Rivera v. United States

• Decision Date: 04 October 1985
• Docket Number: Civ. A. No. 84-3357.
• Citation: 630 F. Supp. 35
• Parties: Jesus RIVERA v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Pennsylvania

630 F. Supp. 35

Jesus RIVERA v. UNITED STATES of America.

Civ. A. No. 84-3357.

United States District Court, E.D. Pennsylvania.

October 4, 1985.

Mark S. Refowich, Easton, Pa., and Edward G. Ruyak, Bethlehem, Pa., for plaintiff.

Alexander Ewing, Jr. and James G. Sheehan, Asst. U.S. Attys., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

On July 11, 1984, the above captioned plaintiff filed a complaint against the United States of America, Department of Agriculture, Food and Nutrition Service (hereinafter FNS) seeking de novo review of his permanent disqualification from participation in the Food Stamp Program pursuant to the provisions of the Food Stamp Act, 7 U.S.C. § 2023. The matter was tried before the Court on September 11, 1985.

During the trial, testimony was presented by a number of witnesses on behalf of both parties. Evidence was also received in the form of a Stipulation of Facts submitted by the parties. They stipulated as follows:

1. Jesus Rivera is an individual d/b/a LaFavorita Grocery Store, located at 1053 E. 3rd St., Bethlehem, Pa.

2. Rivera was first approved for participation in the Food Stamp Program in 1969.

3. Rivera and his partner, Felix Curet, were disqualified from participation in the Food Stamp Program in 1973 for six (6) months based upon the sale of ineligible items.

4. Rivera was disqualified from participation in the Food Stamp Program in 1977 for six (6) months based upon sales of ineligible items.

5. Rivera was disqualified from participation in the Food Stamp Program in 1981 based upon the sale of ineligible items for a period of ninety (90) days.

6. Rivera was reauthorized to participate in the Food Stamp Program after his most recent disqualification on October 23, 1981.

7. Statistical data gathered by the Food and Nutrition Service of the Department of Agriculture demonstrates that Rivera's store, LaFavorita Grocery, had an unusually high rate of food stamp redemption compared to other stores in the area between October 23, 1981 and April 1, 1982.

8. On April 26, 1982, Food and Nutrition Service Food Program Specialist Gerald Repasky telephoned Jesus Rivera to discuss FNS limitations on sales under the food stamp program and the results of failure to comply with these limits, and this conversation was confirmed by letter dated April 29, 1982.

9. The letter dated April 29, 1982 from Donald M. Hardie, Officer in Charge, Philadelphia FNS Office to plaintiff was received by plaintiff.

10. On September 10, 1976, Hilda Curet sold the one-half (½) partnership interest of her deceased husband, Felix Curet, to Jesus Rivera and at that time the firm became a sole proprietorship instead of a partnership.

At trial, the United States presented evidence through two witnesses. In its case-in-chief, Carlos L. Gran, an investigator with the FNS, testified that he visited LaFavorita "undercover" six (6) times, and was allowed to purchase ineligible items on five (5) of those occasions, specifically on November 6, 8, 9, 15 and 16, 1983. The plaintiff in response to the Government's case relied upon the testimony of three (3) witnesses: Marilyn Nassry, Ires Cintron and Jesus Rivera. Ms. Nassry and Ms. Clintron testified as to the lack of alternative sources in the community for the purchase of the ethnic Hispanic foods sold by LaFavorita. In rebuttal to this testimony, Gerald Repasky testified as to the availability and proximity of such alternative sources. The plaintiff called upon Altagracia Nieves to rebut the testimony of Mr. Repasky.

Based upon the evidence presented at trial, we now make the following

FINDINGS OF FACT

1. On November 4, 6, 8, 9, 15 and 16, 1983, LaFavorita was visited by a representative of the FNS, specifically, Carlos Gran.

2. On November 6, 8 and 9, 1983, employees of LaFavorita allowed Gran to purchase all of the ineligible items he presented to them.

3. On November 15, 1983, employees of LaFavorita allowed Gran to purchase certain ineligible items, but at the same time refused to allow him to purchase certain other ineligible items, specifically, a "socket wrench set" and "ten packs of cigarettes".

4. On November 16, 1983, employees of LaFavorita allowed Gran to purchase certain ineligible items, but at the same time refused to allow him to purchase a "teapot", another ineligible item.

