Colorado Court of Appeals Opinions || October 8, 2015

Colorado Court of Appeals -- October 8, 2015
2015 COA 148. No. 15CA0188. Salazar, Commissioner of Agriculture v. Kubic.

COLORADO COURT OF APPEALS

2015 COA 148

Court of Appeals No. 15CA0188
Adams County District Court No. 14CV30557
Honorable Mark D. Warner, Judge

John T. Salazar, Commissioner of Agriculture of the State of Colorado,

Plaintiff-Appellee,

Lynn Kubic, d/b/a Willards Rodent Factory,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE TERRY
Dunn and Nieto*, JJ., concur

Announced October 8, 2015

Cynthia H. Coffman, Attorney General, Billy L. Seiber, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Animal Law Center, LLC, Jay W. Swearingen, Englewood, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, Â§ 5(3), and Â§ 24-51-1105, C.R.S. 2015.

Â¶1Â Â Â Â Â Â Â Â Defendant, Lynn Kubic, d/b/a Willards Rodent Factory, appeals a judgment of the trial court that permanently enjoins her from operating her rodent-breeding facility without a valid license issued by plaintiff, John T. Salazar, the Colorado Commissioner of Agriculture. Kubic breeds mice and rats to sell as a food source for other animals. Raising novel arguments, she challenges the applicability of the Pet Animal Care and Facilities Act (PACFA), Â§Â§ 35-80-101 to -117, C.R.S. 2015, to her business. In a matter of first impression, we construe PACFA to apply to Kubicâs operation, and therefore affirm.

I. Background

Â¶2Â Â Â Â Â Â Â Â Kubic raises and houses more than 200 mice and rats at her facility. The rodents are sold as feed for snakes and other carnivores. Until March 2013, Kubic had a valid license issued under PACFA to operate a âpet animal facility,â but she let it expire.

Â¶3Â Â Â Â Â Â Â Â In June 2013, the Commissioner issued a cease and desist order to Kubic because of the lapsed licensure. Despite the order, she continued to operate the unlicensed facility. The trial court granted the Commissionerâs request for a permanent injunction to prevent Kubic from operating without the required PACFA licenseÂ and from violating the cease and desist order. The injunction has been stayed pending the outcome of this appeal.

II. Discussion

Â¶4Â Â Â Â Â Â Â Â Kubic contends that the trial court erroneously interpreted PACFAâs definitions of âpet animalâ and âpet animal facilityâ to require her to be licensed to operate her facility. We disagree.

A. Standards of Review

Â¶5Â Â Â Â Â Â Â Â We review for an abuse of discretion the trial courtâs order permanently enjoining Kubicâs operation under PACFA, and we defer to the trial courtâs factual findings pertaining to the requested injunctive relief if they are supported by the record. See Stulp v. Schuman, 2012 COA 144, Â¶9.

Â¶6Â Â Â Â Â Â Â Â A court abuses its discretion when its ruling (1) is based on an erroneous understanding or application of the law or (2) is manifestly arbitrary, unreasonable, or unfair. People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011). In assessing whether a trial courtâs decision is manifestly arbitrary, unreasonable, or unfair, the question is not whether this court would have reached a different decision, but whether the trial courtâs decision fell within a range of reasonable options. E-470 Pub. Highway Auth. v. Revenig,Â 140 P.3d 227, 230 (Colo. App. 2006).

Â¶7Â Â Â Â Â Â Â Â It is the reviewing courtâs function to decide issues of law, including the interpretation of statutes. Huddleston v. Grand Cnty. Bd. of Equalization, 913 P.2d 15, 17 (Colo. 1996) (judicial deference to an administrative agencyâs interpretation of its governing statute is appropriate when the statute is subject to different reasonable interpretations and the issue comes within the agencyâs special expertise); see also El Paso Cnty. Bd. of Equalization v. Craddock, 850 P.2d 702, 705 (Colo. 1993) (âAn administrative agencyâs construction [of a statute] should be given appropriate deference, but is not binding on the court.â). We review questions of statutory interpretation de novo. Shelby Res., LLC v. Wells Fargo Bank, 160 P.3d 387, 389 (Colo. App. 2007).

