1st-Amended Complaint-PA-Dog-Breeders-Adv-Council-versus-PA-Dept-Ag

8/14/2019 1st-Amended Complaint-PA-Dog-Breeders-Adv-Council-versus-PA-Dept-Ag

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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF PENNSYLVANIA

PROFESSIONAL DOGBREEDERS ADVISORYCOUNCIL, INC; NAT SLADKIN;SUSAN INSERRA; and NATHANMYER,

Plaintiffs,

v.

DENNIS WOLFF, SECRETARYPENNSYLVANIA DEPARTMENTOF AGRICULTURE,

Defendant.

))))))))))))))))

Civil Action No:09-258

(Honorable Sylvia Rambo)

AMENDED COMPLAINT

Plaintiffs, by and through their undersigned attorneys, bring

this complaint against the Pennsylvania Secretary of Agriculture,

his employees, agents and successors in office to enjoin the

enforcement of various portions of Act 119, signed into law by

Governor Edward Rendell on October 9, 2008, and in support

thereof allege the following:

Case 1:09-cv-00258-SHR Document 3 Filed 02/13/2009 Page 1 of 52


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PRELIMINARY STATEMENT

1. Anyone in Pennsylvania owning two female dogs that have twotwelve-puppy litters in a year will find themselves defined as a

kennel by Act 119. If that person sells or transfers a single

puppy to a dealer or pet shop, s/he now becomes a

commercial kennel subject to the colossal requirements of and

invasive, unconstitutional inspections of Act 119. If the same

person instead sells or transfers all 26 dogs to members of

their community, s/he is treated completely differently under

the law.

2. On October 9, 2008, Governor Edward Rendell signed into lawAct 119 which amended the Act of December 7, 1982, and

placed into law sweeping changes to Pennsylvanias Dog Laws,

giving dogs heightened protection that no other animal in the

Commonwealth enjoys. Although never stated directly in the

Act, the purpose is to purportedly protect the health, safety

and welfare of dogs. The terms of the Act unfortunately violate

numerous rights guaranteed to humans under the United

States Constitution. The Act on its face discriminates against

out-of-state kennel owners who conduct business anywhere in



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the country and desire to sell to any individual who maintains

a kennel in the Commonwealth of Pennsylvania. The Act

provides for the entry into the home of a kennel owner without

probable cause other than a kennel owners refusal to permit

inspection of his/her kennel. The Acts cease and desist order

process violates the Due Process Clause and constitutes an

unlawful taking in violation of the Fifth Amendment. The Act

demonstrates utter inequality between the regulation of

commercial kennels and all other dog owners in Pennsylvania

without any rational basis for such a distinction if the purpose

of the Act is truly the health, welfare and safety of dogs.

3. This is an action brought pursuant to 42 U.S.C. 1983 underArticle I and Article IV of the United States Constitution, the

Fourth, Fifth and Fourteenth Amendments to the United

States Constitution and the Privacy Act of 1974, Pub. L. 93-

579, 7(b), 88 Stat. 1896, 1909 (1974) 5 U.S.C. 552a,

challenging the Pennsylvania Department of Agricultures

attempt to regulate interstate commerce, its policy to search

homes with warrants lacking probable cause, its irrational and



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unequal treatment of commercial kennels and its violation of

the Federal Privacy Act in the implementation of Act 119.

4.

Plaintiffs seek declaratory and injunctive relief against

defendant and other relief as set forth in the prayer for relief.

JURISDICTION

5. This action raises federal questions under U.S. Const., Art. I.,8, cl. 3, U.S. Const., Art. IV., 2, the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution,

the Civil Rights Act of 1871, 42 U.S.C. 1983, and Privacy Act

of 1974, Pub.L. 93-579, 7(b), 88 Stat. 1896, 1909 (1974) 5

U.S.C. 552a.

6. This Court has original jurisdiction over these federal claimspursuant to 28 U.S.C. 1331 and 1343.

7. This Court has authority to award the requested declaratoryrelief under 28 U.S.C. 2201; the requested injunctive relief

under 28 U.S.C. 1343(3); the requested damages under 28

U.S.C. 1343(3); and attorneys fees under 42 U.S.C. 1988.



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8. Venue is proper under 28 U.S.C. 1391 in the Middle Districtof Pennsylvania because a substantial part of the actions or

omissions giving rise to this case occurred within this District

and at least one Defendant resides in this District.

PARTIES

Plaintiffs

9. Plaintiff, Professional Dog Breeders Advisory Council, Inc. (theCouncil), is a not for profit Pennsylvania Corporation with an

address of 21 South Limerick Road, Royersford, PA 19468.

The Council is elected by the members of the Pennsylvania

Professional Dog Breeders Association (the Association) to

act on the Associations behalf. The Association consists of

more than 325 members with businesses across Pennsylvania.

Their members are subject to the actions of defendant.

10. The purpose of the Council is to provide industry education,advice and/or expertise for professional dog breeders and to

protect the interests of its membership. The protection of

constitutionally permissible standards, treatment and

inspections is germane and connected to PDBACs stated



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purpose of providing advice and expertise to professional dog

breeders.

11.

The interests which the Council seek to protect are

fundamental to its purpose and its members would have

standing to sue in their own rights, but neither the claims

asserted nor relief requested requires the participation of

individual members.

12. Plaintiff Nathan Myer is an adult individual residing in theCommonwealth of Pennsylvania. Mr. Myer engages in the

business of raising dogs for wholesale. Mr. Myers operations

are subject to Act 119.

13. Plaintiff Nat Sladkin (Mr. Sladkin), is an adult individualresiding in New Jersey. Mr. Sladkin is an out-of-state dealer

subject to Act 119 and listed as a 2008 Out-Of-State dealer by

the department on the 2009 Kennel License Application

attached hereto as Exhibit B. Mr. Sladkin desires to engage in

commerce within the Commonwealth of Pennsylvania on the

same terms as in-state dealers.

