Full Title Name:  Detailed Legal Discussion of the Licensing and Regulation of Pet Shops (U.K.)

Introduction

The Pet Animals Act 1951 establishes a regime of regulation of “pet shops” under which pet shops are licensed by local authorities. Local authority environmental health departments inspect pet shop premises and are responsible for prosecuting violations of the Act. Section 1 makes it an offence to “keep a pet shop except under the authority of a license granted in accordance with the provisions of [the] Act”.

There have been few prosecutions under the Act since local authorities generally resolve issues by discussion with pet shop proprietors. Very few cases have gone further than the magistrates’ courts and there are therefore very few reported cases interpreting the Act.

The main area of controversy that currently arises for animal welfare groups and local authorities is what constitutes a “pet shop” for the purposes of the Act. Anecdotal evidence suggests that local authorities have been divided on how to apply the Act to temporary events involving a number of different animal sellers, such as exotic animal fairs and bird auctions. Such events typically take the form of one-day exotic animal fairs held in leisure centers and other large facilities at which a number of exotic animal breeders and dealers display and sell animals to the public. It will be argued below that a close reading of the Act suggests that these events are completely prohibited.

1. What kinds of animals are protected by the Act?

The Act applies to pet animals. It therefore established a regime designed to benefit the welfare of animals on the basis of the purpose for which they are sold or kept. The keeping of a chicken on a premises with a view to selling it to a family as a “pet” would therefore require a license under the Act, whereas presumably no pet shop license would be required if the chicken was kept with a view to its sale as a source of eggs.

Section 7(3) defines “animal” as including “any description of vertebrate” and therefore, unlike much other English animal welfare legislation, covers a very wide range of sentient creatures including mammals, birds, fish and reptiles. The word “pet” is not defined, [1] but, in the case of cats and dogs, the Act relates to those sold or kept “wholly or mainly for domestic purposes”. [2] Working dogs are therefore presumably excluded. The Act specifically includes animals sold or kept “for ornamental purposes”. [3]

2. What kind of establishments are covered by the Act?

Section 7 does not restrict the definition of “pet shop” to establishments visited by prospective purchasers:

(1) References in this Act to the keeping of a pet shop shall, subject to the following provisions... be constructed as references to the carrying on at premises of any nature (including a private dwelling) of a business of selling animals as pets, and as including references to the keeping of animals in any such premises as aforesaid with a view to their being sold in the course of such a business, whether by the keeper thereof or by any other person.

As stated at the outset of this discussion, one of the main areas of controversy over the interpretation of the Act has been as to how it applies to temporary events, such as exotic animal fairs held in large facilities involving a number of different animal vendors. These events, which are often organized by exotic animal or bird societies, usually take place in public facilities, such as leisure centers, that have been hired for a day or weekend. Exotic animal enthusiasts pay fees to the organizers for being able to set up stalls at such events from which many then sell exotic birds or reptiles. While many sellers will be selling animals that they have bred themselves or are surplus to their collections, other stallholders are dealers who sell animals that have been imported or bought from other breeders.

Organizations such as Animal Aid, [4] the Captive Animals Protection Society [5] and the RSPCA [6] have expressed concern about the conditions in which the animals at such events are transported and displayed. Such conditions are likely to be lower than those that prevail at permanent pet shops that are licensed and inspected by the local council. This may pose risks, not only to the welfare of the animals sold, but also to public health, given that exotic birds and animals may transmit diseases to the children who compose a considerable proportion of the visitors to such fairs and who are often keen to touch the animals. Animal welfare campaigners also fear that the fairs encourage impulse purchases of exotic pets. Although some sales will be made to existing enthusiasts, many sales are also made to families who visit the fairs simply as an exciting day out. Impulse purchasers are unlikely to have considered the needs of the exotic pet that they have bought.

The Pet Animals Act envisages the annual grant of licenses to “premises” and does not make express provision for licenses for occasional events. The difficulties for local authorities in regulating such events are often not made any easier by the fact that the local authority is frequently the owner of the premises in which the event is taking place.

