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Pennsylvania Professional Dog Breeders Association v. Pennsylvania Dep't of Agriculture

September 30, 2009

PENNSYLVANIA PROFESSIONAL DOG BREEDERS ASSOCIATION, AND NATHAN MYER, PLAINTIFFS
v.
PENNSYLVANIA DEPARTMENT OF AGRICULTURE, DEFENDANT



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM

Before the court is Plaintiffs' motion for a preliminary injunction*fn1 (Doc. 3) and brief in support, Defendant's brief in opposition (Doc. 11), and Plaintiffs' reply brief (Doc. 17). The motion is ripe for disposition.

I. Background

A. Facts

This case is directly related to a case previously before the court docketed at 1:09-cv-0258, which was a facial challenge to the constitutionality of the Pennsylvania Dog Law ("Dog Law"). Pa. Dog Breeders Advisory Council v. Wolff, Civ. No. 09-258, slip op. at 2 (M.D. Pa. Jan. 11, 2009). This court upheld the constitutionality of the majority of the law, finding only one provision, not at issue here, unconstitutional. Id. at 31. The Dog Law was originally passed in 1982, but on October 9, 2008, it was amended by certain provisions which are to go into effect on October 9, 2009. Plaintiffs allege that certain provisions of the Dog Law require the promulgation of additional regulations and, as such, Plaintiffs should not be required to comply with other unrelated portions of the statute. Plaintiffs request the court to order Pennsylvania Department of Agriculture to promulgate regulations and want a stay of 290 days from the time those regulations are enacted. Plaintiffs argue that additional regulations are required for the following sections of the Dog Law:

(h) Additional requirements for Kennel Class C license holders only.--The following shall apply only to primary enclosures for all dogs in Kennel Class C kennels:

(12) Primary enclosures may not be stacked more than two rows high, and the bottom of the uppermost primary enclosure may not be more than four and one-half feet off the housing facility floor. Where the primary enclosures are stacked, a tray or other department-approved device which will prevent urine, feces and other debris from passing into or being discharged into the underlying primary enclosure shall be placed under the upper primary enclosures. The tray or approved device must be impermeable to water and capable of being easily sanitized.

3 P.S. § 459-207(h)(12).

(i) Additional requirements for Kennel Class C license holders only.--The following shall apply only to dogs over 12 weeks of age in Kennel Class C kennels:

(1) A dog housed in a primary enclosure must be provided a minimum amount of floor space in the primary enclosure, calculated as provided under this subparagraph: Find the mathematical square of the sum of the length of the dog in inches, measured in a straight line from the tip of its nose to the base of its tail, plus six inches, then divide the product by 144, then multiply by 2. The calculation is: (length of dog in inches 6)(length of dog in inches 6) = required floor space in square inches. Required floor space in inches/144 x 2 = required floor space in square feet. For the second dog placed in the primary enclosure the minimum floor space shall be doubled. The floor space shall be calculated using the longest dog. For each dog above two, the minimum floor space shall be multiplied by 1.5 per additional dog.

3 P.S. § 459-207(i)(1).

(2) Primary enclosures must be placed no higher than 30 inches above the floor of the housing facility and may not be placed over or stacked on top of another cage or primary enclosure.

3 P.S. § 459-207(i)(2). (3)(i) The floor of the primary enclosure shall be strong enough so that the floor does not sag or bend between the structural supports, shall not be able to be destroyed through digging or chewing by the dogs housed in the primary enclosure, shall not permit the feet of any dog housed in the primary enclosure to pass through any opening, shall not be metal strand whether or not it is coated, shall allow for moderate drainage of fluids and shall not be sloped more than 0.25 inches per foot.

(ii) Except as set forth in subparagraph (iii), flooring constructed with slats meeting all of the following conditions shall be acceptable:

(A) Be flat.

(B) Have spaces between them that are no more than 0.5 inch in width.

(C) Have spaces between them that run the length or the width of the floor, but not both.

(D) Be no less than 3.5 inches in width.

(E) Be level with the slat next to it within a single ...


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