Sugarman v. Forbragd
| Decision Date | 11 May 1967 |
| Docket Number | No. 46817.,46817. |
| Citation | 267 F. Supp. 817 |
| Parties | Harry SUGARMAN, Petitioner, v. Jack B. FORBRAGD, Fred E. Norman, Food and Drug Officers, Respondents. |
| Court | U.S. District Court — Northern District of California |
George A. McKray, San Francisco, Cal., for petitioner.
Cecil F. Poole, U. S. Atty., Robert N. Ensign, Asst. U. S. Atty., San Francisco, Cal., Arthur A. Dickerman, Atty., Dept. of Health, Education and Welfare, Los Angeles, Cal. (of counsel) for defendants.
This matter has been submitted to the Court on Respondents' Motion to Dismiss and their alternative Motion for Summary Judgment and on Petitioner's Motion for Summary Judgment. These motions are founded upon the pleadings, records, and files in this cause, which reflect the facts hereinafter set forth.
On July 20, 1966, a Consumption Entry was filed with the Bureau of Customs in San Francisco on behalf of the Petitioner offering for import 3,394 sacks of "green coffee" from Colombia, weighing 475,160 pounds, with an "invoice and entered value" of $40,388.60. Def. Exh. 1D.* A specimen of these "green coffee" beans is before the Court. Def. Exh. 1A.
These coffee beans were being transported from Colombia to Japan when a fire aboard the ship MS Gunhild Torm required the Captain to change his course and enter a distress port at Long Beach, California. The details as to the extent and duration of the fire, as well as the techniques that were necessary to control it, are set forth in the affidavits of Captain J. S. Parry Def. Exh. 2, Fire Battalion Chief William J. Patterson Def. Exh. 3, and Assistant Fire Chief J. H. Montgomery Def. Exh. 4, together with the exhibits attached to their affidavits.
On March 17, 1966, the ship left Colombia. The coffee in question was stored in Lower Cargo Hold No. 4. That same evening a fire broke out in Hold No. 4. During the period from March 17 through March 23, the ship was at sea and the extensive but unsuccessful efforts to extinguish the fire are described in the "Abstract of Engine Log" Def. Exh. 2D and the "Abstract of Ship's Log" Def. Exh. 2E.
On March 23, 1966, representatives of the Long Beach Fire Department met the vessel at the entrance to the Port of Long Beach to inspect the fire area and to plan a strategy for dealing with this emergency. The details of the firefighting problems and techniques are set forth in Training Bulletin No. 13 of the Long Beach Fire Department Def. Exh. 3A, pp. 2-5. The coffee had been stored in Lower Hold No. 4 together with a cargo of cotton and other merchandise, and it was the conclusion of the Fire Department that the fire had started within the cotton cargo deep in the lower hold Def. Exh. 3A, p. 5. In fighting the fire, the firemen used carbon dioxide, fresh water, harbor sea water, and fresh water wetted with Solvoid, and when the heat and smoke built up to a point where the fire could not be controlled through other techniques, the hold was flooded with fresh water and salt water Def. Exh. 3A, pp. 3-5, and Def. Exh. 4.
The unloading of the coffee began on March 28 and was completed by April 3. The bags of coffee were torn, ripped, and split at the seams due to the swelling of the cargo and the coffee beans were therefore unloaded in bulk, commingled with other cargo; at that time the coffee beans were blackened, heated, and in a steaming condition. Def. Exhs. 2B, p. 6, and 2C, p. 1. After the coffee had been unloaded on an area adjacent to the dock, it stayed there for approximately one week, when it was necessary to flood it with water because of spontaneous heating and smoking throughout most of the pile; the coffee emitted a pungent and disagreeable odor Def. Exh. 4.
On April 11, 1966, Petitioner Sugarman, together with three other joint venturers, purchased "the damaged coffee beans for salvage" for the sum of $600. Def. Exh. 5. The coffee beans were then transported to Turlock, California, where they were "cleaned" and sacked and thereafter offered for import Def. Exhs. 5 and 1D.
