Berger v. United States, Civ. A. No. 5288.

• Decision Date: 22 January 1976
• Docket Number: Civ. A. No. 5288.
• Citation: 407 F. Supp. 312
• Parties: David B. BERGER, d/b/a Berger's Market v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

407 F. Supp. 312

David B. BERGER, d/b/a Berger's Market v. UNITED STATES of America.

Civ. A. No. 5288.

United States District Court, D. Rhode Island.

January 22, 1976.

David A. Schechter of Schechter, Abrams & Verri, Providence, R. I., for plaintiff.

Lincoln C. Almond, U. S. Atty., Constance L. Messore, Asst. U. S. Atty., Providence, R. I., for defendant.

OPINION

DAY, District Judge.

This is a civil action wherein the plaintiff, the owner and operator of a retail food store in Pawtucket, Rhode Island, seeks judicial review of an adjudication by the United States Department of Agriculture suspending his store's participation in said Department's Food Stamp Program for a period of six months. Specifically, the plaintiff's retail enterprise was temporarily disqualified from participation in said food stamp program because the plaintiff allegedly accepted food stamps as payment for certain "ineligible" retail products.

The plaintiff's cause of action arises under, and jurisdiction is vested in this Court pursuant to the provisions of Section 2022 of Title 7 of the United States Code.

The evidence presently in the record before this Court indicates that the plaintiff's business has been designated a "retail food store" eligible to participate in the aforementioned food stamp program since August 25, 1966. On October 3, 1972, subsequent to a field investigation conducted by the Department of Agriculture's Food and Nutrition Service, the plaintiff was notified that certain of his retail practices were alleged to be in direct violation of Department of Agriculture regulations. The plaintiff was advised that he could submit any information, explanation or evidence, exculpatory or inculpatory, concerning the alleged violations, and that such information would be carefully considered by the Food and Nutrition Service prior to any final determination as to the plaintiff's continued qualification to participate in the food stamp program. Subsequent to plaintiff's oral presentation, the Food and Nutrition Service rendered an opinion which concluded, inter alia, that the alleged violations did, in fact, occur and that Berger's Market, under the ownership of David B. Berger, would be disqualified from participation in the food stamp program for a period of six (6) months.

The plaintiff requested and received a hearing to review said decision before a Food Stamp Review officer on July 10, 1973, in Providence, Rhode Island. The Review Officer affirmed the decision of the Food and Nutrition Service. The plaintiff filed this action seeking judicial review of the aforementioned disqualification order.

As previously mentioned, the disqualification order herein involved resulted from the plaintiff's alleged acceptance of food stamps as payment for certain "ineligible" retail goods, viz, Ajax Cleaner, baby power, disinfectant, shampoo and tooth paste. See 7 CFR § 270 et seq. Section 2013 of Title 7 of the United States Code provides that food stamps can be used only—

". . . to purchase food from retail food stores which have been approved for participation in the food stamp program . . ." (emphasis added).

The word "food", as that term is utilized in Section 2013, has been defined as—

". . . any food or food products for human consumption except alcoholic beverages and tobacco and also includes seeds to plant for use in gardens to produce food for the personal consumption of the eligible household . . ." 7 CFR § 270.2(s); see 7 U.S.C. § 2012(b).

In considering this matter de novo, pursuant to 7 U.S.C. § 2022, this Court is limited to a determination as to whether or not the plaintiff's retail food store was properly suspended from participation in the food stamp program. See Martin v. United States, 459 F.2d 300 (6th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 129, 34 L.Ed.2d 131 (1972); Save More Of Gary, Inc. v. United States, 442 F.2d 36 (7th Cir.), cert. denied, 404 U.S. 987, 92 S.Ct. 535, 30 L.Ed.2d 549 (1971); Farmingdale Supermarket, Inc. v. United States, 336 F.Supp. 534 (D.N.J.1971); Marbro Foods, Inc. v. United States, 293 F.Supp. 754 (N.D.Ill.1968).

I. THE ALLEGED VIOLATIONS

It is beyond doubt that the plaintiff has engaged in retail practices which are violative of Department of Agriculture regulations. See affidavit of Kathy Smith (Defendant's Exhibit # 2), Barbara Higgins (Defendant's Exhibit # 3), and Nancy Cody (Defendant's Exhibit # 4); see also the "Summary of Berger's Market's Oral Reply to Food and Nutrition Service's Letter of Charges", dated October 16, 1972 (Defendant's Exhibit # 1 at p. 26); see generally, defendant's Exhibit # 1. No genuine issue of material fact exists as to whether or not the plaintiff accepted food stamps as payment for certain "ineligible", nonfood, retail products. The plaintiff unquestionably engaged in this practice, and did so on more than one occasion.

Plaintiff, however, contends that the violations are excusable because he was not afforded adequate compliance action by the Food and Nutrition Service prior to his disqualification from the food stamp program.

According to the Stipulation of Facts, number 11, however, a compliance visit was made on July 20, 1971. Plaintiff intimates that to constitute adequate compliance action, the visit must disclose actual violations. This is not the case. According to the guidelines in FNS Instruction 744-9¹ disqualification should normally not occur unless there has been a compliance store visit during which the retailer was confronted with...