Â¶8Â Â Â Â Â Â Â Â In interpreting a statute, our primary goals are to discern and give effect to the General Assemblyâs intent. Williams v. Crop Prod. Servs., Inc., 2015 COA 64, Â¶5. We look first to the statutory language, giving the words and phrases used therein their plain and ordinary meanings. Id. We read the language in the dual contexts of the statute as a whole and the comprehensive statutory scheme, giving consistent, harmonious, and sensible effect to all of theÂ statuteâs language. Id. After doing this, if we determine that the statute is not ambiguous, we enforce it as written and do not resort to other rules of statutory construction. Id.

B. Mice and Rats are âPet Animalsâ Governed by PACFA

Â¶9Â Â Â Â Â Â Â Â Kubic contends that her mice and rats are not within PACFAâs definition of âpet animal.â We disagree.

Â¶10Â Â Â Â Â Â Â Â Section 35-80-102(10), C.R.S. 2015, states:

âPet animalâ means dogs, cats, rabbits, guinea pigs, hamsters, mice, rats, gerbils, ferrets, birds, fish, reptiles, amphibians, and invertebrates, or any other species of wild or domestic or hybrid animal sold, transferred, or retained for the purpose of being kept as a household pet, except livestock, as defined in subsection (9) of this section. âPet animalâ does not include an animal that is used for working purposes on a farm or ranch.

Â¶11Â Â Â Â Â Â Â Â The statutory language, ââ[p]et animalâ means . . . mice [and] rats,â makes this a simple matter to decide. Quite plainly, mice and rats are âpet animalsâ under PACFA.

Â¶12Â Â Â Â Â Â Â Â Nevertheless, we will separately address Kubicâs arguments for a different interpretation.

1. Common Understanding of âPetâ

Â¶13Â Â Â Â Â Â Â Â PACFA does not define the word âpet,â as used in its title.Â According to Kubic, by using the undefined term âpetâ in the title, the legislature demonstrated its intent to limit PACFAâs applicability to animals that are âpetsâ as that word is commonly understood. We are not persuaded.

Â¶14Â Â Â Â Â Â Â Â This argument ignores the fact that the legislature has defined the term âpet animalâ in a very specific way. The legislatureâs decision to define âpet animalâ but not âpetâ indicates that we are to give no significance to the word âpetâ except as it is used in the phrase âpet animal.â Â§ 35-80-102(10). We will not adopt a tortured reading of this statutory provision, which, at least in the context presented here, has a perfectly clear meaning. See Boulder Cnty. Bd. of Equalization v. M.D.C. Constr. Co., 830 P.2d 975, 980 (Colo. 1992) (when statutory language is clear, courts will not subject the language to a strained or forced interpretation, and must presume that the legislative body meant what it clearly said); see also Farmers Ins. Exch. v. Bill Boom, Inc., 961 P.2d 465, 470 (Colo. 1998) (ââ[T]o ignore a [statutory] definition section is to refuse to give legal effect to a part of the statutory law of the state.ââ (quoting C. Dallas Sands, Statutes and Statutory Construction Â§ 27.02 (4th ed. 1985))).

Â¶15Â Â Â Â Â Â Â Â Therefore, we reject Kubicâs argument that because the miceÂ and rats she sells are used as food, and not as household pets, they are outside the statuteâs ambit.

2. Other Listed Animals

Â¶16Â Â Â Â Â Â Â Â The parties have differing interpretations of the first appearance of the word âorâ in section 35-80-102(1), to which we have added italics for clarity: ââPet animalâ means dogs, cats, rabbits, guinea pigs, hamsters, mice, rats, gerbils, ferrets, birds, fish, reptiles, amphibians, and invertebrates, or any other species of wild or domestic or hybrid animal sold, transferred, or retained for the purpose of being kept as a household pet, except livestock . . . .â

Â¶17Â Â Â Â Â Â Â Â According to Kubic, the phrase âany other species of wild or domestic or hybrid animal sold, transferred, or retained for the purpose of being kept as a household petâ modifies every species of animal listed in the definition of âpet animal.â Therefore, she contends, mice and rats are not covered by the statute as âpet animalsâ unless they are also âsold, transferred, or retained for the purpose of being kept as a household pet.â The Commissioner counters that the phrase âsold, transferred, or retained for the purpose of being kept as a household petâ refers only to the various species listed after the italicized âor.â We agree with theÂ Commissioner that the phrase in question modifies only the animals listed after the italicized âor.â

Â¶18Â Â Â Â Â Â Â Â As discussed above, because the statute quite plainly says that ââ[p]et animalâ means . . . mice [and] ratsâ (emphasis added), and puts no additional conditions on whether such rodents are âpet animal[s],â Kubicâs animals come within the definition of âpet animal.â

3. Exempted Animals

Â¶19Â Â Â Â Â Â Â Â Kubic next contends that her rodents fit within the statutory exemptions for livestock and working animals. This argument is similarly unpersuasive.