14. Plaintiff Susan Inserra (Ms. Inserra), is an adult individualresiding in New Jersey. Ms. Inserra is an out-of-state dealer



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subject to Act 119 and listed as a 2008 Out-Of-State dealer by

the department on the 2009 Kennel License Application

attached hereto as Exhibit B. Ms. Inserra desires to engage in

commerce within the Commonwealth of Pennsylvania on the

same terms as in-state dealers.

Defendant

15. Defendant Dennis Wolff is the Secretary of the PennsylvaniaDepartment of Agriculture and a state actor. As Secretary, Mr.

Wolff is responsible for overseeing, administering,

implementing and enforcing Act 119 and such actions are all

conducted under color of state law. He is being sued in his

official capacity for prospective injunctive relieve only and in

his individual capacity for damages in overcharges of license

fees to out of state dealers.

FACTUAL ALLEGATIONS

16. On October 9, 2008, Pennsylvania Governor Edward Rendellsigned House Bill 2525 amending Act 119 into law.

17.This Act amended the Act of December 7, 1982, known as thePennsylvania Dog Law.



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18. Act 119 was a substantial overhaul of the Dog Law and isattached to this Complaint as Exhibit 1 and incorporated,

herein, by reference. One of the purported purposes of the Act

is to provide for the protection of dogs.

19. Section 206 of the Act establishes four kennel classifications:(1) kennel; (2) boarding kennel; (3) nonprofit kennel; and, (4)

commercial kennel.

20.The Act defines a kennel as Any establishment in or throughwhich at least 26 dogs are kept or transferred in a calendar

year, or a boarding kennel as defined by this act. (Act 119,

102).

COMMERCIALKENNELS

21. A commercial kennel is A kennel that breeds or whelps dogsand: (1) sells or transfers any dog to a dealer or pet shop

kennel; or sells or transfers more than 60 dogs per calendar

year. (Act 119 102) (Emphasis added).

22.

Commercial kennels are singled out for far different treatment

than all other kennels. These additional requirements are

contained in 207(h) Additional requirements for Kennel

Class C license holders only, and 207(i) Additional



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requirements for Kennel Class C license holders only. These

sections of the Act encompass four single-spaced pages of

additional requirements applicable to Class C Commercial

Kennel license holders only, including the following:

a.12 point requirement for primary enclosures.b.Detailed amounts of floor space for each nursing dog.c. Requirements for housing of various sex dogs.d.Requirement for a written program of veterinary care.e. Heating and cooling requirements for housing facilities.f. Ventilation requirements for housing facilities.g. Lighting requirements for housing facilities.h.Moisture requirements for housing facilities.i. Directives on cleaning of primary enclosures.j. Prohibitions against stacking primary enclosures when

dogs are less than 12 weeks old to more than two rowshigh and a limit on the height of the uppermost primaryenclosure.

k.Requirements for smoke alarm and fire extinguishers andsprinkler systems.

l. Requirements on daily removal of various forms of dirt.m.Requirements on detailed cleaning standards for primary

enclosures.

n.Requirements for methods of sanitation of primaryenclosures and food and water receptacles.

o.Requirements for surrounding grounds and buildings.



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p.A program for control of insects.q.Requirements for permanent record retention.r. Requirements for the maintenance of veterinary records.s. Prohibitions on euthanization of dogs.t. Prohibitions on stacking primary enclosures for dogs

older than 12 weeks of age.

u.Requirements that floor space for dogs over 12 weeks ofage be the length of the dog in inches plus six times thelength of the dog in inches plus six measuring the dogfrom the tip of its nose to the base of its tail. This

amount is divided by 144 and multiplied by 2 to calculatethe required floor space in square feet. For any seconddog placed in the primary enclosure the floor space mustbe doubled using the longest dog calculation. For eachdog above two dogs, the minimum floor space must bemultiplied by 1.5 per additional dog.

v. Requirements for flooring in primary enclosures.w.Requirements for entry ways into primary enclosures.x.Detailed exercise requirements for dogs.y. Requirement for outdoor exercise.z. Directives on administration of rabies vaccination.aa. Requirement that dogs be examined by a veterinarian

once every six months.

23. None of the requirements of the above paragraph, number 22,apply to any other type of kennel in the Commonwealth of

Pennsylvania.



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24. Additionally, Act 119 empowers a Canine Health Board tocreate regulations governing dogs. This board wasted little

time and in less than four months after enactment of Act 119

published detailed, costly and onerous standards regarding

ventilation, lighting and flooring applicable only to commercial

kennels. (See 39 Pa.B. 310, January 17, 2009, attached

hereto as Exhibit E and incorporated herein).

OUT-OF-STATE DEALERS

25. Mr. Sladkin and Ms. Inserra are out-of-state dealers whosebusiness is in the state of New Jersey. They desire to engage

in commerce within the Commonwealth of Pennsylvania with

members of plaintiffs Association. However in order to do so,

they must pay $300 more for a dealer permit than dealers

residing in Pennsylvania.

26. Mr. Myer desires to sell dogs to out-of-state dealers. However,the $300 premium the Department forces out-of-state dealers

to pay to prevents him from engaging in such commerce with

out-of-state dealers who refuse to pay an excess premium to

deal in Pennsylvania.



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27. An out-of-state dealer is [a] person who does not reside in theCommonwealth of Pennsylvania and who: (1) sells or offers for

sale a dog in the Commonwealth belonging to another person,

for any type of consideration, fee commission or percentage of

sales price; or (2) transfers a dog in this Commonwealth for

resale to another for any type of consideration, fee,

commission or percentage of the sales price.

