You have requested my official opinion regarding the validity of the provisions of the City of Canton Code of Ordinances, Chapter 18, Article XIV, which prohibit the sale and restrict the handling of pet adoptions of dogs and cats by retail pet shops under certain circumstances.[1]  Essentially, your questions are as follows: (1) whether the provisions of the ordinance conflict with the Georgia Animal Protection Act, O.C.G.A. §§ 4‑11‑1 through 4‑11‑18 (the Act); (2) whether Georgia law authorizes local governing authorities to ban the sale of dogs and cats or restrict the handling of pet adoptions by retail pet stores that have not violated local zoning requirements, or Georgia laws and regulations; and (3) whether the provisions of the ordinance that prohibit the sale of dogs and cats or restrict the handling of adoptions is preempted by the Act.  For the reasons that follow, my opinion is that the provisions of Chapter 18, Article XIV of the Canton City Code that prohibit the sale and limit the handling of adoptions of dogs and cats conflict with and are preempted by the Act.  This conclusion applies only to Sections 18‑354, 18‑355, and 18‑356 of the Canton Ordinances which conflict with the Act and does not apply to any other provisions of the ordinance.

 

The sale and disposition of pets in Georgia is comprehensively regulated by the Georgia Department of Agriculture under the Georgia Animal Protection Act, supra, and the Rules for Animal Protection, Ga. Comp. R. & Regs. 40‑13‑13‑.01 through .09 (the Rules).  The Act provides comprehensive health, safety and welfare protections for dogs, cats, and other animals sold through pet dealers or dealerships, makes it unlawful for any person licensed under the Act or their employees to treat animals cruelly, and gives the Commissioner of Agriculture (the Commissioner) broad implementation authority, including the authority to promulgate rules and regulations.  O.C.G.A. § 4‑11‑14.  The Act is a law of general application and applicable throughout the State.

 

Under the Act, the terms “pet dealer” and “pet dealership” include persons who sell, offer to sell, exchange, or offer for adoption dogs, cats, birds, fish, reptiles, or other animals with specific exceptions.[2]  O.C.G.A. § 4‑11‑2(7); Ga. Comp. R. & Regs. 40‑13‑13‑.01(25).  To operate lawfully, pet dealers and dealerships must obtain a valid license from the Commissioner and maintain their premises in both a good state of repair and clean and sanitary condition.  O.C.G.A. § 4‑11‑3; Ga. Comp. R. & Regs. 40‑13‑13‑.02 and ‑.04.  Pet dealers and dealerships must also provide humane and adequate care for dogs and cats and may only release animals for sale, trade or adoption if they appear to be free of disease, injuries, or abnormalities.  O.C.G. A. § 4‑11‑10; Ga. Comp. R. & Regs. 40‑13‑13‑.04(j).  The Act also makes it illegal to ship certain animals, including dogs and cats, into Georgia for the purpose of resale unless the animal is accompanied by a required health certificate.  O.C.G.A. § 4-11-11; Ga. Comp. R. & Regs. 40‑13‑13‑.06(1, 2).

 

In addition to providing for comprehensive regulation of pet dealers and pet dealerships, the Act empowers the Commissioner to enforce its terms.  O.C.G.A. § 4‑11‑15; Ga. Comp. R. & Regs. 40‑13‑13‑.09.  The Commissioner or his designated agents are authorized to inspect the business premises of pet dealers and dealerships, O.C.G.A. § 4‑11‑9 and Ga. Comp. R. & Regs. 40‑13‑13‑.03, and to issue and enforce cease and desist orders regarding the sale, use, or movement of animals that have been infected with or exposed to any contagious or infectious disease or when certain circumstances exist (e.g., where the animal is in the custody of a person without a valid license, or is otherwise being held in violation of the Act).  O.C.G.A. § 4‑11‑9.1(b); Ga. Comp. R. & Regs. 40‑13‑13‑.05(2).  It also confers authority upon the Commissioner to deny, suspend, or revoke licenses and to seek injunctive relief. O.C.G.A. § 4‑11‑7 and O.C.G.A. § 4‑11‑15;Ga. Comp. R. & Regs. 40‑13‑13‑.09.  When appropriate, the Commissioner may quarantine animals, premises and other locations to control, suppress, prevent, and eradicate animal diseases as detailed in O.C.G.A. § 4-11-9.1(a); Ga. Comp. R. & Regs. 40‑13‑13‑.05(1).

