause. U.S. Const Art. 1, §
8, cl. 3.
Animals
Pounds
Commerce
Regulation and conduct in general;
'N"""
Definition of "pound" in ordinance regulating
pet stores 1 sale of dogs, cats, and rabbits, as
supplier for pet stores that is licensed in Illinois,
did not run afoul of the Commerce Clause;
provision did not distinguish between pounds
based on location, and there was no indication
that the provision otherwise affected interstate
commerce. U.S. Const Art. 1, § 8, cl. 3.
[23]
Constitutional Law
\·'""""" Police power; purpose of regulation
Although the Contract Clause appears absolute
in its prohibition, it does not deprive the States
of their broad power to adopt general regulatory
measures without being concerned that private
contracts will be impaired, or even destroyed, as
a result U.S. Const art. I,§ 10, cl. 1.
(20]
Animals
'\;'·'-" Constitutional provisions, statutes and
ordinances
Commerce
(19]
Commerce
,5,... ., Preferences and Discriminations
Commerce
·ir·" Powers Remaining in States, and
Limitations Thereon
Commerce
Transportation or Movement of Goods or
Persons
v·~
A law does not burden interstate commerce if it
shifts business from one in-state firm to another
in-state firm; Commerce Clause only prohibits
actions that increase the proportion of in-state
goods in the market U.S. Const Art. 1, § 8, cl. 3.
(24]
Animals
".i"·~. Constitutional provisions, statutes and
ordinances
Constitutional Law
.;,~~'
Business relationships in general
Ordinance regulating pet stores 1 sale of dogs.
cats, and rabbits would not make it impossible
for pet stores to meet their contractual
obligations, and thus did not violate Contract
Clause, as it did not impose a prohibition on
Missouri Pel Breeders Association v. County of Cook, ••• F.Supp.3d •••• (2015)
any contracts or co1npletely eliminate pet stores'
businesses, and county had legitimate purpose in
enacting ordinance. U.S. Const. art 1, § 10, cl. 1.
public health and welfare. U.S. Const. art. I, §
10,cL L
[28]
[25]
Constitutional Law
\i'·" Existence and extent of impainnent
An
ordinance
may
operate
in
an
unconstitutionally vague manner if it: (1) does
not provide a person of ordinary intelligence
a reasonable opportunity to know what is
prohibited, or (2) fails to provide explicit
standards to prevent arbitrary and discriminatory
enforcement by those enforcing the ordinance.
Constitutional Law
;v=-- Police power; purpose of regulation
Courts apply a three-step inquiry to determine
whether an ordinance violates the Contract
Clause, asking (I) whether the ordinance in
fact operates as a substantial impairment of
existing contractual relationships; (2) whether
the municipality has a significant and legitimate
public purpose justifying the ordinance; and (3)
whether the effect of the ordinance on contracts
is reasonable and appropriate given the public
purpose behind the ordinance. U.S. Const. art. I,
§ 10, cl. L
[29]
Constitutional Law
Existence and extent of in1pairment
Constitutional Law
'··""' Police power; purpose of regulation
[30]
Courts are less inclined to strike down legislation
that has an "incidental effect" on existing
contracts when a state or local government
does not prescribe a rule limited in effect to
contractual obligations or remedies, but instead
imposes a generally applicable rule of conduct
designed to advance a broad societal interest.
U.S. Const. art. I, § 10, cl. L
Provision of county ordinance regulating pet
stores' sale of dogs, cats, and rabbits, which
exempted from regulation those areas governed
by an ordinance of another gove1nrnental entity,
was not void for vagueness; it was clear
that "ordinance" in that provision referred to
regulations passed by other local governments,
namely municipalities within the county, and "an
ordinance" referred to any conflicting ordinance,
as opposed to any ordinance at all.
Constitutional Law
'~··""- Police power; purpose of regulation
When the state or its agent is not a party to
a contract allegedly impaired by a challenged
law, the court's scrutiny under Contract Clause is
relaxed, and court must defer to the legislators'
judgment and ask whether they rationally could
have believed the law would lead to improved
Animals
~·"'·- Constitutional provisions, statutes and
ordinances
Constitutional Law
v"- Trade or Business
[27]
Constitutional Law
Vagueness on face or as applied
When a contested piece of legislation does
not implicate First Amendment freedoms, party
alleging statute is void for vagueness 1nust show
that the law is vague as applied to the facts of the
case at hand. U.S.C.A. Const.Amend. L
[26]
Constitutional Law
i,,,,,. . Ordinances
[31]
Animals
Kmm
F.Supp.3d
R~mw
(2015)
,,,~"'"·
Constitutional provisions, statutes and
ordinances
Constitutional Law
N"-·· Trade or Business
Provision of county ordinance regulating pet
stores' sale of dogs, cats, and rabbits, which
listed government-run entities from which pet
stores could obtain animals, was not void for
vagueness; meaning of each undefined term in
provision was reasonably clear.
MATTHEW F. KENNELLY, District Judge:
*1 Plaintiffs, the Missouri Pet Breeders Association
(MPBA) and three Cook County pet shops and their owners,
have sued Cook County, the President of the Cook County
Board of Commissioners, and the Director of Cook County
Animal & Rabies Control, alleging that a Cook County
ordinance regulating the sale of dogs, cats, and rabbits by
pet stores in the County violates the United States and
Illinois Constitutions. Defendants have moved to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(b)
(I) and 12(b )(6). The Court graots defendants' motion for the
reasons stated below.
[32]
Constitutional Law
-1r- Exhaustion of other remedies
Dismissal of vagueness challenge to county
ordinance regulating pet stores' sale of dogs,
cats, and rabbits was required, where state courts
had not had the opportunity to consider the
ordinance.
[33]
Injunction
Nature of remedy in general
Injunction
-;.= Dismissal before hearing
Under Illinois law, dismissal of claim requesting
pennanent injunctive relief was required, as an
injunction was a remedy rather than a cause of
action.
Attorneys and Law Firms
David J. Fish, Sarmistha Banerjee, The Fish Law Firm,
P.C., Naperville, IL, Monica Fazekas, Leahy Eisenberg and
Fraenkel, Ltd., Chicago, IL, for Plaintiffs.
Jayman A. Avery, III, Kent Stephen Ray, Chicago, IL, for
Defendants.
MEMORANDUM OPINION AND ORDER
Background
For purposes of the motion to dismiss, the Court accepts
as true the following facts alleged in plaintiffs' complaint.
See Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763
F.3d 696, 700 (7th Cir.2014). The Cook County Board of
Commissioners passed the Cook County Companion Animal
and Consumer Protection Ordinance (Ordinance No. 142408) in April 2014. Although the ordinance was scheduled
to take effect on October 1, 2014, the Court entered an agreed
order on September 11, 2014 deferring enforcement of the
ordinance during the pendency of this litigation.
The ordinance regulates the sales of dogs, cats, and rabbits
by pet stores located in Cook County, Illinois. Under the
ordinance, a "pet shop operator" may only sell animals
obtained from a breeder that (runong other requirements)
holds a USDA class "A" license and "owns or possesses no
more than five (5) female dogs, cats, or rabbits capable of
reproduction in any twelve (12) month period." Cook County,
Ill., Rev. Ordinances ch. IO, art. I,§ 10-13(a)(3) (2014). 1
The ordinance defines "pet shop operator" by reference to
the Illinois Animal Welfare Act (!AWA). Id.§ 10-2. A "pet
shop operator" under the IAWA is "any person who sells,
offers to sell, exchange, or offers for adoption with or without
charge or donation dogs, cats, birds, fish, reptiles, or other
animals customarily obtained as pets in this State," unless
that person "sells only such ani1nals that he has produced
and raised." 225 ILCS 605/2. Although the !AWA definition
is expansive, the Cook County ordinance exempts local notfor-profit entities (including humane societies and rescue
organizations) and government-run entities (including animal
Missouri Pet Breeders Association v. County of Cook, --- F.Supp.3d ---- (2015)
control centers, animal care facilities, kennels, pounds, and
training facilities) from the restrictions placed on pet shop
operators. Cook County, Ill., Rev. Ordinances ch. 10, art. I,§
10-13(b). Accordingly, those entities can sell pets directly to
consumers without regulation. Additionally, pet stores 1nay
obtain pets from not-for-profit and government-run entities
without any restrictions. Id. § 10-13(a)(l).
*2 Plaintiffs in this case are the Missouri Pet Breeders
Association (MPBA), a professional pet organization that
advocates for the interests of its member pet breeders, and
three Cook County pet shops and their owners. The pet stores
claim that they will go out of business if the ordinance takes
effect, because there are not enough breeders that meet the
ordinance 1s require1nents to supply the desired number of
specialty pets to Cook County pet stores. Am. Comp!. ~~
56-58. Specifically, they claim that very few breeders have
five or fewer female dogs, so pet stores purchase most of the
pets they sell from breeders with more than five dogs. Of the
breeders that currently have five or fewer dogs, plaintiffs say,
very few have the required class A license, because the United
States Department of Agriculture (USDA) does not require
breeders with four or fewer female dogs to obtain a license.
If the ordinance takes effect, plaintiffs claim, there will not
be enough breeders to meet consumers' demands for pureand specialty-breed pets. For instance, plaintiffs say, there
will only be three grade A-licensed breeders in Illinois that
meet the ordinance's requirements. Id ~ 56. Plaintiffs have
not indicated how difficult it would be for existing breeders
to obtain a class A license. They admit that "[t]heoretically,
a breeder with fewer than 5 dogs could ask the USDA to
regulate them" but state that "next to none do so because they
are legally exempt from requiring a USDA license." Id.~ 42.
Plaintiffs also claim that the ordinance will impact out-ofstate breeders, including the Missouri breeders that MPBA
represents. Even though breeders are not directly regulated,
plaintiffs contend that the ordinance would "ban [ ] local
pet shops from selling puppies imported from 98% of
America's breeders." Id.~ 76. Moreover, plaintiffs claim that
the ordinance will cause out-of-state pet breeders to lose
business to in-state pet breeders. Specifically, they assert
that because the ordinance does not regulate sales from
breeders to consumers, breeders without licenses will be able
to sell to Cook County residents without restriction even if
they house more than five female dogs. Thus, Cook County
residents who want specialty breeds and cannot find the1n
at pet stores (because the supply at Cook County pet stores
will be depleted by the regulation) will instead purchase
dogs directly from breeders. Although the ordinance does
not distinguish between Illinois and out-of-state breeders,
plaintiffs contend that Illinois breeders will gain business
from Cook County customers. According to plaintiffs, Cook
County "consumers will often want to see an animal before
making a purchasing decision" but "are not likely to travel
into another state to purchase an animal if they can purchase
directly from a breeder located in Illinois." Id. 11 50. Thus,
out-of-state breeders will be forced to either lose business
to Illinois breeders or establish a physical presence in Cook
County. Id.~~ 50, 76.
Plaintiffs claim that the ordinance violates the U.S.
Constitution because it impermissibly burdens interstate
and foreign commerce (count I), violates plaintiffs' equal
protection rights (count 2), and is impermissibly vague (count
4). Plaintiffs also contend that the ordinance is preempted
by state and federal law and that the county has exceeded
its home rule powers under the Illinois Constitution (count
3). The pet shops and their owners (but not MPBA) contend
that the ordinance violates the Contract Clause of the U.S.
Constitution (count 5). And finally, plaintiffs request a
permanent injunction enjoining defendants from enforcing
the ordinance against the1n (count 6).
Discussion
When considering a motion to dis1niss, the Court accepts
plaintiffs' allegations as true and draws reasonable inferences
in their favor. Parish v. City of Elkhart, 614 F.3d 677, 679
(7th Cir.2010). In order to state a viable claim, plaintiffs must
provide "enough facts to state a claim to relief that is plausible
on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible
on its face if "the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.ct. 1937, 173 L.Ed.2d 868 (2009).
A. Standing
Defendants argue that certain claims must be dismissed for
lack of standing under Federal Rule of Civil Procedure l 2(b)
(1).
1. MPBA's standing
[l] Defendants argue that MPBA does not meet the
constitutional or prudential requirements for standing. MPBA
Missouri Pet Breeders Association v. County of Cook,··· F.Supp.3d •••• (2015)
...• ,,.,,.,,...........,,.,,.
,,,,,,,,,,
does not challenge defendants' contention that it lacks
[4] Finally, MPBA can represent the interests of its members
without their individual participation. When an "association
seeks a declaration, injunction, or some other form of
itself suffered a concrete and particularized injury that is
prospective relief, it can reasonably be supposed that the
traceable to defendants 1 challenged actions and would be
remedy, if granted, will inure to the benefit of those members
redressed by a favorable decision. See Lujan v. Defenders of
of the association actually injured." Warth v. Seldin, 422 U.S.
Wildlife, 504 U.S. 555, 560, 112 S.Ct 2130, 119 L.Ed.2d 351
490, 515, 95 S.ct. 2197, 45 L.Ed.2d 343 (1975), Accordingly,
(1992). MPBA does not allege that it has suffered any injury
" 'individual participation' is not normally necessary when
itself; it only alleges injuries to its members. Thus, it has not
an association seeks prospective or injunctive relief for its
met the ininimum constitutional requirements for standing to
members." United Food & Commercial Workers Union Local
sue on its own behalf. See Milwaukee Police Ass 1n v. Bd. of
751 v. Brown Grp., Inc,, 517 U.S. 544, 546, 116 S.Ct. 1529,
Fire & Police Comm'rs of Milwaukee, 708 F.3d 921, 926-27
134 L.Ed.2d 758 (1996) (citing Warth, 422 U.S. at 511,
(7th Cir.2013).
95 S.Ct 2197). Here, plaintiffs have requested declaratory
and injunctive relief, which would likely benefit all MPBA
*3 [2] [3] MPBA does, however, have standing to sue on members if granted. Thus, MPBA has standing to sue on
behalf of its members, Missouri pet breeders. An association
behalf of its members under Article !IL
has Article III standing to sue on behalf of its members when
"(a) its members would otherwise have standing to sue in their
[5] "In addition to the constitutional limitation on standing,
own right; (b) the interests it seeks to protect are germane to
courts also impose 'prudential limitations' on the class of
the organization's purpose; and (c) neither the claim asserted
persons who may invoke federal jurisdiction. Among these
nor the relief requested requires the participation of individual
prudential restrictions is the general rule that a litigant must
members in the lawsuit." Jlunt v. Wash. State Apple Adver.
assert his own legal rights and cannot assert the legal rights
Comm'n, 432 U.S. 333, 343, 97 S.Ct 2434, 53 L.Ed.2d 383
ofa third party." Massey v. Helman, 196 F.3d 727, 739 (7th
(1977).
Cir. 1999) (internal citation omitted). Defendants contend that
MPBA cannot sue to enforce the rights of others. Contrary
First, MPBA's members would have standing to sue under
to defendants' assertion, MPBA has not asserted the rights of
Article III. They allege a concrete and imminent injuiy,
others. With the exception of certain individual allegations
namely, that they v.rill lose sales if the ordinance takes effect.
that relate to other parties' rights, which the Court discusses
Specifically, MPBA alleges that the ordinance will cause
in more detail below, MPBA seeks to assert the rights of
Missouri breeders to sell fewer pets to Cook County pet
Missouri pet breeders.
stores. They also clai1n that they will lose business to Illinois
breeders, because consu1ners will choose to buy more pets
directly from breeders but will be more likely to go to Illinois
2. Standing to raise Foreign Commerce Clause claim
breeders due to geographical convenience. Although the
effect is indirect, as the Court describes below in considering
*4 [6] All of the plaintiffs lack standing to raise a
plaintiffs' Commerce Clause claim, MPBA has articulated
Foreign Commerce Clause challenge. Plaintiffs argue that
a sufficiently concrete injuiy to its breeders to satisfy the
the ordinance violates the Foreign Commerce Clause by
requirements of Article III. See, e.g., Alliance }Or Clean
in1permissibly burdening foreign commerce. U.S. Const. art.
Coal v. Miller, 44 F.3d 591, 594~95 (7th Cir.1995) (ruling
I, § 8, cL 3. Specifically, plaintiffs allege that the ordinance
that a trade association whose members included Colorado
conflicts with federal regulations governing the importation
and Oregon coal companies had alleged an injuiy-in-fact by
of dogs from foreign countries and effectively prevents
claiming that the challenged legislation would make utilities
pet stores from obtaining pets from foreign countries. Am.
less likely to use western coal).
CompL ~ 81. Neither party has alleged a sufficiently concrete
standing to sue on its own behalf under Article III. To sue
in its own right, MPBA must establish that the organization
Second, MPBA seeks to protect interests that are germane to
the association1s purpose. MPBA "exists, in part, to advocate
for the interests of its members," and the association filed this
laVv'SUit to protect those interests. Am. Compl. ~ 9.
and particularized injury to establish standing to raise the
Foreign Commerce Clause challenge under Article III.
MPBA lacks standing, because Missouri breeders do not
have any personal interest in whether foreign breeders are
allowed to sell pets to Cook County pet stores. The pet stores
and their owners also lack standing, because none of them
--N F.Supp.3d ---- (2015)
have alleged that they actually purchase animals from foreign
breeders. Thus plaintiffs have not alleged any concrete and
particularized injury. See Lujan, 504 U.S. at 560, 112 S.Ct.
2130.
