Puppies 'N Love et al v. Phoenix, City of

Filing 41

ORDER granting 11 Motion for TRO; granting 11 Motion for Preliminary Injunction. Signed by Judge David G Campbell on 4/2/2014.(DGC, nvo)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Puppies ‘N Love, a d/b/a of CPI, Inc., et al.,
Plaintiff,

10
11

PRELIMINARY INJUNCTION

v.

12

No. CV-14-00073-PHX-DGC

City of Phoenix, et al.,

13

Defendant.

14

Plaintiffs have filed a motion seeking a temporary restraining order and a

15

preliminary injunction. Doc. 11. The motion is fully briefed and the Court held a

16

hearing on March 27, 2014. For the reasons set forth below, the Court will grant the

17

motion and enter a preliminary injunction.

18

I.

Background.

19

Plaintiffs Puppies ‘N Love and its owners Frank and Vicki Mineo instituted this

20

action on January 14, 2014. Plaintiffs challenge the constitutionality of Ordinance No.

21

G-5973 (“the Ordinance”), which the City of Phoenix adopted at a City Council meeting

22

on December 18, 2013. The Ordinance went into effect on January 17, 2014. Under the

23

Ordinance, Phoenix pet shops can sell only dogs purchased from an animal shelter, a

24

nonprofit humane society, or a nonprofit animal rescue organization. The Ordinance

25

prohibits pet shops from selling puppies purchased from any breeder. Violation of the

26

Ordinance is a criminal offense. The stated purpose of the Ordinance is to “target retail

27

outlets that drive the wholesale production of dogs in inhumane ‘puppy mills,’ while also

28

combating pet overpopulation and protecting consumers from the emotional and financial

1

hardships caused by unwitting purchases of a puppy mill puppy from a pet shop.”

2

Doc. 27 at 2. “Puppy mills” are inhumane dog breeding facilities where overcrowding,

3

poor sanitation, and inadequate veterinary care are rampant. “The irresponsible breeding

4

practices endemic to puppy mills . . . result in a host of hereditary and congenital diseases

5

common to puppy mill puppies.” Id.

6

Plaintiffs assert that they buy pure and specialty-breed puppies and sell them to

7

individual consumers in their stores. They assert that such puppies are not available for

8

them to purchase in sufficient numbers from shelters, humane societies, and animal

9

rescue organizations, making their business model nonviable under the Ordinance.

10

Plaintiffs claim that the Ordinance thus presents them with a Hobson’s choice: either

11

continue operating their business and incur criminal liability, or go out of business.

12

II.

Legal Standard.

13

In order to obtain a preliminary injunction, Plaintiffs must establish that they are

14

likely to succeed on the merits, that they are likely to suffer irreparable harm in the

15

absence of preliminary relief, that the balance of equities tips in their favor, and that an

16

injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

17

20 (2008). The Ninth Circuit continues to analyze the four elements using a “sliding

18

scale” approach, in which “the elements of the preliminary injunction test are balanced,

19

so that a stronger showing of one element may offset a weaker showing of another.”

20

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Should

21

the moving party demonstrate a very high likelihood of injury, the likelihood of success

22

on the merits may be relaxed. An injunction may be granted when serious questions

23

going to the merits are raised and the balance of hardships tips sharply in the plaintiff’s

24

favor. Wild Rockies, 632 F.3d at 1135.

25

III.

Analysis.

26

A.

Ripeness.

27

Defendant City of Phoenix (“the City”) argues that Plaintiffs’ complaint does not

28

present a justiciable issue because the questions presented are not ripe for review.

-2-

1

Doc. 26 at 2. The City argues that because Plaintiffs have not received any letters, calls,

2

or visits from City authorities threatening them with prosecution, Plaintiffs have “jumped

3

forward into litigation on the speculation of future prosecution.” Id. at 3-4.

4

Ripeness is a question of timing designed to “prevent the courts, through

5

avoidance of premature adjudication, from entangling themselves in abstract

6

disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The role of

7

Article III courts is neither to issue advisory opinions nor to declare rights in hypothetical

8

cases, but to adjudicate live cases or controversies consistent with the powers granted the

9

judiciary in Article III of the Constitution. See U.S. Const. art. III. To determine whether

10

the ripeness requirement is satisfied, the Court must consider whether Plaintiffs face “a

11

realistic danger of sustaining a direct injury as a result of the statute’s operation or

12

enforcement,” or whether the alleged injury is too “imaginary” or “speculative” to

13

support jurisdiction. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298

14

(1979).

