Pending bill would undo Fayetteville’s ordinance banning retail sale of pets

Separate legislation could work in Fayetteville’s favor

Petland is seen Nov. 23 at 637 E. Joyce Blvd. in Fayetteville.
(File photo/NWA Democrat-Gazette/J.T. Wampler)
Petland is seen Nov. 23 at 637 E. Joyce Blvd. in Fayetteville. (File photo/NWA Democrat-Gazette/J.T. Wampler)

FAYETTEVILLE -- A state legislator from Maumelle has filed a bill effectively undoing the city's ordinance banning retail sale of pets, while a lawsuit over the ordinance is set for a jury trial in January.

State Rep. David Ray, R-Maumelle, sponsored House Bill 1591, which would prohibit cities from regulating pet stores acquiring or selling animals from kennels, catteries or dealers licensed by the U.S. Department of Agriculture. Its intent is to clarify the applicability of the Arkansas Retail Pet Store Act of 1991.

The bill is sitting in the Senate's City, County and Local Affairs Committee.

Fayetteville's City Council in July voted 8-0 to ban the retail sale of cats and dogs, unless from or in cooperation with the city's animal shelter, another shelter or a nonprofit organization approved by the city's Animal Services Division. Animal Services staff and members of the public told the council pet stores selling animals, rather than putting them up for adoption, often get them from mass breeding facilities, commonly known as "puppy mills." Although mass breeders can be licensed by the Agriculture Department, they go largely unchecked, and animals are kept in deplorable conditions, the council heard.

At the time, Petland had been granted a business license and was weeks away from opening its Fayetteville store southeast of Joyce Boulevard and Mall Avenue. Samantha and Ryan Boyle, owners of the Petland franchises in Fayetteville and Rogers, told the council their animals don't come from puppy mills and are well-documented.

Petland filed a lawsuit against the city in August, and Benton County Circuit Judge Doug Schrantz issued a temporary restraining order still in effect prohibiting the city from enacting the ordinance. In January, Schrantz declined to grant the city a motion for summary judgment in its favor that would have dismissed the case.

Petland contended in its lawsuit the ordinance conflicts with two state laws. Schrantz agreed with that assertion, adding that "questions remain."

The two state laws are the 1991 Arkansas Retail Pet Store Consumer Protection Act, also known as the Pet Store Act, and the Working Animal Protection Act of 2021.

A separate bill, filed by State Sen. Ron Caldwell, R-Wynne, seemingly could work in the city's favor. Senate Bill 339 would amend the Working Animal Protection Act to say that law wouldn't prohibit a city from regulating animal care, public health, public safety, or the sale of dogs or cats. That bill is sitting in the State House's Agriculture, Forestry and Economic Development Committee.

Caldwell said his bill was intended to clarify that cities and counties have the ability to regulate puppy mills, and that dogs and cats are not considered working animals. He said he did not have Fayetteville's ordinance in mind when he sponsored the bill.

Ray said he filed his bill as a response to Fayetteville's ordinance.

Ray's bill would "clarify the applicability" of the Pet Store Act. The act requires certain guarantees from retail pet stores to the consumers who buy dogs and cats, according to the Arkansas Department of Health website. Breeding kennels and catteries are excluded from the act, as are animal shelters and incorporated humane societies. Retail pet stores are required to register with the Department of Health and to keep the registration current.

In addition to prohibiting cities from regulating pet stores that acquire or sell animals from kennels, catteries or dealers, the bill also would nullify any city ordinance found to be in conflict with the act.

"The city of Fayetteville should know better than to do something like this," Ray said. "This area of commerce has been under the purview of the state for at least 30 years."

Ray said he agreed with Petland's assertion that Fayetteville's ordinance already conflicts with state law but wanted to clarify the Pet Store Act in case any other cities try to adopt a similar measure.

George Rozzell, attorney for the Boyles, said they are monitoring the pending legislation and will reserve comment.

A jury trial for the Petland lawsuit is scheduled for Jan. 17.

If two state laws conflict with one another, whichever law the governor signs last can trump the first law, said John Wilkerson, attorney with the Arkansas Municipal League. However, it isn't clear the two bills would conflict with one another if signed into law, he said.

Ray's bill says a city cannot regulate pet stores. Caldwell's bill says the Working Animal Protection Act doesn't prohibit a city from regulating the sale of dogs and cats. Those two ideas don't necessarily contradict one another, Wilkerson said.

Another possibility is if a conflict exists between two state laws, and one law is more specific than the other, the more specific law takes precedence, he said.

The Arkansas Bureau of Legislative Research advises state legislators on legislative issues, such as whether bills conflict with one another. However, the bureau typically gets backed up during legislative sessions, so it can be difficult to find clear answers, Wilkerson said. Either way, if a conflict between laws arises, the matter most likely would play out in court at some point, he said.

City Attorney Kit Williams said his office will wait to see what happens with the pending legislation, then act accordingly from there.

"They are the Legislature. If they pass laws that are constitutional, it's up to cities to obey the state law," he said. "We might not like it, but we're going to do it anyway."

Williams maintained the city's stance the ordinance doesn't violate state law as currently written.

In previous filings, Williams said the Pet Store Act had no relevance to the ordinance because the law provides guarantees to consumers, rather than empowering any pet store to operate in the state. He said the Working Animal Protection Act also had no bearing because the law only applies to animals used in commerce to perform a specific duty or function, not pets.

Both bills becoming law as written could confuse Fayetteville's situation, Williams said.

"I don't know what would happen," he said. "I doubt that they're both going to pass. If they do, that'll be a fun law school exam."

On the web

Read HB1591 sponsored by State Rep. David Ray, R-Maumelle, regarding pet stores in the state:


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