3, Third-party standing
Many of the individual claims actually contemplate multiple
constitutional violations. Some of the claims implicate the
Missouri pet breeders 1 rights, whereas others implicate the
Cook County pet stores' rights. For instance, in their equal
protection clain1, plaintiffs challenge the distinction between
pet stores (whose sales are regulated) and notNfor-profits
and breeders (whose sales are not regulated). This allegation
implicates the pet stores 1 rights. Plaintiffs also challenge
the distinction between different types of breeders, namely,
the distinction between licensed breeders and the practical
distinction between in-state and out-of-state breeders. These
allegations partially implicate the breeders' rights.
Generally, a party cannot assert the rights of another unless
"the party asserting the right has a close relationship with the
person who possesses the right" and "there is a hindrance to
the possessor1s ability to protect his own interests." Kowalski
v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519
(2004) (internal quotation marks omitted). The Court need
not determine whether each plaintiff has standing to pursue
each individual claim, however, because for every claim "we
have at least one individual plaintiff who has de1nonstrated
standing to assert these rights as his own." Vil!. of Arlington
Heights v. Metro. Haus. Dev. Corp., 429 U.S. 252, 264, 264
n. 9, 97 S.ct. 555, 50 L.Ed.2d 450 (1977); see also Watt v.
Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct.
205, 70 L.Ed.2d 309 (1981).
Having concluded that plaintiffs have standing to pursue all
of their claims, 'A-'ith the exception of the Foreign Commerce
Claim, the Court turns to defendants' argument that plaintiffs
have failed to state any claim upon which relief can be
granted.
B. Home rule powers and federal and state preemption
Plaintiffs claim that the ordinance is preempted by state and
federal law and that that the ordinance exceeds Cook County's
home rule powers under the Illinois Constitution. Am. Compl.
'11'1193-103.
[7]
[8] Atticle VII of the Illinois Constitution states that
a home rule unit such as Cook County "may exercise any
power and perform any function pertaining to its government
and affairs including, but not limited to, the power to regulate
for the protection of the public health, safety, morals and
welfare." Ill. Const. art. 7, § 6(a). To determine whether a
municipality has exceeded its home rule powers by legislating
in an area of statewide concern, courts consider "the nature
and extent of the problem, the units of government which
have the most vital interest in its solution, and the role
traditionally played by local and statewide authorities in
dealing with it." Kalodimos v. Vil!. of Morton Grove, 103
Ill.2d 483, 501, 83 Ill.Dec. 308, 470 N.E.2d 266, 274 (1984).
The Illinois Constitution gives home rule units "the broadest
powers possible." Scadron v. City of Des Plaines, 153 Ill.2d
164, 174, 180 Ill.Dec. 77, 606 N.E.2d 1154, 1158 (1992).
[9] Plaintiffs argue that Cook County may not regulate
animal breeding and sales because the state legislature has
the exclusive power to enact laws in that area. Although the
Illinois General Assembly has passed laws related to animal
sales and welfare, including the Illinois Animal Welfare Act,
the Illinois Animal Control Act, and the Illinois Puppy Lemon
Law, the Illinois Constitution grants counties the power to
"exercise and perform concurrently with the State any power
or function of a home rule unit to the extent that the General
Assembly by law does not specifically li1nit the concurrent
exercise or specifically declare the State's exercise to be
exclusive." Ill. Const. art. 7, § 6(i). Illinois has not expressly
barred local govenunents from exercising power in the field
of animal control. In fact, a provision of the Illinois Animal
Control Act states that the statute "shall [not] ... be construed
to, in any manner, limit the power of any municipality or
other political subdivision to further control and regulate
dogs, cats or other animals in such municipality or other
political subdivision provided that no regulation or ordinance
is specific to breed." 510 ILCS 5/24; see also Cnty. of Cook
v. Vil!. of Bridgeview, 2014 IL App (1st) 122164, 1) 14,
380 Ill.Dec. 733, appeal denied, 388 Ill.Dec. 2, 23 N.E.3d
1200 (2015) ("In Illinois, the problem of animal control,
overpopulation, and the spread of rabies is both a local and
statewide concern."). Although the Illinois Puppy Lemon
Law and Animal Welfare Act do not have a si111ilar limitation,
neither statute includes "specific language limiting or denying
the power or function" of home rule units. 5 ILCS 7017
("No law enacted after January 12, 1977, denies or limits
any power or function of a home rule unit ... unless there is
specific language limiting or denying the power or function
and the language specifically sets forth in what manner and
1:
Missouri Pet Breeders Association v. County of Cook, --- F.Supp,3d ---- (2015)
to what extent it is a limitation on or denial of the power
or function of a home rule unit."). Because both state and
local governments have a vital interest in animal control, and
the Illinois legislature has not barred local governments from
exercising their home rule powers in this area, Cook County
may regulate animal breeding and sales as part of its home
rule authority.
*5 [10] To determine whether a local law is preempted by
Illinois law, courts must "determine whether the legislature
has specifically limited the concurrent exercise of this power
or specifically declared that the state1s exercise of this power
is exclusive.'' See City of Chicago v. Roman, 184 IIL2d 504,
515, 235 Ill.Dec, 468, 705 N.E.2d 81, 88 (1998). Thus, the
ordinance is not preempted under state law for the same
reasons that it is a valid exercise of home rule power.
[11] Plaintiffs also claim that the federal Animal Welfare
Act (AWA) and related regulations preempt the ordinance.
Federal preemption occurs in three situations: (1) when
Congress has expressly stated that a federal statute preempts
state or local law; (2) "when a pervasive scheme of federal
regulation 1nakes it reasonable to conclude that Congress
intended exclusive federal regulation of the area;" and (3)
when "state or local law actually conflicts with federal law."
DeHart v. Town of Austin, 39 F.3d 718, 721 (7th Cir.1994).
Plaintiffs acknowledge that the Seventh Circuit has rejected
federal preemption challenges to local animal regulations but
argue that this ordinance "goes much further" because it was
"designed to stop the importation of animals in interstate
commerce~which is directly contrary to the AW A's stated
purpose of 'prevent[ing] and eliminat[ing] burdens upon [the
free flov.r of] commerce.' " Pis.' Resp. to Defs. 1 Mot. to
Dismiss at 23 (citing 7 U.S.C. § 2131 ).
The Court agrees with defendants that DeHart forecloses
plaintiffs' federal preemption claim. Jn that case, a seller
of exotic animals claimed that the AWA preempted a local
ordinance that banned possession and ownership of wild and
dangerous animals. DeHart, 39 F.3d at 720-21. The court
held that the AWA did not preempt the ordinance, because
the AW A "expressly contemplates state and local regulation
of animals," Id at 722-23. The court pointed to the AW A's
provision stating that the AWA "shall not prohibit any State
(or a political subdivision of such State) from promulgating
standards in addition to those standards promulgated by the
Secretary." Id at 722 (quoting 7 U.S.C. § 2143(a)(8)). The
court also noted that animal welfare is "an area of regulation
within the historic police powers of a municipality." Id
[12] As in DeHart, none of the three types of preemption
apply in this case. Congress has not expressly limited
the power of state or local governments to regulate in
this area. Preemption cannot be infe1Ted, as there is
no indication that Congress intended exclusive federal
regulation in the area. To the contrary, Congress expressly
contemplated local regulation of animal welfare. See 7
U.S.C. § 2143(a)(8). Moreover, the USDA, the agency
authorized to promulgate rules under the statute, 7 U.S.C.
§ 2151, has encouraged local governments to enact laws
related to animal protection. See APHIS Fact Sheet
(Feb.2014), available at www.aphis.usda.gov/publications/
aniinal_welfare/content/printable_version/faq_
animal_dealers.pdf ("States and local governments may
create and enforce their own laws and regulations to protect
animals, which may exceed the A WA standards."). (The
Court may take judicial notice of inforn1ation published
on federal agencies 1 websites, provided the accuracy of the
content can readily be determined and cannot reasonably
be questioned. See Denius v. Dunlap, 330 FJd 919, 926
(7th Cir.2003); Laborers' Pension Fund v. Blackmore Sewer
Const,, Inc,, 298 FJd 600, 607 (7th Cir.2002).)
*6 Finally, the ordinance does not conflict with the A WA
or federal regulations. An ordinance is not preempted merely
because it will hurt local businesses economically. The
court in DeHart concluded that even if the local ban on
wild animal ownership "produces onerous consequences for
DeHart's business, preemption is not established." DeHart,
39 FJd at 722. The court stated that there was no conflict
preemption because "DeHart has not shown that it is
physically impossible to comply with both the federal and
local regulations." Id. The Cook County ordinance is even
easier to comply with than the complete ban on wild animal
ownership at issue in DeHart. A Cook County pet store
operator could comply with the ordinance and federal law
by sourcing from s111all, licensed breeders. And breeders
could comply with the ordinance by reducing the number of
female animals on their premises and obtaining the necessary
licenses.
In sum, the Court dismisses plaintiffs' claims alleging state
and federal preemption and violation of the home rule
provisions of the Illinois Constitution (count 3).
C. Equal Protection
Plaintiffs claim that the ordinance violates their right to equal
protection under the Illinois and U.S. Constitutions. The
Missouri Pet Breeders Association v. County of Cook, --- F.Supp.3d ---- (2015)
Court considers both claims together, as state and federal
equal protection claims are analyzed under the same standard.
See Wauconda Fire Prat. Dist. v. Stonewall Orchards, LLP,
214 Ill.2d 417, 434, 293 Ill.Dec. 246, 828 N.E.2d 216, 226
(2005).
Plaintiffs allege that the ordinance impennissibly
distinguishes between groups in three ways:(!) Cook County
pet shops may not sell pets obtained from certain breeders,
whereas breeders, not-for-profits, and government entities
may sell pets directly to consumers without regulation; (2)
out-of-state breeders will have difficulty selling animals to
commissioners concluded that "the inhumane conditions in
puppy and kitten mill facilities lead to health and behavioral
issues as well as congenital and hereditary illness and
disease." Id. Law1nakers imposed breeder-size requirements
to ensure that pet stores bought animals from small breeders
as opposed to inhumane mass-breeding facilities.
*7 [15]
[16] Plaintiffs contend that the ordinance is
underinclusive, because it prevents pet stores from selling
animals raised in large breeding facilities but "fail[ s] to ban
the very same sales [ J from other sources, such as local
breeders, retailers that are not a 'Pet shop operator' under
the [o]rdinance, internet or other ren1ote sellers, and even
Cook County consumers because of geographic constraints,
animal shelters or 'rescue' organizations that, wittingly or
whereas in-state breeders will easily sell to Cook County
unwittingly, can end up buying 'puppy mill' puppies and
consumers; (3) breeders with class A licenses issued by the
USDA may sell animals to Cook County pet stores (provided
passing them on to consumers." Am. Comp I. ii 88. But a
law need not co1npletely eliminate the perceived proble1n to
they have five or fewer female animals), whereas breeders
with class B licenses may not. Am. Comp!.~ 84.
satisfy the rational-basis standard. See Minnesota v. Clover
Leef Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 66
[13]
[14] The parties agree that these classifications are L.Ed.2d 659 (1981). A government entity may implement
subject to rational-basis review, because the ordinance does
legislation "step by step" by "adopting regulations that only
not distinguish based on a suspect classification or implicate
partially ameliorate a perceived evil and defening complete
elimination of the evil to future regulations." City of New
a fundamental liberty interest. See FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d
Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49
211 (1993). Accordingly, the ordinance is presumed to
L.Ed.2d 511 (1976). The ordinance's breeder-size limitations
are plausibly designed to reduce the number of anitnals
be valid and will be upheld "if there is any reasonably
conceivable state of facts that could provide a rational
sold in Cook County that are obtained from mass-breeding
basis for the classification[s)." Id. at 313-14, 113 S.Ct.
facilities. This restriction is rationally related to a legitimate
2096. The motivations of legislators are not relevant to
government interest, even if it does not include all animals
this analysis. Id. at 315, 113 S.Ct. 2096. No evidentiary
from mass-breeding facilities.
proceedings are necessary if lawmakers have presented some
Plaintiffs' contention that the ordinance has a disparate effect
conceivable rational basis for a law, because "[o]utside the
realm of 'heightened scrutiny' there is [ J never a role for
on out-of-state breeders compared to in-state breeders also
cannot survive rational-basis review. Plaintiffs argue that
evidentiary proceedings." Nat'! Paint & Coatings Ass'n v.
in-state breeders will have greater access to Cook County
City of Chicago, 45 F.3d 1124, 1127 (7th Cir.1995).
customers who want to buy a pet but do not want to travel
Defendants have offered "plausible reasons" justifying the
far to see it Even if there is such an effect, the decision
challenged classifications. Beach Con11nc'ns, Inc., 508 U.S.
to only restrict pet stores' direct sales rather than breeders'
direct sales to customers can be explained as an incremental
at 313, 113 S.Ct. 2096 (internal quotation marks omitted).
The ordinance was passed to "[p ]rotect [ ] animals from
step to eliminate mass-breeding facilities. The ordinance
improper use, abuse, neglect, inhumane treatment and
does not raise equal protection concerns, even if it will not
health hazards, particularly rabies." Cook County, Ill., Rev.
completely solve the problems it was intended to address.
Ordinances ch. I 0, art. I, § I 0-1 (2). Specifically, the Board
Any disparate effect that stems from the distinction between
sales by breeders and sales by pet stores is rationally related
of Commissioners determined that puppy mills-"inassto the legitimate government interest of limiting the use of
breeding facilities that churn out puppies with an emphasis
on profit over welfare" -"usually house dogs in overcrowded
mass-breeding facilities.
and unsanitary conditions without adequate veterinary care,
food, water and socialization." Pmbl. to Cook County,
Plaintiffs also argue that the ordinance impermissibly
Ill. Ordinance Amend. No. 14-2408 (Apr. 9, 2014). The
distinguishes between breeders with class A and class B
-um
USDA licenses, because a pet store may purchase from a
breeder with a class A license but not any other license. The
USDA issues class B licenses to dealers that purchase and
resell animals, typically those that transport animals across
state lines. Am. Comp!. 1f 51; see also 9 C.F.R. § 1.1. Pet
shops are affected by the ordinance's licensing requirement,
because class B dealers "serve as a critical source for pet
stores to obtain their animals from other states." Am. Compl.
1f 53. The classification between breeders with Class A
licenses and those with other licenses is rationally related to
Cook County's interest in protecting animals from "improper
use, abuse, neglect, inhumane treatment and health hazards."
Cook County, Ill., Rev. Ordinances ch. 10, ait I,§ 10-1(2).
Class A licensees only sell animals "that are bred and raised
on the premises in a closed or stable colony." 9 C.F.R. §
1.1. If the purpose of the ordinance is to ensure that animals
are raised in humane conditions, it makes sense to remove
barriers between the consu111er and the place where the pet
was raised. A dealer that merely transports animals may
not have the same knowledge of the animal's upbringing as
compared to a breeder that raises the animals on its pre111ises.
Thus, the Court concludes that there are plausible reasons for
the County to require pet stores to sell animals only from those
breeders who have a class A license.
Finally, the Court finds meritless plaintiffs' argument that
the ordinance is "actually counterproductive" because it
encourages consumers to purchase from unlicensed and
unregulated brokers. Am. Comp!. 1f 89. The Court is
also unpersuaded by their argument that the ordinance is
overinclusive because it prevents pet shops from selling
animals from certain reputable breeders that treat animals
humanely. Id. if87. The Court may not assess the "correctness
of [ J legislative judg1nents" as part of rational-basis review.
Clover Leaf Creamery Co., 449 U.S. at 464, IO! S.Ct.
715. Rather, plaintiffs "must convince the court that the
legislative facts on which the classification is apparently
based could not reasonably be conceived to be true by the
governmental decisionmaker." Id Even assuming the facts
alleged in the complaint are true, they are unconvincing in
this context. Because a legislative decision "may be based
on rational speculation unsupported by evidence or empirical
data" and defendants have posited rational explanations for
the ordinance, the Court dismisses plaintiffs' equal protection
claim (count 2). Beach Commc'ns, Inc., 508 U.S. at 315, 113
S.Ct. 2096 ("[A] legislative choice is not subject to courtroom
fact-finding."); see also Nat? Paint & Coatings Ass'n, 45 F.3d
at 1129.
F .Supp.3d
M~W~
(2015}
D. Commerce Clause
*8 The Commerce Clause implicitly prevents state and local
governments from passing laws that discriminate against or
excessively burden interstate commerce. U.S. Const. art. 1,
§ 8, cl. 3; see also Clover Leaf Creamery Co., 449 U.S.
at 471, 101 S.Ct. 715. Plaintiffs contend that the ordinance
impermissibly burdens and discriminates against interstate
commerce.
[17]
[18] To prevail on a so-called "dormant" commerce
clause claim, plaintiffs must, as a threshold matter,
demonstrate that the law or regulation burdens interstate
commerce. See Alliant Energy Corp. v. Bie, 330 F.3d 904, 911
(7th Cir.2003); C & A Carbone, Inc. v. Town a/Clarkstown,
511 U.S. 383, 389, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994).
If a law or regulation burdens interstate commerce, a court
must categorize the law1s effects. See Nat? Paint & Coatings
Ass'n, 45 F.3d at 1131-32. Laws that expressly discriminate
against interstate commerce are "virtually per se" invalid. C
&A Carbone, Inc., 511 U.S. at 392, 114 S.Ct. 1677. Laws that
are facially neutral but have a powerful disparate effect on
interstate commerce are also considered discriminatory. See
Nat'/ Paint & Coatings Ass'n, 45 F.3d at 1131. By contrast,
laws that are facially neutral but have only incidental or
indirect effects on interstate commerce are analyzed under the
Pike balancing test, and a law is upheld "unless the burden
imposed on such commerce is clearly excessive in relation to
the putative local benefits." Pike v. Bruce Church, Inc., 397
U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); see also
Nat'/ Paint & CoatingsAss'n, 45 F.3dat 1134; Gov't Suppliers
Consolidating Servs., Inc. v. Bayh, 975 F.2d 1267, 1277 (7th
Cir.1992).
