Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part IV)

Lest there be any mistake about the foundational intention of ISAR's Model Statute Prohibiting Retail Sale of Dogs and Cats, we here state it categorically:

Having concluded that overpopulation of dogs and cats and the attendant social and other problems it engenders will not be solved by mere regulation of puppy mills, kitten factories, breeders, facilitators and commercial retail sellers, ISAR supports an outright prohibition on: (1) the commercial retail sale of dogs and cats within the jurisdictions enacting the prohibition, and (2) the purchase by persons within those jurisdictions of cats or dogs bred in a manner inconsistent with the provisions of ISAR's Anti-Breeding Statute no matter where bred.

As we have explained in the Memorandum, among the major faults of virtually all animal protection legislation is its failure to set forth explicitly the fundamental legislative premises upon which the statutes and ordinances are based. ISAR has sought to remedy that omission by making clear in our Model Statute exactly upon what premises ISAR's proposed legislation rests.

Again, lest there be any misunderstanding, having recognized that even the most stringent regulatory laws (which are few and far between) have made no noticeable impact on the companion animal overpopulation tragedy, ISAR now seeks to greatly reduce the flow of dogs and cats through the production pipeline by closing off their sales at the point of destination. Not just at pet stores, but at all commercial retail sales points.

As a matter of principle, ISAR deplores the commercial, and most other, breeding of dogs and cats. We have hoped that until the day comes when ISAR's view of how to deal with the overpopulation problem is accepted as a moral imperative, and is translated into law subject to virtually no exceptions, we would have to be content with the statutory provisions set forth in our other monographs -- if they were rigorously and intelligently enforced.

Because ISAR no longer believes that outcome is likely, as a matter of principle and policy we now support an outright prohibition on commercial retail sales of dogs and cats.

In ISAR's monograph "The Policy and Law of Mandatory Spay/Neuter" we wrote that:

Let's assume that mandatory spay/neuter laws are enacted by every state in the United States, in the real world there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void.

In other words, while mandatory spay/neuter laws will surely reduce the population of unwanted companion animals in the United States (and possibly contribute to a widespread national No-Kill policy), in the harshness of the real world the problem of too many dogs and cats will continue to exist no matter what.

This sad fact must be taken into account when government considers mandatory spay/neuter legislation. Those laws must be grounded not in hope, sentiment, or a benevolent opinion of mankind, but rather in the world as we find it. A world where companion animals are too often thought of as virtually inanimate objects, property to be used and abused by humans.

It is in this context that the subject of mandatory spay/neuter must be considered.

The relevance of our earlier observation for this Model Statute is ISAR readily acknowledges that a ban on the commercial retail sale of dogs and cats will never be enacted federally, let alone by every state. But even if one was, "there will be statutory exceptions, some people will violate the law, underground breeding will proliferate, foreign sources of companion animals will attempt to fill the void."

So why has ISAR devoted substantial research and other resources to the preparation of the Monograph and Model Statute?

Primarily for two reasons, policy and practicality.

As to policy, for decades -- through our legal, legislative and humane education efforts -- ISAR has been working to solve the dog and cat overpopulation problem.

This Model Statute is yet another means of advancing that policy goal.

As to practicality, we believe that a growing trend of village, town, city, county and even state West Hollywood-like statutes and ordinances, while not ending the commercial retail sale of dogs and cats, will make it more difficult for casual purchasers to acquire them. For example, despite the weaknesses in the West Hollywood ordinance examined at length in the Memorandum, the casual buyer of a dog or cat must now go elsewhere to purchase one. If Los Angeles County had a no-sale statute, buyers would have to go elsewhere. And so on. [1]

The Statute Findings

Whereas, there have been and are today within the United States countless unwanted dogs and cats lacking permanent homes, that are a major cause of dog and cat overpopulation; and

Whereas, a major source of such dogs and cats are commercial breeders who operate puppy mills and kitten factories, and other breeders; and

Whereas, the treatment of dogs and cats and their physical conditions at the hands of breeders, puppy mills, kitten factories, facilitators and commercial retail sales outlets are a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, and environment; and

Whereas, although some of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets, may be healthy, many are not; and