 

“State statutes generally control over local ordinances on the same subject.” Gebrekidan v. City of Clarkston, 298 Ga. 651, 653 (2016); see also Franklin Cty. v. Fieldale Farms Corp., 270 Ga. 272, 273-75 (1998).  This doctrine, known as preemption is based in the Georgia Constitution’s Uniformity Clause which provides:

 

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

 

Ga. Const., Art. III, Sec. VI, Par. IV(a).

 

Under the Uniformity Clause, local ordinances on the same subject as a general law may be preempted either expressly or by implication.  Gebrekidan v. City of Clarkston, supra.

 

In express preemption, the statutory text speaks to the need for statewide uniformity on the subject in question or to the lack of local authority to regulate the subject of the general law. In implied preemption, the intent of the General Assembly to preempt local regulation on the same subject as the general law is inferred from the comprehensive nature of the statutory scheme.

 

Id. at 653-54 (footnotes omitted).  Here, the ordinance covers the same subject area as the Act.  While the Act does not expressly preempt local ordinances, it is comprehensive in nature such that preemption is implied.  However, the Act expressly provides at O.C.G.A. § 4‑11‑18 for “the enactment and enforcement of local ordinances by a municipal authority on this subject which are not in conflict with this article[.]”  Thus, the key question at issue here is whether the ordinance conflicts with the Act.  See also, e.g., 2014 Op. Att’y Gen. 2014‑1 (City historic preservation ordinance preempted by state law), 2009 Op. Att’y Gen. U2009‑1 (City air quality ordinance preempted by state law); 2004 Op. Att’y Gen. 2004‑10 (County ordinance changing the distribution of criminal fines preempted by state law); 1998 Op. Att’y Gen. U98‑6 (Proposed consolidated government ordinance on gun storage preempted by state law); 1995 Op. Att’y Gen. 95‑7 (Local government requirements for insurance by licensed contractors preempted by state law.)

 

Article XIV of the ordinance entitled “Pet Shops” falls under Chapter 18 of the Canton City Code, dealing with “Businesses and Business Regulations” and contains provisions which define terms; prohibits the retail sale of dogs and cats; limits the adoption of dogs and cats; and requires certain record keeping and public disclosures by pet shops which conflict with the Act.  First, Section 18‑354 defines “pet shop” as “a retail establishment where dogs and cats are sold, exchanged, bartered or offered for sale as pet animals to the general public at retail.  Such definition shall not include an animal care facility or animal rescue organization…”  (Emphasis added).  The Act’s definitions of “pet dealer” and “pet dealership” do not include this exclusion.  O.C.G.A. § 4‑11‑2(7).  To the extent this provision excuses animal care facilities and rescue organizations from complying with the Act and the Rules or is the basis of interference with the operation of pet shops as defined in the Act, it conflicts with the Act.

 

Second, Section 18‑355 prohibits pet shops from selling, bartering, auctioning, or otherwise disposing of dogs and cats, except that a pet shop may offer dogs and cats for adoption if they are obtained from or in cooperation with an “animal care facility” or “animal rescue organization” as defined in Section 18‑354.  This paragraph conflicts with the Act because the Act does not limit pet sales in this manner.  O.C.G.A. §§ 4‑11‑2(7), 4‑11‑3.

 

Third, Section 18‑356 sets forth various record keeping and disclosure requirements for pet shops, which focus on tracking and disclosing to the public the source of dogs and cats acquired by pet shops.  The Act does not include these requirements.  Accordingly, this provision conflicts with the Act because it imposes additional requirements and interferes with pet dealers’ ability to operate even when doing so in compliance with the Act.  The combined effect of these provisions substantially restricts the conditions under which pet dealers and pet dealerships may do business as compared to the latitude they are afforded under the Act.  Accordingly, these provisions conflict with the Act.