[191 Plaintiffs suggest a number of ways that the ordinance
burdens interstate com1nerce. First, they contend that the
ordinance is facially discriminatory because it defines a
"pound," which is a permissible supplier for pet stores, to
include only those pounds that are licensed by the state of
Illinois. Am. Comp!.~ 74. A law that expressly discriminates
against interstate commerce is "virtually per se" invalid. C
& A Carbone, Inc., 51 l U.S. at 392, 114 S.Ct. 1677. But
this provision does not expressly distinguish between in-state
and out-of-state pounds. Although "pound" is defined as "any
facility licensed by the Illinois Department of Agriculture,"
the ordinance later lists the permissible sources for pet
stores to include a "pound ... operated by any subdivision of
local, state or federal government." Cook County, Ill., Rev.
Ordinances ch. 10, art. I,§§ 10-2, 10-13 (emphasis added).
Pet stores can therefore obtain pets from any pound, whether
Missouri Pet Breeders Association v. County of Cook,~~~ F.Supp.3d
it is operated by a government entity in Illinois or another
state. This provision does not distinguish between pounds
based on location, and there is no indication that the provision
otherwise affects interstate commerce. Thus, the ordinance's
definition of "pound" does not run afoul of the Commerce
Clause.
~K~~
(2015}
that this will be made even more difficult and expensive
because the ordinance prohibits the use of Class B breeders
that transport animals. Id. Plaintiffs' claim is not actionable
under the Commerce Clause. The dormant Commerce
Clause prohibits protectionist activity by state and local
governments. A regulation that shifts business to out-of-state
firms at the expense of in-state firms is not the type of
harm the Conunerce Clause prohibits. See New Energy Co.
of Ind. v. Limbach, 486 U.S. 269, 273, 108 S.ct. 1803, 100
L.Ed.2d 302 (1988) ("This 'negative' aspect of the Commerce
Clause prohibits economic protectionism~that is, regulatory
meastrres designed to benefit in-state economic interests by
burdening out-of-state competitors."); Baude v. Heath, 538
F.3d 608, 615 (7th Cir.2008) (upholding a provision in an
Indiana law that "simply shifts sales from smaller wineries
(in all states, including Indiana) to larger wineries (all of
which are located outside Indiana)," because "the fact that all
Indiana wineries are small does more to show that this law's
disparate impact cuts against in-state product than to show
that Indiana has fenced out wine fron1 other jurisdictions").
[20] Plaintiffs' other Commerce Clause claims fail because
plaintiffs have not plausibly alleged that the ordinance
burdens interstate commerce. See Bie, 330 F.3d at 911 ("If a
party seeking to invalidate a statute cannot show any burden
on interstate co1nmerce, then the Dormant Commerce Clause
is not implicated and the statute will not be invalidated.").
Plaintiffs contend that the ordinance impermissibly burdens
interstate commerce because "it eliminates nearly all breeders
from which the Pet Shops are permitted to purchase animals."
Am. Comp!. ~ 78. Plaintiffs essentially claim that they will
be unable to meet customers 1 demands because there will not
be enough breeders that meet the ordinance's requirements.
They argue that their supply of pure-and specialty-breed pets
\\:ill dry up and that customers will start to purchase 1nore
pets at unregulated in-state breeders, who are not bound by
the breeder-size restrictions. Id. if69. Even if the ordinance
will result in these problems for pet stores, these effects are
not interstate in nature. Plaintiffs suggest that business will
shift from Illinois pet stores to Illinois breeders. But a law
does not burden interstate commerce if it shifts business from
one in-state firm to another in-state finn. The Commerce
Clause only prohibits actions that increase the proportion of
in-state goods in the market See Exxon Co1p. v. Governor
of Maryland, 437 U.S. 117, 126 n. 16, 98 S.Ct. 2207, 57
L.Ed.2d 91 (1978) (rejecting discriminatory effect argument
where the "statute has no impact on the relative proportions
of local and out-of-state goods sold in Maryland and, indeed,
no demonstrable effect whatsoever on the interstate flow
of goods"). A Jaw does not burden interstate commerce
if it "affect[s] con1merce without any reallocation among
jmisdictions," in other words, if the law does not "give
local firms any competitive advantage over those located
elsewhere." Nat'/ Paint & Coatings Ass'n, 45 F.3d at 1131.
Plaintiffs 1 allegation that the ordinance will shift business
between in-state entities does not constitute a Commerce
Clause violation.
[22] Plaintiffs identify one way the ordinance could cause
out-of-state firms to benefit at the expense of in-state firms.
They argue that the ordinance "effectively prevents out-ofstate breeders, such as those represented by the MPBA[,J
from having physical access to market de1nand for pure- and
specialty-breed animals in Cook County," whereas ''[i]n-state
local unlicensed breeders ... retain physical access to that
market by virtue of being located here." Am. Comp!. ~ 76.
Their argument proceeds as follows: There are not enough
breeders that meet the ordinance's requirements to supply the
desired number of specialty pets to Cook County pet stores.
As a result, Cook County residents who want pure-bred pets
will have to look elsewhere. They will turn to breeders to
buy specialty pets, because breeders' sales to consumers are
not regulated under the ordinance. Because Cook County
consumers want to see pets before purchasing and do not want
to travel outside of Illinois to do so, consumers will be more
likely to buy from in-state breeders as opposed to out-of-state
breeders. In-state breeders will therefore get more business,
and out-of-state breeders (who otherwise would have sold to
the pet stores but will not be able to if they do not meet the
ordinance's requirements) will get less business.
*9 [21 J Plaintiffs also claim that the ordinance "burdens
interstate commerce because pet shop owners will have to
find breeders that meet the [o]rdinance's criteria outside of
Illinois, which will force then1 to incur greater transportation
costs more frequently." Am. Comp!. ~ 79. They complain
The purported discriminatory effect is indirect and relies on
numerous implausible assumptions about the market for pets.
The Court assumes, for purposes of the motion to dismiss,
that the ordinance will prevent Cook County pet stores
from supplying enough pure-bred pets to meet consumers1
Missouri Pet Breeders Association v. County of Cook,··· F.Supp.3d •••• (2015)
demands, although even this assumption is speculative. To
id if77. If consumers are truly as discerning about their pure-
determine whether there is a disparate effect on interstate
conunerce, the Court must ask where consumers will buy pets
and specialty-breed dogs as plaintiffs suggest, then wouldn't
those consumers also be willing to travel significant distances
(if Missouri can be considered a significant distance) to buy
a particular breed from a breeder?
if they cannot find the pets they want in Cook County pet
stores. See Nat'/ Paint & Caatings Ass'n. 45 F.3d at 1132.
First, there is no suggestion that of the counties surrounding
Cook County have a similar ordinance. If the Cook County
ordinance takes effect, the most likely outcome will be that
Cook County consumers who would have purchased a pet at
a Cook County pet store instead will travel to a pet store in
one of the surrounding counties. Alternatively, more people
will get pets from not-for-profit or government entities. But
neither of these outcomes imposes a burden on interstate
commerce, as business would simply shift between entities
within Illinois. See Exxon Corp .. 437 U.S. at 126 n. 16, 98
In order to find plaintiffs' claim of discriminatory effect
plausible, the Court would have to accept that the ordinance
will trigger this extended chain of events, which will
indirectly result in in~state breeders benefiting at the expense
of out-of-state breeders. The Court finds the alleged effect
to be too indirect and speculative to "raise a reasonable
expectation that discovery will reveal evidence" of a
Commerce Clause violation. Twombly, 550 U.S. 544, 545,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
S.Ct. 2207.
Even if the Court finds plausible plaintiffs' claim that
consumers will be more likely to buy pets directly from
breeders, it is not plausible that consumers will be more likely
to buy from Illinois breeders. The complaint contradicts this
contention. Currently, two of the pet store plaintiffs obtain
"lOOo/o of their puppies from out of state breeders/' and the
third obtains "98.71% of its animals from out of state." Am.
Comp!. 147. This is because "there is a very limited supply of
breeder-provided animals in Illinois." Id. This fact suggests
that there are not enough Illinois breeders to meet consumers 1
demands as it is, which makes it unlikely that Illinois breeders
would sell more pets if the ordinance takes effect.
*10 Additionally, plaintiffs assume that out-of-state
breeders will not be able to restructure their businesses
without significant expense. But out-of-state breeders could
comply with the breeder-size and licensing requirements.
Although plaintiffs have not indicated how difficult it is
for a breeder to obtain a class A license, they admit that
"[t]heoretically, a breeder with fewer than 5 dogs could ask
the USDA to regulate them." Id. 142.
Finally, plaintiffs argue that consu1ners will be less likely
to travel to an out-of-state breeder than an in-state breeder.
But a Cook Colll1ty resident can visit a breeder in Indiana
or Wisconsin just as quickly (if not more quickly) as he
can travel to many breeders in Illinois. Moreover, plaintiffs
indicate that there is a large demand for pure-and specialtybred dogs that will go unmet if the ordinance takes effect.
They state that "the average selling price of a [specialtybreed] dog at a Pet Store is approximately $1,200 [,]while the
average price at a shelter is around $150." Id. if58; see also
Because plaintiffs have not plausibly alleged that the
law discriminates against or burdens interstate commerce,
rational-basis review applies. See Nat'! Paint & Coatings
Ass'n, 45 F.3d at 1131-32. As the Court has indicated, Cook
County has advanced plausible rationales for the ordinance's
restrictions. Thus, the Court dismisses plaintiffs 1 Commerce
Clause claim (count 1).
E. Contract Clause
The U.S. Constitution prohibits state and local governments
from passing laws that impair the obligation of contracts. U.S.
Const art. I, § 10, cl. 1. The pet stores and their owners claim
that the ordinance violates the Contract Clause because it
impermissibly interferes with their building leases, franchise
agreen1ents, and contracts to purchase pets fro1n particular
breeders. Am. Comp!. ~ l l 4. Plaintiffs also argue that an
Illinois law that requires pet stores to "exchange the dog
or cat for another dog or cat of con1parable value" if the
animal develops certain health proble1ns after the sale creates
a warranty between consumers and pet stores. 225 ILCS
605/3.l5(g). The pet stores claim they cannot honor these
warranties if the ordinance takes effect, because their supply
of comparable pets will be significantly limited. Am. Comp!.
, 63.
[23] Although the Contract Clause appears absolute in its
prohibition, it "does not deprive the States of their 'broad
power to adopt general regulatory measures without being
concerned that private contracts will be impaired, or even
destroyed, as a result.' "Exxon Corp. v. Eagerton, 462 U.S.
176, 190, 103 S.Ct. 2296, 76 L.Ed.2d 497 (1983) (quoting
United States Tr. Co. v. New Jersey, 431 U.S. l, 22, 97 S.Ct.
~w-
1505, 52 L.Ed.2d 92 (1977)); see also Chi. Ed of Realtors,
Inc. v. City of Chicago, 819 F.2d 732, 735-36 (7th Cir.1987).
F.Supp.3d
---~
(2015)
[28]
[29] Plaintiffs also claim that the ordinance is
void for vagueness. An ordinance "may operate in an
unconstitutionally vague manner if it: 1) does not provide
*11 [24]
[25]
[26]
[27] Courts apply a "three-stepl person of ordinary intelligence a reasonable opportunity
inquiry to determine whether or not a law violates the
to know what is prohibited, or 2) fails to provide explicit
contract clause." Chi. Ed of Realtors, Inc., 819 F.2d
standards to prevent arbitrary and discrin1inatory enforce1nent
at 736. Courts ask (1) "whether the [o]rdinance in fact
by those enforcing the statute." United States v. Lim, 444 F.3d
operates as a substantial impairment of existing contractual
910, 915 (7th Cir.2006). When a contested piece oflegislation
relationships;" (2) ''whether the city has a significant and
does not implicate First Amendment freedoms, as in this case,
"the challenger must show that the law is vague as applied to
legitimate public purpose justifying the [o]rdinance;" and
(3) ''whether the effect of the [o]rdinance on contracts
the facts of the case at hand." United States v. Brierton, 165
is reasonable and appropriate given the public purpose
F.3d 1133, 1139 (7th Cir.1999). As applied to plaintiffs, the
behind the [o]rdinance." Id In this case, the ordinance will
contested provisions offer enough guidance that a person of
ordinary intelligence would know what is prohibited.
not make it impossible for the pet stores to meet their
contractual obligations, as it does not impose a prohibition on
any contracts or con1pletely eliminate plaintiffs' businesses.
[30] First, plaintiffs challenge the provision that exempts
Even assuming the ordinance substantially impairs existing
from regulation "those areas which are governed by an
contracts, as plaintiffs allege, Cook County has outlined
ordinance of another governmental entity (which by law may
legitimate purposes for the regulation, as the Court has
not be superseded by this section)." Cook County, Ill., Rev.
previously noted. Courts are less inclined to strike down
Ordinances ch. 10, art. I, § 10-13(e). Plaintiffs argue that
legislation that has an "incidental effect" on existing contracts
this is vague because it is not clear whether "an ordinance of
another governmental entity" refers to federal, state, or local
when a state or local government does not "prescribe a
rule limited in effect to contractual obligations or remedies,
law. A1n. Compl. 'if 105. It is clear, however, that "ordinance"
but instead impose[s] a generally applicable rule of conduct
in that provision refers to regulations passed by other local
designed to advance 'a broad societal interest.' " Exxon
governments, na1nely municipalities within Cook County.
Corp., 462 U.S. 176 at 191-92, 103 S.Ct. 2296, 76 L.Ed.2d
See Black's Law Dictionaiy 1273 (10th ed.2014) (defining
497 (quoting Allied Structural Steel Co. v. Spannaus, 438
"ordinance" as "a municipal regulation"). Moreover, it is
U.S. 234, 249, 98 S.ct. 2716, 57 L.Ed.2d 727 (1978)).
clear that "an ordinance" refers to any conflicting ordinance
Moreover, "when the state or its agent is not a party to
as opposed to any ordinance at all, because the latter
the contract i1npaired by the challenged law, the court's
interpretation would render the Cook County ordinance
scrutiny is relaxed." Chi. Ed of Realtors, Inc., 819 F.2d at
1neaningless.
737. In situations like this one, the court must defer to the
legislators 1 judg1nent and ask whether they "rationally could
[31] Second, plaintiffs challenge the provision listing the
have believed [the ordinance] would lead to improved public
government-run entities fron1 which pet stores can obtain
health and welfare." Id; see also U.S. Tr. Co. ofN.Y, 431
animals. Am. Comp!. ~ 105. Specifically, they contend that
U.S. at 22-23, 97 S.Ct. 1505 ("As is customary in reviewing
pet stores lack sufficient guidance because the permissible
economic and social regulation [ ] courts properly defer to
sources are not adequately defined. The meaning of each
legislative judgment as to the necessity and reasonableness of
undefined term in that section is reasonably clear, however.
a particular measure."); Keystone Bituminous Coal Ass 1n v.
First, the key requirement is that the sources listed in
DeEenedictis, 480 U.S. 470, 506, 107 S.Ct. 1232, 94 L.Ed.2d
section I0-13(a)(l) must be "operated by any subdivision
of local, state or federal government." Cook County, Ill.,
472 (1987). The inquiry under the Contract Clause resembles
rational basis review. Accordingly, plaintiffs' Contract Clause
Rev. Ordinances ch. 10, art. I, § 10-13(a)(l). And the
claim fails for the same reason their equal protection
dictionary definitions of the ordinance's terms provide
and Commerce Clause clain1s fail. Because defendants
guidance as to their 1neaning. See, e.g., People v. Gutman,
have presented legitimate public interests that support the
2011 IL 110338, ~ 15, 355 Ill.Dec. 207, 959 N.E.2d 621,
625 (Ill.2011) (consulting dictionary definitions to interpret
ordinance, the Court dismisses plaintiffs' Contract Clause
statutory terms). A "humane society" is "a society for the
claim (count 5).
prevention of cruelty to animals." Merriam-Webster, http://
www.merriam-webster.com (last visited May 18, 2015),
F. Vagueness
i ~-
--~
The other undefined terms likewise can be understood with
reference to their dictionary definitions. See id. (defining
"animal control" as "an office or departinent responsible for
enforcing ordinances relating to the control, impoundment,
and disposition of animals" and defining "kennel" as "a
shelter for a dog or cat"). An "animal care facility" and
"training facility," though not defined in the dictionary
or the ordinance, can be understood by reference to their
common meaning-the former is a facility where animals
are treated and the latter is a facility ·v.1here anilnals are
trained. See Perrin v. United States, 444 U.S. 37, 42,
100 S.Ct 311, 62 L.Ed.2d 199 (1979) ("A fundamental
canon of statutory construction is that, unless otherwise
defined, words will be interpreted as taking their ordinary,
contemporary, common meaning."); People v. McCoy, 63
Ill.2d 40, 45, 344 N.E.2d 436, 439 (1976). Most importantly,
all of the permissible sources listed in section 10-13(a)(I)
are government-run entities. Thus, the question posed in the
complaint-whether the Amish community where Happiness
ls Pets (one of the pet store plaintiffs) purchases many of
its animals is a permissible source because it treats animals
humanely-is easily answered. Am. Comp!. 1J 105. Because
the Amish community is not a government-run entity, it
is not a permissible source unless the ordinance's breeder
require1nents are met.