28. Section 209 of the Act provides that all out-of-state dealersmust apply for a license and that all out-of-state dealers will

be charged an additional $300 premium above that charged to

in-state dealers. Accordingly, out-of-state dealers are unable

to obtain a dealer license from the Pennsylvania Department of

Agriculture unless they pay a $300 premium over the amount

paid by in-state-dealers. Likewise, no licensed kennel in the

Department may conduct business with an out-of-state dealer

not licensed by the Department. Should an out-of-state dealer

have his or her license revoked or not renewed his or her

kennel is subject to being shut down pending an

administrative appeal and the dogs are ultimately subject to

forfeiture to the Department. (Act 119, 211(c)).



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29. If the Department revokes or refuses an out-of-state dealerlicense, the dealer must go through the following process:

(1) If the secretary revokes or refuses a kennellicense, dealer license or an out-of-state dealerlicense, a person whose license revocation or refusalhas become effective shall comply with all of thefollowing:

(i) Immediately cease and desist from operatinga kennel, including boarding, buying,exchanging, selling, offering for sale, givingaway or in any way transferring dogs.

(ii) Acquire no additional dogs nor increase thenumber of dogs in the kennel by any means,including breeding. This subparagraph doesnot apply to an acquisition or increase by birthof puppies from a mother which, at the time ofrevocation or refusal was:

(A) on the property;

(B) pregnant; and(C) owned by the kennel or the kennelowner.

(iii) Notify the department prior to theeuthanization of any dog. No dog may beeuthanized unless it is determined by aveterinarian that the euthanasia will preventthe dog from suffering caused by a medical

condition. If a veterinarian determines a dogshould be euthanized, a copy of theveterinarian's findings, signed by theveterinarian, must be provided to thedepartment. The provisions of thissubparagraph do not apply to an emergencysituation if it is deemed by the veterinarian



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that immediate euthanasia is necessary torelieve the suffering of the dog. Followingeuthanasia in an emergency situation, a copyof the veterinarian's findings must be signed

by the veterinarian and provided to thedepartment.

(iv) Permit State dog wardens to inspect thekennel without a warrant in order to determinecompliance with the department's order, anyrelevant court order and any provision of thisact.

(v) Divest of all dogs over 25, unless directed

otherwise by the department or court order,within a reasonable time period as determinedby the department, but not to exceed ten days. The department's notice of revocation orrefusal shall set forth the manner by which thekennel owner may divest of the dogs. If thereare more dogs on the premises than permittedin the department or court order after theexpiration of the time period set forth in the

order, the kennel may select the dogs to bekept, up to the number allowed under thissubparagraph. The dogs not selected shall beforfeited to the entity set forth in thedepartment or court order or to an entityapproved by the department withoutcompensation to the owner.

30. Section 211(c)(1) does not provide for such measures to beapplied only in the Commonwealth of Pennsylvania, but seeks

to regulate commerce in other states.



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INSPECTIONS AND SEARCHES

31. Any kennel or dealer subject to the Act must permit State DogWardens to inspect the kennel without a warrant. Section 218

of the Act further provides that it is unlawful for any person to

refuse admittance to a State Dog Warden for the purposes of

making inspections and enforcing the provisions of the Act.

Any kennel owner other than a private kennel owner who

refuses admittance to a State Dog Warden creates per se

probable cause for the issuance of a search warrant.

32. The Act defines a kennel as any establishment in or throughwhich at least 26 dogs are kept or transferred in a calendar

year, or a boarding kennel as defined in this Act.

33. An establishment is defined under the Act as follows:(1) The premises on, in or through which a dog iskept, bred, harbored, boarded, sheltered,maintained, sold, given away, exchanged or in anyway transferred.

(2) The term shall encompass all of the following on,

in or through which any of the activities underparagraph (1) take place:

(i) The home, homestead, place of business oroperation of a person, including a dealer,which includes all of the land, property,housing facilities or any combination of land,



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property or housing facilities of the individualor person.

(ii) All of the persons residing in or on the

establishment.

(iii) A person, organization, business oroperation which utilizes offsite or rescuenetwork kennel homes to keep, maintain,breed, train, harbor, board, shelter, sell, giveaway, adopt, exchange or in any way transferdogs.

(3) The term shall not include a gathering of dog

owners where dogs remain in the custody and careof their owners, such as a hotel or campground, APLACE FOR grooming or training or an event suchas a field trial, performance event, hunting event ordog show.

(Act 119 102).

34. The Act empowers the Department and its employees to enterupon the premises of any person for the purpose of

investigation. To include entering any home or other building

in which a dog is kept with permission or with a search

warrant.

2009KENNELAPPLICATION

35. On or about November 18, 2008, the Bureau of Dog LawEnforcement provided a 2009 Department of Pennsylvania

Kennel Application to kennels licensed in 2008. A true and



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correct copy of the application as provided to plaintiffs is

attached hereto as Exhibit B and incorporated herein.

36.

After review of this application, plaintiffs had concerns with

providing certain information and, through counsel, put the

Department on notice of its concerns. A true and correct copy

of the letter to the Department dated December 8, 2008, is

attached hereto as Exhibit C and incorporated herein.

37. On December 12, 2008, the Department responded toplaintiffs concerns and disagreed with the legal and factual

assertions in the letter but provided that certain answers did

not need to be provided to the Department. See Exhibit D

attached hereto and incorporated herewith.

38. The Department has had a number of meetings with kenneloperators in attempt to answer the myriad of questions

resulting from Act 119 and the 22-page license application.

The Director of Dog Law Enforcement, Jessie Smith, has

stated at these meetings that if a kennel owner has any pet

dogs in the home, then the home is subject to search under

the new dog law.