Whereas, many of the dogs and cats produced by breeders, puppy mills, kitten factories and elsewhere, and sold by facilitators and commercial retail sales outlets have an adverse impact on the public health, safety, welfare, morals and environment; and

Whereas, the social impact of these dogs includes, but is not limited to, the transmission of disease, the injury and sometimes death of humans and other animals and the drain on public finances; and

Whereas, many of these animals and others from random sources are eventually euthanized by shelters, humane societies, and similar organizations; and

Whereas, euthanizing dogs and cats except for bona fide medical reasons is inhumane and abhorrent to the people of the United States; and

  

Whereas, euthanizing dogs and cats except for bona fide medical reasons is not an effective, economical, humane, or ethical solution to the problem of dog and cat overpopulation; and

Whereas, one of the most effective, economical, humane, and ethical solutions to the problem of dog and cat overpopulation is to substantially reduce, if not entirely eliminate, their breeding, facilitation and their commercial retail sale without which there would be substantially less breeding; and

Whereas, such reduction or elimination, especially of commercial retail sales, will protect and advance the public health, safety, welfare, and environmental interests of its citizens; and

Whereas, existing state and federal laws merely regulate, but do not prohibit, dog and cat breeding and pet stores and other places that sell dogs and cats. These include the Lockyer-Polanco-Farr Pet Protection Act (California Health and Safety Code Section 122125 et seq.); the Polanco-Lockyer Pet Breeder Warranty Act (California Health and Safety Code Section 122045 et seq.); the Pet Store Animal Care Act (California Health and Safety Code Section 122350 et seq.); and the Animal Welfare Act ("AWA") (7 U.S.C. Section 2131 et seq.); and

Whereas, the Albuquerque and West Hollywood ordinances are mere regulation but not prohibition; and

Whereas, the Animal Welfare Act is mere regulation but not prohibition; and

Whereas, it is commonly known that American consumers purchase dogs and cats from commercial retail sales outlets that they believe to be genetically sound and healthy, but when in reality the animals often face an array of health problems including communicable diseases or genetic disorders that become apparent immediately after sale or that do not surface until several years later, all of which lead to costly veterinary bills and distress to consumers; and

Whereas, review of state and USDA inspection reports from more than one hundred breeders who sold animals to the nation's largest commercial retail pet store chain revealed that more than sixty percent of the inspections found serious violations of basic animal care standards, including sick or dead animals in their cages, lack of proper veterinary care, inadequate shelter from weather conditions, and dirty, unkempt cages that were too small; and

Whereas, a 2005 undercover investigation of California commercial retail sales outlets revealed that nearly half of the premises visited displayed animals that showed visible signs of illness, injury, or neglect, and nearly half of the premises also sold animals showing clear symptoms of psychological distress; and

Whereas, according to The Humane Society of the United States, hundreds of thousands of dogs and cats in the United States have been housed and bred at substandard breeding facilities known as "puppy mills" or "kitten factories" which mass-produce animals for sale to the public through commercial retail sales outlets. Because of the lack of proper animal husbandry practices at these facilities, animals born and raised there are more likely to have genetic disorders and lack adequate socialization, while breeding animals utilized there are subject to inhumane housing conditions and are indiscriminately disposed of when they reach the end of their profitable breeding cycle; and

Whereas, according to USDA inspection reports, some additional documented problems found at puppy mills include: (1) sanitation problems leading to infectious disease; (2) large numbers of animals overcrowded in cages; (3) lack of proper veterinary care for severe illnesses and injuries; (4) lack of protection from harsh weather conditions; and (5) lack of adequate food and water, and similar problems are found at kitty factories; and

Whereas, while "puppy mill" puppies and "kitten factory" kittens were, for example, being sold in commercial retail sales outlets such as pet stores throughout the metropolitan Los Angeles area, in 2009 alone more than thirty-five thousand dogs and sixty-seven thousand cats were euthanized in city and county shelters; and