*12 Third, plaintiffs claim that the term "pet shop operator"
is vague. Id. 1)105. That term is defined by reference to
the Illinois Animal Welfare Act, Cook County, Ill., Rev.
Ordinances ch. I 0, art. I, § I 0-2, which defines "pet
shop operator" as "any person who sells, offers to sell,
exchange, or offers for adoption with or \Vithout charge or
donation dogs, cats, birds, fish, reptiles, or other animals
customarily obtained as pets in this State." 225 ILCS 605/2.
According to plaintiffs, the ordinance is vague and confusing
because entities such as "rescue organization[s]," which
would normally be considered pet shop operators under the
JAWA, are exempted from regulation under the ordinance.
Cook County, Ill., Rev. Ordinances ch. 10, art. I, § 131O(a)(2). It is clear, however, that those organizations that
are exempted are not considered pet shop operators under
the ordinance, even if the IA WA categorizes those entities
differently.
Finally, plaintiffs claim that the penalty section of the
ordinance is contradictory, because it allows criminal
punishment for any violation of the chapter (i.e., the entire
chapter of the Cook County Code of Ordinances that deals
with "Animals") but also specifies that a violation of section
F.Supp.3d ---- (2015)
I 0-13 results in a fine of $500 for each violation. Id., §
I 0-3(a). According to plaintiffs, it is unclear whether a pet
store owner may be incarcerated for violating section 1013 of the ordinance. Am. Comp!. 1) 105. The first part of
the penalty provision, which allows a fine or imprisonment
for "any person violating any provision of this chapter,"
refers to violations of all other parts of Chapter 10 (titled
"Animals"). The ordinance's more specific provision relating
to violations of section 10-13 governs violations of that
particular section, as it expressly states that "any person
violating or failing to comply with Sec. 10-13 of the chapter
shall be subject to a fine of $500.00 for each violation."
Cook County, Ill., Rev. Ordinances ch. 10, art. I, § I03(a). Specific language in a piece oflegislation trumps more
general language. See Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 384, 112 S.ct. 2031, 119 L.Ed.2d 157 (1992)
("[I]t is a commonplace of statutory construction that the
specific governs the general."). It is clear that a $500 fine per
violation is the mandatory and exclusive penalty for section
10-13 violations.
[32] In sum, none of the provisions identified by the
plaintiffs is vague, because none would confuse a person
of ordinary intelligence. Moreover, plaintiffs' vagueness
challenge must be dismissed because state courts have not
had the opportunity to consider the ordinance. The Seventh
Circuit has refused to hold an ordinance unconstitutional
as vague when state courts and agencies have not had the
opportunity to apply a narrowing construction. See, e.g.,
Gresham v. Peterson, 225 F.3d 899, 908 (7th Cir.2000)
("[T]he rule that federal courts should defer to state court
interpretations of state laws, also discourages federal courts
from enjoining statutes that could be easily narrowed by
a state court to avoid constitutional problems."). Here, no
state court or agency has analyzed the ordinance. Thus, it
would be inappropriate for the Court to strike down the
legislation on vagueness grounds. Id. (affirming dismissal of
complaint and denial of a preliminary injunction). The Court
therefore dismisses plaintiffs' clain1 that the ordinance is void
for vagueness (count 4).
G. Injunctive relief
[33] The co1nplaint includes a claim requesting permanent
injunctive relief. Am. Comp!. 1)~ 126-30. The Court agrees
with defendants that this is not appropriately considered as a
separate claim for relief, because an injunction is a remedy
rather than a cause of action. See Noah v. Enesco Corp.,
911 F.Supp. 305, 307 (N.D.Ill.1995). Accordingly, the Court
dismisses the claim for injunctive relief(count 6).
Missouri Pet Breeders Association v. County of Cook, ---F.Supp.3d ---- (2015)
Conclusion
For the foregoing reasons, the Court grants defendants'
motion to dismiss [dkt. no. 25]. Although it is highly unlikely
that plaintiffs can cure the complaint's defects by amendment,
the Court will give them a chance to try. Unless plaintiffs
file a proposed amended complaint by no later than June 11,
2015 that states a viable federal claim, the Court will enter
judg111ent in favor of defendants. The case is set for a status
hearing on June 16, 2015 at 9:30 a.m.
All Citations
--- F.Supp.3d----, 2015 WL 2448332
Footnotes
1
The Court may take judicial notice of the ordinance without converting defendants' motion to dismiss into a motion for
summary judgment. See Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir.1977) ("We hold that matters of public record
such as state statutes, city charters, and city ordinances fall within the category of 'common knowledge' and are therefore
proper subjects for judicial notice.").
End of Document
D 2015
T~0:T1son
Reuters. No c!;;im lo original U.S. Covernn'ent \'Vo:-ks.
'< : ·.~'.
County of Cook v. Village of Bridgeview, 2014 IL App (1st) 122164 (2014)
8 N.E':3d 1275: 386TiC6ec. 733··
....... ················--............................. -····--·····--·····--···--·········--·························
which sought to address spread of rabies by
overpopulation of feral cats, pertained to issue
of statewide concern rather than local concern,
and therefore village exceeded its constitutional
home rule authority in enacting ordinance;
veterinarian testified that feral cat problem was
statewide concern, counties had a more vital
interest in controlling feral cat population than
did local municipalities given that feral cats
freely roamed across neighboring municipalities,
and state and counties had more traditional role
in animal control than did local municipalities.
S.HA Const. Art. 7, § 6(a).
2014 IL App (1st) 122164
Appellate Court of Illinois,
First District, Sixth Division.
The COUNTI OF COOK, a Body Politic
and Corporate, Plaintiff-Appellee,
v.
The VILLAGE OF BRIDGEVIEW, a Municipal
Corporation, Defendant-Appellant.
No. 1-12-2164.
April 25, 2014.
Synopsis
Background: County brought declaratory judgment action
against village, alleging village ordinance impermissibly
conflicted with county ordinance regulating feral cat
colonies. The Circuit Court, Cook County, Mary Anne
Mason, J., granted summary judgment to county. Village
appealed.
[2]
Any analysis regarding the validity of home rule
power must begin with a determination of the
legal question of whether the problem pertains to
local government and affairs, as required by state
constitution. S.H.A. Const. Art. 7, § 6(a).
Holdings: The Appellate Court, Hall, l, held that:
[ l] village ordinance prohibiting village residents from
operating feral cat colonies within village pertained to issue
of statewide concern rather than local concern, and therefore
*';.,,., Local legislation
[3]
village exceeded its constitutional home rule authority in
<'""·- Local legislation
enacting ordinance, and
An ordinance pertains to the government and
affairs of a home rule unit where the ordinance
relates to proble1ns that are local in nature rather
than state or national.
[2] section of Animal Control Act granting a municipality
authority to prohibit animals from running at large did not
provide authority for village ordinance.
Affirmed.
[4]
West Headnotes (4)
[1 J
Animals
' """·- Constitutional provisions, statutes and
ordinances
'0-'"'' Local legislation
Village ordinance prohibiting village residents
fro1n operating feral cat colonies within village,
Animals
'ii'~7- Statutory regulations in general
Section of Animal Control Act granting a
municipality authority to prohibit animals from
running at large did not provide authority
for village to prohibit village residents from
operating feral cat colonies within village, in
light of county ordinance permitting individuals
living within county, including village residents,
to maintain feral cat colonies in certain
circumstances; act only provided village with
authority to adopt provisions prohibiting feral
cats from running at large or to impose further,
8 N.E:3ii127s, 385 "riwec. 733
stricter requirements than those imposed by
county. S.HA 510 ILCS 5/24.
Attorneys and Law Firms
*1276 Joseph Cainkar, of Louis F. Cainkar Ltd., of Chicago,
for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Kent S. Ray,
Paul A. Castiglione, and Sisavanh B. Baker, Assistant State's
Attorneys, of counsel), for appellee.
OPINION
Justice HALL delivered the judgment of the court, with
op1n1on.
**734 ii l This appeal involves two apparently conflicting
ordinances that regulate feral cat colonies within Cook
County. One of the ordinances was adopted by the county.
The other ordinance was adopted by the Village of
Bridgeview, a municipality located within Cook County.
*1277 **735 ii 2 In 1973, the Illinois General Assembly
enacted the Animal Control Act (IILRev.Stat.1973, ch. 8, ir
351 et seq.) (now 510 ILCS 5/1 et seq. (West 2010)) in
an effort to, among other things, control the stray animal
population and prevent and control the spread of rabies
in Illinois. See Village of Swansea v. County of St. Clair,
45 Ill.App.3d 184, 186, 4 Ill.Dec. 33, 359 N.E.2d 866
(1977); McQueen v. Erickson, 61 IlLApp.3d 859, 864, 19
IlLDec. 113, 378 N.E.2d 614 (1978). In 1977, based in
part upon the authority vested in it under sections 3 and
5 of the Animal Control Act, the Cook County Board of
Commissioners adopted the Cook County Animal and Rabies
Control Ordinance (Cook County Ordinance No. 99-0-25, §
10-1 et seq. (Jan. 3, 1977)) 1 .
~ 4 The feral cat ordinance permits individuals living
within Cook County (the County), including those living in
the Village of Bridgeview, to n1aintain feral cat colonies
provided they participate in trap, neuter, and release
(TNR) programs sponsored by approved humane societies.
Cook County Ordinance No. 07-0-72, § 10-97 (Oct. 16,
2007). Under the privately funded TNR programs, citizen
volunteers, referred to as caretakers, humanely trap feral cats
and then take them to veterinarians or humane societies to
be microchipped, vaccinated and spayed or neutered, and
eventually released back to their outdoor colonies. Cook
County Ordinance No. 07-0-72, § 10-95 (Oct. 16, 2007).
~
5 Dr. Donna M. Alexander, a veterinarian and the
administrator of the County's animal and rabies control
department, testified at her deposition that the TNR programs
had saved the County over $1.5 million, primarily resulting
from having fewer feral cats to euthanize. Dr. Alexander
claimed that prior to adoption of the TNR programs, local
municipalities were trapping and euthanizing approximately
500 to 600 feral cats per year, at a cost to taxpayers of about
$135 per cat The doctor testified that since implementation
of the programs, over 9,000 feral cats have been vaccinated
against rabies, and spayed and neutered, resulting in a smaller
feral cat population through natural attrition.
ii 6 The Village of Bridgeview is a home rule municipality
located within Cook **736 *1278 County. On April
1, 2009, Bridgeview adopted ordinance No. 09-04. This
ordinance prohibits Bridgeview residents from operating
feral cat colonies within Bridgeview1s corporate limits and
imposes fines on those who fail to comply.
ii 7 The County filed the lawsuit at issue in this appeal,
alleging that the Bridgeview ordinance infringed upon its
statutory authority to control and prevent the spread of rabies
and control feral cats within Cook County. The County
sought a declaration that Bridgeview lacked the statutory and
home rule authority to enact its ordinance. The County also
sought an injunction prohibiting Bridgeview fro1n enforcing
its ordinance.
~
3 In October 2007, the Cook County Board of
Commissioners amended the ordinance by adding a section
dealing with feral cats, the "Managed Care of Feral Cats"
Ordinance (Cook County Ordinance No. 07-0-72 (Oct 16,
2007)) (feral cat ordinance). The feral cat ordinance was
enacted to further prevent the spread of rabies by reducing
and controlling the feral cat population.
~
8 On the parties' cross~motions for summary judgment, the
trial court entered judgment in favor of the County and against
Bridgeview. The court determined that Bridgeview lacked the
statutory and home rule authority to enact its ordinance. The
court also enjoined Bridgeview from enforcing its ordinance.
sf.l:E.Ja 1275, 3so m.t:rec. 733
Bridgeview now appeals. For the reasons that follow, we
affirm.
······-·········· ···························· ···········································
Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2013 IL
110505,
1! 101, 370 Ill.Dec. 299, 988 N.E.2d 75 (Freeman,
J., dissenting, joined by Burke, l). "An ordinance pertains to
the government and affairs of a home rule **737 *1279
~9ANALYSIS
~
10 Our review of the trial court's order granting summary
judgment is de nova. Sears Roebuck & Co. v. Acceptance
Insurance Co., 342 Ill.App.3d 167, 171, 275 Ill.Dec. 965,
793 N.E.2d 736 (2003). Summary judgment is appropriate
where the pleadings, depositions, and admissions on file,
together with any affidavits and exhibits, when viewed in
the light most favorable to the nonmoving party, indicate
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. 735 ILCS
5/2-l005(c) (West 2010); Bier v. Leanna Lakeside Property
Ass'n, 305 Ill.App.3d45, 50,238 Ill.Dec. 386, 711N.E.2d773
(1999). As in this case, where the parties file cross-motions
for summary judgment, they invite the court to decide the
issues presented as a matter of law. Lexmark International,
Inc. v. Transportation Insurance Co., 327 Ill.App.Jct 128,
134, 260 Ill.Dec. 658, 761N.E.2d1214 (2001).
[1] 1! 11 The resolution of this appeal primarily turns on
whether Bridgeview exceeded its home rule authority under
article VII, section 6(a), of the 1970 Illinois Constitution by
enacting its ordinance. Based on the following analysis, we
find the trial court correctly ruled that Bridgeview exceeded
its home rule authority in enacting the ordinance, rendering
it invalid.
1!
12 Section 6(a) of article VII of the 1970 Illinois
Constitution provides in relevant part:
unit where the ordinance relates to problems that are local in
nature rather than State or national." Village of Bolingbrook
v. Citizens Utilities Co. of Illinois, 158 Ill.2d 133, 138, l 98
Ill.Dec. 389, 632 N.E.2d 1000 (1994).
1l
14 In Illinois, the problem of animal control,
overpopulation, and the spread of rabies is both a local and
statewide concern. \\Then a problem has a local as well as a
statewide or national impact, courts must weigh the relevant
factors set out in Kalodimos v. Village of Morton Grove,
103 Ill.2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266 (1984). See
Village of Bolingbrook, 158 lll.2d at 139, 198 Ill.Dec. 389,
632 N.E.2d 1000.
1l
15 In Kalodimos, the court stated: "Whether a particular
problem is of statewide rather than local dimension must be
decided not on the basis of a specific formula or listing set
forth in the Constitution but with regard for the nature and
extent of the problem, the units of government which have
the most vital interest in its solution, and the role traditionally
played by local and statewide authorities in dealing with it."
Kalodimos v. Village of Morton Grove, 103 Ill.2d 483, 501,
83 Ill.Dec. 308, 470 N.E.2d 266 (1984). Therefore, we must
examine and detern1ine the following: the nature and extent
of the problem; the unit of government having a more vital
interest in resolving the problem; and the role traditionally
played by local and statewide authorities in dealing with the
problem.
1! 16 The nature of the problem is the spread of rabies by an
"Except as limited by this Section, a home rule unit may
exercise any power and perform any function pertaining to
its government and affairs including, but not limited to, the
power to regulate for the protection of the public health,
safety, morals and welfare; to license; to tax; and to incur
debt." Ill. Const. 1970, art. VII, § 6(a).
overpopulation of feral cats. In regard to the extent of the
problem, Dr. Alexander testified that the feral cat problem
was not only a statewide concern, but also a national concern.
Dr. Alexander maintained that the Bridgeview ordinance
prohibiting feral colonies within Bridgeview had a chilling
effect on those Bridgeview residents who might desire to
become feral cat caretakers. The doctor claimed that in
[21
[3] 1! 13 The 1970 Illinois Constitution limits a home this sense, the Bridgeview ordinance undermined efforts to
rule unit to legislation " 'pertaining to its governn1ent and
encourage citizens throughout Cook County to participate in
affairs.' " City of Chicago v. Village of Elk Grove Village,
the TNR programs. Dr. Alexander also noted that feral cats
354 Ill.App.3d 423, 426, 290 Ill.Dec. 91, 820 N.E.2d 1158
are freely roaming animals knowing no political boundaries,
(2004). "[A}ny analysis regarding the validity of home rule
and as a consequence, the Bridgeview ordinance affected
power must begin with a determination of the legal question
bordering municipalities such as Hickory Hills and Palos
of whether the proble1n pertains to local govern1nent and
Heights.
affairs, as required by section 6(a)." (Emphasis in original.)
8 f.i~E'~3cii275, :iilbllibec 733
11 17 In regard to the second Ka/odimos factor, we find that
counties in Illinois have a more vital interest in controlling
the feral cat population and the spread of rabies than do
local municipalities. The General Asse1nbly, through the
Animal Control Act, has determined that the issues of animal
control, overpopulation, and the control of rabies are more
effectively addressed at the county leveL We believe this
is a sound approach given the fact that feral cats freely
roam across neighboring municipalities and that home rule
municipalities cannot legislate outside their geographical
· ,, ......
Bridgeview's ordinance was an invalid exercise of its home
rule authority.