 

In the enactment of a general law, the legislature may make provisions permitting local governments to adopt standards different from, or even stricter than, the provisions of the general act.  See, e.g., The Erosion and Sedimentation Act of 1975, O.C.G.A. § 12‑7‑6(c) (“Nothing contained in this chapter shall prevent any local issuing authority from adopting rules and regulations, ordinances, or resolutions which contain stream buffer requirements that exceed the minimum requirements in subsection (b) of this Code section.”); O.C.G.A. § 43‑14‑12(c) (“No provision of this chapter shall be construed as prohibiting or preventing a municipality or county from fixing, charging, assessing, or collecting any license fee, registration fee, tax, or gross receipt tax on any related business or on anyone engaged in any related business governed by this chapter.”)  However, here neither the Georgia Animal Protection Act nor any other provision of State law allows local governments to impose restrictions on the sale or disposition of cats and dogs that are stricter than the Act or to otherwise impose burdens not authorized by the Act.[3]

 

Thus, to the extent the City of Canton ordinance interferes with the sale or disposition of dogs and cats in ways not authorized by the Act, it is preempted by the Act and not valid.  Given the above and foregoing, it is my official opinion that the City of Canton’s restrictions on the sale or disposition of dogs and cats that interfere with the operation of pet shops, as defined in the Act, conflict with and are preempted by the Georgia Animal Protection Act and the companion Rules.

 

Prepared by:

 

Katherine L. Iannuzzi

Assistant Attorney General

 

 

APPENDIX

 

ARTICLE XIV. - PET SHOPS

 

·  Sec. 18-354. - Definitions.

·  As used in this article, the term:

Animal care facility means an animal control center or animal shelter, maintained by or under contract with any state, county or municipality, whose mission and practice is, in whole, or in significant part, the rescue and placement of animals in permanent homes or rescue organizations.

Animal rescue organization means any not for profit organization which has tax exempt status under Section 501(c)(3) of the United States Internal Revenue Code, whose mission and practice is, in whole or in significant part, the rescue and placement of animals in permanent homes.

Cat means a member of the species of domestic cat, Felis catus.

Dog means a member of the species of domestic dog, Canis familiaris.

Pet shop means a retail establishment where dogs and cats are sold, exchanged, bartered or offered for sale as pet animals to the general public at retail. Such definition shall not include an animal care facility or animal rescue organization, as defined.

(Ord. No. 2017-02, § 1, 3-16-2017)

 

·  Sec. 18-355. - Restrictions on the sale of animals.

·  (a) A pet shop may not sell, deliver, offer for sale, barter, auction, or otherwise dispose of dogs or cats, but may offer for adoption only those dogs and cats that the pet shop has obtained from or displays in cooperation with:

(1) An animal care facility; or

(2) An animal rescue organization.

(b) A pet shop shall not offer for adoption a dog or cat that is younger than eight weeks old.

(Ord. No. 2017-02, § 1, 3-16-2017)

 

·  Sec. 18-356. - Recordkeeping and disclosures.

(a) A pet shop shall maintain records sufficient to document the source of each dog or cat the pet shop acquires, for at least one year following the date of acquisition. Such records shall be made available immediately upon request by the city manager, the chief of police, or any authorized designee of these city officials.

(b) A pet shop that offers space for the adoption of dogs or cats shall post, in a conspicuous location on the cage or enclosure of each such animal, a sign listing the name of the animal care facility or animal rescue organization from which the pet shop acquired each dog or cat.

(c) Each dog or cat offered for adoption in violation of this section shall constitute a separate offense. Each recordkeeping violation under this section regarding a particular dog or cat shall constitute a separate offense. Each failure to post a sign as required by this section regarding a particular dog or cat shall constitute a separate offense.

(Ord. No. 2017-02, § 1, 3-16-2017)

 

 

[1] A copy of the City of Canton Ordinance is appended to this opinion.

 

[2] A person who sells only animals that he or she has produced and raised, not to exceed 30 animals per year, is not designated as a pet dealer unless that person is licensed for a business by a local government or has a Georgia sales tax number nor is a veterinary hospital or clinic operated by a licensed veterinarian designated as a pet dealership.   O.C.G.A. § 4‑11‑2(7); see also Ga. Comp. R. & Regs. 40‑13‑13‑.01(25).

[3] In reaching this conclusion, I note that this does not apply to local zoning laws which may impact the location of pet shops where local governments are specifically empowered “to exercise zoning power within their respective territorial boundaries . . .”  See O.C.G.A. § 36‑66‑2(a).