HomeMy WebLinkAboutOrdinance 6663113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Ordinance: 6663
File Number: 2023-740
AMENDMENT: §92.04(C) PET STORE OPERATIONS:
AN ORDINANCE TO AMEND § 92.04 (C) OF THE FAYETTEVILLE CODE TO CONFORM THIS SUBSECTION
WITH THE JUST ENACTED ACT 730 OF THE 94TH GENERAL ASSEMBLY
WHEREAS, when the City Council passed Ordinance 6587 and enacted §92.04(C) last year to prohibit pet stores in
Fayetteville from selling puppies produced by mass breeding operations that treat dogs like livestock rather than pets,
no state law was contrary to or in conflict with this ordinance; and
WHEREAS, the sponsor of House Bill 1591 which has now been passed to become Act 730 of 2023 publicly
acknowledged that he sponsored this bill to invalidate and preempt the City of Fayetteville ordinance which enacted
§92.04 (C) of the Fayetteville Code; and
WHEREAS, since Act 730 of 2023 does indeed preempt and invalidate our City's former authority and power to
regulate the sale of puppies obtained from mass breeding operations or puppy dealers which are regulated and in
compliance with 7 U.S.C. §2132 and associated USDA regulations, the City of Fayetteville has no choice but to amend
§92.04(C) to conform to the newly passed Act 730 of 2023.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 92.04(C) of the Fayetteville
Code by repealing it in its entirety and enacting a replacement (C) as follows:
"(C) A retail pet store shall only be allowed to sell a puppy or kitten if it has been acquired from a cattery,
kennel or dealer as defined in 7 U.S.C. §2132 and pursuant to the dictates of Act 730 of 2023 codified as A.C.A §4-97-
109 Applicability to other laws — Preemption and any later amendments thereto. A retail pet store may assist the
Fayetteville and Washington County Animal Shelters and nonprofit dog and cat rescue organizations by displaying
animals or their photos for adoption in the pet store."
PASSED and APPROVED on May 16, 2023
Page 1
Ordinance: 6663
File Number: 2023-740
Approved:
Page 2
Attest:
R KIT
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G.
Kara Paxton, City Cl Treasurer ~ rTI7L v
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CITY OF
W41iFAYETTEVILLE
ARKANSAS
MEETING OF MAY 16, 2023
TO: Mayor Jordan and City Council
THRU:
FROM: Kit Williams, City Attorney
DATE:
SUBJECT:
RECOMMENDATION:
See memo from City Attorney Kit Williams attached.
BACKGROUND:
DISCUSSION:
BUDGET/STAFF IMPACT:
ATTACHMENTS: City Attorney Memo re Amendment to 92.01
CITY COUNCIL MEMO
2023-740
Mailing address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
® City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Legislation Text
File #: 2023-740
AN ORDINANCE TO AMEND § 92.04 (C) OF THE FAYETTEVILLE CODE TO CONFORM THIS
SUBSECTION WITH THE JUST ENACTED ACT 730 OF THE 94TH GENERAL ASSEMBLY
WHEREAS, when the City Council passed Ordinance 6587 and enacted §92.04(C) last year to prohibit
pet stores in Fayetteville from selling puppies produced by mass breeding operations that treat dogs like
livestock rather than pets, no state law was contrary to or in conflict with this ordinance; and
WHEREAS, the sponsor of House Bill 1591 which has now been passed to become Act 730 of 2023
publicly acknowledged that he sponsored this bill to invalidate and preempt the City of Fayetteville
ordinance which enacted §92.04 (C) of the Fayetteville Code; and
WHEREAS, since Act 730 of 2023 does indeed preempt and invalidate our City's former authority and
power to regulate the sale of puppies obtained from mass breeding operations or puppy dealers which
are regulated and in compliance with 7 U.S.C. §2132 and associated USDA regulations, the City of
Fayetteville has no choice but to amend §92.04(C) to conform to the newly passed Act 730 of 2023.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 92.04(C) of the
Fayetteville Code by repealing it in its entirety and enacting a replacement (C) as follows:
"(C) A retail pet store shall only be allowed to sell a puppy or kitten if it has been acquired from
a cattery, kennel or dealer as defined in 7 U.S.C. §2132 and pursuant to the dictates of Act 730 of 2023
codified as A.C.A §4-97-109 Applicability to other laws — Preemption and any later amendments
thereto. A retail pet store may assist the Fayetteville and Washington County Animal Shelters and
nonprofit dog and cat rescue organizations by displaying animals or their photos for adoption in the pet
store."
