Store v. U.S., 2:09–cv–653–GZS.

• Decision Date: 27 April 2011
• Docket Number: No. 2:09–cv–653–GZS.,2:09–cv–653–GZS.
• Citation: 779 F.Supp.2d 191
• Parties: Abdi HAJIFARAH & Kali Hirad d/b/a/ African Store, Plaintiffs,v.UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maine

779 F.Supp.2d 191

Abdi HAJIFARAH & Kali Hirad d/b/a/ African Store, Plaintiffs,

v.UNITED STATES of America, Defendant.

No. 2:09–cv–653–GZS.

United States District Court, D. Maine.

April 27, 2011.

Scott A. Quigley, Laskoff & Associates, Lewiston, ME, S. Courtney Michalec, Wright and Associates, Portland, ME, for Plaintiff.Evan J. Roth, Helene Kazanjian, U.S. Attorney's Office, Portland, ME, for Defendant.

FINDINGS OF FACT & CONCLUSIONS OF LAW

GEORGE Z. SINGAL, District Judge.

The Court held a bench trial in this matter on December 28–29, 2010. The bench trial transcript was filed on January 10, 2011 (Docket # s 42 & 43). The parties each filed Proposed Findings of Fact and Conclusions of Law on January 31, 2011 (Docket # s 44 & 45) and supplemental response memoranda on February 14, 2011 (Docket # s 46 & 47). In accordance with Federal Rule of Civil Procedure 52(a) and having reviewed the parties' post-trial submissions as well as the entire record, the Court now makes the following findings of fact and conclusions of law:

I. FINDINGS OF FACTThe Plaintiffs & The African Store

1. In March of 2008, Plaintiffs Abdi Hajifarah (“Hajifarah”) and Kali Hirad (“Hirad”), who are married, purchased and began operating the African Store located on Lisbon Street in Lewiston, Maine. The purchase of the store was finalized in May of 2008.

2. Hajifarah and Hirad immigrated to the United States from Somalia. English is not their primary language, and they used the services of an English-language interpreter during trial.

3. The couple first moved to Lewiston around 2001, then moved to Burlington, Vermont for several years in 2005 or 2006, before returning to Lewiston in 2008 when they purchased the African Store.

4. For the most part, Hajifarah and Hirad run the store without the assistance of any employees, although sometimes one or two of their children also help out.

5. The African Store is one of several Somali specialty stores in and around Lisbon Street. Generally, these Somali specialty stores cater to the Somali community in the Lewiston–Auburn area by carrying food items—including halal food products and other staples of the Somali diet such as particular oils, powdered milk (“Nido”), rice and pasta—that typically cannot be found at the local chain supermarkets or Walmart, especially in bulk quantities.

6. At trial, Hirad explained that “halal” means something that is permissible to engage in according to Islamic law and typically refers to the way meats are prepared or prohibitions on consuming meat of certain animals. The African Store does not have a meat section; it does, however, sell halal-certified products such as chicken broth, canned fish and certain processed food where the customer might not otherwise be assured that there is no hidden animal product.

7. When Hajifarah and Hirad first moved to the Lewiston area in 2001, there were no Somali specialty stores and they would drive down to Boston to buy halal-certified food. There are now approximately ten other Somali specialty stores in the same general area as the African Store.

8. Approximately eighty percent of the African Store's customers are Somalis.

9. The African Store is located near Baraka and Mogadishu, two other Somali specialty stores which, unlike the African Store, have large meat sections.

10. The African Store differs from Baraka, Mogadishu and other competitors by making available for purchase large bulk quantities of staple food products.¹

11. The African Store does not stock either alcohol or tobacco products for sale.

12. Prices are set at the African Store; there is no haggling.

13. Hajifarah and Hirad presented testimony and evidence to establish that Somalis tend to have large families, who by necessity, purchase and consume a great deal of food. One witness for the Plaintiffs testified that she had six children. Another witness, who testified that there were ten individuals living in her household, stated “I'm a big family and we use a lot of food.” (Tr. of Proceedings Vol. II (Docket # 43) at 146.)

14. Hajifarah and Hirad have nine children. Hirad testified that she buys in bulk given that her family, for example, can easily consume up to forty pounds of rice over the course of ten days and use three half-kilo packages of pasta over the course of a month.

The Supplemental Nutrition Assistance Program

15. The Defendant in this action is the United States government. Specifically, Plaintiffs seek relief for actions that were taken by the United States Department of Agriculture (“USDA”). Within the USDA, the Food and Nutrition Services (“FNS”) operates the Supplemental Nutrition Assistance Program (“SNAP”), formerly and more commonly known as food stamps.