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ALLEGATIONS OF LAW

39. This is a facial and as applied challenge to Act 119.40.

The Commerce Clause vests in Congress the power [t]o

regulate commerce . . . among the several states. U.S. Const.,

Art. I., 8, cl.3.

41. The Commerce Clause has long been understood as containinga dormant or negative aspect that limits the power of the

states to regulate commerce. This limitation restricts the

power of a state either to discriminate against or burden

interstate commerce. It operates to prohibit states from

impeding commerce even inadvertently.

42. The Dormant Commerce Clause absolutely prohibits a statefrom regulating wholly extraterritorial commerce.

43. State laws that have the practical effect of regulating whollyextraterritorial business constitute per seviolations of the

Commerce Clause.

44.

A statute that directly controls commerce occurring wholly

outside the boundaries of a State exceeds the inherent limits

of the enacting States authority and is invalid regardless of



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whether the statutes extraterritorial reach was intended by

the legislature.

45.

The Kennel License Application regulates all dealings with

out-of-state dealers. Any breeder in Pennsylvania transacting

for the purchase or sale of dogs in another state is under the

thumb of the Departments regulation of their commerce. Not

only does the practical effect regulate wholly extraterritorial

business, but the facial reading of the application and the law

does as well.

46. The Department discriminates against out-of-state dealers bycharging them a higher fee for a kennel license than those

charged to instate dealers. State laws discriminating against

interstate commerce on their face are virtuallyper seinvalid.

47. According to the 2009 Applications, out-of-state dealers arerequired to pay $300 more for each Kennel License.

48. Article IV, 2, of the Constitution provides that the "Citizens ofeach State shall be entitled to all Privileges and Immunities of

Citizens in the several States."

49. One of the privileges which the Clause guarantees to citizensof State A is that of doing business in State B on terms of



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substantial equality with the citizens of that State.

50. Out-of-state dog dealers like Mr. Sladkin and Ms. Inserra arenot competing with their in-state counterparts on

substantially equal terms. They are subjected to license fees

to conduct business in Pennsylvania that are significantly

higher than those of their in-state counterparts. Engaging in

commerce is a protected right of out-of-state dealers.

51. In order to justify discrimination against nonresidents, a statemust establish (i) there is a substantial reason for the

difference in treatment; and (ii) the discrimination practiced

against nonresidents bears a substantial relationship to the

State's objective.

52. Act 119 provides absolutely no substantial reason for thedifference in treatment between out-of-state dealers and in

state dealers. Defendants have no legitimate state objective

for the different treatment of out-of-state dealers either. If

anything, out-of-state dealers pose far less administrative and

inspection burdens upon the Department than do in-state

dealers.

53. Absent a legitimate state objective, the Department cannot



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make out any relationship, let alone a substantial one,

between the reason for the disparity in treatment and the state

objective.

54. The Fourth Amendment protects citizens of thisCommonwealth from unreasonable searches of the home or

business.

55. The warrantless search of a home or business ispresumptively unreasonable. Warrants are necessary

and a tolerable limitation on the right to enter upon and

inspect commercial premises.

56. Act 119 allows the BDLE to enter into not only the businesspremises but the homes of kennel owners without a

constitutionally sufficient search warrant.

57. The Act provides that the Department shall inspect all licensedkennels in the Department two times each year (Act 119, sec.

218(a)). And it is unlawful for any person to refuse

admittance to such State dog wardens . . . for the purpose of

making inspections (Id.). The Act declares that State dog

wardens . . . are hereby authorized to enter upon the

premisesof any person for the purpose of investigation. (Id.



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at sec. 901) (Emphasis added).

58. The Act defines a kennel as anyestablishmentin or throughwhich at least 26 dogs are kept or transferred in a calendar

year, or a boarding kennel as defined in this Act. (Emphasis

added). An establishment consists of the following:

(1) Thepremiseson, in or through which a dog iskept, bred, harbored, boarded, sheltered,maintained, sold, given away, exchanged or in anyway transferred.

(2) The term shall encompass all of the following on,in or through which any of the activities underparagraph (1) take place:

(i) The home, homestead, place of business oroperation of a person, including a dealer,which includes all of the land, property,housing facilities or any combination of land,

property or housing facilities of the individualor person.

(ii) All of the persons residing in or on theestablishment.

. . .

Act 119, sec. 102.

59. As the establishment includes the home and children of akennel owner the scope of authority for the Department to

invade the Fourth Amendment rights of kennel owners could



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not be broader.

60. If a kennel owner (except for a private kennel owner) refusesentrance for an inspection, the Act creates probable cause for

issuance of a warrant based on the mere fact that the owner

denied entrance. (SeeAct 119, sec. 218(c)). Furthermore, the

Act states that it is unlawful for any person to refuse entry to

employees of the Department for the purpose of making

inspections and enforcing the provisions of this act. (Id. at

218). And, that such a refusal is a violation of the Act. (See

id. at 220).

61. The test for reasonableness of probable cause is the need tosearch against the invasion the search entails. The test is not

whether the person denies entry into the home or business.

This framework violates the Fourth Amendment and must be

enjoined.

62. Section 211(c) of the Act establishes a procedure governing theDepartments issuance of a cease and desist order, (Act 119,

207(a.3)), that violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.

63. The Act provides that if the secretary revokes or refuses a



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kennel license, dealer license or out of state dealer license

must cease and desist from operating a kennel. (Act 119

211(c)).

64. Section 211(c)(1) enacts the following dire consequencesresulting from the exercise of a kennel owners due process

rights regarding a cease and desist order from the secretary.

The kennel owner shall:

(i) Immediately cease and desist from operating akennel, including boarding, buying,exchanging, selling, offering for sale, givingaway or transferring dogs.

