The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court are the parties' cross-motions for summary judgment. (Docs. 10, 13.) The parties have briefed the issues, and the motions are ripe for disposition.
This action was brought by three individual Plaintiffs and one association acting on behalf of dog breeders across Pennsylvania. Two of the three individual Plaintiffs -- Nat Sladkin and Susan Inserra -- are out-of-state dog dealers who own pet shops in New Jersey. The other individual Plaintiff -- Nathan Myer -- is a Pennsylvania resident who "engages in the business of raising dogs." (Doc. 1 at 6.) All Plaintiffs are subject to the Pennsylvania Dog Law at issue here. The organizational Plaintiff is the Professional Dog Breeders Advisory Council, Inc., an association established "to provide industry education, advice and/or expertise for professional dog breeders" across the state. Defendant in this case is Nathan Wolff, acting in his official capacity as Secretary of the Pennsylvania Department of Agriculture.
The instant action is a facial challenge to certain provisions of the Pennsylvania Dog Law, 3 P.S. § 459-101 et. seq., as amended by Act 119 ("Dog Law").*fn2 The Dog Law was originally passed in 1982 and was amended on October 9, 2008, by Act 119. Plaintiffs' specifically challenge various parts of sections 207, 211, 218 and 901. (Doc. 29, Pls. Br. in Opp. at 1.) Plaintiffs allege that these sections of the Dog Law violate the following provisions of the United States Constitution: The Commerce Clause, the Privileges and Immunities Clause, the Fourth Amendment prohibition against unreasonable searches, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Fifth Amendment prohibition against unlawful government takings. In addition, Plaintiffs claim that the application process for obtaining a dog license violates the Federal Privacy Act of 1974, Pub. L. No. 93-579, 88 Stat. 1896, 5 U.S.C. § 552A. (Doc. 1.)
Plaintiffs' claims are as follows. First, Plaintiffs contest the newly established kennel requirements. Sections 207(h) and (i) outline the kennel requirements for Commercial Kennels. See 3 P.S. § 459-207(h)-(i). These requirements include minimum standards for space, temperature, access, safety, cleanliness, veterinary needs, euthanization, food, and other provisions relating specifically to the living conditions provided for each dog. (Id.) This section provides the most sweeping changes to the Dog Law and outlines numerous provisions relating to kennel requirements not previously required.
Plaintiffs further challenge Section 209 of the Dog Law regarding licensing fees for out-of-state dealers. The relevant part of Section 209 reads as follows:
(a) Out-of-state dealers.--All out-of-state dealers shall on or before January 1 of each year, apply to the secretary for an out-of-state dealer license. The fee for such license shall be $300, plus appropriate kennel license fees required under section 206. All fees collected under this section shall be remitted to the State Treasury for credit to the Dog Law Restricted Account. All licenses under this section shall expire upon December 31 of the year for which the license was issued. The forms for the application and license shall be approved by the secretary.
(a.1) In-state dealers.--(1) Except as set forth in paragraph (2), a dealer residing in this Commonwealth must, by January 1 of each year, obtain a license from the department. A dealer license shall expire on December 31 of the year for which it was issued. The license fee for a dealer license shall be the same as the license fee established for Kennel Classes C-I through C-VI as calculated based on the number of dogs sold, offered for sale or maintained by the applicant. It shall be unlawful for a person to sell or offer for sale a dog belonging to another for a fee or commission or maintain a dog at retail or wholesale for resale to another without obtaining a dealer license or a dealer kennel license from the department.
(2) This subsection shall not apply to a person that secures a dealer kennel license from the department under section 206.
3 P.S. § 459-209. The requirement of a $300 licensing fee for out-of-state dealers has been imposed since the original Dog Law was enacted in 1982, however, it has not been challenged until now.
Plaintiffs also contest certain provisions of Section 211 of the Dog Law, regarding the administrative process after license refusal or revocation. 3 P.S. § 459-211. This provision was also amended by Act 119 by adding a requirement that someone convicted of a cruelty to animals charge shall be denied a license or have it revoked if a license had already been issued. Act 119 also added factors the secretary should consider when deciding if a license should be denied or revoked:
(1) The gravity of the violation.
(2) The number of current or past violations.
(3) The potential effect of the violation on the health or welfare of a dog.
(4) Whether the kennel has been warned previously to correct the violation.
(5) Whether the violation resulted in a criminal conviction.
