Hill v. Courter

• Decision Date: 08 November 2004
• Docket Number: No. 1:04CV1039.,1:04CV1039.
• Citation: 344 F.Supp.2d 484
• Parties: Mary S. Vanderwoude HILL and James J. Hill, Plaintiffs, v. J. Carlton COURTER, III, Commissioner of Agriculture and Consumer Services of the Commonwealth of Virginia, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

344 F.Supp.2d 484

Mary S. Vanderwoude HILL and James J. Hill, Plaintiffs, v. J. Carlton COURTER, III, Commissioner of Agriculture and Consumer Services of the Commonwealth of Virginia, Defendant.

No. 1:04CV1039.

United States District Court, E.D. Virginia, Alexandria Division.

November 8, 2004.

COPYRIGHT MATERIAL OMITTED

Norman Hunter Lamson, Charlottesville, VA, for Plaintiffs.

Peter Robert Messitt, Office of the Attorney General, Richmond, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiffs produce goat cheese in their home for sale at a local farmer's market. In this § 1983¹ suit, they seek to enjoin state agricultural inspections of their home goat cheese operation on Fourth Amendment grounds, while simultaneously asserting the same Fourth Amendment grounds as a defense to an ongoing state prosecution based on their refusal to permit such inspections. The threshold question, therefore, is whether Younger² abstention principles require abstention in favor of the state prosecution.

I.³

Plaintiffs, Mary S. Vanderwoude Hill and James J. Hill ("the Hills"), residents of Fauquier County, Virginia, have owned and lived on Vanderwoude Hill Farm since 1994. The buildings on the farm, including, among others, a feed storage shed, a milking parlor, and the Hills' residence, are set back and not visible from the entrance to the property where the Hills' gravel road meets the state highway and where the Hills have prominently placed "No Trespassing" signs. The Hills' farming operation is small; they own approximately thirty sheep and chickens, three donkeys, some cows, four to eight female milking goats, two male goats, and about one hundred acres planted in hay.

Since 1997, the Hills have produced hard and soft goat cheese for sale to the public at the local farmers' market. The entire cheese production process takes place on the Hills' farm. It begins in a milking parlor approximately ninety feet from their home, where the Hills milk their goats. They make the cheese in a separate room in the parlor, and then move the hard cheese to a room in their home for aging and storage. ⁴

To make the soft cheese, the milk is filtered, briefly heated to 185 degrees for pasteurization, mixed with vinegar and permitted to stand while it coagulates and cools. Next the whey is separated from the milk solids and the cheese is permitted to cool for an additional twenty-four hours before it is wrapped, stamped, prepared for sale, and placed in a freezer in the parlor.

The process for making hard cheese is different. Hard goat cheese is made by adding Mesophyllic to the raw milk to kill undesirable bacteria and Rennet to thicken the milk to a thick pudding. The milk/cheese is then cut into squares and warmed slowly to 102 degrees before it is placed in a press for twenty-four hours to separate the milk from the whey. Next, the cheese is dried for two to three days and then covered in wax and removed to the aging room adjacent to the house to age for least sixty days before it is taken to market.

The Hills offer their hard and soft goat cheese for sale once a week at the local Fauquier County farmer's market. This market is open every Sunday approximately eight months out of the year and consists of eight participating vendors offering a variety of goods to the public for sale, including fresh vegetables, frozen meat, flowers, wool, jam, baked goods, mushrooms, and goat cheese. The Hills claim they sell between ten and twenty pounds of cheese per week and that their gross annual revenues from their sales of goat cheese averages between $2,500 and $3,500.⁵

In the fall of 1999, the Virginia Department of Agriculture and Consumer Services ("VDACS"), Office of Dairy and Foods, performed an annual survey of farmer's markets throughout Virginia to determine whether any uninspected food products were being sold to the public. In the course of this survey, VDACS learned that the Hills were producing goat cheese on their farm for public consumption. Accordingly, a VDACS agent called the Hills in March 2000 to inform them that their cheese operations were regulated by the Virginia Food Laws and subject to inspection pursuant to Virginia Code § 3.1-399.⁶ Nonetheless, the Hills refused to schedule an appointment for the inspection and later turned away inspectors who personally came to inspect the farm. Yet later, when they received a letter notifying them that they had violated Virginia law by refusing to permit the inspection, the Hills relented and, for a time, consented to the inspections. Specifically, in September 2000 and October 2001, the Hills' farm was consensually inspected twice by appointment. The inspections lasted approximately 3.5 hours and included an examination of the milking parlor, the aging room in the Hills' home, and a bathroom adjacent to the aging room.