Page 1
LL
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
CC: Susan Norton, Chief of Staff Paralegal
Yolanda Fields, Community Resources Director
Justine Lentz, Animal Services Superintendent
FROM: Kit Williams, CityAttorney
Y
DATE: April 25, 2023
RE: Act 730 of 2023 Will Preempt Fayetteville Ordinance 6587 Codified as
§92.01(C) of the Fayetteville Code
Act 730 of 2023 will become effective this summer. Its sponsor publicly
stated that this law was drafted to invalidate Fayetteville's ordinance which
sought to prevent pet stores in Fayetteville from being outlets for mass puppy
breeding facilities and dealers. This Act significantly changed the existing
provision in the Retail Pet Store Consumer Protection Act which currently states
that that "Nothing in this chapter shall be construed to prevent or limit the
application of any other law" (such as the Fayetteville Code) into a specific
"Preemption" of Ordinance 6587 and §92.04(C).
Act 730 of 2023 also amended the current state law by adding:
"(b) A local government shall not pass an ordinance... that prohibits a retail pet
store from
(2) selling an animal that is acquired from a cattery, kennel, or dealer as defined
in 7 U.S.C. §2132....
(c) An ordinance ... of a local government shall be rendered invalid if it is found
to be in conflict with the language set out within this section."
Petland sells puppies obtained from regulated puppy mass breeding
operations in which the US Department of Agriculture through 7 U.S.C. §2132
allows the mother dogs to be kept in small wire cages almost all the time for their
entire breeding life. As you were informed during consideration of the passage
of Ordinance 6587, these man's best friends are treated (or mistreated) like
livestock or just commodities, not pets. The witnesses told you these puppy mass
breeding operations were "puppy mills" even with the USDA regulations.
We did our best to prevent Petland from being an outlet for what seems to
be unacceptable, inhumane puppy mass breeding operations. I believe that the
City would have prevailed if the Legislature had not changed the law explicitly
to render Ordinance 6587 and any similar regulatory ordinance invalid and
unenforceable.
However, now we must conform our Fayetteville Code to state law
including Act 730 of 2023 by amending 92.04(C) so that it is not contrary to that
Act when it becomes effective this summer. The Benton County Circuit Court
has continued its injunction against our ordinance as this litigation has
progressed so there will be no substantive change when our Fayetteville Code is
changed to conform with this new law. Therefore, I believe that we need to
voluntarily move forward and repeal our Code section to be replaced with
language consistent with Act 730. Attached is my draft of such ordinance to
accomplish this amendment.
2
Stricken language would be deleted from and underlined language would be added to present law.
Act 730 of the Regular Session
1 State of Arkansas
2 94th General Assembly A Bill
3 Regular Session, 2023 HOUSE BILL 1591
4
5 By: Representatives Ray, Beaty Jr.
6 By: Senator J. Dotson
7
8 For An Act To Be Entitled
9 AN ACT TO AMEND THE ARKANSAS RETAIL PET STORE
10 CONSUMER PROTECTION ACT OF 1991; TO CLARIFY THE
11 APPLICABILITY OF THE ARKANSAS RETAIL PET STORE
12 CONSUMER PROTECTION ACT OF 1991; TO PREEMPT CERTAIN
13 LAWS CONCERNING RETAIL PET STORES; AND FOR OTHER
14 PURPOSES.
15
16
17 Subtitle
18 TO CLARIFY THE APPLICABILITY OF THE
19 ARKANSAS RETAIL PET STORE CONSUMER
20 PROTECTION ACT OF 1991; AND TO PREEMPT
21 CERTAIN LAWS CONCERNING RETAIL PET
22 STORES.
23
24
25 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
26
27 SECTION 1. Arkansas Code § 4-97-103, concerning the definitions used
28 under the Arkansas Retail Pet Store Consumer Protection Act of 1991, is
29 amended to add an additional subdivision to read as follows:
30 (12) "Focal government" means a city of the first class, a city
31 of the second class, an incorporated town, or a count
32
33 SECTION 2. Arkansas Code § 4-97-109 is amended to read as follows:
34 4-97-109. Applicability to other laws — Preemption.
35 (a) Net A-ng-in Except as provided in subsection b) of this section
36 this chapter shall not be construed to prevent or limit the application of
03/01/2023 01:44:15 PM ANS148
HB1591
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any other law.
(b) A local government shall not pass an ordinance, resolution. or
regulation that prohibits a retail pet store from:
(1) Acquiring an animal from a:
(A) Cattery_;
(B) Kennel; or
(C) Dealer as defined in 7 U.S.C. S 2132, as it existed on
January 1, 2023; or
(2) Selling an animal that is acquired from a cattery, kennel,
or dealer as defined in 7 U.S.C. § 2132 as it existed on January 1 2023 to
a person.
Ac) An ordinance, resolution, or regulation of a local government
shall be rendered invalid if it is found to be in conflict with the language
set out within this section.
APPROVED: 4/12/23
2 03/01/2023 01:44:15 PM ANS148