[4] ii 22 Bridgeview alternatively argues that even if it
lacked the home rule authority to adopt its ordinance, it
retained the statutory authority to do so. In support of this
argument, Bridgeview relies on section 24 of the Animal
Control Act, which provides:
"Nothing in this Act shall be held to limit in any manner the
power of any municipality or other political subdivision to
prohibit animals from running at large, nor shall anything
in this Act be construed to, in any manner, limit the power
of any municipality or other political subdivision to further
control and regulate dogs, cats or other animals in such
municipality or other political subdivision provided that no
regulation orordinance is specific to breed," 510 ILCS 5/24
(West 2010).
borders. 2 Counties have greater geographical reach and thus
can 1nore comprehensively and effectively address feral cat
control than local municipalities.
ii 18 Regarding the third and final Ka/odimos factor, we find
that the state and **738 *1280 counties have had a more
traditional role in animal control and preventing the spread
of rabies than local municipalities. The current version of the
Animal Control Act was derived fron1 legislation related to
preventing the spread of rabies.
ii
19 In 1927, the General Assembly passed an act known
as "An Act to prevent the spread of rabies," authorizing the
Illinois Department of Agriculture "to prevent the spread
of rabies among dogs." IILRev.StaU927, ch. 8, ii 23b. In
1953, the General Assembly repealed "An Act to prevent
the spread of rabies," replacing it with the Rabies Control
Act IILRev.StaU953, ch. 8, iiii 23e to 23x. The Rabies
Control Act mandated each county board to appoint a licensed
veterinarian as a rabies inspector to administer and enforce
provisions of the act llLRev.Stat1953, ch. 8, ii 23g. Finally,
in 1973 the Generally Assembly repealed the Rabies Control
Act and replaced it with the present day Animal Control Act
ii
20 Thus, the state, through the Illinois Department of
Agriculture, has administered rabies control programs since
1927 and has delegated some authority over rabies control
to the counties as early as 1953. In addition, counties have
exercised authority over controlling the feral cat population
and the spread of rabies through the Animal Control Act since
1973,
ii
21 In sum, the state and counties have a greater interest
and a more traditional role in addressing the issues of animal
control and preventing the spread of rabies than do local
municipalities. These issues are matters of statewide concern
and do not strictly pertain to the government and affairs
of Bridgeviev.' as a home rule unit, within the meaning of
article VII, section 6(a), of the 1970 Illinois Constitution.
'ii
23 Bridgeview's arguments concerning section 24 of the
Animal Control Act turn on statutory construction. Issues of
statutory construction are questions of law, which we review
de nova. Krautsack v. Anderson, 223 IIL2d 541, 553, 308
Ill.Dec. 302, 861 N.E.2d 633 (2006). The primary rule of
statutory construction is to ascertain and give effect to the
intent of the legislature. Croissant v. Joliet Park District, 141
IIL2d 449, 455, 152 IILDec. 561, 566 N.E.2d 248 (1990).
The best evidence of this intent is the language of the statute
itself, which must be given its plain and ordinary ineaning.
Krautsack, 223 IIL2d at 553, 308 Ill.Dec. 302, 861 N.E.2d
633,
~ 24 Section 24 of the Animal Control Act recognizes a
municipality's authority to "prohibit animals fro1n running
at large," and to "further control and regulate dogs, cats
or other animals." 510 ILCS 5/24 (West 2010). Therefore,
under the plain language of section 24, Bridgeview has the
authority to adopt provisions prohibiting feral cats from
running at **739 *1281 large or it can impose further,
stricter require1nents than those imposed by the County.
Exercising such authority would not be improper. See, e.g.,
Village of Wauconda v. Hutton, 291IILApp.3d1058, 106061, 226 IILDec. 161, 684 NK2d 1364 (1997) ("[a] local
ordinance 1nay impose more rigorous or definite regulations
in addition to those enacted by the state legislature so long as
they do not conflict with the statute"),
11 25 However, Bridgeview exceeded its authority under
section 24 of the Animal Control Act by making it unlawful to
operate feral cat colonies within its corporate limits. The trial
8 N. E 3ci 1275; 381l Iii .Dec. 733
··········-· ··········--
court correctly determined that Bridgeview not only lacked
the home rule authority to enact its ordinance, but also lacked
the statutory authority to do so.
Presiding Justice ROCHFORD aud Justice REYES concurred
in the judgment and opinion.
~
26 For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County.
~
27 Affirmed.
All Citations
2014 IL App (!st) 122164, 8 N.E.3d 1275, 380 Ill.Dec. 733
Footnotes
1
Section 3 of the Animal Control Act provides in relevant part:
"The County Board Chairman with the consent of the County Board shall appoint an Administrator. Appointments
shall be made as necessary to keep this position filled at a!I times. The Administrator may appoint as many Deputy
Administrators and Animal Control Wardens to aid him or her as authorized by the Board." 510 ILCS 5/3 (West 2010).
Section 5 of the Animal Control Act delineates the duties and powers of an administrator, providing in relevant part:
"(a) It shall be the duty of the Administrator or the Deputy Administrator, through sterilization, humane education,
rabies inoculation, stray control, impoundment, quarantine, and any other means deemed necessary, to control and
prevent the spread of rabies and to exercise dog and cat overpopulation control. * * *
(b) Counties may by ordinance determine the extent of the police powers that may be exercised by the Administrator,
Deputy Administrators, and Animal Control Wardens, which powers shall pertain only to this Act. The Administrator,
Deputy Administrators, and Animal Control Wardens may issue and serve citations and orders for violations of this
Act.•• 510 ILCS 5/5(a), (b) (West 2010).
2
"[TJhe narrow approach to feral cat management that emphasizes * * * enforcement of local ordinances needs to be
enhanced by a broader, more far-reaching vision. Given their nature, feral cats will roam into neighboring jurisdictions with
conflicting animal control ordinances, leaving them and their caretakers vulnerable to differing consequences depending
on the local laws. Accordingly, cooperation among local governments on a state or regional level is necessary to achieve
a consistent and pragmatic approach to feral cat management." Verne R. Smith, The Law and Feral Cats, 3 J. Animal
L. & Ethics, May, 2009, at 7, 26.
End of Docurnent
PARK PET SHOP, INC.
v. CITY OF CHICAGO through the City ... , Slip Copy (2015)
2015 WL 6756288
PARK PET SHOP, INC., POCKET PUPPIES
BOUTIQUE, INC., JIM PARKS, SR.,
LANE BORON, SUSAN REID, and
CEDAR WOODS FARM, Plaintiffs,
v.
THE CITI OF CHICAGO through the City Council
(1) an animal control center, animal care facility, kennel,
pound or training facility operated by any subdivision of
local, state or federal govemn1ent; or
(2) a humane society or rescue organization.
(c) Exemptions. The restrictions on retailers set forth in
subsection (b )... shall not apply to any entity listed in
paragraphs (1) or (2) of subsection (b) of this section, or
to any veterinary hospital or clinic licensed pursuant to
the Veterinary Medicine and Surgery Practice Act of 2004,
codified at 226 ILCS 115.
of Chicago, SUSANA A. MENDOZA, in her official
capacity as City Clerk of the City of Chicago,
Chi., Ill., Code§ 4-384-015.
and SANDRA ALFRED, in her official capacity
as Executive Director of the City of Chicago
Department of Animal Control,
15c1450
1
Discussion
Defendants.
11/05/2015
HON. JORGE L. ALONSO, United States District Judge
*1 In their second amended complaint, plaintiffs, Cedar
Woods Farm, a Missouri dog breeder that supplies dogs to
Chicago pet stores, and Park Pet Shop and Pocket Puppies,
two pet stores in Chicago, allege that a Chicago ordinance
regulating the sale of certain animals is unconstitutional,
preempted by federal and state law, and violates the City's
home rule powers. The City has filed a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss the second amended
complaint. For the reasons set forth below, the Court grants
the motion.
Ordinance
In relevant part, the contested ordinance states:
(b) Restrictions on the retail sale of animals. A retailer
[defined as "any person licensed or required to be licensed
under this chapter who offers for sale any dog, cat or rabbit
in the City") may offer for sale only those dogs, cats or
rabbits that the retailer has obtained from:
On a Rule 12(b)(6) motion to dismiss, the Court accepts
as true all well-pleaded factual allegations of the complaint,
drawing all reasonable inferences in plaintiffs favor. Hecker
v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A)
complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations" but must contain
"enough facts to state a claim for relief that is plausible on its
face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570).
Preemption & Home Rule
Plaintiffs argue that the ordinance is preempted by the
federal Animal Welfare Act. See DeHart v. Town o.f Austin,
Ind., 39 F.3d 718, 721 (7th Cir. 1994) (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)) (stating that a federal
law preempts a local law if: (1) the federal statute so states;
(2) there is "a pervasive scheme of federal regulation" such
that preemption is implied; or (3) a local law "conflicts
with [a) federal law," or " 'stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.' "). The federal statute, however,
explicitly contemplates that state and local governments will
enact animal welfare regulations. See 7 U.S.C. § 2l43(a)(l),
(8) (stating that the grant offederal authority "[to J promulgate
standards to govern the humane handling, care, treatment,
and transportation of animals by dealers, research facilities,
PARK PET SHOP, INC. v. CITY OF CHICAGO through the City .. ., Slip Copy (2015)
and exhibitors .... shall not prohibit any State (or a political
subdivision of such State) from promulgating standards in
addition to those standards promulgated by the Secretary");
§ 2145(b) ("The Secretary is authorized to cooperate with
the officials of the various States or political subdivisions
thereof in canying out the purposes of this chapter and of
any State, local, or municipal legislation or ordinance on the
same subject"); DeHart, 39 F.3d at 722 ("[!)t is clear that
the Animal Welfare Act does not evince an intent to preempt
state or local regulation of animal or public welfare."). Thus,
plaintiffs' federal preemption argument fails.
*2 Plaintiffs also argue that the ordinance exceeds the
City's home rule powers under the Illinois Constitution and
is preempted by the state Animal Welfare Act The Illinois
Constitution permits a home rule unit like the City "[to]
exercise any power and perfom1 any function pertaining to its
government and affairs including ... the power to regulate for
the protection of the public health, safety, morals and welfare"
and "exercise and perform concurrently with the State any
power or function of a hon1e rule unit to the extent that
the General Assembly by law does not specifically limit the
concurrent exercise or specifically declare the State's exercise
to be exclusive." Ill. Const art. 7, § 6(a), (!). The phrase
"pertaining to its government and affairs" means "that the
powers of home-rule units relate to their own problems, not
to those of the state or the nation." City of Des Plaines v. Chi.
& N. W. Ry. Ca., 357 N.E.2d 433, 435 (Ill. 1976) (quotation
omitted). The "pertaining to" phrase:
[L)eaves some leeway for judicial
intervention. But .. the courts should
step in to compensate for legislative
inaction or oversight only in the
clearest cases of oppression, injustice,
or interference by local ordinances
with vital state policies. That is,
because the legislature can always
vindicate state interests by express
preemption, only vital state interests
would allow a court to decide that
an exercise of home rule power does
not pertain to local government and
affairs.
City of Chi. v. Stub Hub, Inc., 979 N.E.2d 844, 851 (Ill. 2011)
(quotation omitted).
To determine whether a problem is appropriately addressed
at the local level, the Court must determine "the nature
and extent of the problem" and whether "the state has a
vital interest [in it]" and "a traditionally exclusive role"
in addressing it Id at 852-853 (quotation omitted). The
problem the ordinance attempts to address is the adverse
impact of the sale of mill ani1nals, a problem that affects
both state and local governments. See Mo. Pet Breeders Ass 1n
v. Cnty. of Caok, No. 14 C 6930, 2015 WL 2448332, at
*4 (N.D. Ill. May 21, 2015) (noting that "both state and
local governments have a vital interest in anin1al control");
Cnty of Cook v. Viii. of Bridgeview, 8 N.E.3d 1275, 1279,
appeal denied, 23 N.EJd 1200 (Ill. 2015) ("In Illinois, the
problem of animal control, overpopulation, and the spread of
rabies is both a local and statewide concern."). However, the
state has not traditionally had an exclusive role in addressing
issues of animal control; in fact, the state started licensing pet
sellers more than forty years after the City started doing so.
(See City's Mot Dismiss, Ex. C, Chi., Ill., Code §§ 2072-75
(1922)); 1965 Ill. Laws 2956. Moreover, none of the state
statutes pertaining to animal control and welfare contains
"specific language limiting or denying the power or function"
of a home rule unit, as required to vitiate home rule powers.
See 5 IlL Comp. Stat 70/7 ("No law enacted after January 12,
1977, denies or limits any power or function of a home rule
unit ... unless there is specific language limiting or denying the
power or function and the language specifically sets forth in
what manner and to what extent it is a lin1itation on or denial
of the power or function of a home rule unit."). In fact, at least
one statute explicitly permits local regulation. See 510 IlL
Comp. Stat 5/24 ("Nothing in this Act shall be held to limit in
any manner the power of any municipality or other political
subdivision to prohibit animals from running at large, nor
shall anything in this Act be construed to, in any manner, limit
the power of any municipality or other political subdivision
to further control and regulate dogs, cats or other animals in
such municipality or other political subdivision provided that
no regulation or ordinance is specific to breed."). In short,
because the City and state both have an interest in this area,
and the state has not barred home rule units from enacting
ordinances that impact it, the ordinance does not exceed the
City's home rule authority.
*3 Plaintiffs fare no better with their clai1n that state law
preempts the ordinance. "To determine whether a local law
is preempted by Illinois law, courts must 'determine whether
the legislature has specifically limited the concurrent exercise
of this power or specifically declared that the state's exercise
of this power is exclusive.'" Mo. Pet Breeders, 2015 WL
2448332, at *5 (quoting City ofChi. v. Roman, 705 N.E.2d 81,
88 (Ill. 1998)). As discussed above, the state legislature has
PARK PET SHOP, INC. v. CITY OF CHICAGO through the City... , Slip Copy (2015)
done neither. Thus, the ordinance is not preempted by state
law.
Commerce Clause
Plaintiffs allege that the ordinance violates the Commerce
Clause. See U.S. Const. art. I, § 8, cl. 3 (giving Congress the
power "[t]o regulate Commerce ... among the several States").
"Although [the Commerce Clause] does not expressly limit
the states' ability to interfere with interstate commerce,
the Supreme Court consistently has held that the Clause
contains a further negative command, known as the 'dormant
Commerce Clause,' which 'prohibits States from taking
certain actions respecting interstate commerce even absent
congressional action.' " Nat'/ Solid Wastes Mgmt. Ass'n v.
Meyer, 63 F.3d 652, 656-57 (7th Cir. 1995) (quoting CTS
Corp. v. Dynamics Corp. ofAm., 481 U.S. 69, 87 (1987)). The
Supreme Court:
[H]as adopted a two-tiered approach
to analyzing state economic regulation
under the [dormant] Commerce
Clause. When a state statute directly
regulates or discriminates against
interstate conunerce, or when its effect
is to favor in-state economic interests
over out-of-state interests, [the Court
has] generally struck down the statute
without
further
inquiry .... When,
however, a statute has only indirect
effects on interstate commerce and
regulates evenhandedly, [the Court
has] examined whether the State's
interest is legitimate and whether
the burden on interstate commerce
clearly exceeds the local benefits.
Pike v. Bruce Church, Inc., 397
U.S. 137, 142, 90 S.Ct. 844, 847,
25 L.Ed.2d 174 (1970). [The Court
has] also recognized that there is
no clear line separating the category
of state regulation that is virtually
per se invalid under the Connnerce
Clause, and the category subject to
the Pike v. Bruce Church balancing
approach. In either situation the
critical consideration is the overall
effect of the statute on both local and
interstate activity ....
Brown-Fonnan Distillers Corp. v. N.Y. State Liquor Auth.,
476 U.S. 573, 578-79 (1986); see United Haulers Ass'n,
Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550
U.S. 330, 338 (2007) (quotations omitted) ("In this context,
'discrimination' simply means differential treatment of instate and out-of-state economic interests that benefits the
former and burdens the latter.").
On its face, the ordinance does not discriminate against outof-state interests; it permits City retailers to sell animals
obtained fro1n one kind of source, i.e., government-operated
facilities, humane societies, and rescue organizations, and
bars them from selling animals from any other source,
regardless of where the sources are located.
Nonetheless, plaintiffs contend that the ordinance is
discriminatory because its preamble contains the following:
"According to Illinois Department of Agriculture records,
in the City alone, City pet stores purchased approximately
1,500-2,000 dogs from out-of-state breeders for sale to the
public in 2011 and 2012." (See 2d Am. Comp!., Ex. A,
Ordinance at I.) But the preamble also notes that dogs
purchased from in-state breeders, which are not subject to
the state's record-keeping requirements, contribute to the
problem. See id. ("The number of dogs purchased for sale,
and sold to the public, is likely higher as these records do
not reflect dogs purchased from in-state breeders. ");see also
8 Ill. Admin. Code § 25 .4 7 (requiring pet shops to obtain a
health certificate for any animal imported into Illinois from
another state and file a copy of it with the Illinois Department
of Agriculture.) More importantly, as a matter of Illinois law,
"a preamble is not a part of [a statute] and has no substantive
legal force." Atkins v. Deere & Co., 685 N.E.2d 342, 345 (Ill.