To the dismay of groups concerned for the welfare of animals sold at such fairs, some local authorities have dealt with the problem by issuing licenses to the organizers of such events, purportedly to permit the selling of animals by all the vendors taking part in them. Other local authorities have been reluctant to require that organizers of temporary markets for exotic animals obtain licenses, claiming that the selling of animals at temporary locations is not covered by the Act. Such a stance ignores the clear wording of section 7(1). The selling of animals as pets “at premises of any nature” requires a pet shop license. As will be argued below, however, in the case of events involving more than one seller, no licenses should be granted because such markets are completely prohibited by section 2, which prohibits the sale of pet animals from market stalls and in public places.

Temporary events involving the sale of animals as pets which are not prohibited by section 2, such as those that are not held in a “public place” [see discussion below] and involve only one vendor, should be regarded as requiring pet shop licenses.

It appears from the broad terms of section 7(1) that premises that merely hold animals that are in the pet supply chain may require a pet shop license. In Chalmers v. Diwell , Queen’s Bench Division, 74 LGR 173, 8 October 1975, it was held that a premises where birds were held prior to export to overseas purchasers did require a license. The birds usually stayed on the premises for less than 48 hours but, on occasion, birds had remained on the premises for up to 12 days. The premises were effectively no more than a holding center. Nevertheless, the defendant was held to be keeping a pet shop. Giving judgment for the Court, Lawton J. attached no weight to the fact that purchasers did not visit the defendant’s premises. It was sufficient that the defendant was

in fact carrying on a business of selling animals [as] pets. He [was] in fact keeping those pets on the premises for the purposes of his business, even though it [was] for a limited time.

It should be borne in mind that the defendant in that case appears to have supplied the birds directly to the final purchaser (i.e. the party who would keep the bird as a pet). It is therefore unclear whether premises that hold animals that are in the pet trade supply chain but are en route to a party other than the final purchaser are covered by the Act. One considers the example of a warehouse that holds imported animals that are to be sold on to another distributor who will in turn supply the High Street pet shops who will sell the animals to their final purchasers. It would be possible to argue that the warehouse was not a “pet shop” for the purposes of the Act because the immediate customers would not keep the animals “as pets” and that, therefore, the animals were not sold “as pets”. The counter-argument is that, since the animals are within the pet trade and destined to become pets, they are being sold “as pets”. This appears to be the better view given that section 7 expressly includes the keeping of animals on the premises “with a view to their being sold in the course of” the business of selling animals as pets.

This illustrates that the Act does not simply regulate pet shops that deal directly with the public, thereby protecting the public from conditions that pose a health hazard or from having to see animals kept in conditions that might cause some customers concern. The Act offers protection to animals destined to become pets at any premises in which they are kept from the time they leave the breeder to the time they are received by the ultimate customer.

The Act even appears to cover the premises of some breeders. Section 7(1) specifically excludes breeders of pedigree animals who do no more than sell the offspring of animals they keep, and sellers of the offspring of their own pets, from the remit of the Act. Local authorities also have a discretion to direct that breeders of pedigree animals who sell animals found to be unsuitable for breeding or show purposes not be regarded as keeping a pet shop (and therefore not require a licence). It appears, therefore, that commercial breeders of non-pedigree animals destined for the pet trade must obtain pet shop licences for their premises. It would be interesting to know how many such breeders and, indeed, local authorities realize that this may be the case.

3. The regulatory regime

Section 1 makes it an offence to keep a pet shop “except under the authority of a licence granted in accordance with the provisions of [the] Act.” Local authorities are responsible for granting licenses, for which they may charge a fee, in respect of “premises” in their areas. The section lists five non-exclusive considerations for the local authority to take into account when deciding whether to grant a licence. These are expressed as “the need for securing” that animals are:

a)      kept in suitable accommodation,

b)      supplied with food and water and visited at suitable intervals,

c)      that mammals are not sold at too early an age,

d)      that reasonable precautions will be taken to prevent the spread of infectious diseases, and

e)      that appropriate steps will be taken in case of fire or other emergency.

The local authority “shall specify such conditions in the licence … as appear to the local authority necessary or expedient in the particular case for securing” those five objectives. Subsection (7) states that both the keeping of a pet shop without a license, or the failure to comply with a condition of a license, constitutes a criminal offence. [7]

4. Breeders

Although the regulatory regime established by the Pet Animals Act covers both the carrying on at any premises of the business of selling animals as pets and the keeping of animals with a view to their being sold in the course of such a business, there is an exception for (i) breeders of pedigree animals and (ii) other persons selling the offspring of their own animals. Section 7(1)(a) states:

a person shall not be deemed to keep a pet shop by reason only of his keeping or selling pedigree animals bred by him, or the offspring of an animal kept by him as a pet.

