PA Out-of-State Dealer License Fee Struck Down

shelter dogsA federal judge has struck down Pennsylvania’s practice of charging out-of-state dog dealers a $300 license fee in addition to a kennel license fee as required. 3 P.S. § 209(a)

This opinion was issued in the same decision by the judge, Sylvia H. Rambo, who upheld the 2008 changes to the state Dog Law in a challenge by the Professional Dog Breeders Advisory Council and some individual dog breeders.

Under Pennsylvania law an out-of-state dealer as a "person who does not reside in the Commonwealth of Pennsylvania and who:
 
   (1) sells or offers for sale a dog in this Commonwealth belonging to
   another person, for any type of consideration, fee, commission or
   percentage of the 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.

A good idea to limit out-of-state dealers. No state needs more puppy mill dogs, let alone from another state. Certainly not Pennsylvania.
  
The problem is that the Pennsylvania Dog Law Enforcement Bureau extended this definition to include out-of-state non-profit rescues and shelters. The Bureau required the fee from out-of-state non-profit rescues and shelters that bring dogs into the Commonwealth and transfer them in Pennsylvania to a person or organization that will not be keeping the dog, but will be transferring it to a third person for whether for sale, adoption fee or other charges.
  
The Bureau had a very broad interpretation of "out-of-state dealer" which by the plain language of the statute should have been limited to those offering dogs for sale or resale, not adoption. 
  
The only way for an out-of-state rescue or shelter to bring dogs into the state for adoption, was to have a Pennsylvania rescue or shelter pick up and take responsibility for the animals before entering the Commonwealth.
  
Judge Rambo has now ruled, however, this practice violates the dormant Commerce Clause Clause of the U.S. Constitution.  

"Generally, state legislation that creates differential economic treatment of out-of-state residents as compared to in-state residents will violate the dormant Commerce Clause … As such, ‘when a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, it is generally struck down . . . without further inquiry.’

shelter dog"Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the [State] can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest….

"However, ‘where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.‘"

Judge Rambo found the $300 licensing fee imposed on out-of-state dealers (and rescues and shelters) is "facially discriminatory".  She stated, "The Commonwealth has failed to show that the $300 fee imposed on out-of-state dog dealers is the only way to advance a legitimate local interest of the State….

"[T]he Commonwealth has failed to show why less restrictive means – such as requiring in-state dog dealers to pay the same additional dealer fee – cannot be used to protect the state’s interests."  

A good idea. The more restrictions on dog dealers, in state or out-of -state, the better. As long as the Commonwealth limits it to "dealers" and not rescues and shelters simply trying to find homes for abandoned animals.