Parker v. Com.

• Decision Date: 03 February 2004
• Docket Number: Record No. 1700-02-1.
• Citation: Parker v. Com., 592 S.E.2d 358, 42 Va. App. 358 (Va. App. 2004)
• Court: Virginia Court of Appeals
• Parties: Brenda PARKER v. COMMONWEALTH of Virginia.

592 S.E.2d 358

42 Va. App. 358

Brenda PARKER v.COMMONWEALTH of Virginia.

Record No. 1700-02-1.

Court of Appeals of Virginia, Chesapeake.

February 3, 2004.

Norman Lamson, Charlottesville, for appellant.

Richard B. Smith, Senior Assistant Attorney General(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, HUMPHREYS, JJ., and HODGES, SR.J HUMPHREYS, Judge.

Brenda Parker appeals her conviction, after a bench trial, for operating a "food manufacturing plant" without inspection, in violation of Code§ 3.1-398.1.Parker designates five Questions Presented on appeal, and by three separate motions filed in this Court, has raised additional issues neither presented in her petition for appeal nor raised in the trial court.She asserts we must consider the issues raised in her various motions because they represent "jurisdictional" defects in her prosecution.For the reasons that follow, we deny each of Parker's motions and affirm her conviction.

I.Background

"On appeal, we review the evidence in the light most favorable to the party prevailing below, together with all reasonable inferences that may be drawn."Benton v. Commonwealth,40 Va.App. 136, 139, 578 S.E.2d 74, 75(2003).

In early 2000, Parker owned and operated Sassy Springs Farm in Gloucester County, Virginia.After learning "information concerning [Parker] making and selling cheese from an article that was in the paper,"Donna Bonner, a Regional Manager with the Virginia Department of Agriculture in Dairy Services, called Parker in March of 2000.¹Bonner spoke with Parker

about trying to work with her to inspect her farm, to get it in compliance, because it was not under inspection.And to be able for food inspectors and [Bonner] to be able [sic] to come to the farm, and look at the facilities, and do an inspection and find ways to help her comply with the Virginia food law.

On March 9, 2000, Bonner sent Parker a letter, enclosing "copies of the Virginia Food Laws, Part 101—Food Labeling, the Code of Federal Regulation(CFR 21), the Current Good Manufacturing Practice in Manufacturing, Packing or Holding Human Food and Part 133, Cheeses and Related Cheese Products from the Code of Federal Regulation(CFR), number 21."

On September 28, 2000, Jim Morano, a Compliance Officer with the Virginia Department of Agriculture and Consumer Services(VDACS), John Purcell, an Assistant Attorney General for the Commonwealth of Virginia, Christopher Thackston, a Field Inspector with VDACS, and David Lee Dansey, an Environmental Specialist with VDACS, went to Parker's farm to investigate a "goat cheese""product [that] had been offered for sale," that they"knew [they] didn't have ... on record."Dansey and Thackston approached Parker's door, while Morano and Purcell remained in their vehicle.When Parker answered her door, Thackston showed Parker his credentials and told her that he wanted to "make an inspection."²Parker told him "she was not ready for [him] to make an inspection at this time."Thackston then showed Parker the "food laws and tried] to point out the section of the law that gives [them] the right to come in and make inspection of a facility that is manufacturing products that are being offered for sale for food."Parker responded that "she was still not going to let [him] in," and that "she had heard a lot of bad things about the Department of Agriculture from Christine, and that [they] were trying to put the little people out of business."Parker then requested that they"give her a little time before she allow[ed][them] in."Thackston agreed to "give [Parker] a week to do whatever she felt like she needed to do to get ready."He told her they would contact her "later to make another inspection," and left copies of the "food laws and regulations" with her.He and the other men then left the premises.

Dansey called Parker "within a week or so."Parker told Dansey that "she didn't want to be inspected at that time.She was sending a letter to [VDACS] and she was upset that [Thackston and Dansey] came up on her property."

Parker subsequently sent VDACS a certified letter, dated October 26, 2000, which stated as follows, in relevant part:

On September 28, 2000 agents [sic]Christopher A. Thackston and D.L. Dansey from your Department entered the curtilage area of my home in violation of two (2) No Trespassing signs.

Notice is hereby given that if any such attempt is made to invade my privacy in the future without a proper warrant supported by probable cause, that court action may be taken against any and all persons so involved in the matter.

