Friday, July 13, 2012

What is a place of business?

In APHIS' fact sheet and in what is being reported by various people about what they have been told over the phone, in teleconferences, etc. the phrase "face to face transaction" has been repeated quite a bit.

The proposed rule states,

Retail pet store means a place of business or residence that each
buyer physically enters in order to personally observe the animals
available for sale prior to purchase and/or to take custody of the
animals after purchase

From what I understand from what several different people have said or reported from conversations with APHIS, the issue here may end up being how the term "place of business" is interpreted. This may be where the much-discussed "face to face" exemption comes in.

If the term "place of business" is interpreted to mean any place where you or your employees/representatives do business, then a showroom, parking lot, the buyer's home or another neutral location can become your "place of business" for the purposes of the rule. If that is the case, then wherever you or your authorized representative are present during the transaction becomes your "place of business."

We have been doing some research, and have not yet found a clear legal precedent for a place that the seller does not own, have control of, or use on a regular basis being considered their "place of business" for legal purposes. But this is definitely an interesting angle of thought. If anyone can point to resources, federal laws, or legal precedents that support this, please share them.

It seems it would be far more clear if APHIS simply wrote the law to state that transactions would be considered exempt direct retail sales if the buyer had the opportunity to refuse or return the animal upon seeing it, if that's what they're going for. But the angle of "place of business" being equivalent to a "face to face transaction" is interesting.

Hopefully APHIS will be clarifying that more thoroughly in the final rule. Asking in our comments to APHIS for the "face to face" exemption mentioned in their FAQ to be clarified very thoroughly in the actual rule would be good.

Of course, even the face-to-face exemption still leaves the issue of shipping animals or delivering them sight-unseen to a buyer. Leaving comments for APHIS explaining that sight-unseen transactions have been routine long before the advent of the internet, explaining how buyers can research to make informed purchasing decisions when buying animals in this type of situation, etc. would be very helpful.

It might also be useful to point out other potential ways of dealing with the stated problem of people purchasing animals sight-unseen and having them turn out to be ill or otherwise not as advertised, and what recourse and safety measures could be used to handle that situation.

The proposed rule:!documentDetail;D=APHIS-2011-0003-0001

APHIS FAQ sheet:


  1. Thinking about how long breeders have been shipping dogs, I remembered today that my first Australian Shepherd was shipped to me from the breeder sight unseen on a TRAIN in 1963.

  2. will take a stab at explaining this WAW, per SRPS conversation with APHIS today. The USDA can only properly provide oversight in areas that are not already regulated by proper public oversight. So in other words, APHIS discovered that it would be improper to regulate sales at rabbit shows because a. shows must have a permit from the city, b. the county, c. the state, and d. rabbit shows for the most part are open to the public which provides it's own version of "oversight". Therefore APHIS ruled that sales of pet rabbits at rabbit shows was outside of their venue for regulation as they are already perfectly regulated for public oversight. The question is not so much "place of business" as place of business translates to whereever a person is conducting the retail sale. So that IS the USDA definition of "place of business"- whereever the actual sale takes place meaning money transfer and animal transfer. APHIS wanted all transactions to be carried out in direct contact with the buyer, and obviously public sales include direct contact with the buyer, whether or not they are at a rabbit show, at home, or in a parking lot.
    As far as shipping sight unseen, if sales gross more than $500.00, a license will be required. As far as picking up and delivery of a rabbit by a third party, as long as the buyer was able to physically examine the animal and refuse the animal at the time of sale, it matters very little if it is delivered or picked up by a third party. Now remember all of these APHIS regs coming out are subject to state legislation. So in those states like California, in which the sale of animals (rabbits) in public on highways, byways, or transported under the new state legal definitions, the state law prevails over anything stated by the USDA. So if your state as a couple of states have legislated recently, forbids the sale of pet rabbits anywhere, those sales are still forbidden even though they are allowed by the USDA.

  3. Thanks, both of you. ter05, please be sure to include that in a comment to APHIS. SRPS, thanks for your insight.