Whereas, while the legislature recognizes that not all dogs and cats sold in commercial retail outlets such as pet stores are products of inhumane breeding conditions and does not classify every commercial breeder selling dogs or cats to commercial retail sales outlets such as pet stores as a "puppy mill" or "kitten factory," it is the legislature's finding that puppy mills and kitten factories continue to exist in large part because of public demand and the ease with which dogs and cats can be purchased from commercial retail sales outlets such as pet stores; and

Whereas, the legislature finds that the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction adds to overpopulation and all of its unacceptable consequences, and is also inconsistent with the legislature's goal of reducing the number of unwanted dogs and cats, and the principle of animal protection; and

Whereas, the legislature believes that eliminating the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction is a matter of political, economic, legal and moral concern affecting the public, health, safety, welfare, morals and environment and will promote humane awareness of the dog and cat overpopulation problem and, in turn, will foster a more humane environment in this jurisdiction; and

Whereas, the legislature believes also that elimination of the commercial retail sale of dogs and cats in outlets such as pet stores in this jurisdiction will also encourage consumers to adopt dogs and cats from shelters, thereby saving animals' lives and reducing the cost to the public of sheltering animals;

NOW, THEREFORE, IT IS ENACTED AS FOLLOWS:

Commercial retail sale of dogs and cats prohibited.

A. Definitions.

For purposes of this statute the following definitions shall apply: 

• "Animal shelter": a municipal or related public animal shelter or duly incorporated nonprofit organization devoted to the rescue, care and adoption of stray, abandoned or surrendered animals, and which does not breed animals.

• "Commercial": "relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit."

• "Retail": "the selling of dogs and cats directly to purchasers."

• "Sale": "the transfer of ownership of dogs and cats for monetary or other consideration."

• "Seller": "any person or legal entity that makes a sale."

•  "Outlet": "the place where, or through the means of which, a retail sale occurs."

• "Purchaser": "any person or legal entity that is the recipient of a sale."

• "Breeder": "any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline."

• "Mill": "a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale.
   
• "Facilitator": "any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer."  

B. Prohibition.

1. No commercial retail sales outlet shall consummate a sale of dogs or cats in this jurisdiction on and after the effective date of this statute.

2. On and after the effective of this statute no person within this jurisdiction shall purchase a dog or cat from outside this jurisdiction which has been bred in a mill.

3. Every purchaser of a dog or cat in accordance with Section 2 above shall produce for inspection by, and to the satisfaction of, animal control or similar authority a sworn written statement provided by the breeder and facilitator containing the following information: a) the name and address of the breeder and facilitator; b) when and where the dog or cat was bred; c) its general state of health when sold.

C. Existing commercial retail sales outlets. Commercial retail sales outlets existing as of the effective date of this statute may not consummate sales of dogs and cats more than 30 days thereafter.

D. Exemptions.

This statute does not apply to:

1. The sale, barter, adoption, or gift of a dog or cat made necessary because its owner can no longer care for it.

2. Surrender of a dog or cat to a publicly operated animal control facility, authorized animal shelter, or authorized private humane, rescue or similar organization.

3. Dogs or cats in the legal possession of a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization.

E. Adoption of Shelter and Rescue Animals.

Nothing in this law shall prevent an outlet that does not sell dogs or cats or other mammals from providing temporary weekend space and appropriate humane and temporary care for dogs and cats legally possessed by a publicly operated animal control facility or animal shelter or duly authorized private humane, rescue or similar organization for the sole purpose of offering such dogs and cats for adoption by the public.

F. Penalties.

1. First violation of this statute shall be punished by a fine of $1,000 per dog or cat sold or purchased.

2. Each subsequent violation of this statute shall be punished by a fine of $2,000 per dog or cat sold or purchased.

3. The fifth violation of this statute shall be punished by a fine of $5,000 per dog or cat sold or purchased, up to six months in jail, or both.

G. Separability clause.

If any provision of this statute shall be held unenforceable, the remaining parts thereof shall survive.

H. Effective date.

This statute shall become effective as provided by law.

For too many people, including some in the animal protection movement and bureaucrats at USDA and APHIS, the phenomenon of companion animal overpopulation in the United States caused largely by breeding is a mere "practical" problem to be dealt with in a "practical" way.