Thus, a person who keeps pedigree animals, whether or not as pets, who sells the pedigree offspring of those animals as pets, is unaffected by the Act. Furthermore, a person who sells the offspring of his or her own pets, whether pedigree or otherwise, does not require a pet shop license even if the person doing so can be said to be carrying out a business.

The intention of the Act is clearly to exclude breeders from having to obtain pet shop licenses. In recognition of the fact that breeders may well obtain surplus breeding animals which the breeder wishes to sell as pets, section 7(1)(b) states that

where a person carries on a business of selling animals as pets in conjunction with a business of breeding pedigree animals, and the local authority are satisfied that the animals so sold by him (in so far as they are not pedigree animals bred by him) are animals which were acquired by him with a view to being used, if suitable, for breeding or show purposes but have subsequently been found by him not to be suitable or required for such use, the local authority may if they think fit direct that the said person shall not be deemed to keep a pet shop by reason only of his carrying on the first-mentioned business.

Although breeders are not covered by the Pet Animals Act, a regime of licensing for dog breeding establishments is provided for by the Breeding of Dogs Act 1973 , as significantly amended by the Breeding and Sale of Dogs (Welfare) Act 1999 . Section 8(1) of the 1999 Act supports the regulatory regime for pet shops established by the Pet Animals Act by providing that the keeper of a licensed dog breeding establishment is guilty of an offence if he:

(a)    sells a dog otherwise than at a licensed breeding establishment, a licensed pet shop, or a Scottish rearing establishment, or

(b)   sells a dog otherwise than to the keeper of a licensed pet shop or a licensed Scottish rearing establishment knowing or believing that the person who buys it intends that it should be sold (by him or any other person).

The effect of these provisions is that dogs from licensed breeding establishments may only be sold at a licensed breeding establishment or a licensed pet shops, and never from unlicensed premises.

Clearly, a private individual who sells his own pet does not require a pet shop license because that individual is not carrying on a “business”. Although the word “business” is not defined by the Act, it is submitted that such a private individual is not carrying on a business by selling his pet because his overall objective is not to make a profit.

5. Prohibition of selling animals on the streets and at markets

Section 2 makes it an offence to carry on “a business of selling animals as pets in any part of a street or public place, or at a stall or barrow in a market”. This section was amended in 1983 [8] to ban the selling of animals at market stalls. The amendment came as a result of public concern about poor animal welfare at a notorious open-air pet market in London. As noted above, it remains unclear whether indoor temporary pet markets, such as one-day exotic animal fairs held in leisure centers at which a number of exotic animal breeders and dealers have stalls from which they sell animals, are prohibited by this section. There is also uncertainty as to whether outdoor or indoor temporary pet markets held in racecourses, leisure centers, private land, schools or car parks constitute either the selling of pet animals in a “public place” or “at a stall or barrow in a market” and are therefore also prohibited. This matter has been a subject of considerable dispute between certain local authorities and animal welfare campaigners, though it has not yet been settled by the higher courts.

On the plain wording of the section, it would appear that such temporary events are indeed prohibited. If they are held in a place to which the public has access then they are prohibited by section 2 because it makes it an offence to sell animals in a “public place”. The phrase “public place” is not defined in the Act, but the phrase is generally defined in regulatory legislation as “[a]ny place to which the public have access whether on payment or otherwise”. [9] Such a definition appears capable of embracing leisure centers, racecourses, school playing fields, concourses in shopping malls, and car parks. The Act appears to draw a distinction between “premises” (which may be licensed) and “public place[s]” (from which the sale of animals constitutes an offence).

Even if the event is not held in a public place, it is submitted that the event is nonetheless illegal under section 2 because each trader will commit the offence of selling animals at a market stall. The word “market” is not defined in the Act, but the word is not qualified by the word “outdoor” and the common law definition and ordinary meaning of “a market” is a concourse of buyers and sellers.

