Based on a recent decision by the Appellate Division of the Superior Court of New Jersey in State v. Danielle Weitz, dog breeders should consider whether they need a kennel license, based on their local ordinances. If your municipality incorporates the State’s definition of “kennel” in its ordinances, you may want to either obtain a kennel license or restrict breeding to those purposes the Court described (below) that would not constitute breeding dogs for sale. See State v. Danielle Weitz, Docket No. A-3722-12T4 (N.J. Super. Ct. App. Div. June 25, 2014).
In this case, Ms. Weitz had not obtained a kennel license, which, based on the governing municipal ordinance, was required for her to sell or offer dogs for sale. For other dog breeders, it is important to keep in mind the State definition of ‘kennel,’ which, like in this case, is often incorporated into local ordinances. According to State regulations, kennel means “any establishment wherein or whereupon the business of boarding or selling dogs or breeding dogs for sale is carried on, except a pet shop.” N.J.A.C. 8:23A-1.1. Notably, the number of sales per year is not defined, so potentially anyone breeding or selling dogs may qualify as a kennel.
Fortunately, for Ms. Weitz, the Appellate Court struck down the lower court’s penalties which included a prohibition of breeding Ms. Weitz’ show dogs for any purpose and monthly searches of her home “in perpetuity,” whether or not she applied for or obtained a kennel license. Quoting the N.J. Supreme Court, the Court found such searches “the chief evil against which the wording of the Fourth Amendment is directed.”
Importantly, the Court also stated that breeding dogs for the following purposes would not constitute breeding dogs for sale:
- Breeding for show;
- Breeding to keep as pets; or
- Breeding to give away without charge.
While the Court held that the lower court had imposed sentences that did not “comport with all appropriate constitutional, statutory, and ordinance standards,” it remanded the case back to the Municipal Court for resentencing, with a reminder that “deterrence of future offenses is one of ‘the general purposes of sentencing.’” Previously, the Borough of Franklin Lakes had recommended the maximum sentence, “a penalty not to exceed $500 nor less than $5 for each offense as provided by N.J.S.A. 26:3-70,” for Ms. Weitz’ failure to register as a kennel. Additionally a term of 90 days in jail may be imposed at the discretion of the court as provided in N.J.S.A. 26:3-77 and 26:3-78.
So, for Ms. Weitz, the case is not over, but she will be able to continue to breed her dogs for her own use, as prescribed by the Court.