On the other hand, ISAR has always seen the problem as a moral one, and that the commercial retail sale of companion animals raises serious moral questions. They are addressed in Part V. 

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1 We are using the West Hollywood ordinance as the template for this Model Statute, and making such changes as are necessary to correct the deficiencies in that law, as explained at length in the Memorandum.

Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part III)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part III)

A major defect in many animal protection statutes is that crucial terms are ill-defined, or not defined at all.  This failure leads to ambiguity, unavoidable litigation, lack of enforcement, and other problems undermining or defeating the goals the legislation was enacted to achieve.
 

Hence, for purposes of ISAR's anti-breeding Monograph and our "Model Statute Prohibiting Commercial Retail Sales of Dogs and Cats" (hereafter "Model Statute"), we employed the following definitions:  

• "Commercial": "relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit."

• "Retail": "the selling of dogs and cats directly to purchasers."[1]

• "Sale": "the transfer of ownership of dogs and cats for monetary or other consideration."

• "Seller": "any person or legal entity that makes a sale."

• "Outlet": "the place where, or through the means of which, a retail sale occurs."

• "Purchaser": "any person or legal entity that is the recipient of a sale."
• "Breeder": "any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline."[2]
• "Mill": "a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale."[3]

• "Facilitator": "any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer."[4]
   

ISAR published our Anti-Breeding Statute in 2009.  In our Introduction we wrote:

While ISAR's [Anti-Breeding] Statute applies to all breeders, it contains certain provisions aimed specifically at the horrors of mills because they are, by far, the most inhumane kind of breeding that exists today in the United States and elsewhere in the world.

Puppy mills, however, are only the first stage in the mass production and sale of dogs.  Next come the facilitators, followed by the commercial retailers who sell to the public.

That public, however, [usually] has little or no [information] just how immoral and inhumane are certain aspects of the business of commercially producing and selling puppies and adult dogs [and kittens and adult cats] as if they were inanimate objects, no different from sausages.
 

Not only is the factory-like commercial production and sale of dogs [and cats] by itself immoral and inhumane, the business is a leading cause of the nationwide canine [and feline] overpopulation problem. That problem, in turn, has an adverse impact not only on the animals themselves, but also on society at large.  Overpopulation of dogs [and cats] has severe economic, social, political, financial, health, environmental and other consequences which are well-documented and not debatable.
 

Accordingly, by severely reducing the numbers of dogs [and cats] produced by breeders, brokered by facilitators, and sold by commercial retailers, the related problems of immorality, inhumaneness and overpopulation could be dealt a serious blow.

Regrettably, however, even the most aggressive educational efforts by the animal protection movement have not been powerful enough to put sufficient pressure on breeders, facilitators and commercial retailers to reduce voluntarily their production and sales of dogs, let alone to drive them out of business altogether.
 

That said, however, there is a way in which production, trafficking and sale of dogs [and cats] can be greatly reduced -- a way in which puppy mill producers, facilitators and commercial retail sellers of dogs [and cats] could virtually be put out of business.
 

How, then, to accomplish this worthy goal?
 

The short answer -- which is developed at length in this Monograph [containing ISAR's Anti-Breeding Statute] -- is through strict administrative regulation of breeders, facilitators and commercial retail sellers, coupled with harsh penalty and generous "standing to sue" provisions.

As we made clear in that Monograph and Anti-Breeding Statute, ISAR's strict, even extreme "regulation" of breeders, facilitators and retail sellers was designed to be a virtual de facto prohibition of dealing in dogs and cats.  We wrote:
 

Preface to ISAR's [Anti-Breeding Statute]

The Humane Society of the United States suggests that an acceptable statute regulating a puppy breeding facility is one which
 

applies to all breeding operations with animals or animal sales numbering over a specified threshold; requires a licensing fee and pre-inspection; includes routine, unannounced inspections at least twice yearly; is enforced by an agency with adequate funding and properly trained and tested staff; rotates inspectors to cover different areas of the state; and is equipped with strong penalties when facilities are in repeated non-compliance, including but not limited to cease and desist orders.[5]

While these requirements impose conditions and behavior which are better than those found today in most, if not all, statutes, implicit in them are two premises which ISAR categorically rejects: (1) that indiscriminate breeding of dogs [and cats] is morally acceptable so long as it is moderately ("humanely"!?) regulated, and (2) that through such "moderate" regulation the treatment of dog [and cat] "breeding machines" can be made morally and humanely tolerable.
 