15

The difference between an unripe, abstract question and a “case or controversy” is

16

“one of degree . . . and is not discernible by any precise test.” Id. at 297. Neither the

17

mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies

18

the ripeness requirement. See San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121,

19

1126-27 (9th Cir. 1996). “When contesting the constitutionality of a criminal statute, it is

20

not necessary[, however,] that [the plaintiff] first expose himself to actual arrest or

21

prosecution to be entitled to challenge [the] statute that he claims deters the exercise of

22

his constitutional rights.” Babbitt, 442 U.S. at 298 (internal quotation marks and citation

23

omitted). “When the plaintiff has alleged an intention to engage in a course of conduct

24

arguably affected with a constitutional interest, but proscribed by a statute, and there

25

exists a credible threat of prosecution thereunder, he should not be required to await and

26

undergo a criminal prosecution as the sole means of seeking relief.” Id.

27

The Ninth Circuit looks to three factors in making this determination: (1) whether

28

the plaintiffs have articulated a “concrete plan” to violate the law in question, (2) whether

-3-

1

the prosecuting authorities have communicated a specific warning or threat to initiate

2

proceedings, or whether there is at least a credible threat of prosecution, and (3) the

3

history of past prosecution or enforcement under the challenged statute. Reno, 98 F.3d at

4

1126-28. Considering these factors, the Court finds that Plaintiffs’ complaint presents

5

ripe questions for review.

6

First, Plaintiffs have a “concrete plan” to violate the Ordinance. Their entire

7

business – selling puppies from USDA-licensed Class A breeders and hobby breeders –

8

has been made unlawful by the Ordinance. Doc. 34 at 4. The conduct criminalized by

9

the Ordinance is not conduct in which Plaintiffs engage only occasionally; it is their core

10

business model.

11

Second, the City has not made a specific threat to initiate proceedings against

12

Plaintiffs, but neither has the City disavowed an intent to prosecute Plaintiffs under the

13

Ordinance. Babbitt found a similar refusal by the State of Arizona to “disavow[] any

14

intention” to prosecute under a newly passed law adequate to support a finding of

15

ripeness. 442 U.S. at 302. Plaintiffs openly admit that they engage in the very conduct

16

the Ordinance makes criminal – selling puppies acquired from breeders. As in Babbitt,

17

the Court finds that Plaintiffs are “not without some reason in fearing prosecution,”

18

making them and the City “sufficiently adverse” to satisfy the ripeness requirement. Id.

19
20
21

Third, the Ordinance is newly adopted. There is no history of past prosecution or
non-prosecution that could allay Plaintiffs’ fear of criminal liability.
The Court concludes that Plaintiffs’ fear of prosecution under the Ordinance is not

22

imaginary or speculative.

Their business model has been made illegal, and their

23

challenge to the Ordinance is sufficiently ripe to come before the Court.

24

B.

Irreparable Harm.

25

If enforcement of the Ordinance is not enjoined, Plaintiffs assert that they will go

26

out of business. Doc. 11 at 4. Because the loss of one’s business carries more than

27

merely monetary consequences, it constitutes irreparable harm. See Am. Trucking Ass’ns

28

v. City of Los Angeles, 559 F.3d 1046, 1059 (9th Cir. 2009). Plaintiffs’ business consists

-4-

1

almost entirely of acquiring pure and specialty-breed puppies and selling them to

2

individual consumers in the Phoenix area. Doc. 11-1 at 12. Under the Ordinance, the

3

only sources of puppies in Plaintiffs’ niche would be animal shelters, nonprofit humane

4

societies, and nonprofit animal rescue organizations. Plaintiffs have provided affidavits

5

asserting that these sources of puppies would not be adequate to provide Plaintiffs with a

6

sufficient number of healthy pure and specialty-breed puppies to sustain their store. Id.

7

At oral argument, the City asserted that Plaintiffs would not be irreparably harmed

8

because they could switch their business to selling puppies from shelters, nonprofit

9

humane societies, or nonprofit animal rescue organizations in conformity with the

10

Ordinance. The Humane Society of the United States has made the same assertion. See

11

Doc. 27 at 18. Plaintiffs have provided evidence, however, that they could not compete

12

on a for-profit basis with subsidized shelters and humane societies that provide the same

13

dogs for free or for a minimal price. Doc. 11-1 at 13. Plaintiffs credibly assert that their

14

only lawful choice under the Ordinance is to close the doors of Puppies ‘N Love and lay

15

off their employees. Id. The Court finds that Plaintiffs have shown a likelihood of

16

irreparable harm if the Ordinance is not enjoined.