1997) (quotations omitted). Thus, the reference to out-of-state
breeders in the preamble does not make the ordinance facially
discriminatory. 2
*4 Alternatively, plaintiffs argue that the ordinance has
a disparate impact on interstate commerce because it
"provide[ s] favored access to.... animals [that are] bred
within the state." (Pls. 1 Resp. Mot. Dismiss at 12.) However,
the ordinance does not allow City retailers to sell animals
obtained from breeders located in Illinois; in fact, it prohibits
them from doing so. Moreover, it does not prohibit out-ofstate breeders or in-state breeders that are not "retailers" from
selling animals to Illinois residents directly, via the internet,
or through any means other than a City retailer, and does not
require that animals be "processed" in Illinois, i.e., rescued or
PARK PET SHOP, INC, v, CITY OF CHICAGO through the City,,,, Slip Copy (2015)
housed in a humane society or government-operated facility
located here. Thus, it is difficult to see how the ordinance
burdens interstate commerce at all.
Even if it has some incidental impact, however, the ordinance
still "[would] be upheld unless the burden [it] impose[s] on,,,
[interstate] commerce [is) clearly excessive in relation to the
putative local benefits." Pike v, Bruce Church, Inc, 397 US,
137, 142 (1970); see Nat'/ Paint & Coatings Ass'n v, City
af Chi., 45 F.3d 1124, 1131 (7th Cir. 1995) (stating that
for "laws with mild disparate effects and potential neutral
justifications ... [,] the state must establish that reasonable
persons who held all states 1 interests in equal regard could
think that net benefits remained''), The City has a legitimate
interest in the welfare of both animals and its treasury,
C&A Carbone, Inc, v, Town of Clarkstown, New York, 511
US, 383, 429 (1993) (Souter, l, dissenting) (noting that
"[p]rotection of the public fisc is a legitimate local benefit"),
Cavel International, Inc. v, Madigan, 500 F.3d 551, 557 (7th
Cir. 2007) ("States have a legitimate interest in prolonging
the lives of animals that their population happens to like,"),
and both of those interests animate the ordinance. (See 2d
Am, CompL, Ex, 1, Ordinance, Preamble (stating that: (I)
"[p ]et stores,,,have traditionally been a sales outlet for young
dogs, cats and rabbits bred in 'puppy mills,' 'kitten mills,'
and 'rabbit mills' "; (2) "[t]he documented abuses of puppy
and kitten mills include over-breeding; inbreeding; minimal
to non-existent veterinary care; lack of adequate food, water
and shelter; lack of socialization; lack of adequate space; and
the euthanization of unwanted animals"; (3) "The Chicago
Commission on Animal Care and Control (the 'CACC')
impounds approximately 20,000 animals each year" and "the
City spent between $234,864-$303,188 euthanizing dogs and
cats in 2011" and between "$199,124-$251,381" doing so
in 2012; (4) "[b]y promoting the adoption of dogs and cats
[in CACC custody], this Ordinance will reduce the financial
burden on Chicago taxpayers, who pay much of the cost to
care for and euthanize many thousands of animals"; (5) "The
City incurs significant costs caring for and treating animals
brought into the CACC"; (6) "Consumers may be more likely
to adopt a dog or cat if dogs or cats were not readily available
for purchase in pet stores."). Thus, even if the ordinance has
some minimal effect on interstate connnerce, plaintiffs have
not carried "the[ir] burden of showing that [that impact],,,is
excessive compared to the local interest[s]" served by the
ordinance, DeHart, 39 FJd at 723,
Equal Protection
The ordinance violates the Equal Protection Clause only
if "there is [no] reasonably conceivable state of facts that
could provide a rational basis" for the distinction it draws
between retailers and other animal sources. FCC v. Beach
Commc'ns, Inc,, 508 US, 307, 313 (1993); see Nat'/ Paint
& Coatings, 45 F.3d at 1127 (quoting Beach Commc'ns,
508 U,S, 307, 313) ("[A] legislative decision 'is not subject
to courtroom factfinding and may be based on rational
speculation unsupported by evidence or empirical data.' ").
As discussed above, the justifications the City offers for the
ordinance, concern for animal welfare and the condition of the
City's coffers, are rational bases for the ordinance. See Beach
Commc'ns, 508 U,S, at 315 ("[B]ecause we never require
a legislature to articulate its reasons for enacting a statute,
it is entirely irrelevant for constitutional purposes whether
the conceived reason for the challenged distinction actually
motivated the legislature,''),
*5 Even so, plaintiffs argue that the ordinance is infirm
because it is both over-inclusive, by banning retailers from
selling animals that come from reputable breeders, and
under-inclusive, by applying the ban solely to retailers. "But
legislation 'does not violate the Equal Protection Clause
1nerely because the classifications [it makes] are imperfect.'
"Goodpaster v, City of Indianapolis, 736 F.3d 1060, 1072
(7th Cir. 2013) (quoting Dandridge v, Williams, 397 U,S, 471,
485 (1970)), "A law can be underinclusive or overinclusive
without running afoul of the Equal Protection Clause." Id.;
see Mo. Pet Breeders Ass'n, 2015 WL 2448332, at *7
(quoting City of New Orleans v, Dukes, 427 U,S, 297, 303
(1976)) ("A government entity may,,,'adopt[ ] regulations
that only partially ameliorate a perceived evil and defer[ ]
complete elimination of the evil to future regulations.'"). The
ordinance's focus on retailers is rationally related to the goal
of decreasing the number of mill-produced animals sold in the
City, even if it does not entirely solve the problem. Thus, it
does not violate the Equal Protection Clause.
Contracts Clause
Plaintiffs also allege that the ordinance violates the Contracts
Clause of the Constitution, 3 See U,S, Const art 1, § 10
(prohibiting the states from making any law «impairing
the Obligation of Contracts''), To determine whether the
ordinance violates the Contracts Clause, the Court asks
whether: (1) "the [o ]rdinance in fact operates as a substantial
impairment of existing contractual relationships; (2) "the
[C]ity has a significant and legitimate public purpose
justifying the [o]rdinance"; and (3) "the effect of the
[o]rdinance on contracts is reasonable and appropriate given
the public purpose behind [it]. Chi. Ed. of Realtors, Inc. v.
City of Chi., 819 F.2d 732, 736 (7th Cir. 1987) (citations
omitted). Plaintiffs' clain1 fails at each level.
the Contracts Clause analysis. See Mo. Pet Breeders, 2015
WL 2448332, at *11 (The inquiry under the Contract Clause
resembles rational basis review.").
With respect to the first inquiry, plaintiffs do not specifically
identify any current contractual relationship that the
Vagueness
*6 Plaintiffs' final argument is that the ordinance is
unconstitutionally vague because it does not define "kennel"
and "shelter." That flaw, plaintiffs say, means that Park Pet
Shop can be both a "retailer," which cannot sell animals
from breeders, and a "kennel," which can, thereby "allowing
law enforce1nent to pick and choose what facilities it wishes
to prosecute." (2d Am. Comp!. ~ 134); see Karlin v.
Foust, 188 F.3d 446, 458-59 (7th Cir. 1999) (a statute is
unconstitutionally vague "if it fails to provide fair warning
as to what conduct will subject a person to liability" or
lacks "an explicit and ascertainable standard to prevent
those charged with enforcing [it] from engaging in arbitrary
and discriminatory enforcement") (quotations and citations
omitted).
Ordinance impairs or explain how the ordinance impairs it.
(See 2d Am. Comp!.~ 13 (alleging that plaintiff Cedar Woods
Farm "currently has agreements in place to do a significant
portion of its business" in Chicago); id. ~ 43 (alleging that,
as a result of the ordinance, plaintiff "Pet Shops' ... contracts
will be violated"); id. ~ 49 (alleging that the ordinance
will force plaintiff Pet Shops "[to] violate their long term
leases and other agreements"); id. ~ 114 (alleging that the
ordinance will "will prevent plaintiffs from fulfilling their
obligations [under their current contracts], including fulfilling
warranties they have granted to clients and maintaining their
commercial property that is specifically built to conduct the
sale of companion animals").) Plaintiffs 1 failure to do so
dooms their Contracts Clause claim. See Active Disposal, Inc.
v. City a/Darien, No. 09 C 2930, 2010 WL 1416461, at *2
(N.D. Ill. Mar. 31, 2010), afj'd, 635 F.3d 883 (7th Cir. 2011)
(holding that a complaint's "passing reference to 'maintaining
existing contracts 1 "without allegations about '\~rhich (if any)
plaintiffs held such contracts, the terms of those contracts,
or how they were impaired by the contested ordinances" was
insufficient to state a Contracts Clause claim).
Even if plaintiffs had satisfied the first step of the analysis,
their claim would still fail at the second and third. As
discussed above, the City has significant and legitimate public
purposes - protecting animals and the public fisc
for
enacting the ordinance, and the Contracts Clause does not
strip the City of its power to protect those interests. See
Exxon Corp. v. Eagerton, 462 U.S. 176, 190 (1983) (quoting
U.S. Trust Co. v. New Jersey, 431 U.S. 1, 22 (1977)) ("The
Contract Clause does not deprive the States of their 'broad
destroyed, as a result.'"); Chi. Ed. of Realtors, 819 F.2d at
735 (7th Cir. 1987) (noting that the Contracts Clause "does
not abrogate a state's inherent power to protect the interests
of its citizens"). Moreover, because the City is not a party to
the allegedly impaired contracts, "the ... scrutiny [at step three]
is relaxed," and the Court "defer[s] to legislative judgment as
to the necessity and reasonableness of a particular measure."
Id. Because, as discussed above, the ordinance survives
rational basis review, it also passes muster at step three of
The Court disagrees. Though the ordinance does not define
"kennel" (or "shelter," though that term appears only in
the preamble), it makes clear that a kennel is a type of
government-operated animal facility. See Chi., Ill., Code
§ 4-384-015(b)(l) (stating that a retailer may only sell
cats, dogs, and rabbits obtained from "an animal control
center, ani1nal care facility, kennel, pound or training facility
operated by any subdivision of local, state or federal
government"). Because a privately-owned pet shop cannot
possibly be a kennel, plaintiffs' vagueness argument and
alleged fear of selective prosecution are unfounded.
Alternatively, plaintiffs contend that the ordinance is vague
because its preamble states that it "will not affect a consumer's
ability to obtain a dog or cat of his or her choice directly
from a breeder," but its definition of "retailer"~"any person
licensed or required to be licensed under this chapter who
offers for sale any dog, cat or rabbit in the City"--can include
breeders. However, as noted above, the ordinance's preamble
"has no substantive legal force." Atkins, 685 N.E.2d at 345
(quotations omitted). Thus, any alleged conflict between the
preamble and the substantive provisions does not render the
ordinance unconstitutionally vague.
Conclusion
For the reasons set forth above, the Court grants defendants'
motion to dismiss [64]. Moreover, because the claims cannot
be cured by amendment, the dismissal is with prejudice. This
case is terminated,
HON. JORGE L. ALONSO
United States District Judge
All Citations
SO ORDERED. ENTERED: November 5, 2015
Slip Copy, 2015 WL 6756288
Footnotes
Because Mendoza and Alfred are sued only in their official capacities, and those claims are redundant of the claims
asserted against the City, see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), the Court dismisses them.
2
City Clerk Mendoza's statement that the ordinance "is the beginning of the end for the puppy mill industry and its
powerbase Jn Iowa, Missouri and Indiana," (see 2d Am. Comp!., Ex. 2, 2/20/15 Press Release), does not change the fact
that the ordinance, by its terms, does not favor Illinois animal sources over those located elsewhere.
3
Though plaintiffs appear to allege a takings claim in this count as well (see 2d Am. Campi. '!f 111 ), they do not respond
to the City's motion to dismiss that claim. Accordingly, they have waived it. See Bonte v. U.S. Bank, N.A., 624 F.3d 461,
466 (7th Cir. 2010) ("Failure to respond to an argument-as the Bontes have done here-results in waiver.").
1
End of Docurr1ent
0 2015
Thom~-on f'~0ut0rs.
No
c~~:m
to orig:ns.I
u_s_ Government V,\Jrks.
;;
2015 WL 6756288
PARK PET SHOP, INC., POCKET PUPPIES
BOUTIQUE, INC., JIM PARKS, SR.,
LANE BORON, SUSAN REID, and
CEDAR WOODS FARM, Plaintiffs,
v.
THE CITY OF CHICAGO through the City Council
(1) an ani1nal control center, animal care facility, kennel,
pound or training facility operated by any subdivision of
local, state or federal government; or
(2) a humane society or rescue organization.
(c) Exemptions. The restrictions on retailers set forth in
subsection (b )... shall not apply to any entity listed in
paragraphs (1) or (2) of subsection (b) of this section, or
to any veterinary hospital or clinic licensed pursuant to
the Veterinary Medicine and Surgery Practice Act of 2004,
codified at 226 ILCS 115.
of Chicago, SUSANA A. MENDOZA, in her official
capacity as City Clerk of the City of Chicago,
Chi., Ill., Code § 4-384-015.
and SANDRA ALFRED, in her official capacity
as Executive Director of the City of Chicago
Department of Animal Control,
15c1450
1
Discussion
Defendants.
11/05/2015
HON. JORGE L. ALONSO, United States District Judge
*1 In their second amended complaint, plaintiffs, Cedar
Woods Farm, a Missouri dog breeder that supplies dogs to
Chicago pet stores, and Park Pet Shop and Pocket Puppies,
two pet stores in Chicago, allege that a Chicago ordinance
regulating the sale of certain animals is unconstitutional,
preempted by federal and state law, and violates the City's
home rule powers. The City has filed a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss the second amended
complaint. For the reasons set forth below, the Court grants
the motion.
Ordinance
In relevant part, the contested ordinance states:
(b) Restrictions on the retail sale of animals. A retailer
[defined as "any person licensed or required to be licensed
under this chapter who offers for sale any dog, cat or rabbit
in the City"] may offer for sale only those dogs, cats or
rabbits that the retailer has obtained from:
On a Rule 12(b)(6) motion to dismiss, the Court accepts
as true all well-pleaded factual allegations of the complaint,
drawing all reasonable inferences in plaintiffs favor. Hecker
v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). "[A]
complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations" but must contain
"enough facts to state a claim for relief that is plausible on its
face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570).
Preemption & Home Rule
Plaintiffs argue that the ordinance is preempted by the
federal Animal Welfare Act. See DeHart v. Town of Austin,
Ind., 39 F.3d 718, 721 (7th Cir. 1994) (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)) (stating that a federal
law preempts a local law if: (1) the federal statute so states;
(2) there is "a pervasive scheme of federal regulation" such
that preemption is implied; or (3) a local law "conflicts
with [a] federal law," or " 'stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.' "). The federal statute, however,
explicitly contemplates that state and local governments will
enact animal welfare regulations. See 7 U.S.C. § 2143(a)(l),
(8) (stating that the grant offederal authority "[to] promulgate
standards to govern the humane handling, care, treatment,
and transportation of animals by dealers, research facilities,
and exhibitors .... shall not prohibit any State (or a political
subdivision of such State) from promulgating standards in
addition to those standards promulgated by the Secretary");
§ 2145(b) ("The Secretary is authorized to cooperate with
the officials of the various States or political subdivisions
thereof in carrying out the purposes of this chapter and of
any State, local, or municipal legislation or ordinance on the
same subject."); DeHart, 39 F.3d at 722 ("[I]t is clear that
the Animal Welfare Act does not evince an intent to preempt
state or local regulation of animal or public welfare."). Thus,
plaintiffs1 federal preemption argmnent fails.
*2 Plaintiffs also argue that the ordinance exceeds the
City1s home rule powers under the Illinois Constitution and
is preempted by the state Animal Welfare Act. The Illinois
Constitution permits a home rule unit like the City "[to]
exercise any power and perform any function pertaining to its
government and affairs including ... the power to regulate for
the protection of the public health, safety, morals aud welfare"
and "exercise and perform concurrently with the State any
power or function of a home rule unit to the extent that
the General Assembly by law does not specifically limit the
concurrent exercise or specifically declare the States exercise
to be exclusive." Ill. Const. mt. 7, § 6(a), (!). The phrase
"pertaining to its government and affairs" means "that the
powers of home-rule units relate to their own problems, not
to those of the state or the nation." City ofDes Plaines v. Chi.
& NW. Ry. Co., 357 N.E.2d 433, 435 (Ill. 1976) (quotation
omitted). The "pertaining to" phrase:
[L ]eaves some leeway for judicial
intervention. But. .. the courts should
step in to compensate for legislative
inaction or oversight only in the
clearest cases of oppression, injustice,
or interference by local ordinances
with vital state policies. That is,
because the legislature can always
vindicate state interests by express
pree1nption, only vital state interests
would allow a court to decide that
an exercise of home rule power does
not pertain to local government and
affairs.
City of Chi. v. StubHub, Inc., 979 N.E.2d 844, 851 (Ill. 2011)
(quotation omitted).
To determine whether a problem is appropriately addressed
at the local level, the Court must determine "the nature
and extent of the problein" and whether "the state has a
vital interest [in it]" and "a traditionally exclusive role"
in addressing it. Id at 852-853 (quotation omitted). The
problem the ordinance attempts to address is the adverse
impact of the sale of mill animals, a problem that affects
both state and local governments. See Mo. Pet Breeders Ass'n
v. Cnty. of Cook, No. 14 C 6930, 2015 WL 2448332, at
*4 (N.D. Ill. May 21, 2015) (noting that "both state and
local governments have a vital interest in animal control");
Cnty. of Cook v. Vil/. of Bridgeview, 8 N.E.3d 1275, 1279,
appeal denied, 23 N.E.3d 1200 (IIL 2015) ("In Illinois, the
problem of animal control, overpopulation, and the spread of
rabies is both a local and statewide concern."). However, the
state has not traditionally had an exclusive role in addressing
issues of animal control; in fact, the state started licensing pet
sellers more than forty years after the City started doing so.