Â¶20Â Â Â Â Â Â Â Â Section 35-80-102(10) excludes from the definition of âpet animalâ âlivestock, as defined in [section 35-80-102(9)]â and any âanimal that is used for working purposes on a farm or a ranch.â Livestock is defined as:

cattle, horses, mules, burros, sheep, poultry, swine, llama[s], and goats, regardless of use, and any animal that is used for working purposes on a farm or ranch, and any other animal designated by the [C]ommissioner, which animal is raised for food or fiber production.

Â§ 35-80-102(9).

Â¶21Â Â Â Â Â Â Â Â This definition includes three categories of animals. In the first category are âcattle, horses, mules, burros, sheep, poultry, swine, llama[s], and goats.â Mice and rats do not fall within that group.

Â¶22Â Â Â Â Â Â Â Â The third category is described as âany other animal designated by the [C]ommissioner, which animal is raised for food or fiber production.â The Commissioner has not designated mice and rats as âlivestock,â and so this category is inapplicable.

Â¶23Â Â Â Â Â Â Â Â Therefore, to succeed on her claim, Kubic must show the mice and rats fit within the second category, namely, âanimal[s] used for working purposes on a farm or a ranch.â

Â¶24Â Â Â Â Â Â Â Â Kubic argues that â[r]aising animals for food or breeding stock to produce other animals . . . makes them working animalsâ and thus exempt under section 35-80-102(10). The term âanimal that is used for working purposesâ is not defined by PACFA.

Â¶25Â Â Â Â Â Â Â Â When a statute does not define a term, a court may look to the common usage of such terms. People v. Daniels, 240 P.3d 409, 411 (Colo. App. 2009). The words of statutes are to be given their plain and ordinary meanings. Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 35 (Colo. 2000).

Â¶26Â Â Â Â Â Â Â Â Although we have found no definition of an âanimal used for working purposes,â the term âworking animalâ is commonly understood. âWorkâ is defined as âactivity in which one exerts strength or faculties to do or perform a specific task, duty, function, or assignment often being a part or phase of some larger activity.â Websterâs Third New Intâl Dictionary 2634 (2002). The only reasonable conclusion is that animals used âfor working purposesâ are those that would be expected to perform work â exerting strength or their faculties to perform specific tasks, duties, functions, or assignments. See id.

Â¶27Â Â Â Â Â Â Â Â Two examples of animals commonly viewed as working animals are âservice animalsâ and âpolice animals.â The Department of Justice defines a service animal as any âdog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.â 28 C.F.R. Â§ 36.104 (2014). The Federal Law Enforcement Animal Protection Act defines âpolice animalâ as âa dog or horse employed by a Federal agency . . . for the principal purpose of aiding in the detection of criminal activity, enforcement of laws, or apprehension of criminal offenders.â 18 U.S.C. Â§ 1368(b) (2012). The defining characteristic of theseÂ working animals is that they are specially trained by humans to perform valuable tasks and duties for their owners, such as guiding a blind person or detecting explosives in a suitcase. Cf. Gabriela Sandoval, Service, Therapy, and Emotional Support Animals, Colo. Law., July 2015, at 69 (providing an overview of the rights and obligations attached to the different classifications of animals). Given the rural and agricultural character of much of our state, we also believe the legislature meant to include animals used in herding and guarding livestock, as well as in crop production.

Â¶28Â Â Â Â Â Â Â Â Kubicâs argument that her rodents are working animals is unpersuasive because there is no indication that she uses them to perform any function that could be considered âwork.â Instead, she concedes that they are sold merely as food for other animals. Thus, they do not meet the statutory definition of livestock in section 35-80-102(9), or the exemption for working animals under section 35-80-102(10). See M.D.C. Constr. Co., 830 P.2d at 980 (where statutory language is clear, courts will not subject statutory language to a strained or forced interpretation).

III. Conclusion

Â¶29Â Â Â Â Â Â Â Â The judgment is affirmed.

JUDGE DUNN and JUDGE NIETO concur.

These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.

Colorado Court of Appeals Opinions || October 8, 2015

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