If another of  ISAR's monographs The Policy, Law and Morality of Mandatory Spay/Neuter, and Chapters 1, 2 and 3 of [our Anti-Breeding] monograph teach anything, they speak loudly for the proposition that there is an intractable dog and cat overpopulation problem, that the only feasible way to alleviate it today is by mandatory spay/neuter and severe regulation of breeders, facilitators and commercial retail sales outlets, and that legislation seeking to deal with the problem must be strict, comprehensive, loophole-free, and without the kinds of compromises that gut the few statutes which have been enacted and others that are now in the legislative pipelines.
 

In the end, dealing effectively with the breeder-facilitator-commercial retail sales outlet situation, and the dog [and cat] overpopulation problem it so greatly contributes to, is an either/or choice.
 

Either the dog [and cat] breeding, facilitating and sales valve is turned off almost completely, or useless and counterproductive legislative efforts will perpetuate the charade that something constructive is being done while countless millions of hapless prisoner dogs [and cats] continue to be bred, born, traumatized, abused, killed, and incinerated-and while figuratively, and often literally, our land is suffused with their wind-borne ashes.

In ISAR's proposed [Anti-Breeding] Statute, we have made the "either" choice: ISAR proposes to turn off almost completely the dog [and cat] breeding, facilitating and commercial retail selling outlet valve, and in so doing see the dog [and cat] overpopulation problem substantially ameliorated.
 

Before presenting the annotated text of ISAR's proposed [Anti-Breeding] Statute, several important antecedent points have to be made.
 

First.  ISAR realizes that its proposed [Anti-Breeding] Statute far exceeds the prohibitions on breeding, facilitation and sales which appear in other animal protection laws, actual and proposed. ISAR has staked out its extreme position because our organization deeply believes that only very strict regulatory laws will achieve the stated goal, and if there are to be necessary compromises they must be as few, narrow, and morally and humanely defensible as possible.
 

Second.  ISAR acknowledges that even if its proposed [Anti-Breeding] Statute were to be adopted by the federal government, or in a slightly different form by every state in America, there would still be unwanted dogs [and cats]. ISAR believes, however, that if its [Anti-Breeding] Statute accomplishes its intended purpose there would be adoptive homes for those far fewer dogs [and cats].  (In this connection, see ISAR's blog: Redemption: The Myth of Pet Overpopulation in America by Nathan J. Winograd).
 

Third.  ISAR believes that while Americans have the right to enjoy the companionship and services of dogs [and cats] of their choosing, no one has either the moral or legal right to be an accessory to the tortured lives and ultimate fates that await the living reproductive machines of most breeders and all puppy [and cat] mills, and many of their offspring.
 

Fourth.  As Chapter 2 proves, there are neither constitutional nor legal impediments to even the most restrictive breeding and sales laws. Attacks on them in court will fail if the statutes are drafted carefully and defended intelligently.
 

Fifth.  Readers of ISAR's [Anti-Breeding] Statute may be surprised at its comparative simplicity. There are several reasons for its comparative brevity. Since ISAR's [Anti-Breeding] Statute could be enacted on the federal level, and thus be uniformly applicable nationwide, no provisions for state or local involvement are necessary.  However, absent Congressional enactment, the statute could easily be adapted for, and enacted on, a state level.  Even then, there would be no need for local involvement.[6]
 

Sixth.  ISAR's [Anti-Breeding] Statute is not the last word on the subject, neither from [its own text,] nor [from] any one person or other organization who can offer constructive suggestions -- so long as others recognize the underlying premise upon which ISAR's proposal is based: turning off almost completely the dog [and cat] breeding, facilitating and commercial retail sales outlet valve [emphasis in original]. That is ISAR's goal, and that is what it has endeavored to codify in the [Anti-Breeding] Statute.
 

