Arizona State Premption

Arizona bill HB 2329,  a bill titled “pet dealers: purchaser remedies” includes a repeal of Section 44-1799.11 of the Arizona Revised Statutes in the last line of the bill.  That section has nothing to do with purchaser remedies but everything to do with the regulation of pet dealers in Arizona.  Specifically, 44-1799.11 states

The regulation of pet dealers is a matter of statewide concern. A city, town or county may enact or enforce an ordinance to enforce section 44-1799.10 against a pet store or pet dealer. Any local law, rule, regulation or ordinance that imposes requirements on pet dealers that exceed the requirements of section 44-1799.10 or penalties prescribed by section 44-1799.08 is preempted. Any local law, rule, regulation or ordinance may not directly or indirectly prohibit or be applied to prohibit the sale of dogs or cats by a pet store or pet dealer, expressly or in effect, based on the source from which the animal is obtained if obtained in compliance with section 44-1799.10.

The statute was enacted following the adoption of an ordinance in Phoenix which banned pet stores from selling dogs or cats purchased from commercial breeders.  See Puppies ‘N Love v. City of Phoenix, 283 F.Supp.3d 815 (D. Ariz. 2017), appeal dismissed 2017 WL 7726037.  The “intervening Arizona state legislation that allowed pet stores to sell dogs and cats obtained from commercial breeders that met certain requirements, which preempted a charter city ordinance that banned pet stores from selling dogs or cats supplied by commercial breeders, required a vacatur of summary judgment granted in favor of city and nonprofit group on the constitutionality and validity of the ordinance, despite claims that pet store operator persuaded Arizona to pass the statute, that operator was required to show equitable entitlement to vacatur, and that public interest favored a denial of vacatur.”

There is nothing in HB 2329 revealing the repeal, other than the one-liner at the end of the bill.  Unless someone knows statutory citations, there would be no public notice that the repeal of statutory preemption was a major objective of this bill .  Therefore, those who would be impacted but such a repeal are now on notice.

There are also serious concerns about the proposed substantive amendments related to purchaser remedies:

  1. The bill would permit a purchaser to show by a preponderance of the evidence that an animal had an illness, injury, defect or congenital or hereditary condition when the purchase took possession of the animal.  This amendment is unnecessary because the law already provides for a purchaser’s remedies upon the presentation of a veterinarian’s written opinion of an illness, injury or defect to the pet store within a prescribed number of days.  With limited exceptions Arizona prohibits anyone except a licensed veterinarian from diagnosing or prognosticating “any animal condition, disease, deformity, defect, wound or injury . . .”  Ariz. Rev. Stat. Ann. § 32-2231.

Additionally, a “preponderance of the evidence” standard is a legal standard, and one which a pet store would not be able to determine. Therefore this additional provision is unnecessary and would create ambiguities that would not benefit anyone.

  1. Several amendments eliminate requirements that provide objective evidence of proof of diagnosed illness or conditions. An amendment to Section B (6) would make “findings of the examination or necropsy, including laboratory results or copies of laboratory reports” optional.  Veterinary medicine is a sophisticated medical practice wherein diagnosis of infectious diseases or congenital defects are confirmed by laboratory testing, including necropsy results.  To permit an exclusion of such objective support of a clinical diagnosis is neither sound science, nor good public policy.
  2. The bill would permit the purchaser to receive reimbursement for reasonable veterinary fees for diagnosis and treatment without restriction instead of the existing limit of “an amount not more than the original purchase price of the animal.” The cost of medical treatment varies considerably between practices, and can grossly exceed the original purchase price of the animal.  Other states limit reimbursements to two times the purchase price.  See, e.g., N.J.S.A. 56:8-95 (i)(4).
  3. The bill would permit a purchaser to receive reimbursement for the death of a pet within sixty days of the time of purchase. The current limitation is fifteen days.  The bill would permit such reimbursement in the absence of a necropsy.  The incubation period of most infectious diseases is less than fifteen days.  While complications during treatment could result in death after fifteen days, many other variables would have to be considered, making it difficult or impossible to determine a cause of death without a necropsy.  Therefore, objective laboratory diagnostic tests, including necropsies, should be required, particularly if extending the time period for reimbursement as proposed herein.

Finally, since the vast majority of pets are currently obtained from animal rescue organizations or animal shelters, similar remedies should be required of these facilities.