(See City's Mot. Dismiss, Ex. C, Chi., Ill., Code §§ 2072-75
(1922)); 1965 Ill. Laws 2956. Moreover, none of the state
statutes pertaining to animal control and welfare contains
"specific language limiting or denying the power or function"
of a home rule unit, as required to vitiate home rule powers.
See 5 Ill. Comp. Stat. 70/7 ("No law enacted after January 12,
1977, denies or limits any power or function of a home rule
unit. .. unless there is specific language limiting or denying the
power or function and the language specifically sets forth in
what manner and to what extent it is a limitation on or denial
of the power or function of a home rule unit."). In fact, at least
one statute explicitly permits local regulation. See 510 Ill.
Comp. Stat. 5/24 ("Nothing in this Act shall be held to limit in
any manner the power of any municipality or other political
subdivision to prohibit animals from running at large, nor
shall anything in this Act be construed to, in any manner, limit
the power of any municipality or other political subdivision
to further control and regulate dogs, cats or other animals in
such municipality or other political subdivision provided that
no regulation or ordinance is specific to breed."). In short,
because the City and state both have an interest in this area,
and the state has not barred home rule units from enacting
ordinances that impact it, the ordinance does not exceed the
City's home ruk authority.
*3 Plaintiffs fare no better with their claim that state law
preempts the ordinance. "To determine whether a local law
is preempted by Illinois law, courts must 'determine whether
the legislature has specifically limited the concurrent exercise
of this power or specifically declared that the state's exercise
of this power is exclusive.' " Mo. Pet Breeders, 2015 WL
2448332, at *5 (quoting City ofChi. v. Roman, 705 N.E.2d 81,
88 (Ill. 1998)). As discussed above, the state legislature has
PARK PET SHOP, INC, v, CITY OF CHICAGO through the City .. ,, Slip Copy (2015)
done neither. Thus, the ordinance is not preempted by state
law.
Commerce Clause
Plaintiffs allege that the ordinance violates the Commerce
Clause. See U.S. Const art. !, § 8, cl. 3 (giving Congress the
power "[t]o regulate Commerce ... among the several States").
"Although [the Commerce Clause] does not expressly limit
the states' ability to interfere with interstate commerce,
the Supreme Court consistently has held that the Clause
contains a further negative command, known as the 'dormant
Commerce Clause,' which 'prohibits States from taking
certain actions respecting interstate commerce even absent
congressional action! " Nat'! Solid Wastes Mgmt. Ass 1n v.
Meyer, 63 F.3d 652, 656-57 (7th Cir. 1995) (quoting CTS
Corp. v. Dynamics Corp. ofAm., 481U.S.69, 87 (1987)). The
Supreme Court:
[H]as adopted a two-tiered approach
to analyzing state economic regulation
under the [dormant] Commerce
Clause. When a state statute directly
regulates or discriminates against
interstate commerce, or when its effect
is to favor in-state economic interests
over out-of-state interests, [the Court
has] generally struck down the statute
without
further
inquiry ....When,
however, a statute has only indirect
effects on interstate commerce and
regulates evenhandedly, [the Court
has] examined whether the State's
interest is legitimate and whether
the burden on interstate commerce
clearly exceeds the local benefits.
Pike v. Bruce Church, Inc., 397
U.S. 137, 142, 90 S.Ct. 844, 847,
25 L.Ed.2d 174 (1970). [The Court
has J also recognized that there is
no clear line separating the category
of state regulation that is virtually
per se invalid under the Commerce
Clause, and the category subject to
the Pike v. Bruce Church balancing
approach. In either situation the
critical consideration is the overall
effect of the statute on both local and
interstate activity ....
Brown-For1nan Distillers Corp. v. NY State Liquor Auth.,
476 U.S. 573, 578-79 (1986); see United Haulers Ass'n,
Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth,, 550
U.S. 330, 338 (2007) (quotations omitted) ("In this context,
'discrimination' simply means ·differential treatment of instate and out-of-state economic interests that benefits the
former and burdens the latter.").
On its face, the ordinance does not discriminate against outof-state interests; it pennits City retailers to sell animals
obtained fro1n one kind of source, i.e., government-operated
facilities, humane societies, and rescue organizations, and
bars them from selling animals from any other source,
regardless of where the sources are located.
Nonetheless, plaintiffs contend that the ordinance is
discriminatory because its preamble contains the following:
"According to Illinois Department of Agriculture records,
in the City alone, City pet stores purchased approximately
1,500-2,000 dogs from out-of-state breeders for sale to the
public in 2011 and 2012." (See 2d Arn. CompL, Ex. A,
Ordinance at I.) But the preamble also notes !hat dogs
purchased from in-state breeders, which are not subject to
the state's record-keeping requirements, contribute to the
problem. See id. ("The number of dogs purchased for sale,
and sold to the public, is likely higher as these records do
not reflect dogs purchased from in-state breeders. ");see also
8 Ill. Adrnin. Code § 25.47 (requiring pet shops to obtain a
health certificate for any animal imported into Illinois from
another state and file a copy of it with the Illinois Departinent
of Agriculture.) More importantly, as a matter of Illinois law,
"a prea1nble is not a part of [a statute] and has no substantive
legal force." Atkins v. Deere & Co., 685 N.E.2d 342, 345 (Ill.
1997) (quotations omitted). Thus, the reference to out-of-state
breeders in the preamble does not make the ordinance facially
discriminatory. 2
*4 Alternatively, plaintiffs argue that the ordinance has
a disparate impact on interstate commerce because it
"provide[s] favored access to .... animals [that are] bred
within the state." (Pis.' Resp. Mot Dismiss at 12.) However,
the ordinance does not allow City retailers to sell animals
obtained from breeders located in Illinois; in fact, it prohibits
them from doing so. Moreover, it does not prohibit out-ofstate breeders or in-state breeders that are not "retailers" fro1n
selling animals to Illinois residents directly, via the internet,
or through any means other than a City retailer, and does not
require that animals be "processed" in Illinois, i.e., rescued or
3
housed in a humane society or government-operated facility
located here. Thus, it is difficult to see how the ordinance
burdens interstate commerce at all.
Even if it has some incidental impact, however, the ordinance
still "[would] be upheld unless the burden [it] impose[s] on ...
[interstate] commerce [is] clearly excessive in relation to the
putative local benefits." Pike v. Bruce Church, Inc., 397 U.S.
137, 142 (1970); see Nat'/ Paint & Coatings Ass'n v. City
of Chi., 45 F.3d 1124, 1131 (7th Cir. 1995) (stating that
for "laws with mild disparate effects and potential neutral
justifications ... [,] the state must establish that reasonable
persons who held all states' interests in equal regard could
think that net benefits remained"). The City has a legitimate
interest in the welfare of both animals and its treasury,
C&A Carbone, Inc. v. Town of Clarkstown, New York, 511
U.S. 383, 429 (1993) (Souter, J., dissenting) (noting that
"[p]rotection of the public fisc is a legitimate local benefit"),
Cave/International, Inc. v. Madigan, 500 F.3d 551, 557 (7th
Cir. 2007) ("States have a legitimate interest in prolonging
the lives of animals that their population happens to like."),
and both of those interests animate the ordinance. (See 2d
Am. Comp!., Ex. 1, Ordinance, Preamble (stating that: (!)
"[p]et stores ... have traditionally been a sales outlet for young
dogs, cats and rabbits bred in 'puppy mills,' 'kitten mills,'
and 'rabbit mills' "; (2) "[t]he documented abuses of puppy
and kitten mills include over-breeding; inbreeding; minimal
to non-existent veterinary care; lack of adequate food, water
and shelter; lack of socialization; lack of adequate space; and
the euthanization of unwanted animals"; (3) "The Chicago
Commission on Animal Care and Control (the 'CACC')
impounds approximately 20,000 animals each year" and "the
City spent between $234,864-$303,188 euthanizing dogs and
cats in 2011" and between "$199,124-$251,381" doing so
in 2012; (4) "[b]y promoting the adoption of dogs and cats
[in CACC custody], this Ordinance will reduce the financial
burden on Chicago taxpayers, who pay much of the cost to
The ordinance violates the Equal Protection Clause only
if "there is [no] reasonably conceivable state of facts that
could provide a rational basis" for the distinction it draws
between retailers and other animal sources. FCC v. Beach
Commc'ns, Inc., 508 U.S. 307, 313 (1993); see Nat'/ Paint
& Coatings, 45 F.3d at 1127 (quoting Beach Commc'ns,
508 U.S. 307, 313) ("[A] legislative decision 'is not subject
to courtroom factfinding and rnay be based on rational
speculation unsupported by evidence or empirical data.' ").
As discussed above, the justifications the City offers for the
ordinance, concern for anin1al welfare and the condition of the
City's coffers, are rational bases for the ordinance. See Beach
Commc'ns, 508 U.S. at 315 ("[B]ecause we never require
a legislature to articulate its reasons for enacting a statute,
it is entirely irrelevant for constitutional purposes whether
the conceived reason for the challenged distinction actually
motivated the legislature.").
*5 Even so, plaintiffs argue that the ordinance is infirm
because it is both over-inclusive, by banning retailers from
selling animals that come from reputable breeders, and
under-inclusive, by applying the ban solely to retailers. "But
legislation 'does not violate the Equal Protection Clause
merely because the classifications [it makes] are imperfect.'
"Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1072
(7th Cir. 2013) (quoting Dandridge v. Williams, 397 U.S. 471,
485 (1970)). "A law can be underinclusive or overinclusive
without running afoul of the Equal Protection Clause." Id.;
see Mo. Pet Breeders Ass'n, 2015 WL 2448332, at *7
(quoting City of New Or/eons v. Dukes, 427 U.S. 297, 303
(1976)) ("A government entity may ... 'adopt[ ] regulations
that only partially ameliorate a perceived evil and defer[ ]
complete elimination of the evil to future regulations.'"). The
ordinance's focus on retailers is rationally related to the goal
of decreasing the number of mill-produced animals sold in the
City, even if it does not entirely solve the problem. Thus, it
does not violate the Equal Protection Clause.
care for and euthanize many thousands ofanhnals"; (5) "The
City incurs significant costs caring for and treating animals
brought into the CACC"; (6) "Consumers may be more likely
to adopt a dog or cat if dogs or cats were not readily available
for purchase in pet stores."). Thus, even ifthe ordinance has
some rninilnal effect on interstate commerce, plaintiffs have
not carried "the[ir] burden of showing that [that impact] .. .is
excessive compared to the local interest[s]" served by the
ordinance. DeHart, 39 F.3d at 723.
Equal Protection
Contracts Clause
Plaintiffs also allege that the ordinance violates the Contracts
Clause of the Constitution. 3 See U.S. Const. art 1, § 10
(prohibiting the states from making any law "impairing
the Obligation of Contracts"). To determine whether the
ordinance violates the Contracts Clause, the Court asks
whether: (1) "the [o]rdinance in fact operates as a substantial
impairment of existing contractual relationships; (2) "the
[C]ity has a significant and legitimate public purpose
justifying the [o]rdinance"; and (3) "the effect of the
[o]rdinance on contracts is reasonable and appropriate given
the public purpose behind [it]. Chi. Ed. of Realtors, Inc. v.
City of Chi., 819 F.2d 732, 736 (7th Cir. 1987) (citations
omitted). Plaintiffs' claim fails at each level.
the Contracts Clause analysis. See Mo. Pet Breeders, 2015
WL 2448332, at * 11 (The inquiry under the Contract Clause
resembles rational basis review.").
With respect to the first inquiry, plaintiffs do not specifically
identify any current contractual relationship that the
Ordinance impairs or explain how the ordinance impairs it.
(See 2dAm. Comp!. ii 13 (alleging that plaintiff Cedar Woods
Fann "currently has agreements in place to do a significant
portion of its business" in Chicago); id. 1f 43 (alleging that,
as a result of the ordinance, plaintiff "Pet Shops 1••• contracts
will be violated"); id. 1f 49 (alleging that the ordinance
will force plaintiff Pet Shops "[to] violate their long term
leases and other agreements"); id. 1f 114 (alleging that the
ordinance will "will prevent plaintiffs from fulfilling their
obligations [under their current contracts], including fulfilling
warranties they have granted to clients and maintaining their
commercial property that is specifically built to conduct the
sale of companion animals").) Plaintiffs 1 failure to do so
dooms their Contracts Clause claim. See Active Disposal, Inc.
v. City of Darien, No. 09 C 2930, 2010 WL 1416461, at *2
(N.D. Ill. Mar. 31, 2010), afj'd, 635 F.3d 883 (7th Cir. 2011)
(holding that a co1nplaint's "passing reference to 'maintaining
existing contracts 1 " without allegations about "which (if any)
plaintiffs held such contracts, the terms of those contracts,
or how they were impaired by the contested ordinances" was
insufficient to state a Contracts Clause claiin).
Vagueness
Even if plaintiffs had satisfied the first step of the analysis,
their claim would still fail at the second and third. As
discussed above, the City has significant and legitimate public
purposes - protecting animals and the public fisc - for
enacting the ordinance, and the Contracts Clause does not
strip the City of its power to protect those interests. See
Exxon Corp. v. Eagerton, 462 U.S. 176, 190 (1983) (quoting
U.S. Trust Co. v. New Jersey, 431 U.S. 1, 22 (!977)) ("The
Contract Clause does not deprive the States of their 'broad
destroyed, as a result.' "); Chi. Ed. of Realtors, 819 F.2d at
735 (7th Cir. 1987) (noting that the Contracts Clause "does
not abrogate a state's inherent power to protect the interests
of its citizens"). Moreover, because the City is not a party to
the allegedly impaired contracts, "the ... scrutiny [at step three J
is relaxed," and the Court "defer[s] to legislative judgment as
to the necessity and reasonableness of a particular measure."
Id Because, as discussed above, the ordinance survives
rational basis review, it also passes muster at step three of
*6 Plaintiffs' final argument is that the ordinance is
unconstitutionally vague because it does not define "kennel"
and "shelter." That flaw, plaintiffs say, means that Park Pet
Shop can be both a "retailer," which cannot sell animals
from breeders, and a "kennel," which can, thereby "allowing
law enforcement to pick and choose what facilities it wishes
to prosecute." (2d Am. Compl. ~ 134); see Karlin v.
Foust, 188 F.3d 446, 458-59 (7th Cir. 1999) (a statute is
unconstitutionally vague "if it fails to provide fair warning
as to what conduct will subject a person to liability" or
lacks "an explicit and ascertainable standard to prevent
those charged with enforcing [it] from engaging in arbitrary
and discriminatory enforcement") (quotations and citations
omitted).
The Court disagrees. Though the ordinance does not define
"kennel" (or "shelter," though that term appears only in
the preamble), it makes clear that a kennel is a type of
government-operated animal facility. See Chi., lll., Code
§ 4-384-015(b)(l) (stating that a retailer may only sell
cats, dogs, and rabbits obtained from "an animal control
center, animal care facility, kennel, pound or training facility
operated by any subdivision of local, state or federal
government"). Because a privately-owned pet shop cannot
possibly be a kennel, plaintiffs 1 vagueness argument and
alleged fear of selective prosecution are unfounded.
Alternatively, plaintiffs contend that the ordinance is vague
because its preamble states that it "will not affect a consumer's
ability to obtain a dog or cat of his or her choice directly
from a breeder," but its definition of "retailer'' -"any person
licensed or required to be licensed under this chapter who
offers for sale any dog, cat or rabbit in the City"-can include
breeders. However, as noted above, the ordinance's preamble
"has no substantive legal force." Atkins, 685 N.E.2d at 345
(quotations omitted). Thus, any alleged conflict between the
preamble and the substantive provisions does not render the
ordinance unconstitutionally vague.
Conclusion
;)
PARK PET SHOP, INC. v, CITY OF CHICAGO through the City,,,, Slip Copy (2015)
For the reasons set forth above, the Court grants defendants'
motion to dismiss [64]. Moreover, because the claims cannot
be cured by amendment, the dismissal is with prejudice. This
HON. JORGE L ALONSO
United States District Judge
case is terminated.
All Citations
SO ORDERED. ENTERED: November 5, 2015
Slip Copy, 2015 WL 6756288
Footnotes
1
2
3
Because Mendoza and Alfred are sued only in their official capacities, and those claims are redundant of the claims
asserted against the City, see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985), the Court dismisses them.
City Clerk Mendoza's statement that the ordinance "is the beginning of the end for the puppy mill industry and its
powerbase in Iowa, Missouri and Indiana," (see 2d Am. Comp!., Ex. 2, 2/20/15 Press Release), does not change the fact
that the ordinance, by its terms, does not favor Hlinois animal sources over those located elsewhere.
Though plaintiffs appear to allege a takings claim in this count as well (see 2d Am. Comp!. 1] 111 ), they do not respond
to the City's motion to dismiss that claim. Accordingly, they have waived it See Bonte v. US. Bank, NA, 624 F.3d 461,
466 (7th Cir. 2010) ("Failure to respond to an argument-as the Bontes have done here-results in waiver.'').