16. Very shortly after they began operating the African Store in March of 2008, Hajifarah and Hirad applied for and received approval to accept SNAP benefits.

17. During the first year of the African Store's participation in SNAP, the vast majority of its customers were SNAP benefit recipients.

18. Other Somalia specialty stores in and around Lisbon Street in Lewiston, including Baraka and Mogadishu, also participate or have participated in SNAP.

19. SNAP utilizes an Electronic Benefit Transfer (“EBT”) system, and SNAP recipients obtain their benefits through an EBT card.

20. Each month, Defendant or its agents electronically transfer SNAP benefits into recipient accounts. Recipients use their EBT cards much like a debit card to pay for eligible food purchases at authorized stores.

21. Stores participating in SNAP have a point-of-sale device (also known as an EBT machine) that allows food stamps to be processed with this benefits card.

22. For each food stamp transaction, the customer must use a confidential personal identification number (“PIN”). Accordingly, for every food stamp transaction, the customer must be in the physical presence of the PIN device.

23. For the purposes of SNAP, the African Store is classified as a small convenience store.²

24. In Maine, SNAP benefits are distributed on the ninth through the twelfth or thirteenth of each month; correspondingly, the African Store's busy period is when SNAP benefits are distributed and the immediate days thereafter.

25. A typical transaction at the African Store begins when the customer brings the desired item(s) to the counter.

26. No scanner is used, but the price is usually attached to the item. Hajifarah or Hirad adds up the prices on a calculator and then shows the customer the total. Hajifarah provides the customer with a calculator so there is no doubt about the accuracy of the transaction.

27. Hajifarah next rings in the amount on the African Store's cash register (but the customer cannot see the amount as reflected on the cash register).³

28. Hajifarah does not charge the SNAP card until after the amount is agreed upon by the customer. After the customer agrees to the price, Hajifarah then swipes the card in the machine and hits the total button on the cash register.

29. At this point, the customer must type in his or her confidential PIN.

30. Finally, Hajifarah gives the customer the cash register receipt and the SNAP EBT machine receipt.

31. The EBT machine generates two receipts, one of which is given to the customer and one of which is kept by Hajifarah and Hirad.

32. Unlike the EBT machine, the cash register at the African Store prints out only one receipt, which is given to the customer. As such, there is no contemporaneous record of the African Store's cash transactions because, other than the cash register receipt given to the customer, the African Store's cash register does not generate any other transaction record.

33. Hajifarah and Hirad also bag the groceries, and Hajifarah helps the customer carry them.

Defendant's Initial Visit to the African Store (April 2008)

34. Deborah Crosby (“Crosby”) has been employed by FNS for twenty-two years, first as a Program Technician processing applications, and for the past ten years as a Specialist responsible for compliance work. Crosby is Maine's only USDA Specialist.

35. Crosby first visited the African Store on April 17, 2008. The purpose of this visit was to determine whether the store had a sufficient number of eligible food stamp items for sale.

36. During this visit, Crosby spoke with Hajifarah in English and Hajifarah responded in English. No interpreter was present.

37. The African Store is small, measuring approximately sixteen feet by thirty feet, and has a narrow entryway. The store has one front counter, measuring about two feet by two feet. These physical features would make it logistically difficult for the store to process many customers at the same time.

38. From Crosby's perspective during this initial visit, the store and the counter appeared very cluttered. Photographs taken by Crosby during this visit corroborate this observation. ( See Def. Ex. 102 at USDA–00015 to USDA–00029.)

39. During this initial visit, the African Store's inventory included a significant amount of clothing, head scarves, phone cards, perfume and jewelry.

40. At the time, the store had no shopping carts or optical scanners.

41. At the time, the store had no hot food, no food for on-site consumption, no equipment to heat food, no deli, no prepared food section, and no salad bar. There was also no fresh meat, although there were cans of tuna fish.

42. Prices were marked on each item in the store, and all of the items Crosby examined ended in $.00.

43. Crosby did not examine the prices of every item in the African Store, including the refrigerated drinks.

44. During this visit, Hajifarah told Crosby that in two weeks he intended to put in a meat cutting room for goat and camel, and that he would also carry fish and chicken in a freezer section.

45. The African Store had one check-out counter where one SNAP point-of-sale device, one PIN device, one cash register and one machine for processing credit/debit cards were all located.

46. Crosby recorded her...