Seventh.  ISAR is well aware that our statute will be unpopular not only with dog breeders, facilitators and commercial retail sales outlets, aiders and abettors, and others complicit in the dog-trade, but also with other animal protection organizations.  So be it!
 

ISAR's pessimistic 2009 prediction proved correct, doubtless because our Anti-Breeding Statute challenged the root premises of commercial production of dogs and cats, from their conception to their sale at retail.
 

Many individuals and organizations who should have known better, and from whom we expected support, opposed ISAR's Anti-Breeding Statute.  Because the nature and quality of their objections lacked consistency, let alone substance, they will not be discussed here.
 

On the other hand, since 2009 some of ISAR's supporters argued for an outright ban on retail sales of dogs and cats, and have sought ISAR's help in making the argument in support of that goal.
 

Accordingly, our Monograph and ISAR's "Model Statute Prohibiting Retail Sales of Dogs and Cats," is a brief in support of that goal.[7]
 

That goal has become even more important because on November 18, 2013 a new rule of the United States Department of Agriculture, Animal and Plant Health Inspection Service became final. According to APHIS
 

USDA has changed the Animal Welfare Act regulations by revising its definition of retail pet store in order to keep pace with the modern marketplace and to ensure that animals sold via the Internet or other non-traditional methods receive humane care and treatment. USDA Animal Care has posted several materials on this webpage in an effort to provide all interested parties with pertinent information. We encourage you to please read through these materials in order to: 1) gain a better understanding of this regulation change; 2) learn the reasons that prompted the change; and 3) see if you need a USDA license or if you are exempt from licensing.
 

As ISAR will explain in a forthcoming essay, the deficiencies in APHIS's regulation of pet shops and those associated in the sale of companion animals are so glaring and counterproductive that the only humane solution is, as ISAR's model statute proposes, outright prohibition of retail sale.

Part IV sets forth ISAR's Model Statute.

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1 Many if not most of the dogs and cats seen on retail levels-pet shops, malls, auctions, roadside cages, or elsewhere-have traveled through a pipeline that began with breeders, either commercial or amateurs. For an extensive discussion of that pipeline, see Chapters 1, 2, and 3 of ISAR's "Model Statute Regulating Dog Breeding, Facilitation, and Sales (hereafter, "Anti-Breeding Statute"). http://www.isaronline.org/puppy_mill_statute.html 

2 This definition is deliberately broad because it intends to include all breeding-from family pets to the most egregious types, puppy mills and kitten factories.

3 A puppy mill has been defined by one court as "a dog breeding operation in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits." Avenson v. Zegart, 577 F. Supp. 958, 960 (D. Minn. 1984).  While that description of a puppy mill accurately identifies one aspect of such an operation, applying equally to a place where cats are bred commercially, it does not adequately invoke the horrors of mills and is thus insufficient for the purposes of ISAR's Model Statute.

4 The Animal Health and Plant Inspection Service (hereafter "APHIS"), a division of the United States Department of Agriculture (hereafter "USDA") has grouped "pet wholesalers" and "animal brokers" under the heading of "dealers."  Pet wholesalers are defined as "anyone importing, buying, selling, or trading pets in wholesale channels." Licensing and Registration Under the Animal Welfare Act, USDA, available at http://www.aphis.usda.gov/animal_welfare/downloads/aw/awlicreg.pdf .  Animal brokers are defined as "anyone who deals in regulated animals but does not take physical possession." Id.  Both pet wholesalers and animal brokers are required to be licensed by USDA. Id.  The Humane Society of the United States (hereafter "HSUS") defines brokers as those who purchase dogs from puppy mills and kennels and then resell them to retail pet stores. More on How Petland Continues to Support Cruel Puppy Mills, HSUS, Jun. 29, 2009, available at http://www.hsus.org/pets/. The term "facilitator" as used in ISAR's Model Statute is intended to include all of the persons and legal entities described above.

5 State Legislation, Humane Society of the United States, available at http://www.humanesociety.org/about/departments/legislation/state_legislation.html.

6 In addition, compromises and exemptions which always require considerable verbiage to accommodate, have been held to a bare minimum, unlike in the recent unlamented California "mandatory" spay/neuter statute which, until its demise at the hands of compromisers and lobbyists, attempted to accommodate various anti-mandatory spay/neuter constituencies and in doing so turned itself inside out.