5. There are at least five (5) other stores in the vicinity of LaFavorita which accept food stamps.

6. These stores sell many, though not all, of the same ethnic Hispanic foods sold by LaFavorita.¹

DISCUSSION

The plaintiff asserts a multitude of reasons as to why his permanent disqualification by the FNS should not be upheld by this Court. Before we state our conclusions of law, a number of these challenges merit discussion, and so will be considered.

In his complaint, the plaintiff alleged the action of the FNS was erroneous because: (1) the decision was not supported by substantial evidence, (2) the penalty imposed was based upon prior violations and suspensions for which the plaintiff did not have legal representation, and (3) the penalty imposed was excessive and would work a hardship upon the community. Plaintiff's counsel argued further during trial that this Court should overturn the decision of the FNS for the following reasons: (1) the Food Stamp Act, specifically 7 U.S.C. § 2021, as amended in 1982, constitutes an ex post facto law if violations occurring before the amendment are considered in assessing penalties for violations committed after the amendment, (2) the FNS improperly considered the 1973 violation in computing the penalty to be assessed for the 1983 violations since LaFavorita at that time operated as a partnership as opposed to its present-day operation as a sole proprietorship, and (3) the violations were due to a lack of supervision rather than any intentional or deliberate misconduct on the plaintiff's part.

A. The substantial evidence claim

The Government conceded at trial that it bore the burden of proving by a preponderance of the evidence that the plaintiff violated the Food Stamp Act and its implementing Regulations, specifically 7 C.F.R. 271.2 and 278.2(a).² As indicated by the Findings of Fact, we have concluded the Government has met this burden and has, in fact, established beyond any doubt that employees of LaFavorita sold ineligible items to an FNS investigator on five (5) separate occasions in violation of 7 C.F.R. 271.2 and 278.2(a). Therefore, we also conclude that the food stamp officer's finding that the plaintiff violated the Act and its implementing regulations is supported by substantial evidence.

B. The lack of counsel

The plaintiff, as stated earlier, also asserted in his complaint that since he was not represented by counsel during any of the proceedings leading to suspensions in 1973, 1977 and 1981, those disqualifications should not be considered in determining the penalty to be assessed for the most recent violations. Plaintiff's counsel did not address this issue during trial nor has he cited any authority in support of his contention. Perhaps this is because such a claim is "clearly inappropriate in the context of civil proceedings" such as this. Bailey v. County of York, 580 F.Supp. 794 (M.D.Pa.1984), rev'd on other grounds 768 F.2d 503 (3d Cir.1985). Further, there is nothing in the record to indicate the plaintiff's failure to retain counsel was other than his own conscious choice.

C. The ex post facto claim

Plaintiff's counsel at trial argued that Section 2021 constitutes an ex post facto law since it allegedly increases the penalty for the violations which occurred in 1973, 1977 and 1981. There is no merit to this argument, however, since the ex post facto provision of the Constitution applies only to penal legislation, Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir.1982); Ames v. Merrill, Lynch, Pierce, Fenner & Smith, 567 F.2d 1174 (2nd Cir.1977), and we do not construe the provisions of Section 2021 to constitute a penal law. While the Act may establish certain penalties for its violation, the statute is strictly civil in its nature.³

D. The hardship upon the community claim

The plaintiff also argued that because his disqualification would work a substantial hardship upon the food stamp households surrounding LaFavorita, the FNS should have simply assessed a civil money penalty against him rather than permanently disqualifying him from participation in the Program.

Section 2021(a) of the Food Stamp Act provides that

Any approved retail food store or wholesale food concern may be disqualified for a specified period of time from further participation in the food stamp program, or subject to a civil money penalty of up to $10,000 for each violation if the Secretary determines that its disqualification would cause hardship to food stamp households, on a finding, made as specified in the regulations, that such store or concern has violated any of the provisions of this chapter or the regulations issued pursuant to this chapter.

Subsection (b) provides further that

Disqualification under subsection (a) of this section shall be ...

(3) permanent upon the third occasion of disqualification ...

Prior to imposing the penalty of permanent disqualification, the FNS determined on the basis of its field representative's reports that no substantial hardship would be caused to the community surrounding LaFavorita should it be permanently disqualified from participation in the Program. The plaintiff, of course, disagrees. He argues that while the food stamp households may be able to obtain food from other stores in the area, they will not be able to obtain the same ethnic Hispanic foods. He also contends that the penalty assessed by the FNS should be subject to the same standard of de novo review as the Department's determination that he violated the Act. We disagree with both of these contentions.

Before reviewing the Court's conclusion in light of the evidence...