(ii) Acquire no additional dogs nor increase thenumber of dogs in the kennel by any means,including breeding. This subparagraph doesnot apply to an acquisition or increase by birth

of puppies from a mother which, at the time ofthe order, was:

(A) On the property;(B) Pregnant; and(C) Owned by the kennel or thekennel owner.

(iii) Notify the department prior to theeuthanization of any dog. No dog may beeuthanized unless it is determined by aveterinarian that the euthanasia will preventthe dog from suffering caused by a medicalcondition . . .

(iv) Permit state dog wardens to inspect the kennel



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without a warrant or order to determinecompliance with the departments order, anyrelevant court order and any provision of thisact.

Section 211(c)(1).

65. Kennels earn the overwhelming amount of their incomethrough the sale of puppies.

66. Puppies are salable from eight to twelve weeks old.67. During the course of an administrative appeal lasting only 24

weeks, a kennel would incur significant costs in housing and

feeding dogs and puppies while sustaining no income.

Moreover, the litters of puppies born or in the kennel at the

time of the order will be worth a fraction of their value by the

time the order is quashed or finalized.

68. The Act contains no time frame in which the Department mustact on providing administrative review, thereby placing

unbridled discretion in the hands of the Department to destroy

the business of any kennel undergoing administrative appeal

resulting from a cease and desist order.

69. Because a cease and desist order ends all businesstransactions of a kennel until the order is quashed, a kennel



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owner is placed out of business without any meaningful

opportunity to be heard creating an unlawful taking in

violation of the Fifth Amendment to the United States

Constitution.

70. Act 119 treats similarly situated entities far differently inviolation of the Equal Protection Clause.

71. The Equal Protection Clause of the Fourteenth Amendmentprotects against arbitrary government action by requiring

similar treatment of those who are similarly situated. (U.S.

Const. amend. XIV, 1).

72. Act 119 uses means to achieve an arguably legitimate stateinterest that are not rationally related to any legitimate

government purpose.

73. Plaintiffs are similarly situated to the other kennels regulatedby Act 119.

74. Section 206 of the Act creates the following categories ofkennels: (1) kennels, consisting of private kennels, pet shop-

kennels, research kennels, rescue kennels, dealer kennels and

other kennels; (2) boarding kennels; (3) non-profit kennels;

and, (4) commercial kennels. The first category of kennels is



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subdivided into six kennel classes for purposes of a licensing

fee ranging from 50 dogs to more than 500 dogs and fees

ranging from $75 to $750 per year.

75. Commercial kennels are subdivided into the same six kennelclasses with the same fees. Non-profit kennels are charged a

flat $25 per year fee regardless of the number of dogs housed

and boarding kennels are charged a fee based on the capacity

of the kennel.

76. But for the term commercial, plaintiffs are classified in theexact same manner as other kennels and are clearly similarly

situated to these kennels and are similarly situated to the

boarding and non-profit kennels as well.

77. Act 119 targets and singles out commercial kennels fortreatment and scrutiny far different from all other kennels.

The law tacks on an additional four single-spaced pages of

requirements solely for commercial kennels. The additional

requirements for commercial kennels are irrational and an

unjustified disparate treatment of them. Only commercial

kennels must:

a.Satisfy a12 point requirement for primary enclosures;



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b.Provide detailed amounts of floor space for each nursingdog;

c.Conform to housing requirements for dogs based on sex;

d.Maintain a written program of veterinary care;e. Comply with heating and cooling requirements for

housing facilities;

f. Comply with ventilation requirements for housingfacilities;

g. Comply with lighting requirements for housing facilities;h.Comply with moisture requirements for housing facilities;i. Follow detailed directives on cleaning of primary

enclosures;

j. Abstain from stacking primary enclosures when dogs areless than 12 weeks old to more than two rows high and

limit the height of the uppermost primary enclosure;

k.Provide for smoke alarm and fire extinguishers andsprinkler systems;

l. Provide for daily removal of various forms of dirt;m.Comply with detailed cleaning requirements for primary

enclosures;



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n.Follow methods of sanitation of primary enclosures andfood and water receptacles;

o.Conform surrounding grounds and buildings to various

guidelines;

p.Institute a program for control of insects;q.Permanently retain records;r. Maintenance of veterinary records;s. Seek the intervention of a veterinarian in order to

euthanize dogs;

t. Refrain from stacking primary enclosures for dogs olderthan 12 weeks of age;

u.Provide floor space for dogs over 12 weeks of age that isthe length of the dog in inches plus six times the length

of the dog in inches plus six measuring the dog from the

tip of its nose to the base of its tail. This amount is

divided by 144 and multiplied by 2 to calculate the

required floor space in square feet. For any second dog

placed in the primary enclosure the floor space must be

doubled using the longest dog calculation. For each dog



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above two dogs, the minimum floor space must be

multiplied by 1.5 per additional dog;

v.Provide specific type of flooring in primary enclosures;

w.Follow guidelines for entry ways into primary enclosures;x.Establish exercise requirements for dogs;y. Provide for outdoor exercise for dogs;z. Follow directives on administration of rabies vaccination;aa. Have dogs examined by a veterinarian once every six

months.

Act 119, sec. 207.

78. Commercial kennels, by definition, are businesses with aneconomic incentive to produce healthy dogs for sale and to

maintain a positive market image so that people desire to

purchase their product. Despite this intrinsic motivation,

commercial kennels are the only kennels targeted for a

plethora of additional regulations dealing with animal welfare.

If animal welfare were the true basis of the Act, then the laws

applying to commercial kennels would equally apply to all

similarly situated entities, such as private kennels, boarding

kennels, nonprofit kennels and rescue network kennels.