Thus, local authorities will be acting ultra vires the Act if they license the event as a whole or any stallholder. Local councils’ responsibilities in such cases are to refuse to license such events and to take enforcement action against traders who sell animals at such events. This is certainly the view of the Chartered Institute of Environmental Health expressed in guidance circulated to local authorities [see summary of guidance] . Where a license has been issued, it is submitted that it should be regarded as a nullity and therefore incapable of authorizing the sale of animals in circumstances which fall within the scope of the offence detailed in section 2.

This interpretation of section 2 has been supported by the decision of Torbay Magistrates’ Court in Rogers v. Teignbridge District Council . [10] This was an appeal by the organizer of an event called “The Creepy Crawly Show” against the refusal of a local authority to issue a pet shop license for the event. The event was to be an entomological and herpetological show at which living creatures would be displayed and sold. Of the probable thirty exhibitors that were due to attend the event, seven were sellers of vertebrates (and would therefore be selling “animals” within the meaning of the Act). The appellant contended that the event was not a “market” for the purposes of the Act because Parliamentary debates from when the Pet Animals (Amendment) Act 1983 was passed (which amended section 2 of the 1951 Act so as to prohibit the selling of pets at market stalls) showed that the evil which Parliament intended to stop was the selling of pet animals at street markets. [11]

The Court rejected the appellant’s arguments and found that the event as planned would involve the commission of offences under section 2 both because, adopting the general definition of “a market” as “a concourse of buyers and sellers”, the event would be a market. Furthermore, it would also involve the selling of animals in a “public place” (the event was to be held in a building that was part of a racecourse). Significantly for parties wishing to persuade local authorities not to issue licenses for similar events, the Court concluded that “it would be unlawful for the local authority … to grant” the event a pet shop license.

A similar result was reached by another magistrates’ court in Rapa Limited v. Trafford Borough Council . [12] The court found that the sale of ‘aquababies’ (small cubes containing water and live fish) from a barrow-like stall in a thoroughfare of a large indoor shopping mall amounted to the selling of animals in a “public place” and was therefore prohibited by section 2.

Organizers of exotic animal fairs and bird auctions have sought to circumvent section 2 by holding “members only” events and selling memberships on the door. Clearly, where admission to an event is genuinely restricted to members of a private club, the event is not held in a place to which the public has access and does not, therefore, involve the sale of pets in a “public place” contrary to section 2. No court has yet been faced with a case where a ‘membership fee’ is charged at the door which is no greater than one would expect an admission fee to be. The Chartered Institute of Environmental Health has advised local authorities that they should ensure that genuine membership fees are charged and that membership sales on the door are not used as a clever rouse for public fairs charging modest admission fees. The Institute’s guidance suggests that local authorities should establish that the organization responsible for the show is a bona fide club, members of the public cannot gain admittance without membership, admittance by joining the club “on the door” is on payment of a reasonable membership fee (a guide figure of at least £10 - £12 has been suggested), and that there are clear benefits of club membership identified in the membership documentation. [See summary of guidance]

It is submitted that, even if admission to the event is genuinely restricted to members, it will still be prohibited by section 2 if it involves a number of stallholders selling pet animals because this will constitute the selling of animals from a stall in a market. Where this is not the situation, if pet animals are being sold, the sellers will be committing an offence under section 1 unless the venue has been licensed as a pet shop.

6. Prohibition on selling pets to children under 12

Section 3 makes it an offence to sell a pet “to a person whom he has reasonable cause to believe to be under the age of twelve years”. This may be a difficult offence to prove unless the minor purchaser was obviously below the age of 12. Parliament has not as yet chosen to follow the path it has taken with respect to the ban on the sale of tobacco to persons under the age of 16 by making the offence one of strict liability so that the belief of the shopkeeper as to the age of the customer is irrelevant. [13] That is a disparity that is quite apart from the criticism many people would make of legislation that regards a child aged 15 as too young to decide whether to smoke tobacco but views a child of 12 as capable of assuming the responsibilities of pet ownership.

This standard falls below that set out in the Council of Europe’s Convention on Pet Animals , which sets out a minimum age of 16. [14] The United Kingdom is not yet a party to the Convention.