(6) The length of time that has elapsed between violations.
Finally, Act 119 added an appeal process for individuals who have had their license refused or revoked. Section 211 reads in relevant part:
The secretary shall revoke a kennel license, dealer license or out-of-state dealer license if a licensee is convicted of a violation of 18 Pa.C.S. § 5511 (relating to cruelty to animals) or of substantially similar conduct pursuant to a cruelty law of another state. The secretary shall not issue a kennel license, dealer license or out-of-state dealer license to a person that has been convicted of a violation of 18 Pa.C.S. § 5511 within the last ten years.
(1) The secretary shall provide written notice of a kennel license, dealer license or an out-of-state dealer license revocation, suspension or refusal to the person whose license is revoked, suspended or refused. The notice shall set forth the general factual and legal basis for the action and shall advise the affected person that within ten days of receipt of the notice he may file with the secretary a written request for an administrative hearing. The hearing shall be conducted in accordance with 2 Pa.C.S. (relating to administrative law and procedure).
(2) Written notice of revocation, suspension or refusal shall be served by personal service or by registered or certified mail, return receipt requested, to the person or to a responsible employee of such person whose license is revoked, suspended or refused. Revocation or refusal shall be effective upon the expiration of the ten-day period for requesting an administrative hearing, unless a timely request for a hearing has been filed with the department.
3 P.S. § 459-211(a)-(b). Plaintiffs claim that this process violates their procedural due process rights and amounts to an unlawful government taking.
Plaintiffs next contest the constitutionality of Section 218, relating to kennel inspections, which reads as follows:
State dog wardens and other employees of the department are hereby authorized to inspect all licensed kennels, all dogs within the Commonwealth and all unlicensed establishments which are operating as a kennel as defined by section 206.
For purposes of inspection, a State dog warden and other full-time employees of the department shall be authorized to enforce the provisions of this act and regulations promulgated by the department under this act. State dog wardens and employees of the department shall inspect all licensed kennels within the Commonwealth at least twice per calendar year to enforce the provisions of this act and regulations promulgated by the department under this act. State dog wardens and only regular, full-time employees of the department shall be authorized to enter upon the premises of approved medical, dental or veterinary schools, hospitals, clinics or other medical or scientific institutions, organizations or persons where research is being conducted or where pharmaceuticals, drugs or biologicals are being produced. It shall be unlawful for any person to refuse admittance to such State dog wardens and employees of the department for the purpose of making inspections and enforcing the provisions of this act.
3 P.S. § 459-218(a). Act 119 amended the previous version of Section 218 by authorizing department officials to inspect all kennels within the Commonwealth at least twice per year, instead of only once per year. (Id.) Plaintiffs allege these inspections are akin to warrantless searches prohibited by the Fourth Amendment.
In conjunction with this claim, Plaintiffs dispute Section 901(a) regarding enforcement of the Act. Section 901 reads:
The secretary, through State dog wardens, employees of the department and police officers, shall be charged with the general enforcement of this law. The secretary may employ all proper means for the enforcement of this act , including issuing notices and orders, filing violations for criminal prosecution, seeking injunctive relief, imposing civil penalties and entering into consent agreements. The secretary may enter into agreements pursuant to section 1002, which shall be filed with the department, for the purpose of dog control. State dog wardens and employees of the department are hereby authorized to enter upon the premises of any person for the purpose of investigation. A dog warden or employee of the department may enter into a home or other building only with the permission of the occupant or with a duly issued search warrant.
3 P.S. § 459-901(a). Section 901 allows for dog wardens or employees of the department to conduct searches into a kennel owners business or home if they have a duly authorized search warrant based on probable cause. (Id.)
Plaintiffs filed their original complaint on February 9, 2009. (Doc. 1.) Plaintiffs then filed an amended complaint on February 13, 2009. (Doc. 3.) Defendant filed an answer to the complaint on February 20, 2009. (Doc. 7.) On April 3, 2009, Plaintiffs and Defendant filed cross-motions for summary judgment and briefs in support thereof. (Docs. 10, 11.) It is these cross-motions which are currently before the court.
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The court is permitted to resolve cross-motions for summary judgment concurrently. InterBusiness Bank, N.A. v. First Nat'l Bank of Mifflintown, 318 F.Supp.2d 230, 235 (M.D.Pa. 2004) (describing concurrent resolution of cross-motions for summary judgment as "a formidable task"); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 1998). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to ...