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79. A private kennel consisting of 300 dogs may euthanize any dogat any time for any purpose. A commercial kennel must pay a

veterinarian to euthanize a dog.

80. A private kennel consisting of 300 dogs has only the minimalrestrictions on enclosures for its dogs found in the

Pennsylvania Code, 7 Pa.Code 21.21. A commercial kennel

must comply with more than 16 directives under threat of

violation.

81. A private kennel consisting of 300 dogs has only minimalspace restrictions on floor space for dogs. (See 7 Pa.Code

21.23). A commercial kennel has significant restrictions on

floor space.

82. If the Acts purpose is to protect the health, safety and welfareof dogs (see Act 119, sec. 211 (5)), and not to merely drive

commercial kennels out of business, then there is an utter

lack of any rational basis in the unequal treatment between

commercial kennels and every other kennel, not to mention

dog, in the Department. If the Acts purpose is, in fact, to

drive commercial kennels out of business, then it is not a



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legitimate purpose and the Act should be enjoined for that

reason.

83.

The Federal Privacy Act was designed to protect citizens

against the improper use of a citizens social security number

by governmental agencies. Privacy Act of 1974, Pub. L. 93-

579, 7(b), 88 Stat. 1896, 1909 (1974) 5 U.S.C. 552a note.

84. Page 2 of the 2009 Kennel License Application requires that allapplicants provide a social security number.

85. In order for a state governmental agency, such as the Bureauof Dog Law Enforcement, to demand a citizens social security

number, the agency must first advise the citizen whether the

disclosure is mandatory or voluntary and, if mandatory, the

statutory authority that requires disclosure and the use to be

made of their number.

86. The 2009 Kennel License Application is woefully inadequateunder the Federal Privacy Act. The Department has failed to

inform the applicants whether the disclosure is voluntary or

mandatory. If the Department considers such a disclosure

mandatory, it has failed to provide the statutory authority

upon which such a demand is grounded; most likely because



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none exists. Finally, the Department has failed to explain to

the applicants the use to be made of their social security

number.

87. All of the above constitute ongoing violations or direct threat ofviolation of plaintiffs constitutional and statutory rights.

FIRST CAUSE OF ACTIONDeclaratory Judgment

88. Plaintiffs hereby reallege and incorporate by reference theabove paragraphs.

89. By charging out-of-state dealers a higher fee for their DealerLicense, the defendant is violating the Commerce Clause of

Art. I of the United States Constitution.

90. By charging out-of-state dealers a higher fee for their DealerLicense, the defendant is violating the Privileges and

Immunities Clause of Article IV, 2, of the United States

Constitution.

91. By treating similarly situated individuals far differently,targeting commercial kennels Defendant has violated the equal

protection and due process clause of the United States

Constitution.



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92. By establishing an inspection scheme creating probable causefor the mere refusal to allow an inspection when the act

provides that only two kennel inspection a year be completed,

the act violates the Fourth Amendment to the United States

Constitution.

93. By providing no time-frame wherein an administrative appealmust be completed and no provision that a kennel may stay in

business during an appeal, the Commonwealth has unlawfully

taken property of any kennel owner subject to a cease and

desist order without compensation in violation of the Takings

Clause of the Fifth Amendment to the United States

Constitution.

94. Defendants practice of using social security numbers withoutproviding the basis of authority or an explanation as to the

use to be made of such numbers is a violation of the Privacy

Act.

WHEREFORE, plaintiffs respectfully pray that the Court grant

the equitable and legal relief set forth hereinafter in the prayer for

relief.



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SECOND CAUSE OF ACTIONFacial Violation of the Commerce Clause U.S. Const., Art. I., 8,

cl. 3

95.

Plaintiffs hereby reallege and incorporate by reference the

above paragraphs.

96. The Commerce Clause vests in Congress the power [t]oregulate commerce . . . among the several states (U.S. Const.,

Art. I., 8, cl.3).

97. The Commerce Clause has long been understood as containinga dormant or negative aspect that limits the power of the

states to regulate commerce. This limitation restricts the

power of a state either to discriminate against or burden

interstate commerce. It operates to prohibit states from

impeding commerce even inadvertently.

98. State laws that have the practical effect of regulating whollyextraterritorial business constitute per seviolations of the

Commerce Clause.

99.

A statute that directly controls commerce occurring wholly

outside the boundaries of a State exceeds the inherent limits

of the enacting States authority and is invalid regardless of



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whether the statutes extraterritorial reach was intended by

the legislature.

100.Act 119 and The Kennel License Application regulates all

dealings with out-of-state dealers. Any breeder in

Pennsylvania transacting for the purchase or sale of dogs in

another state is under the thumb of the Departments

regulation of their commerce. Not only does the practical

effect regulate wholly extraterritorial business, but the facial

reading of the application does as well.



relief.

THIRD CAUSE OF ACTIONViolation of the Dormant Commerce Clause U.S. Const., Art. I.,

8, cl. 3

101.Plaintiffs hereby reallege and incorporate by reference theabove paragraphs.

102. The Dormant Commerce Clause absolutely prohibits a state

from regulating wholly extraterritorial commerce.



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103.The Commerce Clause prohibits economic protectionism thatis regulatory measures designed to benefit in-state economic

interests by burdening out-of-state competitors.

104.The Department discriminates against out-of-state dealers bycharging them a higher fee for a kennel license. State laws

discriminating against interstate commerce on their face are

virtuallyper seinvalid.

105.Out-of-state dealers are required to pay $300 more for eachKennel License.

106.Every out-of-state dealer that the Commonwealth has chargedan excess fee has been damaged and discriminated against by

the unconstitutional regulation of Act 119.



relief.