On July 21, 1966, the Food and Drug Administration obtained a sample of these coffee beans. On August 2, a laboratory analysis of these coffee beans showed that the coffee beans were black on the surface and when cut in half were black throughout; the black beans left a black residue on the hands after examination; the odor of the beans was not normal, being suggestive of smoke or tar; and the flavor of the beans was not normal, lacking the characteristic taste of green coffee beans. Def. Exh. 1E.
On August 8, 1966, a further examination of these coffee beans was made in Washington, D. C., by the Chief of Food Technology in the Bureau of Science of the Food and Drug Administration. He made two beverages from these beans. One beverage was derived from grinding the beans "as is" and brewing them. This beverage had a slight smoky odor and flavor and a very slight odor and flavor of green coffee. The second beverage was obtained by roasting these coffee beans and then grinding and brewing. The second beverage was nearly devoid of any coffee flavor and had a toasted flavor; the color of the beverage was very light, similar to light black tea beverage. Def. Exh. 1F.
On August 18, 1966, Respondent Norman issued a Notice of Detention and Hearing on behalf of the Food and Drug Administration Pet. Exh. A1. This Notice indicates the agency conclusion that the product is adulterated in that "the article is unfit for food, since beverage made from it after roasting is nearly devoid of flaver and color characteristics of normal coffee." The Notice also indicates that the owner or consignee may introduce testimony at a hearing relative to the admissibility of the article or to the manner in which the article can be brought into compliance with the Act.
A number of conferences and considerable correspondence then ensued between the Petitioner and representatives of the Food and Drug Administration. On January 6, 1967, a hearing was held pursuant to the above Notice. Pet. Exh. I-1.
On January 27, 1967, Petitioner submitted an "Application for Authorization" to the Food and Drug Administration at San Francisco, requesting permission to sell these coffee beans "for use in blended or soluble coffee." Pet. Exh. K.
On February 1, 1967, conditional approval was granted which would permit entry of the coffee beans "to be used only for the extraction of caffeine or for the production of soluble coffee." Other conditions were also attached which would require that the Food and Drug Administration examine the finished product prior to release. Pet. Exh. L.
On February 15, 1967, Petitioner submitted another "Application for Authorization" to sell the reconditioned beans to coffee roasters "for final processing as blended coffee." Pet. Exh. M. Petitioner also stated that he would try to find a buyer who would use these beans solely for the production of soluble coffee and requested an opportunity to prepare samples on a pilot scale for such purpose.
On March 30, 1967, Respondent Forbragd wrote to the attorney for the Petitioner, incorporating verbatim the following letter which Mr. Forbragd had received from the Food and Drug Administration in Washington, D. C. Def. Exh. 1G:
Respondents submitted a specimen of the coffee beans in question Def. Exh. 1A, a specimen of normal green coffee beans from Colombia Def. Exh. 1B, a specimen of normal roasted coffee beans from Colombia Def. Exh. 1C, and a specimen of the coffee beans in question after roasting Def. Exh. 1H.
On March 31, 1967, Petitioner filed a Petition for Writ of Mandatory Injunction alleging a "prejudicial abuse of discretion" in that the basis for Respondents' decision on Petitioner's "Application for Authorization" was not confined to the "record of hearing," and praying for the issuance of a Peremptory Writ ordering Respondents to approve Petitioner's application.
On April 19, 1967, Respondents filed a Motion to Dismiss and an Alternative Motion for Summary Judgment, with supporting affidavits and exhibits, asserting (1) the Court lacks jurisdiction over the subject matter, (2) the Petition fails to state a claim upon which relief can be granted, and (3) Respondents are entitled to summary judgment as a matter of law.
On April 20, 1967, Petitioner filed a Motion for Summary Judgment in favor of Petitioner and against Respondents as prayed in the Petition for Writ of Mandatory Injunction.
Federal Food, Drug, and Cosmetic Act
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