The Volusia County ordinance re “hobby breeders” is a real piece of work. Not only does it tell the breeder they can only have ONE species/one breed of animal, they are also told:
(1) Mandated microchip or tatoo
(2) Mandated to “take back” sold pets if/when owner does not want
(3) Mandated that owner must live on premises (where animals raised)
(4) Mandated inspection of premises without notice or cause
(5) Revocation of breeder license without inspection, no standards for revocation
(6) Mandated owner to have animals listed with national animal registry without description or specifics as to what would qualify as such, including good standing in registry with three years of documented experience in show clubs and show trials. [In other words, show dogs]
This is a partial list. The ordinance also states that such sales shall not be considered commercial breeding for the purpose of the ordinance provided that such sale is not the “primary function” of the facility. [The ordinance notes that the hobby breeder facility exists to enhance or perpetuate a given breed] Since most of the breeding could be done inside a house, it is obvious that the search/seizure can be used for almost any areas of the house. If a bedroom housed 4 small dogs, that would be searched. You can see the implications.
We believe drafters of the ordinance attempted to categorize hobby breeders as distinct and apart from commercial breeders since the commercial breeders usually fall under the AWA and Federal regulation. To exert different control over the breeding regulations, even being different than the State of Florida regs, the drafters sought to categorize the sales of the animals as “non commercial.”
In our view, a sale is a sale, no matter if it’s a 501(c)(3) or not, hobby breeder or not. The animals are not given away free, and in California for example, sales tax is supposed to be charged if not a 501(c)(3). Although the county argues that such sales are not considered “commercial”, we believe that is incorrect.*
The county states “All of these regulations have a rational basis in the County’s police power and speak to a hobby breeder’s unique activity of sheltering a large number of animals for non-profit purposes on residential property as distinct from those engaged in commercial sales.” By focusing on the “non profit purpose” (which we believe is error), the county claims that the disparate treatment of hobby breeders is allowed because they are regulating for health and welfare.
We believe that the purpose of the breeding has nothing to do with the “commercial” or non commercial sale. A sale is a sale. An animal sold is normally considered a commercial transaction and buying from a home breeder doesn’t make it non commercial; buying from a farmer’s barn doesn’t either; buying from a rescue group does not change the transaction from being a sale. Attempting to use the word commercial and then differentiating the sales transaction of hobby breeders is likely to not sit well on the issue of what is a sale.
The county also says that if it were to apply pet dealer regulations to hobby breeders it would create a commercial land use in the middle of a residential property zone. We think what the county purposely leaves out is that the disparate regulations only against the hobby breeders have nothing to do with commercial or non commercial.
It would appear that the regulation itself was purposely crafted to create disparate treatment for anyone who wished to breed any animals at all, including anyone who didn’t have a commercial license. The county also sought to avoid reference to the Federal regulations by limiting the numbers of animals for dogs to 10 (large dogs) and 15 (small dogs) but the “minature” or toy breed is not defined in pounds. That might mean that a tweenie dog of 13lbs might be considered a “standard” breed while a large mini Poodle of 11lbs might be an oversized mini.
*Note: The Court of Appeals case of Doris Day Animal League et al v Ann Veneman, Secretary of Agriculture, et al was reported at 315 F.3d 297 in 2003. Under the AWA, the term ‘retail pet store’ is not defined.
Animal rights groups (Doris Day Animal League, linked to HSUS) attempted to have hobby breeders not included in the exemption of “retail pet stores” (as Dept. of Agriculture has interpreted that the term retail pet stores encompasses residences from which such animals are sold as pets.) Being in that exemption takes the person out of the classification of “dealer” under the AWA. Animal rights wants all hobby breeders to fall under the AWA as “dealers.”
In relation to this case in Florida, the appeals court in Doris Day animal League stated that the Secretary of Agriculture was concerned by the potential invasion of privacy that would result if federal inspectors began enforcing “cleaning, sanitation, handling, and other regulatory requirements in private homes.” It would appear that the Volusia ordinance does exactly that, by allowing inspections without any notice. And if the dogs or cats were inside the home, guess what? We then have the inspectors inspecting private homes without need for a warrant.
In any event, the court denied the summary judgment of the county so the next step would be moving toward trial. The case was filed in Feb 2009 so it is moving along fairly timely. It is likely that at least several elements of the case will favor the breeders.