On November 8, 2000, F.B. Barham, Regional Manager of the VDACS Food Safety Program, sent Parker a certified letter informing her that her refusal to permit the September 28, 2000"attempted inspection of [her] goat cheese manufacturing operation," and her certified letter of October 26, 2000, "evidenced the refusal to permit entry to [her] manufacturing facility for the purposes of inspection and taking a sample,""a serious violation of the Virginia Food Laws."The letter further informed Parker that a show cause hearing would be held on November 16, 2000, to give her an opportunity to show cause why "this violation" should not be referred to the Commonwealth's Attorney.

Parker did not attend the hearing, but responded by letter, dated November 16, 2000, stating as follows, in pertinent part:

Let it be understood by everyone at your agency that at this time I am NOT making any goat cheese for sale to the public as I told Ms. Bonner.Therefore, any inspection of my home kitchen is unwarranted at this time as would be any meeting with your compliance officers as there is nothing that I am to be in compliance with if I am not producing anything

Further, as I expressed to Ms. Bonner, should I decide at a future date to manufacture or sell farmstead goat cheese, I would request from your agency FULL disclosure of any pertinent rules and regulations as well as any license or permit that you might be able to issue.

I trust that there will not be any further need for contact by your office, or I will pursue legal counsel.

(Emphases in original).

Morano, who acted as the hearing officer during the November 16, 2000 show cause hearing, responded to Parker by letter dated November 17, 2000.In the letter, he informed Parker that based upon her representation that she was not making goat cheese for sale to the public, there was no need for the agency to inspect her establishment at the present time.However, he warned Parker that should she"decide to manufacture goat cheese or any other food products for sale at a future date,"she should notify VDACS prior to beginning such manufacturing so that "appropriate arrangements [could] be made for an inspection and discussion of the Virginia Food Laws and applicable regulations."He further informed Parker that "[s]hould future attempts to inspect [her] goat cheese manufacturing facility result in [her] refusal of entry for the purpose of making an inspection or taking of samples, this matter may be referred to the Commonwealth's Attorney."

On August 4, 2001, Stephanie Madison, a Food Safety Specialist with VDACS observed Parker selling goat cheese and other products at the Irvington Farmer's Market in Lancaster County, Virginia.Madison approached Parker and purchased six jars of goat cheese in oil from her.The jars bore a label that had the words "Sassy Springs Farm" on it, with a Gloucester address.³Madison asked Parker how she made the product, and Parker responded "she infused the product with oil, with whatever herbs or flavorings for than particular product," and "put the goat cheese in there."Parker then offered Madison recipe cards.

Morano subsequently consulted with the Gloucester Commonwealth's Attorney, who advised him to obtain summonses for Parker's violations.⁴On October 15, 2001, a Gloucester County magistrate issued two summonses.The first charged Parker with refusing entry for purposes of inspection on September 28, 2000, in violation of Code§ 3.1-388(e).The second charged Parker with having operated a "food manufacturing plant without it having been inspected by the Commissioner," on or about August 4, 2001, in violation of Code§ 3.1-398.1.⁵On January 24, 2002, the Commonwealth's Attorney withdrew the Code§ 3.1-388(e) refusal charge and the general district court judge convicted Parker of violating Code§ 3.14981 Parker appealed her conviction to the circuit court.

Prior to her circuit court trial on the "manufacturing" charge, Parker filed a pro se motion to dismiss the charge contending that she was not given prior notice of the contemplated charge, and an opportunity to "present [her] views," as required by Code§ 3.1-392.After retaining counsel, Parker filed "supplemental grounds" in support of the motion to dismiss, alleging that, because the Commissioner of VDACS himself had not caused the charge to be instituted, the Commonwealth had again violated Code§ 3.1-392.Accordingly, Parker argued the Commonwealth had violated her right to "state and federal due process of law" and "caused the general district court not to have jurisdiction" over the matter.

Prior to her circuit court trial, Parker argued in support of her motion to dismiss.As to Parker's first contention, concerning notice, the court agreed to take the matter under advisement and asked the parties to "make that a part of the case."In conjunction with her second argument, concerning the Commissioner's institution of the charge, Parker argued "there is one other matter, that you have to read [Code§ 3.1-398.1 with [Code §] 3.1-418. . . .""[Code §] 3.1-418 says that if you don't comply upon demand, then you're guilty of a misdemeanor and you get up to a $100 fine and up to 100 days in jail.So there is also an issue our position was there was no showing of a demand that she allow inspection by the Commissioner."The Commonwealth...