United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiffs have filed a motion seeking a temporary restraining order and a preliminary injunction. Doc. 11. The motion is fully briefed and the Court held a hearing on March 27, 2014. For the reasons set forth below, the Court will grant the motion and enter a preliminary injunction.
Plaintiffs Puppies N Love and its owners Frank and Vicki Mineo instituted this action on January 14, 2014. Plaintiffs challenge the constitutionality of Ordinance No. G-5973 ("the Ordinance"), which the City of Phoenix adopted at a City Council meeting on December 18, 2013. The Ordinance went into effect on January 17, 2014. Under the Ordinance, Phoenix pet shops can sell only dogs purchased from an animal shelter, a nonprofit humane society, or a nonprofit animal rescue organization. The Ordinance prohibits pet shops from selling puppies purchased from any breeder. Violation of the Ordinance is a criminal offense. The stated purpose of the Ordinance is to "target retail outlets that drive the wholesale production of dogs in inhumane puppy mills, ' while also combating pet overpopulation and protecting consumers from the emotional and financial hardships caused by unwitting purchases of a puppy mill puppy from a pet shop." Doc. 27 at 2. "Puppy mills" are inhumane dog breeding facilities where overcrowding, poor sanitation, and inadequate veterinary care are rampant. "The irresponsible breeding practices endemic to puppy mills... result in a host of hereditary and congenital diseases common to puppy mill puppies." Id.
Plaintiffs assert that they buy pure and specialty-breed puppies and sell them to individual consumers in their stores. They assert that such puppies are not available for them to purchase in sufficient numbers from shelters, humane societies, and animal rescue organizations, making their business model nonviable under the Ordinance. Plaintiffs claim that the Ordinance thus presents them with a Hobson's choice: either continue operating their business and incur criminal liability, or go out of business.
II. Legal Standard.
In order to obtain a preliminary injunction, Plaintiffs must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit continues to analyze the four elements using a "sliding scale" approach, in which "the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Should the moving party demonstrate a very high likelihood of injury, the likelihood of success on the merits may be relaxed. An injunction may be granted when serious questions going to the merits are raised and the balance of hardships tips sharply in the plaintiff's favor. Wild Rockies, 632 F.3d at 1135.
Defendant City of Phoenix ("the City") argues that Plaintiffs' complaint does not present a justiciable issue because the questions presented are not ripe for review. Doc. 26 at 2. The City argues that because Plaintiffs have not received any letters, calls, or visits from City authorities threatening them with prosecution, Plaintiffs have "jumped forward into litigation on the speculation of future prosecution." Id. at 3-4.
Ripeness is a question of timing designed to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The role of Article III courts is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent with the powers granted the judiciary in Article III of the Constitution. See U.S. Const. art. III. To determine whether the ripeness requirement is satisfied, the Court must consider whether Plaintiffs face "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement, " or whether the alleged injury is too "imaginary" or "speculative" to support jurisdiction. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).
The difference between an unripe, abstract question and a "case or controversy" is "one of degree... and is not discernible by any precise test." Id. at 297. Neither the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the ripeness requirement. See San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996). "When contesting the constitutionality of a criminal statute, it is not necessary[, however, ] that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights." Babbitt, 442 U.S. at 298 (internal quotation marks and citation omitted). "When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Id.
The Ninth Circuit looks to three factors in making this determination: (1) whether the plaintiffs have articulated a "concrete plan" to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, or whether there is at least a credible threat of prosecution, and (3) the history of past prosecution or enforcement under the challenged statute. Reno, 98 F.3d at 1126-28. Considering these factors, the Court finds that Plaintiffs' complaint presents ripe questions for review.
First, Plaintiffs have a "concrete plan" to violate the Ordinance. Their entire business - selling puppies from USDA-licensed Class A breeders and hobby breeders - has been made unlawful by the Ordinance. Doc. 34 at 4. The conduct criminalized by the Ordinance is not conduct in ...