7. Enforcement

Local authorities in the form of district and borough councils are responsible for the enforcement of the Act, and most have a co-operative relationship with pet shop proprietors. Suspected violations of the Act should therefore be reported to the local borough or district council’s environmental health department. The enforcement of the Pet Animals Act and the licensing of pet shops is one of a number of inspection and enforcement functions that environmental health departments carry out. Others include the licensing and inspection of dog breeding establishments, kennels and catteries, zoos, riding schools, skin-piercing establishments and restaurants, as well as the enforcement of health and safety at work legislation and the restrictions on shops trading on Sundays.

Section 4 gives local authorities powers to “authorise in writing any of its officers or any veterinary surgeon or veterinary practitioner” to enter any premises licensed as a pet shop at all reasonable times to inspect them and ascertain whether any offences under the Act are being committed. It should be noted that the section does not authorize local authority officers to enter un licensed premises to determine whether the offence of keeping a pet shop without a license is being committed. Nor does section 4 permit the authorization of RSPCA inspectors unless they are “veterinary surgeons or veterinary practitioners”. These limitations pose some problems of effective enforcement for local authorities who, under section 6, are responsible for prosecuting proceedings for any offence under the Act.

It appears that it would be illegal for a local authority to adopt a blanket policy of not enforcing the Act against certain violations that they deemed unimportant, such as exotic animal and koi fairs. Nevertheless, local authorities may exercise their discretion not to pursue prosecutions so as to make the best use of their limited resources. (Regina v. Kirklees Metropolitan Borough Council, ex parte Tesco Stores Limited, Queen’s Bench Division, 27 July 1993.)

Footnotes:

[1] The Council of Europe’s European Convention for the Protection of Pet Animals (1987), to which the UK is not a party, defines “pet animal” as “any animal kept or intended to be kept by man in particular in his household for private enjoyment and companion­ship” (Article 1(1)).

[2] Pet Animals Act 1951 , section 7(2)(a).

[3] Pet Animals Act 1951 , section 7(2)(b).

[4] Website: http://www.animalaid.org.uk

[5] Website: http://www.captiveanimals.org

[6] The Royal Society for the Prevention of Cruelty to Animals is the world’s oldest animal welfare organization. It is a registered charity and maintains a nationwide network of inspectors who, despite not having any legal powers above those of an ordinary citizen, investigate allegations of cruelty to animals. RSPCA inspectors usually make a point of visiting temporary animal fairs that come to their attention to ensure that animal welfare legislation is being observed. Website: http://www.rspca.org.uk

[7] For an example of the kind of standard conditions imposed by local authorities on pet shop license holders, see those of Oxford City Council ( http://www.visitoxford.org/.../3040dea781fd1b9d80256ad800582fbe/$FILE/conditions_Pet%20Shop%20Licence.PDF ). See also, Local Goverment Association et al, The Pet Animals Act 1951: Model Standards for Pet Shop Licence Conditions (1998), price £10 (available from http://www.lga.gov.uk ).

[8] Pet Animals (Amendment) Act 1983, section 1.

[9] Licensing Act 1902. Other examples of the use of the same or similar definition: Indecent Displays (Control) Act 1981; Environmental Protection Act 1990, Part VIII, s.149 (11); Dangerous Dogs Act 1991, s.10 (2).

[10] 7 November 2000, Torbay Magistrates’ Court (unreported). Decisions of magistrates’ courts have no binding authority as precedents but are often given considerable weight as persuasive authority by other magistrates’ courts and by local authorities. A similar result was reached in the Scottish case, WHITE v. KILMARNOCK AND LOUDEN DISTRICT COUNCIL, 1991 S.L.T. (Sh. Ct.) 69. Held that a proposed unit in a marketplace from which pets would be sold had none of the characteristics that would enable it to comply with Shops legislation and could not be regarded as anything other than a stall in a market, from which it was an offence to sell animals. Although this is a Scottish case, it may also be taken into account as a persuasive authority by courts in England and Wales.

[11] The information contained in this paragraph is not available in any formal document and has been gathered from sources involved in the case.

[12] 18 June 2002, Trafford Metropolitan Magistrates’ Court (unreported).

[13] Children and Young Persons Act 1933, s. 7 (as amended by the Children and Young Persons (Protection from Tobacco) Act 1991, s. 1). A statutory defence is provided for a seller who proves “that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.”

[14] European Convention for the Protection of Pet Animals (Council of Europe, 1987): “No pet animal shall be sold to persons under the age of sixteen without the express consent of their parents or other persons exercising parental responsibilities” (Art. VI).