Jonathan Bilyk Dec. 26, 2014, 9:00am

Cook County has asked a federal judge to toss a lawsuit challenging its so-called “puppy mill” ordinance, saying the law, much like the city's controversial rule banning foie gras at restaurants in Chicago, not only fails to constitute a constitutional violation, but “falls squarely within the county’s police powers” to regulate animal welfare.

On Dec. 11, the Cook County State’s Attorney’s Office filed its second motion asking U.S. District Judge Matthew Kennelly to dismiss a complaint the owners of three local pet shops and the Missouri Pet Breeders Association (MPBA) brought this past fall against the county Board of Commissioners and other officials this past fall.

The case centers on Cook County’s ordinance-- passed unanimously by the board in April and since postponed from taking effect-- to restrict the kinds of breeders from whom pet stores in the county could obtain the animals they sell.

The ordinance limits the retail sale of animals within the county only to those obtained from animal shelters or to those purchased from Class A federally-licensed breeders with no more than five female breeding animals.

Supporters of the ordinance say the measure would improve animal welfare by reducing the number of animals for sale from “puppy mills,” or large-scale pet breeding operations often accused of mistreating animals and selling animals in poor health to unsuspecting buyers.

The pet store owners and the MBPA, however, claim the ordinance would effectively put them out of business. The pet stores note they obtain many of their animals from these out-of-state breeders, the vast majority of whom would fail to meet the county’s new standards, leaving them far short of the supply of animals they believe are needed to meet local demand.

In September, the MBPA sued the county, along with the owners of the Petland stores in Hoffman Estates and Chicago Ridge and Happiness is Pets in Arlington Heights, arguing the county had overstepped its authority, for, among other actions, restricting interstate commerce and attempting to claim powers held by the state and federal governments.

The county in October agreed to delay implementation of the law, pending a conclusion to litigation over the ban.

However, at the same time, the county moved to dismiss, claiming the MPBA lacked standing to sue and the ordinance would easily pass constitutional muster and is supported by legal precedent.

In response, the MPBA and pet shops amended their complaint, continuing to argue the ordinance violates the Constitution’s interstate commerce and equal protection clauses.

The county responded with its second motion to dismiss, alleging the MPBA and pet shops’ amended complaint still falls short.

“Plaintiffs here have attempted to pull out all the stops to state a claim,” county prosecutors assert.

The ordinance, according to the county defendants, does not in any way restrict interstate commerce, as it “regulates evenhandedly” by not restricting in any way the ability of pet shops to buy animals from breeders either based in Illinois or in another state.

To support its contention, Cook County pointed to Chicago’s foie gras ban, which the courts upheld as constitutional despite a commerce clause challenge from restaurant owners.

“The court specifically found that the city’s foie gras ordinance neither favors nor provides advantages or protection to local economic interests,” the county wrote in its motion. “Like the city’s foie gras ordinance, the instate ordinance (Cook County’s puppy mill ordinance) does not favor or provide advantages or protection to local economic interests because it does not regulate the location of the sources of animals, it only limits the number of breeding animals present at such sources.”

Further, the county argues that state and federal law delegates the regulation of the welfare of domestic animals to local governments, and the county, as a home-rule local government, has the authority to act under “the legitimate state interest” of protecting the animals and the people who would purchase them from sellers.

“Importantly the distinctions drawn, limiting the source of pets to be sold at retail … are legitimate in light of the dangers of mass-breeding facilities to the animals (inhumane conditions, overcrowding, likelihood of diseases, and the number of animals discarded), not to mention the harm to consumers who purchase such animals,” the county asserts in seeking the suit's dismissal.

The county's motion to dismiss was submitted by Assistant State's Attorneys Jayman A. Avery III and Kent Stephen Ray.

The MPBA and pet shop plaintiffs are represented by attorneys David J. Fish and Monica Fazekas of The Fish Law Firm in Naperville.

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