7 Please note that throughout the Monograph 12-point Georgia font was used.  The same specifications apply to the text of ISAR's Model Statute. However, in order to identify ISAR's annotation of each section of the West Hollywood ordinance and our Model Statute, ISAR's comments appear immediately after each section in 12-point Courier font, in which this sentence is written).

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part II)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part II)

As we said at the end of Part I, the new Rule's core rationale "can be summarized by two words: 'public oversight' -- the foundational premise upon which the new Rule rests."
 

That being the premise, traditional "brick and mortar" pet stores will not be reached by the new Rule; they will continue to be exempt from the AWA's federal licensing and inspection requirements because prospective buyers in actually seeing the animals for sale already provide the "public oversight" that the new Rule imposes.
 

It is the Internet vendors and other "unseen" sellers that must be licensed and inspected for "minimum standards of care" under the new Rule.
 

According to APHIS there are many exceptions granted by the new Rule because the nature of the exemption recipients' operations provides the requisite "public oversight." Included are animal rescue groups, public and private pounds and shelters, and humane societies. Also, those who breed and sell working dogs; sell rabbits for food, fiber and fur; breed to preserve bloodlines; children involved in 4H projects; operations that raise, buy, and sell farm animals for food, fiber, and fur; and businesses dealing only with fish, reptiles and other cold-blooded animals.
 

There are other exemptions: No license is required if someone sells dogs, cats, domestic pocket pets born and raised on one's own premises where buyers can physically observe them before or during purchase. Nor if one sells birds, rats, mice, amphibians, and reptiles.
 

Besides these and other exemptions the new Rule increases from 3 to 4 a seller's breeding females (dogs, cats or small exotic/wild pocket pets) before being required to be licensed and inspected under the AWA. These people are considered by APHIS as "hobby breeders," whose activities usually occur under circumstances and in places (such as private homes) where public oversight is present, thus removing the need for APHIS oversight. (APHIS already regulates wholesale commercial breeders.)
 

From the foregoing, it is obvious that the new Rule -- as most government administrative rules --  is lengthy and complicated. It raises at least as many questions as it answers. For example, must the actual purchaser himself observe the animal? Probably not; he can have someone else do it because there would still be public oversight. Must the observation be in a pet store? No, as long as the purchaser or someone acting on his behalf is physically present. Can breeders with 5 or more breeding females sell on the Internet? Yes, but a license is required. Can breeders with 5 or more breeding females sell on the Internet without a license? Yes, if the "physically seen" requirement is satisfied. Can a 4-or-less breeder sell on the Internet without a license? Yes.
 

The new Rule raises other questions, most of which are answered by recourse to the underlying principle for which the Rule was designed: Public oversight.
 

APHIS sums up the new Rule this way:
 

The entities affected by the rule are likely to be considered small. They are persons who sell their animals to any buyer who does not physically observe the animals prior to purchase and/or to take custody of the animals after purchase, such as sales conducted exclusively over the Internet.
 

Persons who maintain four or fewer breeding female dogs, cats, and/or small exotic or wild mammals will be exempt from the new licensing requirements.
 

Persons who derive less than $500 gross income from the sale of animals, other than dogs, cats, or wild or exotic animals will also be exempt from the new licensing requirements. In addition, some current licensees will no longer be required to be licensed due to the increase of the exemption threshold from three to four breeding females.
 

Doubtless, when the animal protection movement became aware of the proposed new Rule, and then its final version, there was great satisfaction. That satisfaction was understandable because, at least on the surface, it does provide some measure of protection not so much for the animals, but instead for the consumer. In other words, the new APHIS Rule is not an animal protection provision but instead a consumer protection measure-just like APHIS's recent Rule regarding the importation of puppies. Consumer protection is not synonymous with animal rights. 
 

Lest anyone misunderstand ISAR's position on the subject of commercial retail sales of companion animals, we want it clearly understood that we oppose them. So much so that we have prepared a Memorandum and a Model Statute designed to end such sales.
 

Part III, to be published on October 15, provides the highlights of each.