N.Y. Pet Welfare Ass'n, Inc. v. City of N.Y.

Decision Date12 November 2015
Docket NumberNo. 15–CV–3159 JG.,15–CV–3159 JG.
Citation143 F.Supp.3d 50
Parties NEW YORK PET WELFARE ASSOCIATION, INC., Plaintiff, v. The CITY OF NEW YORK, the New York City Council, Corey Johnson, individually and in his capacity as New York City Councilman, Elizabeth S. Crowley, individually and in her capacity as New York City Councilwoman, Defendants.
CourtU.S. District Court — Eastern District of New York

Fox Rothschild LLP, New York, NY, By: Jeffrey M. Pollock, James M. Lemonedes, Nancy E. Halpern, for Plaintiff.

Corporation Counsel of the City of New York, New York, NY, By: Zachary W. Carter, Sheryl Neufeld, Mark W. Muschenheim, Anna I. Kurtz, Aaron S. Rogoff, for Defendants.


JOHN GLEESON, United States District Judge:

Plaintiff New York Pet Welfare Association, Inc. ("NYPWA") brings this action against defendants City of New York ("City"), New York City Council ("City Council"), Corey Johnson, individually and in his capacity as a New York City Councilman, and Elizabeth S. Crowley, individually and in her capacity as a New York City Councilwoman. NYPWA alleges that defendants have adopted laws that violate the Supremacy Clause, the Commerce Clause, the Equal Protection Clause, and the Due Process Clause of the U.S. Constitution, as well as New York law that governs veterinary medicine, the treatment of animals, and equal protection.

The challenged laws are the result of the City Council's desire to address several related problems arising out of the sale of dogs and cats in the City: pet store sales of animals bred and kept in inhumane conditions; deceptive trade practices in connection with such sales; and an overpopulation of unwanted dogs and cats. In essence, the laws require pet stores to obtain dogs and cats from Class A licensees of the United States Department of Agriculture ("USDA") who are in good standing, and they further require pet stores to spay or neuter the animals before selling them.

Defendants move to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff fails to allege a legally cognizable cause of action. For the reasons stated below, I agree, and the motion is granted.


NYPWA's second amended complaint alleges the following facts, which I assume to be true for purposes of this motion. See, e.g., Freidus v. Barclays Bank PLC, 734 F.3d 132, 135 (2d Cir.2013) ("On a motion to dismiss for failure to state a claim on which relief can be granted, we assume the truth of the facts alleged.").1

A. The Parties
1. The New York Pet Welfare Association

Plaintiff NYPWA is a non-profit trade association of pet stores, dog and cat breeders and dealers, veterinarians, and pet owners, several of which maintain Class A and Class B licenses granted by the USDA. Second Amended Complaint ("SAC") ¶¶ 1, 16. NYPWA is incorporated in the state of New Jersey, and its members conduct business in various jurisdictions. SAC ¶ 16. NYPWA's stated mission is to ensure that pet owners have access to healthy, humanely treated, purebred puppies and kittens, as well as to educate the public, industry professionals, and policymakers about the pet industry. Id.

2. The Defendants

The City is a municipal entity created and authorized under the laws of the State of New York. SAC ¶ 23. The City Council is the legislative body for the City. Id. at 24. Defendant Corey Johnson is a City Councilman, the Chairman of the City Council's Committee for Health, and a co-sponsor of Local Laws 5 and 7, the laws in dispute. Id. at 25. Defendant Elizabeth S. Crowley is a City Councilwoman and is the primary sponsor of Local Laws 5 and 7. Id. at 26.

B. The Animal Welfare Act

The Animal Welfare Act ("AWA" or the "Act"), see 7 U.S.C. §§ 2131 –2159, regulates the sale of dogs and cats in interstate commerce. It requires that any breeder who controls five or more breeding females to hold a "Class A" license2 and that any entity that obtains or arranges for animals from a breeder to be sold to a pet store to hold a "Class B" license.3 Class A and Class B licensees are subject to USDA inspection for compliance with the AWA and the regulations promulgated thereunder. See 9 C.F.R. §§ 2.1 –2.3. Under current regulations, however, "[a]ny person who maintains a total of four or fewer breeding female [animals]" is exempt from the AWA licensing scheme. See 9 C.F.R. § 2.1(a)(3)(iii).