Thereafter, the Hills withdrew their consent and rebuffed VDACS's efforts to inspect their goat cheese operation. Thus, in late 2002 and again in 2003, VDACS agents unsuccessfully attempted on multiple occasions to inspect the Hills' cheese making operations. Two attempts to schedule an appointment by phone were rebuffed and when agents attempted to conduct two unannounced inspections on different dates in 2003, they were refused entry to the farm. Given these refusals, VDACS pursued a criminal remedy. Specifically, the Commonwealth charged the Hills on August 13, 2003 with refusing to permit entry or inspection of their goat cheese facilities as authorized by Virginia Code § 3.1-399, a misdemeanor under § 3.1-388(e).⁷ The Hills were tried jointly in Fauquier County General District Court where, appearing pro se, they argued they had a Fourth Amendment right to refuse these warrantless inspections because they required the Hills to submit to a search of their home and the surrounding buildings without a warrant. The court rejected the Hills' Fourth Amendment argument and convicted them, imposing a suspended thirty-day jail sentence, a fine of $250 apiece, and a requirement that they submit to an inspection within twelve months.

The Hills immediately appealed to the Fauquier County Circuit Court where, represented by counsel, they again unsuccessfully raised their Fourth Amendment claim on a motion to dismiss. ⁸

Following a jury trial on April 8, 2004, the jury returned a guilty verdict and the Hills were fined $100 apiece. Judgment was entered on May 13, 2004 and on September 13, 2004, the Hills mailed a petition for appeal to the Court of Appeals of Virginia.⁹ The parties await a response either granting or denying the petition to hear the appeal.

During the pendency of their appeal, the Hills on August 31, 2004 filed this 42 U.S.C. § 1983 suit against J. Carlton Courter, III, the Commissioner of Agriculture and Consumer Services of the Commonwealth of Virginia, in his official capacity, seeking declaratory and injunctive relief on the ground that Virginia Code § 3.1-399 is unconstitutional as applied to them because it authorizes state agents to conduct warrantless searches of their home and farm buildings in violation of the Hills' Fourth Amendment privacy right to be free from unreasonable searches. The Hills argued:

(i) that searches of a home without a warrant are presumptively unreasonable absent consent or exigent circumstances, see Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable.") (citation omitted); Allinder v. Ohio, 808 F.2d 1180 (6th Cir.1987) (holding pre-New York v. Burger¹⁰ that warrantless search of beekeepers' apiaries did not fall within any legitimate exception to the Fourth Amendment warrant requirement);

(ii) that precedents authorizing warrantless searches of pervasively regulated industries do not apply to a home, see Camara v. Municipal Court of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (holding unconstitutional a warrantless and unconsented housing code inspection of plaintiff's residence); New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (permitting warrantless searches of commercial premises for pervasively regulated industry but noting "[a]n expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home.");

(iii) that farm-produced goat cheese sold by farmers to the public is not a pervasively regulated industry; and

(iv) that even if goat cheese production is a pervasively regulated industry, § 3.1-399 is too broad to protect privacy interests, see Rush v. Obledo, 756 F.2d 713, 721 (9th Cir.1985) (finding law permitting inspection of licensed in-home day care centers overbroad when law permitted inspection at any place, at any time, and without advance notice).

Contemporaneously, the Hills also filed an application for a preliminary injunction to enjoin defendant or his agents from entering the Hills' property pending trial, arguing:

(i) that an additional search of their home or farm buildings would constitute irreparable harm as it would be an irreversible and non-compensable violation of their Fourth Amendment rights;

(ii) that the Commonwealth would suffer little harm as they could buy and inspect samples of the Hills' cheese pursuant to Virginia Code § 3.1-417 or obtain a warrant to search the Hills' property;

(iii) that the Hills have a strong likelihood of success on the merits as the right of privacy is "at its zenith" within the home; and

(iv) that continued production of the Hills' goat cheese is in the public interest as there is no evidence that the Hills have ever sold adulterated, spoiled, or otherwise unsafe cheese.

On September 17, 2004, defendant filed a motion to dismiss, arguing (i) that Younger v. Harris¹¹ requires abstention and dismissal to avoid federal interference with pending ...