17

C.

The Balance of Hardships Tips Sharply in Plaintiffs’ Favor.

18

If the Court does not enjoin enforcement of the Ordinance against Plaintiffs,

19

Plaintiffs will lose their business. If the Court enjoins enforcement of the Ordinance

20

against them, Defendants assert that the City will be prevented from exercising its police

21

power to “protect consumers from the often unknown, expensive, and heartbreaking side-

22

effects associated with” puppy mills. Doc 27 at 18. But this concern is diminished

23

considerably by Plaintiffs’ evidence that they do not acquire dogs from puppy mills.

24

Defendants also assert that “other entities that supported the Ordinance’s passage will be

25

forced to continue devoting resources to monitoring the receipt and sale of animals in

26

Phoenix from puppy mills.” Doc. 27 at 18. This concern is diminished considerably by

27

the fact that Plaintiffs seek an injunction only with respect to their pet store, not all pet

28

stores.

-5-

1

Weighing the hardship to Plaintiffs if enforcement of the Ordinance against them

2

is not preliminarily enjoined (loss of their business) against the diminished concerns of

3

Defendants if enforcement against Plaintiffs is enjoined (an inability to prosecute a

4

business that is not supporting puppy mills), the Court finds that the balance of hardships

5

tips sharply in Plaintiffs’ favor.

6

D.

Serious Questions.

7

Because the Court has found that the balance of hardships tips sharply in

8

Plaintiffs’ favor, Plaintiffs need not show that they are likely to succeed on the merits.

9

Instead, they can show that their complaint presents “serious questions going to the

10

merits.” Wild Rockies, 632 F.3d at 1135. “For the purposes of injunctive relief, ‘serious

11

questions’ refers to questions which cannot be resolved one way or the other at the

12

hearing on the injunction and as to which the court perceives a need to preserve the status

13

quo lest one side prevent resolution of the questions or execution of any judgment by

14

altering the status quo.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th

15

Cir. 1988) (en banc). “Serious questions need not promise a certainty for success, nor

16

even present a probability of success, but must involve a ‘fair chance of success on the

17

merits.’” Id. (quoting Nat’l Wildlife Fed’n v. Coston, 773 F.2d 1513, 1517 (9th Cir.

18

1985)); see also Bernhardt v. L.A. County, 339 F.3d 920, 926-27 (9th Cir. 2003).

19

The briefing and oral argument confirm that serious questions are presented in this

20

case. Plaintiffs’ Commerce Clause argument, although vigorously disputed, presents an

21

issue worthy of factual development and the Court’s careful consideration. Plaintiffs

22

assert that the Ordinance discriminates against and imposes burdens on interstate

23

commerce that far outweigh local benefits. Plaintiffs have also raised credible equal

24

protection and special laws claims. The Court concludes that the status quo should be

25

maintained to permit resolution of these issues.

26

E.

Public Interest and Balance of the Equities.

27

Defendants assert that a preliminary injunction is not in the public interest because

28

it would not show proper regard for the rightful independence of state governments in

-6-

1

carrying out their domestic policy. Doc. 26 at 17 (citing Burford v. Sun Oil Co., 319 U.S.

2

315, 318 (1943)). The Court disagrees. Although due regard for the independence of the

3

City is surely warranted, countervailing public interests are also at stake. These include

4

interests served by the Commerce and Equal Protection Clauses of the United State

5

Constitution and the Special Laws provision of the Arizona Constitution. Those interests

6

can be served in this case only by preserving the status quo while the serious questions

7

raised by Plaintiffs’ complaint are resolved. See Sammartano v. First Judicial District

8

Court, 303 F.3d 959, 974 (9th Cir. 2002). The Court finds that these public interests

9

offset each other and do not weigh against issuance of a preliminary injunction.
The final consideration – balance of the equities – has been addressed above in the

10
11

Court’s consideration of the balance of hardships.

12

IV.

Conclusion.

13

The Court concludes that Plaintiffs have presented justiciable questions for the

14

Court’s consideration and have established the elements under Wild Rockies that entitle

15

them to preliminary relief.

16

IT IS ORDERED that Plaintiffs’ motion for a preliminary injunction (Doc. 11) is

17

granted.

Defendants are enjoined from enforcing Ordinance No. G-5973 against

18

Plaintiffs during the remainder of this litigation.

19

Dated this 2nd day of April, 2014.

20
21
22
23
24
25
26
27
28

-7-