The AWA was intended, in part, "to assure the humane treatment of animals during transportation in commerce" and "to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment." 7 U.S.C. § 2131(1) -(2). Among other provisions, the Act regulates "dealers" of animals. A "dealer" is defined, inter alia, as a "person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of ... any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet." Id. at § 2132(f). Under the AWA, a dealer must possess a valid license to (1) "sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal," or (2) "buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals." Id. at § 2134. Similarly, federal regulations provide, in relevant part, that any person operating as a dealer "must have a valid license," unless the person qualifies for one of eight exceptions. 9 C.F.R. § 2.1(a)(1), (3). The regulations further provide that "[a]ny person whose license has been suspended or revoked shall not buy, sell, transport, exhibit, or deliver for transportation, any animal during the period of suspension or revocation." Id. at § 2.10(c).

C. The Challenged Pet Shop Laws

In January 2015, the City enacted Local Laws 5 and 7 of 2015,4 which were subsequently amended in June 2015 by Local Law 53 of 2015 (collectively, the "Pet Shop Laws").5 The Pet Shop Laws establish a comprehensive regulatory framework for the sale of dogs and cats in City pet stores. See SAC ¶¶ 30–37. Prior to the passage of the laws, the City Council Committee on Health held three public hearings and heard extensive testimony related to the pet industry.6 As mentioned above, the Pet Shop Laws were enacted to curb pet store sales of dogs and cats bred in substandard or inhumane conditions, to protect pet store customers and the public from deceptive trade practices, and to address the overpopulation of unwanted animals. See SAC Exs. 12, 14, 52.

Local Law 5, as amended, requires that all pet stores hold an operating permit issued by the New York City Department of Health and Mental Hygiene.7 NYC Ad.Code § 17372. Responding to concerns that many pet stores in the City relied on Class B licensees or distributors of animals and thus had no knowledge of the practices of the breeders who supplied the animals, Local Law 5 also requires that a pet store obtain any dog or cat that it offers for sale directly from a USDA Class A licensee that has met certain inspection standards. NYC Ad.Code § 17–1702(a); see also SAC ¶ 30, Exs. 2, 3.8 However, an exemption from Local Law 5's definition of "pet shop" applies to "breeders who sell ... directly to consumers fewer than twenty-five dogs or cats per year that are born or raised on the breeder's residential premises." NYC Ad.Code § 17–371(e). Nonetheless, those exempt breeders may not sell dogs or cats to pet stores unless they hold a USDA Class A license and are in compliance with NYC Ad.Code § 17–1702(a). Local Law 5 also requires pet stores to make available to consumers detailed information about the source and health of dogs and cats offered for sale, and to maintain records in connection with the purchase and sale of any dogs or cats. NYC Ad.Code §§ 17–1703, 171704.

Local Law 7, as amended, requires pet stores to sterilize any dog or cat before releasing it to a purchaser, so long as the animal is at least eight weeks old and weighs at least two pounds. See NYC Ad.Code §§ 17–802, 17–804, 17–806, and 17–814. Local Law 7 also requires that pet stores obtain a completed license application from dog purchasers and any license fees required by law. Nonetheless, a "pet shop that allows an animal shelter or animal rescue group to use such pet shop's premises for the purpose of making animals available for adoption shall be exempt from the [sterilization requirement] ... provided such pet shop does not have an ownership interest in any of the animals that are made available for adoption." § 17804(f); see also SAC ¶¶ 111, 266.

D. Procedural History

NYPWA commenced this action on June 1, 2015. ECF Dkt. No. 1. On that same date I held a hearing on NYPWA's application to enjoin the City from enforcing the Pet Shop Laws pending the outcome of the case. The defendants mooted that application by voluntarily agreeing not to enforce the challenged legislation until October 31, 2015. On June 9, 2015, NYPWA filed an amended complaint. ECF Dkt. No. 4. On July 2, 2015, NYPWA sought leave to file a second amended complaint, ECF Dkt. No. 9, and I granted the request on July 6, 2015. ECF Dkt. No. 10.

NYPWA's second amended complaint alleges that the Pet Shop Laws "ban out-of-state dog and cat breeders and dealers from access to the City pet market, in violation of the Supremacy Clause, Due Process Clause and Commerce Clause of the United States Constitution and the New York State [ ] Constitution." SAC ¶ 2. NYPWA also alleges that the Pet Shop Laws impermissibly favor the pet rescue industry, in violation of the Commerce Clause and Equal Protection Clause of the U.S. Constitution. Id. NYPWA asserts further that Local Law 7 is "preempted by and conflicts with the State's laws governing licensed veterinarians." SAC ¶ 10. Finally, NYPWA alleges that "Crowley and Johnson conspired with each other ... to...

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