Perfect Puppy, Inc. v. City of E. Providence

• Decision Date: 31 March 2015
• Docket Number: C.A. No. 14–257 S.
• Parties: PERFECT PUPPY, INC., Plaintiff, v. CITY OF EAST PROVIDENCE, Defendant.
• Court: U.S. District Court — District of Rhode Island

98 F.Supp.3d 408

PERFECT PUPPY, INC., Plaintiff

v.CITY OF EAST PROVIDENCE, Defendant.

C.A. No. 14–257 S.

United States District Court, D. Rhode Island.

Signed March 31, 2015.

Lesley S. Rich, Cranston, RI, Walter J. Manning, III, Law Offices of Walter J. Manning, III, Esq., Warwick, RI, for Plaintiff.

Timothy John Chapman, East Providence, RI, Marc DeSisto, DeSisto Law, Providence, RI, for Defendant.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief Judge.

Plaintiff, Perfect Puppy, Inc., a pet store, has brought a declaratory judgment action to invalidate an ordinance passed by Defendant, the City of East Providence (the “City”). Before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, Plaintiff's motion (ECF No. 11) is DENIED and Defendant's motion (ECF No. 10) GRANTED as to all counts in Plaintiff's Amended Complaint (ECF No. 6) except Count Three, which is REMANDED to the Rhode Island Superior Court.¹

I. Background

Plaintiff initially sued the City in Rhode Island Superior Court in June 2014, after which the City removed the case to this Court. The parties have stipulated to the relevant facts. (Agreed Stipulation of Facts (“Stip.”), ECF No. 9). Plaintiff entered into a lease on April 26, 2014, for a space in the City to be used “only for the purposes of a Puppy Sales store,” according to the lease. (Id. at ¶ 3; Ex. B at ¶ 7.)

On May 20, 2014, an ordinance banning certain commercial transactions in dogs and cats was introduced and preliminarily passed by the East Providence City Council. (Id. at ¶¶ 4, 8.) The next day, on May 21, 2014, Plaintiff obtained its Rhode Island pet store license. (Id. at ¶ 5.) Plaintiff opened its store that day. (Id. at ¶ 6.) The City Council held a public hearing regarding the proposed ordinance on June 3, 2014, at which members of the public raised concerns about “puppy mills.” (Id. at ¶¶ 7, 8.) The City Council passed the ordinance on that date. (Id. at ¶ 7.) It states, in relevant part:

(b) It is unlawful for any person to display, offer for sale, deliver, barter, auction, give away, transfer, or sell any live dog or cat in any pet store, retail business or other commercial establishment located in the City of East Providence.

(c) Nothing in this section shall prevent the owner, operator, or employees of a pet store, retail business, or other commercial establishment located in the City of East Providence from providing space and appropriate care for animals owned by a city animal shelter or animal control agency, humane society, or non-profit rescue organization and maintain those animals at the pet store retail business or other commercial establishment for the purpose of public adoption.

Revised Ordinances of the City of East Providence, Chapter 3, Article V., § 3–68. (Stip. Ex. A, ECF No. 9–1.)

In its Amended Complaint, Plaintiff raises numerous challenges to the ordinance under the Constitutions of the United States and of Rhode Island, claiming that it violates the dormant Commerce Clause, the Contract Clause, the Takings Clause, and Plaintiff's equal protection and due process rights, and that it is preempted by state statute. Plaintiff and Defendant both seek summary judgment as to all of these challenges.

II. Discussion

Summary judgment is appropriate when, viewing the record in the light most favorable to the non-moving party, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a) ; Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir.2009). The same legal standard applies when the parties file cross-motions for summary judgment. Adria Int'l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir.2001). “The court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Bienkowski v. Ne. Univ., 285 F.3d 138, 140 (1st Cir.2002) (internal citation and quotation marks omitted).

Because the parties have agreed to the material facts, the Court must now determine whether either party is entitled to judgment as a matter of law on these facts. Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir.2004).

A. Commerce Clause Claims

The “negative” or “dormant” aspect of the Commerce Clause “denies the states the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Oregon Waste Sys., Inc. v. Dep't of Envt'l Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). “A statute that discriminates on its face against interstate commerce, whether in purpose or effect, demands heightened scrutiny.” Wine & Spirits Retailers, Inc. v. Rhode Island, 481 F.3d 1, 10 (1st Cir.2007) (citing Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 35 (1st Cir.2005) ). A discriminatory statute is therefore invalid “unless it furthers a legitimate local objective that cannot be served by reasonable non-discriminatory means.” Id. at 10–11 (citing Oregon Waste Sys., 511 U.S. at 99–101, 114 S.Ct. 1345 ).