FOURTH CAUSE OF ACTIONFacial Violation of the Privileges and Immunities

Clause U.S. Const., Art. IV., 2


108.Article IV, 2, of the Constitution provides that the "Citizens of



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each State shall be entitled to all Privileges and Immunities of

Citizens in the several States."

109.One of the privileges which the Clause guarantees to citizens

of State A is that of doing business in State B on terms of

substantial equality with the citizens of that State.

110.Out-of-state dog dealers like Mr. Sladkin and Ms. Inserra, arenot competing with their in-state counterparts on

substantially equal terms. They are subjected to license fees

to conduct business in Pennsylvania that are significantly

higher than those of their in-state counterparts. Engaging in

commerce is a protected right of out-of-state dealers.

111.Act 119 provides no substantial reason for the difference intreatment between out-of-state dealers and in state dealers.

Defendants have no legitimate state objective for the different

treatment of out-of-state dealers either.

112. The Department cannot make out any relationship betweenthe reason for the disparity in treatment and the state

objective.



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relief.

FIFTH CAUSE OF ACTIONFacial and As Applied Violation of the Fourth Amendment to

the United States Constitution

113.Plaintiffs hereby reallege all matters set forth in the precedingparagraphs of this Complaint and incorporate them herein.

114. The warrantless search of a home or business ispresumptively unreasonable. Warrants are necessary

and a tolerable limitation on the right to enter upon and

inspect commercial premises.

115.Act 119 allows the BDLE to enter into not only the businesspremises but the homes of kennel owners without a

constitutionally sufficient search warrant.

116.The Act provides that the Department shall inspect all licensedkennels in the Department two times each year (Act 119, sec.

218(a)). And it is unlawful for any person to refuse

admittance to such State dog wardens . . . for the purpose of

making inspections. (Id.). The Act declares that State dog

wardens . . . are hereby authorized to enter upon the



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premisesof any person for the purpose of investigation. (Id.

at sec. 901) (Emphasis added).

117.An establishment includes the home and children of a

kennel owner and subjects the home to invasive Fourth

Amendment violations.

118. If a kennel owner refuses entrance for an inspection the Actestablishes probable cause for issuance of a warrant based on

the mere fact that the owner denied entrance. (SeeAct 119,

sec. 218(c)).

119. If a kennel owner refuses warrantless entrance to his home orbusiness to employees of Defendant, he has committed a per

se violation of the act subjecting him to fines and penalties.

120.Probable cause cannot be established by the mere refusal toallow entrance into a home or commercial property.

121.Administrative entry, without consent, upon the portions ofcommercial premises which are not open to the public may

only be compelled within the framework of a warrant

procedure.



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relief.

SIXTH CAUSE OF ACTIONViolation of the Fourteenth Amendment to the

United States Constitutions Guarantee of Due Process


123.Section 211(c) of the Act establishes a procedure governing theDepartments issuance of a cease and desist order. (Act 119,

211(c))

124.Section 211(c)(1) directs that all kennel activity stop upon thefiling of an appeal of a cease and desist order from the

secretary.

125.During the course of an administrative appeal lasting only 26weeks, a kennel would incur significant costs in housing and

feeding dogs and unrecoverable lost puppy sales while

sustaining no income. There is no way, other than leaving the

business, for the kennel owner to avoid such a result.

126.The Act contains no time frame in which the Department mustact for providing administrative review, thereby placing



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the business of any kennel undergoing administrative appeal,

even inadvertently, resulting from a cease and desist order.

127.Because a cease and desist order ends all businesstransactions of a kennel until the order is quashed or

finalized, a kennel owner is placed out of business without any

meaningful opportunity to be heard in violation of the due

process clause.



relief.

SEVENTH CAUSE OF ACTION

Facial Violation of the Fifth Amendment to theUnited States Constitutions Takings Clause


129.Section 211 of the Act establishes a procedure governing theDepartments issuance of a cease and desist order. (Act 119,

211(c)).

130.Section 211(c) directs that all kennel activity stop upon anexercise of appeal rights from a cease and desist order from



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the secretary.

131.During the course of an administrative appeal lasting only 26weeks, a kennel would incur significant costs in housing and

feeding dogs and unrecoverable lost puppy sales while

sustaining no income. There is no way, other than leaving the

business, for the kennel owner to avoid such a result.

132.The Act contains no time frame in which the Department mustact for providing administrative review, thereby placing


the business of any kennel undergoing administrative appeal,

even inadvertently, resulting from a cease and desist order.

133.Because a cease and desist order ends all businesstransactions of a kennel until the order is quashed or

finalized, property of a kennel owner is taken by the

government without compensation in violation of the Fifth

Amendment to the United States Constitution.



relief.



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EIGHTH CAUSE OF ACTIONFacial and As Applied Violation of the Fourteenth Amendment

to the United States Constitutions Guarantee of EqualProtection


135. The Equal Protection Clause of the Fourteenth Amendmentprotects against arbitrary government action by requiring

similar treatment of those who are similarly situated. U.S.

Const. amend. XIV, 1.

136.Plaintiffs are similarly situated to the other kennels regulatedby Act 119.

137.Section 206 of the Act creates four categories of kennels: (1)kennels, consisting of private kennels, pet shop-kennels,

research kennels, rescue kennels, dealer kennels and other

kennels; (2) boarding kennels; (3) non-profit kennels; and, (4)

commercial kennels. The first category of kennels is

subdivided into six kennel classes for purposes of a licensing

fee ranging from 50 dogs to more than 500 dogs and fees

ranging from $75 to $750 per year.

138.Commercial kennels are subdivided into the same six kennel



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classes with the same fees. Non-profit kennels are charged a

flat $25 per year fee regardless of the number of dogs housed

and boarding kennels are charged a fee based on the capacity

of the kennel.

