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J&M FOOD STORE v. UNITED STATES

September 8, 1995

J&M FOOD STORE, INC. d/b/a, UPTOWN FRUIT RANCH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendants.



The opinion of the court was delivered by: RUBEN CASTILLO

 This is a lawsuit, filed on June 22, 1995, for de novo judicial review of an administrative determination of the Food and Consumer Service Division ("FCS") of the United States Department of Agriculture. On August 10, 1995, this Court held a de novo bench trial in this matter. Immediately prior to trial the defendant voluntarily dismissed its counterclaim. Following the trial, the Court considered the written post-trial submissions filed by each party. The Court hereby enters the following Findings of Fact and Conclusions of Law which are expressly based upon consideration of all of the admissible evidence as well as this Court's own assessment of the credibility of the trial witnesses. To the extent, if any, that the Findings of Fact as stated may be deemed Conclusions of Law, they should be considered Conclusions of Law. Similarly, to the extent that matters expressed as Conclusions of Law may be deemed Findings of Fact, they shall also be considered Findings of Fact.

 FINDINGS OF FACT

 1. Plaintiff J&M Food Store, Inc. is an Illinois corporation which does business under the name of Uptown Fruit Ranch ("Uptown Fruit Ranch") and is located in the City of Chicago, Illinois.

 2. Uptown Fruit Ranch is a "retail food store" as that term is defined at 7 C.F.R. § 271.2 and has been authorized by the FCS to participate in the Food Stamp Program since October 1993.

 3. On January 11, 1995 the FCS issued a "charge letter for trafficking," pursuant to Title 7, United States Code, Section 2021 and Regulation 278.6(b)(2)(ii), 7 C.F.R. § 278.6(b)(2)(ii), to the Uptown Fruit Ranch based upon three instances of "trafficking" in food stamps by alleged store personnel. (Govt. Ex. D). This letter notified the Uptown Fruit Ranch of the Department's intention to permanently disqualify it from participation in the Food Stamp Program.

 4. On January 20, 1995, the Uptown Fruit Ranch, through legal counsel, timely responded to the charge letter, disagreeing with the allegation of trafficking, requesting file information from FCS, and requesting consideration of a civil money penalty pursuant to the provisions of Title 7, United States Code, Section 2021(b)(3)(B) and Regulation 278.6(i), 7 C.F.R. § 278.6(i). (Govt. Ex. E).

 5. On February 1, 1995, FCS notified Uptown Fruit Ranch that it had denied the request for consideration of a civil monetary penalty due to its failure to submit documentation as required by Regulation 278.6(b)(2)(ii) within the required ten days. FCS also notified Uptown Fruit Ranch that its time to submit a documented response to the charge letter would be extended ten days past the date the Ranch received FCS's investigative documentation.

 6. On February 21, 1995, after receipt of the investigative file, the Uptown Fruit Ranch timely submitted its formal response to the charge letter. In addition to a denial of the trafficking charges, the Uptown Fruit Ranch provided information concerning the compliance policy in effect at its store, as required as a condition of consideration of a civil monetary penalty under 7 C.F.R. 278.6(i).

 7. On April 24, 1995, FCS issued its determination letter permanently disqualifying the Uptown Fruit Ranch from participation in the Food Stamp Program. FCS stated as its reason for refusing to consider a civil monetary penalty the fact, as alleged in the charge letter and found by FCS, that the store manager engaged in one of the alleged trafficking violations, a criterion disqualifying the Uptown Fruit Ranch from consideration for a civil monetary penalty under 7 C.F.R. 278.6(i). (Govt. Ex. 6).

 8. On April 28, 1995, the Uptown Fruit Ranch timely filed its request for administrative review of the determination of FCS.

 9. After a hearing on May 26, 1995, the administrative review officer issued his final determination permanently disqualifying Plaintiff from the Food Stamp Program on June 1, 1995. (Govt. Ex. H).

 10. The June 1, 1995, final administrative decision was premised upon the factual determinations that the manager of the Uptown Fruit Ranch, Mr. Michael Floros, participated in the purchase of food stamps from a FCS investigator on December 7, 1994, and that Mr. Steve Karas, the alleged purchaser of food stamps on October 25, 1994, November 7, 1994, and December 7, 1994, was an employee or agent of the Uptown Fruit Ranch.

 11. Peter Floros, as the owner of the Uptown Fruit Ranch, accepted responsibility on behalf of the store for all violations committed by the store's employees when he applied for participation in the U.S.D.A. Food Stamp Program. (Tr. 112-13, 194, 196; Gov't. Ex. B at 4). Mr. Floros is responsible for any and all violations of the program that the Uptown Fruit Ranch ...


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