End of Docurncnt
::;:; 20-15 Thomson Reuters.
i
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clGirn to odginai U.S. Gc;.·ernn1sn! \Narks.
Committee on License and Consumer Protection
WHEREAS, the City of Chicago (the "City") is a home rule unit of government under
Section 6(a), Article VII of the 1970 Constitution of the State of Illinois and as such may
legislate as to matters which pertain to its local government and affairs;
WHEREAS, pet stores selling live animals have traditionally been a sales outlet for
young dogs and cats bred in "puppy mills" and "kitten mills" both within the United States·and
abroad. According to the Humane Society of the United States, it is estimated that 10,000 puppy
mills produce more than 2,400,000 puppies a year in the United States and that most pet store
puppies and many pet store kittens come from puppy mills and kitten mills, respectively.
According to Illinois Department of Agriculture records, in the City alone, City pet stores
purchased approximately 1,500- 2,000 dogs from out-of-state breeders for sale to the public in
201 I and 2012. The number of dogs purchased for sale, and sold to the public, is likely higher as
these records do not reflect dogs purchased from in-state breeders. When consumers buy
puppies and kittens from pet stores, there is a strong likelihood that consumers are unknowingly
supporting the puppy mill or kitten mill industry;
WHEREAS, the documented abuses of puppy and kitten mills include over-breeding;
inbreeding; minimal to non-existent veterinary care; lack of adequate food, water and shelter,
lack of socialization; lack of adequate space; and the euthanization of unwanted animals. The
inhumane conditions in puppy and kitten mill facilities lead to health and behavioral issues with
animals, which many consumers are unaware of when purchasing animals from retailers due to
both a lack of education on the issue and misleading tactics of retailers in some cases. These
health and behavioral issues, which may not present themselves until years after the purchase of
the animals, can impose exorbitant financial and emotional costs on consumers;
WHEREAS, the lack of enforcement resources at local, state and federal levels allow
many inhumane puppy and kitten mills to operate with impunity. According to a spokesman
from the United States Department of Agriculture, due to budget constraints, the Illinois
Department of Agriculture employs only seven inspectors that are charged with overseeing more
than 1,300 dog dealers, kennel operators and pet shop operators. The Puppy Mill Project, a City
based non-profit organization, has identified at least ten retailers in the City that have acquired
cats !Ind dogs from commercial breeding facilities;
WHEREAS, the Chicago Animal Care and Control (the "CACC") impounds
approximately 20,000 animals each year. In 2011, the CACC euthanized 9,624 dogs and cats out
of21,085 (46%). Based on the CACC's estimated cost to euthanize a dog and cat, the City spent
between $234,864 - $303, 188 euthanizing dogs and cats in 20 l l. In 2012, the CACC
euthanized 7,652 dogs and cats out of 19,523 (39%) spending an estimated $199,124-$251,384;
WHEREAS, each year thousands of dogs and cats are euthanized in the City, because
they are not wanted. In 2011, 6,328 dogs and cats taken in by the CACC were owner surrenders,
which was 30% of the CACC's dog and cat intake. In 2012, 6,130 dogs and cats taken in were
owner surrenders (31 %). Owner surrenders were the second largest source of dogs and cats
taken into the CACC behind strays in 2011 and 2012. By promoting the adoption of such dogs
and cats, this Ordinance will reduce the financial burden on City taxpayers who pay much of the
cost to care for and euthanize many thousands of animals. In addition, by stopping the sale of
puppy mill puppies and kitten mill kittens in the City (animals that are known to have health and
behavioral issues as discussed above), this Ordinance should reduce the amount of unwanted
animals brought to organizations like the CACC, which would also reduce the financial burden
on City taxpayers;
WHEREAS, the City incurs significant costs caring for and treating animals brought into
the CACC. Since 2010, the CACC's annual budget appropriated over $300,000 in food;
supplies; and drugs, medicine and chemical materials alone to care for its animals;
WHEREAS, because the CACC receives adoption fees of $65 per animal, there is a
significant financial incentive for the City to promote the rehabilitation and adoption of rescue
cats and dogs by prohibiting the retail sales of commercially-bred cats and dogs by business
establishments located in the City. In 2011, only 1,404 (7%) dogs and cats were adopted directly
out of the CACC and only 1,341 (7%) were adopted directly out in 2012. Conswners may be
more likely to adopt a dog or a cat if dogs and cats were not readily available for purchase in pet
stores. Moreover, there is a large financial benefit to consumers who adopt animals, as the $65
fee charged by CACC is in many cases significantly lower than the cost of purchasing a dog or
cat from a pet store;
WHEREAS, across the country, thousands of independent pet stores as well as large
chains operate profitably with a business model focused on the sale of pet services and supplies
and not on the sale of dogs and cats. Many of these stores collaborate with local animal shelter
and rescue organizations to offer space and support for showcasing adoptable homeless pets on
their premises;
WHEREAS, this ordinance will not affect a consumer's ability to obtain a dog or cat of
his or her choice directly from a breeder, a breed-specific rescue or a shelter;
WHEREAS, in the United States and Canada alone, over 40 cities have enacted
ordinances addressing the sale of puppy and kitten mill dogs and cats, including in Los Angeles,
California; San Diego, California; Albuquerque, New Mexico; Austin, Texas; Toronto, Canada;
and Brick, New Jersey;
WHEREAS, current federal, Illinois and City laws and regulations do not properly
address the sale of puppy and kitten mill dogs and cats in City business establishments;
2
"
-·
WHEREAS, the City Council believes it is in the best interests of the City to adopt
reasonable regulations to reduce costs to the City and its residents, protect the citizens of the City
who may purchase cats or dogs from a pet store or other business establishment, help prevent
these inhumane conditions, promote community awareness of animal welfare, and foster a more
humane environment in the City; and
WHEREAS, the City desires to amend and restate Section 4-384 of the Municipal Code
of the City (the "Municipal Code") to prohibit the retail sale of cats and dogs in the City by
adding the language shown below;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CHICAGO:
SECTION I. The above recitals are incorporated herein by reference and made the
findings of the City Council.
SECTION 2. Section 4-384-015 of the Municipal Code is hereby adopted in its entirety:
4-384-015 Retail Sale of Dogs and Cats
(a)
Notwithstanding any provision in the Chicago Municipal Code to the contrary, a
pet shop, retail business or other commercial establishment may display, sell, deliver, offer for
sale or adoption, barter, auction, give away, or otherwise dispose of cats or dogs in the City only
when those cats or dogs are obtained from those entities or organizations described in the
following subsections 4-384-015(a)(i) or (ii):
i.
an (i) animal control center or (ii) animal care facility, kennel, pound or
training facility, in each case, operated by any subdivision oflocal, state or federal
government; or
ii.
a private, charitable, nonprofit humane society or animal rescue
organization.
(b)
Section 4-384-015(a) shall not apply to entities or organizations described in
Sections 4-384-015(a)(i) and (ii) above.
(Omitted text is unaffected by this ordinance)
SECTION 4. This ordinance shall take full force and effect upon passage and
publication.
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Type:
Title:
Committee(s) Assignment:
Dowell (3)
Ervin (28)
Beale (9)
Thomas (17)
Fioretti (2)
Brookins (21)
Ordinance
Amendment of Municipal Code Chapter 4-384 by adding
new Section 015 to regulate retail sale of dogs and cats
Committee on License and Consumer Protection
§. U.!!§.I!I VIE
ORD!NANC!j;
WHEREAS, The City of Chicago (the "City") is a home rule unit of government under
Section 6(a), Article VII of the 1970 Constitution of the State of Illinois and as such may
legislate as to matters which pertain to its local government and affairs;
WHEREAS, Pet stores selling live animals have traditionally been a sales outlet for
young dogs, cats, and rabbits bred in "puppy mills," "kitten mills," and "rabbit mills" both within
the United States and abroad. According to the Humane Society of the United States, it is
estimated that 10,000 puppy mills produce more than 2,400,000 puppies a year in the United
States and that most pet store puppies, kittens and many pet store rabbits come from puppy mills,
kitten mills, and rabbit mills, respectively. According to Illinois Department of Agriculture
records, in the City alone, City pet stores purchased approximately 1,500 - 2,000 dogs from outof-state breeders for sale to the public in 2011 and 2012. The number of dogs purchased for sale,
and sold to the public, is likely higher as these records do not reflect dogs purchased from instate breeders. When consumers buy puppies, kittens, and rabbits from a pet store, there is a
strong likelihood that consumers are unknowingly supporting the puppy mill, kitten mill, or
rabbit mill industry;
WHEREAS, The documented abuses of puppy and kitten mills include over-breeding;
inbreeding; minimal to non-existent veterinary care; Jack of adequate food, water and shelter;
lack of socialization; lack of adequate space; and the euthanization of unwanted animals. The
inhumane conditions in puppy and kitten mill facilities lead to health and behavioral issues with
animals, which many consumers are unaware of when purchasing animals from retailers due to
both a lack of education on the issue and misleading tactics of retailers in some cases. These
health and behavioral issues, which may not present themselves until years after the purchase of
the animals, can impose exorbitant financial and emotional costs on consumers;
WHEREAS, In addition to the above-mentioned abuses, rabbit mills are particularly
prone to problems of overcrowding. According to the Red Door Animal Shelter, because rabbits
can multiply every 28 days, breeders easily get overwhelmed, which leads to crowding, filthy
Jiving situations, and toxic amounts of ammonia in the air from the urine uncleansed from cages;
WHEREAS, The Jack of enforcement resources at local, state and federal levels allow
many inhumane puppy, kitten, and rabbit mills to operate with impunity. According to a
spokesman from the United States Department of Agriculture, due to budget constraints, the
Illinois Department of Agriculture employs only seven inspectors that are charged with
overseeing more than 1,300 dog dealers, kennel operators and pet shop operators. The Puppy
Mill Project, a City-based non-profit organization, has identified at least ten retailers in the City
that have acquired cats and dogs from commercial breeding facilities;
WHEREAS, The Chicago Commission on Animal Care and Control (the "CACC")
impounds approximately 20,000 animals each year. In 2011, the CACC euthanized 9,624 dogs
and cats out of21,085 (46%). Based on the CACC's estimated cost to euthanize a dog and cat,
the City spent between $234,864 - $303,188 euthanizing dogs and cats in 2011. In 2012, the
CACC euthanized 7,652 dogs and cats out of 19,523 (39%) spending an estimated $199,124$251,384;
WHEREAS, Each year thousands of dogs and cats are euthanized in the City, because
they are not wanted. In 2011, 6,328 dogs and cats taken in by the CACC were owner surrenders,
which was 30% of the CACC's dog and cat intake. In 2012, 6,130 dogs and cats taken in were
owner surrenders (31 %). Owner surrenders were the second largest source of dogs and cats taken
into the CACC behind strays in 2011 and 2012. By promoting the adoption of such dogs and
cats, this Ordinance will reduce the financial burden on City taxpayers, who pay much of the cost
to care for and euthanize many thousands of animals. In addition, by stopping the sale of puppy
mill puppies and kitten mill kittens in the City (animals that are known to have health and
behavioral issues as discussed above), this Ordinance should reduce the amount of unwanted
animals brought to organizations like the CACC, which would also reduce the financial burden
on City taxpayers;
WHEREAS, According to the Red Door Animal Shelter, rabbits are the third-most
popular pet in the U.S., after dogs and cats. Rabbits are often treated inhumanely in the breeding
mills and these animals are often viewed as disposable, with the largest influx of abandoned
animals being collected annually just after the Easter holiday. The Humane Society of the U.S.
estimates that 80% of rabbits sold as Easter or springtime pets are eventually abandoned;
WHEREAS, The Red Door Animal Shelter reports that over a thousand rabbits were
rescued by Chicago area shelters in 2013, with an unknown number of these pets perishing
before rescue could be made. This Ordinance is necessary to decrease abandonment of rabbits;
WHEREAS, The City incurs significant costs caring for and treating animals brought
into the CACC. Since 2010, the CACC's annual budget appropriated over $300,000 in food;
supplies; and drugs, medicine and chemical materials alone to care for its animals;
WHEREAS, Because the CACC receives adoption fees of $65 per animal, there is a
significant financial incentive for the City to promote the rehabilitation and adoption of rescue
cats and dogs by prohibiting the retail sales of commercially-bred cats and dogs by business
establishments located in the City. In 2011, only 1,404 (7%) dogs and cats were adopted directly
out of the CACC and only 1,341 (7%) were adopted directly out in 2012. Consumers may be
more likely to adopt a dog or a cat if dogs and cats were not readily available for purchase in pet
stores. Moreover, there is a large financial benefit to consumers who adopt animals, as the $65
fee charged by CACC is in many cases significantly lower than the cost of purchasing a dog or
cat from a pet store;
WHEREAS, Across the country, thousands of independent pet stores as well as large
chains operate profitably with a business model focused on the sale of pet services and supplies
and not on the sale of dogs and cats. Many of these stores collaborate with local animal shelters
and rescue organizations to offer space and support for showcasing adoptable homeless pets on
their premises;
WHEREAS, This Ordinance will not affect a consumer's ability to obtain a dog or cat of
his or her choice directly from a breeder, a breed-specific rescue organization or a shelter;
WHEREAS, In the United States and Canada alone, over 40 cities have enacted
ordinances addressing the sale of puppy and kitten mill dogs and cats, including Los Angeles,
California; San Diego, California; Albuquerque, New Mexico; Austin, Texas; Toronto, Canada;
and Brick, New Jersey;
WHEREAS, Many cities have adopted legislation banning the sale of rabbits, including
San Francisco, California; Los Angeles, California; Richmond, BC; Fort Worth, San Antonio,
Austin, and Houston, TX;
WHEREAS, Current Federal, Illinois and City laws and regulations do not properly
address the sale of puppy and kitten mill dogs and cats or rabbit mill rabbits in City business
establishments;
WHEREAS, The City Council believes it is in the best interests of the City to adopt
reasonable regulations to reduce costs to the City and its residents, protect the citizens of the City
who may purchase cats or dogs or rabbits from a pet store or other business establishment, help
prevent inhumane breeding conditions, promote community awareness of animal welfare, and
foster a more humane environment in the City; and,
WHEREAS, The City desires to amend the Municipal Code of the City to regulate the
retail sale of cats, dogs and rabbits in the City by adding the language shown below; now,
therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:
SECTION 1. The above recitals are incorporated herein by reference and made the
findings of the City Council.
SECTION 2. Chapter 4-384 of the Municipal Code of Chicago is hereby amended by
inserting a new Section 4-384-015, as follows:
4-384-015 Retail Sale of Dogs, Cats and Rabbits
(a) Definitions. As used in this section:
"Offer(s) for sale" means to display, sell, deliver, offer for sale or adoption, advertise for the
sale of, barter, auction, give away or otherwise dispose of a dog, cat or rabbit.
"Retailer" means any person licensed or required to be licensed under this chapter who offers
for sale any dog, cat or rabbit in the City.
"Rescue organization" means any not-for-profit organization that has tax exempt status under
Section 501(c)(3) of the United States Internal Revenue Code, whose mission and practice is, in
whole or in significant part, the rescue and placement of dogs, cats or rabbits.
(b) Restrictions on the retail sale of animals. A retailer may offer for sale only those dogs,
cats or rabbits that the retailer has obtained from:
(I)
llll animal control center, animal care facility, kennel, pound or training facility
operated by any subdivision of local, state or federal government; or
(2)
a humane society or rescue organization.
(c) Exemptions. The restrictions on retailers set forth in subsection (b) of this section shall
not apply to any entity listed in paragraphs (I) or (2) of subsection (b) of this section, or to any
veterinary hospital or clinic licensed pursuant to the Veterinary Medicine and Surgery Practice
Act of2004, codified at 225 ILCS 115.
(d) Disclosures required. Any retailer who offers for sale a dog, cat or rabbit shall make the
following disclosures to the customer about such animal:
(I)
for each dog or cat: a written disclosure meeting all of the requirements set forth
in Sections 3.5 or 3.15, as applicable, of the fuiimal Welfare Act, codified at 225
ILCS 605; and,
(2)
for each rabbit: (i) the breed, approximate age, sex and color of the animal; (ii) the
date and description of any inoculation or medical treatment that the animal
received while under the possession of the retailer; (iii) the name and address of
the location where the!" ii. •, was born, rescued, relinquished or impounded; and
(iv) ifthe " Ji. <, was returned by a customer, the date of and reason for the
return.
The disclosures required under this subsection (d) shall be provided by the retailer to the
customer in written form and shall be signed by both the retailer and customer at the time of sale.
The retailer shall retain the original copy of such disclosure and acknowledgement for a period
of 2 years from the date of sale. Upon request by an authorized city official, the original copy of
such disclosure and acknowledgement shall be made immediately available for inspection by
such authorized city official.
The retailer shall post, in writing, in a conspicuous place on or near the cage of any dog, cat
or rabbit offered for sale all of the information about a dog, cat or rabbit required under this
subsection and other applicable law.
SECTION 3. Following due passage and publication, this ordiuance shall take full force
and effect on March 5, 2015.
Susana A. Mendoza, City Clerk
Proco Joe Moreno, Alderman l" Ward
Ameya Pawar, Alderman 47ili Ward
Scott Waguespack, Alderman 32"d Ward

Accept Community Development Committee of the

Transcription

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