However, legislation that “regulates evenhandedly and has only incidental effects on interstate commerce” is not presumed to be invalid. Wine & Spirits Retailers, 481 F.3d at 11 (internal citation and quotation marks omitted). Rather, a lower level of scrutiny applies, and the statute undergoes the balancing test set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). Wine & Spirits Retailers, 481 F.3d at 11. A statute that operates evenhandedly to implement a legitimate local interest, and only incidentally impacts interstate commerce, is valid so long as the burden it imposes on interstate commerce is not “clearly excessive in relation to the putative local benefits.” Id. (quoting Pike, 397 U.S. at 142, 90 S.Ct. 844 ).

1. Discriminatory Effect

Plaintiff sets forth two somewhat conflicting theories in support of its argument that the ordinance discriminates in practical effect, therefore requiring heightened scrutiny. One of its theories can be easily ruled out. Plaintiff points out that the ordinance allows an out-of-state merchant to continue to sell dogs and cats in the City, while City merchants cannot sell them within or outside of the City.² Thus, it claims, the problem with the ordinance is what it calls “reverse discrimination,” in that local businesses are burdened by their inability to participate in interstate commerce. Given that the Commerce Clause seeks to protect interstate commerce, not local interests, this argument is truly barking up the wrong tree. Plaintiff cites no authority to support its “reverse discrimination” theory, likely because such an interpretation is contradicted by virtually every case addressing the issue. See, e.g., Wine & Spirits Retailers, 481 F.3d at 10 ; Alliance of Auto. Mfrs., 430 F.3d at 35 ; Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 188–89 (1st Cir.1999).

Plaintiff's next argument on discriminatory effect likewise misses the mark. According to Plaintiff, because it buys dogs exclusively from out-of-state breeders, prohibiting pet stores from selling cats and dogs has the effect of discriminating against out-of-state interests.³ However, the fact that certain goods originate out of state does not prevent the imposition of regulations on those goods in state. Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 844 (1st Cir.1988). Indirectly reducing purchases that happen to be made exclusively from out-of-state suppliers is a far cry from “invidiously discriminat[ing]” in practical effect. Cherry Hill Vineyard, LLC v. Baldacci, 505 F.3d 28, 36 (1st Cir.2007) (“In the absence of any explicit (i.e., facial) discrimination, the plaintiffs must persuade [the Court] that [the state's] evenhanded requirement ... camouflages some more sinister reality: that its practical effect is invidiously discriminatory.”). The loss of Plaintiff's business to out-of-state breeders is not “probative evidence of adverse impact” sufficient to support a Commerce Clause claim based on discriminatory effect. Id. This is especially true given that the prohibition of dog sales provides no accompanying benefit to any in-state business. See Cavel Int'l, Inc. v. Madigan, 500 F.3d 551, 555 (7th Cir.2007) (finding no discrimination where “[n]o local merchant or producer benefits from the ban on [horse] slaughter”); Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 312 (1st Cir.2005) ; cf. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 389, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (ordinance that prevented out-of-state business from accessing local market and simultaneously allowed only a local business to access that market had discriminatory effect on interstate commerce).⁴

Because the challenged effects of the ordinance on interstate commerce are at most incidental, unless the ordinance facially discriminates, it is not presumptively invalid, and need only survive the Pike balancing analysis, discussed further below.

2. Facial Discrimination

The Court next turns to Plaintiff's claims of facial discrimination. Plaintiff maintains that the challenged ordinance is facially discriminatory in that it “sets up a Rhode Island based market for the sale of dogs and cats.” (Pl. Br. 7, ECF No. 11–1.) This is a skewed reading of the ordinance. Section (b) of the ordinance prohibits the sale of dogs and cats in commercial establishments in the City, making no distinction between the in-state and out-of-state nature of such establishments. Section (c) clarifies that Section (b) should not be read to prohibit certain non-commercial entities from offering dogs and cats for adoption, and that pet stores and other commercial establishments may still provide space and care for animals owned by these non-commercial entities for the animals' adoption. The non-commercial entities named include “a city animal shelter or control agency,” and certain Rhode Island non-profits, but...