139.But for the term commercial, plaintiffs are classified in theexact same manner as other kennels and are clearly similarly

situated to these kennels and are similarly situated to the

boarding and non-profit kennels as well.

140.Act 119 singles out commercial kennels for disparatetreatment and scrutiny far different from all other kennels.

Four single-spaced pages of requirements apply solely for

commercial kennels. The additional requirements for

commercial kennels are irrational and an unjustified disparate

treatment of them. Among numerous other things, only

commercial kennels must comply with onerous ventilation,

lighting, heating, moisture and cooling requirements for

housing facilities determined by a health advisory board;

abstain from stacking primary enclosures when dogs are less

than 12 weeks old to more than two rows high and limit the

height of the uppermost primary enclosure; and, provide floor



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space for dogs over 12 weeks of age that equals the length of

the dog in inches plus six times the length of the dog in inches

plus six measuring the dog from the tip of its nose to the base

of its tail divided by 144 and multiplied by 2 to calculate the

required floor space in square feet. For any second dog placed

in the primary enclosure the floor space must be doubled

using the longest dog calculation. For each dog above two

dogs, the minimum floor space must be multiplied by 1.5 per

additional dog.

141.Commercial kennels have an economic incentive to producehealthy dogs for sale and to maintain a positive market image

so that people desire to purchase their product.

142.Despite this intrinsic motivation, commercial kennels are theonly kennels targeted for overwhelming additional regulations

dealing with animal welfare. If animal welfare were the true

basis of the Act, then the laws applying to commercial kennels

would equally apply to all similarly situated entities, such as

private kennels, boarding kennels, nonprofit kennels and

rescue network kennels.

143.A private kennel may euthanize any dog at any time for any



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purpose. A commercial kennel must pay a veterinarian to

euthanize a dog.

144.A private kennel has only the minimal restrictions on

enclosures for its dogs found in the Pennsylvania Code, 7

Pa.Code 21.21. A commercial kennel must comply with

more than 16 directives under threat of violation.

145.A private kennel has only minimal space restrictions on floorspace for dogs. (See7 Pa.Code 21.23). A commercial kennel

has significant restrictions on floor space.

146. If the Acts purpose is to protect the health, safety and welfareof dogs (see Act 119, sec. 211 (5)), and not to merely drive

commercial kennels out of business, then there is an utter

lack of any rational basis in the unequal treatment between

commercial kennels and every other kennel, not to mention

dog, in the Department. If the Acts purpose is, in fact, to

drive commercial kennels out of business, then it is not a

legitimate purpose and the Act should be enjoined for that

reason.



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relief.

NINTH CAUSE OF ACTIONAs Applied Violation of the Privacy Act 1974, Pub.L. 93-579,

7(b), 88 Stat. 1896, 1909 (1974) 5 U.S.C. 552a


148. The Federal Privacy Act was designed to protect citizensagainst the improper use of a citizens social security number

by governmental agencies. Privacy Act of 1974, Pub.L. 93-579,

7(b), 88 Stat. 1896, 1909 (1974) 5 U.S.C. 552a note.

149.Page 2 of the 2009 Kennel License Application attached heretoas Exhibit B requires that all applicants provide a social

security number.

150. The Department has failed to advise anyone whether thedisclosure is mandatory or voluntary.

151. The Department has failed to explain the statutory authority

that requires disclosure and the use to be made of their

number.

152.The Department denies that its actions are improper. (SeeEx.



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D attached hereto).



relief.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that:

a.This honorable court declare that:i. Section 209 violates the Commerce Clause of

Article I, 8, Clause 3 of the United States

Constitution,

ii. Section 209 violates Privileges and ImmunitiesClause of Article IV of the United States

Constitution;

iii. Sections 218 and 901 violate the FourthAmendment to the United States Constitution;

iv. Section 211(c) violates the Due Process clause of theFourteenth Amendment to the United States

Constitution;



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v. Section 211(c) violates the Takings Clause of theFifth Amendment to the United States Constitution;

and,

vi. Sections 207(h) and 207(i) violate and EqualProtection clause the Fourteenth Amendment to the

United States Constitution.

b.Defendant be preliminarily and permanently enjoinedfrom enforcing Sections 207(h), 207(k), 211(c)(1)(ii) and

(ii), 209, 218 and 910 of the Act;

c. This court order Defendant to reimburse all excess feescharged to all out-of-state dealers;

d.That the court preliminarily and permanently enjoin theDepartment from demanding social security numbers of

plaintiffs and other similarly situated persons in violation

of the Federal Privacy Act;

e. That this Court issue the requested injunctive reliefwithout a condition of bond or other security being

required of plaintiffs; and

f. This court award the costs of this litigation andreasonable attorneys fees to plaintiffs; and,



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g. This court grant such other relief as it deemsappropriate.

Respectfully submitted,

CLYMER &MUSSER,P.C.

By: _s/Leonard G. Brown, III_Leonard G. Brown, IIIPa. ID No. 83207Clymer & Musser, P.C.408 W. Chestnut St.

Lancaster, PA 17603(717) 299-7101 phone(717) 299-5115 fax

Dated: February 13, 2009



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am this day serving upon all

persons listed below a true and correct copy of the foregoing

document via the Electronic Case Filing System of the United States

District Court for the Middle District of Pennsylvania as follows:

Pennsylvania Office of the Attorney General

Kenneth Joel, Esq.Strawberry SquareHarrisburg, PA 17120

CLYMER &MUSSER,P.C.

By: _s/Leonard G. Brown, III_Leonard G. Brown, IIIPa. ID No. 83207Clymer & Musser, P.C.408 W. Chestnut St.Lancaster, PA 17603(717) 299-7101 phone(717) 299-5115 fax

Dated: February 13, 2009


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