February 22, 2024

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Cowley Co. couple in property rights showdown with State of Kansas

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A Cowley County bird dog trainer and handler has filed a property rights suit against Kansas Animal Health Commissioner Justin Smith, D. V. M., in his capacity as Animal Health Commissioner with the state Department of Agriculture, citing the state’s unconstitutional licensing and warrantless searches of private property.

Scott Johnson and his wife, Harlene Hoyt, operate Covey Find Kennel. Johnson is an award-winning and well-respected dog trainer and President of the Southern Kansas Brittany Club.   He is represented by Kansas Justice Institute, a pro bono public-interest litigation center that protects constitutional rights.

Johnson started his business decades ago to pursue a life-long career in training bird dogs. Around 1999, Johnson was told by state officials he was required to buy a “training kennel license.” Although operating without one for years, he had no other option, so he purchased the license.

The license, renewable yearly, at a current cost of $200, contained an ominous provision:

“I understand that Kansas law permits that a licensee may have routine inspections and may be inspected upon complaint. I consent to the inspections by the Kansas Department of Agriculture. I understand inspections may be conducted outside my preferred hours Monday to Friday 7am to 7pm. I understand that any willful disregard of any provision of the Kansas Pet Animal Act or any regulations adopted thereunder may subject the licensee to suspension or revocation of the license and/or fine of up to $1,000 per violation and/or criminal penalties.”

The Kansas Pet Animal Act requires licensees to allow government officials to:

  • Enter the licensee’s place of business.
  • Examine records required to be kept.
  • Make copies of records.
  • Inspect the premises and animals as the commissioner or the commissioner’s representatives consider necessary to enforce the provisions of the act and this article of the department’s regulations.
  • Document, by the taking of photographs and other means, any conditions and areas of noncompliance.
  • Use a room, table, or other facilities necessary for the examination of the records and inspection.

Basically, the government mandates the purchase of a license, and as a condition of approval of that license, the business owner consents to warrantless searches and forfeits property rights violations of the Fourth and Fifth Amendments to the U.S. Constitution.

In addition, notice is no longer required to be given of impending inspections by officials. If the property owner or their “designated representative” is not at the property within 30 minutes of the arrival of the inspector, a $200 “no contact” fee is assessed to the business owner. Additionally, they can expect another “surprise” warrantless search and another $200 fine if the 30-minute deadline is not met. This issue is particularly burdensome for Ms. Hoyt, a clinic manager at a nearby hospital, who is required to leave work to meet inspectors if Johnson cannot meet the 30-minute deadline.

Refusing warrantless entry and searches constitutes grounds for license suspension or revocation.

The Plaintiff’s case is summarized in the Complaint:

“….the licensing and warrantless regime 1) authorizes and implements an unconstitutional and unreasonable warrantless search regime in violation of the Fourth Amendment; 2) forces law-abiding Kansans to waive their constitutional rights in exchange for a government-mandated license, in violation of the unconstitutional conditions doctrine; and 3) unconstitutionally inhibits, burdens, and violates the fundamental and natural right to travel and freely move about.

“Plaintiffs seek 1) a judgment declaring this licensing and warrantless search regime unconstitutional; and 2) permanent prospective injunctive relief prohibiting enforcement of the licensing and warrantless search regime.”

Representing the couple is Attorney Samuel MacRoberts, General Counsel and Litigation Director for the Kansas Justice Institute, which is owned by Kansas Policy Institute.

Roberts says, “The licensing and warrantless inspection regime criminalizes merely invoking the Fourth Amendment, and it ignores basic and fundamental privacy and property rights.
“Kansans should not be forced to waive their constitutional rights in order to earn a living.”

 

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