May 6, 2010
Contempt Charges Dismissed
By D. Gary Cox, Esq. | May 6, 2010
The Farm-to-Consumer Legal Defense Fund was successful yesterday in defending Steve and Barbara Smith of Meadowsweet Dairy LLC against the contempt charges brought against them by the New York Department of Agriculture and Markets.
Without even having to present any evidence, the Smiths and the LLC convinced Judge Gerald Connolly of Supreme Court, Albany County, that the contempt charges should be dismissed and that the underlying administrative search warrant that formed the basis of the contempt charges should be vacated. Indeed, before the hearing even began, the Department admitted it had no evidence that Barbara Smith was even on the premises when the warrant was executed and accordingly dismissed its charges against her.
“We are pleased that Judge Connolly followed the law, made the correct ruling, and rejected the Department’s arguments” said Fund President Pete Kennedy. “The case law on the Fourth Amendment is clear; warrants cannot last forever and the case law on contempt is clear, a person does not have any duty to assist an inspector to collect evidence against him or herself. We are glad for the Smiths and the LLC that this phase of their case is over” said Kennedy.
The case stemmed from a search warrant that was issued in December 2007, authorizing the Department to search the Smiths farm for evidence that raw milk and raw dairy products were being sold illegally, yet the warrant also included language that said it was “continuing in nature” indefinitely. The Department executed the warrant on two separate occasions in December 2007 and each time Steve Smith refused to lock the door on their yogurt processing room. “An administrative search warrant that does not authorize the use of force means just that” said Fund General Counsel Gary Cox “and thus Steve had no duty whatsoever to open or unlock the door.” The Department claimed that because Mr. Smith refused to unlock the door that he was in contempt of court. “The Department had no case whatsoever. The search warrant was not an order that compelled Steve to do anything. In fact, the Department was attempting to hold Steve accountable for their failure to obtain a properly worded warrant” said Cox.
The Court agreed and dismissed the contempt charges at the end of the Department’s case without the Smiths or the LLC having to present any evidence. The Court also agreed that an administrative search warrant cannot last indefinitely into the future and vacated the warrant. In the meantime, the Smiths and the LLC have appealed to the New York Court of Appeals from the lower Appellate Division decision that said the Department has jurisdiction over “every article of food” that is consumed. As events develop in the appeal they will be posted on the Fund’s website.
November 17, 2009
Magisterial District Judge Jene Willwreth today dismissed both charges brought by the Pennsylvania Department of Agriculture against C.A.R.E. member Jan Haller in Ephrata, Pennsylvania. Before cross examination of the Department’s two witnesses was even completed, the Judge dismissed the charges without prejudice. “He made the right ruling” said the Fund’s attorney Gary Cox “because they simply had no evidence of any violation. It was a sloppy investigation from start to finish.”
A PDA inspector had charged Haller with two summary criminal charges, refusing an entry and an inspection by Department inspectors, and failing to obtain a license as a retail food establishment. According to Fund President Pete Kennedy, “this is an important case for the Fund because it has so many members in Pennsylvania. C.A.R.E. should also be proud that one of its members stood up to the intimidating tactics of the Department.”
The Fund argued that Haller had the right to refuse entry and an inspection because the Department inspector insisted on doing so without any search warrant. The Fund also argued that Haller did not need to obtain a retail food license because her operation is a private club and is not open to or accessible by the public at large. The Fund anticipates that the Department will attempt to conduct another investigation into Haller’s operation and that the Department will this time obtain a search warrant. “We hope to work with the Department to convince them that these types of operations should not even be regulated by the State” explained Kennedy. “People are perfectly capable of determining for themselves what food is and is not safe to eat” said Kennedy. “The government has no business telling people what foods they should or should not eat.”
May 18, 2009
The Legal Defense Fund won a minor victory today in its struggles to put a halt to the NAIS program nationwide. In an Order issued by Judge Rosemary M. Collyer of the District of Columbia District Court, the Fund was granted permission to supplement the administrative record filed by USDA. The original administrative record filed by USDA omitted many USDA and Michigan Department of Agriculture documents that demonstrate NAIS is not “voluntary” as alleged but is in fact mandatory. The documents that the Court wishes to see in the administrative include all of USDA’s press releases that pertain to NAIS, all of the federal register announcements that were omitted by USDA, as well as several internal USDA and MDA/USDA joint documents demonstrating that USDA is paying MDA to implement NAIS in the State of Michigan under the guise of eradicating tuberculosis. Once the record is supplemented by the documents requested by the Fund, the Court will be in a better position to determine whether USDA and/or MDA have violated applicable law, and what the appropriate remedy should be.
March 20, 2008
Yesterday, Judge Harry J. Tobias of the San Benito Superior Court in Hollister, California temporarily stayed the effect of AB 1735. Ruling from the bench after nearly two hours of oral argument, Judge Tobias concluded that Organic Pastures Dairy Company LLC and Claravale Farm, Inc. would both be irreparably harmed if the coliform standard imposed by AB 1735 continued to remain in effect because existing testing data proves they cannot meet the standard. In issuing the temporary restraining order, the Judge …continue
March 10, 2008
Meadowsweet Dairy LLC and Steve and Barbara Smith won a victory today against New York’s Department of Agriculture and Markets. In a decision issued by Albany County Supreme Court Judge John C. Egan Jr., the Court found that it made no sense to proceed on the Department’s contempt action if indeed the Smiths and Meadowsweet are not regulated by New York’s Agriculture and Market Laws (A&ML). “If the A&ML does not govern the respondents’ activities, then the respondents cannot be held in contempt for failing to comply with the warrant issued pursuant to the A&ML” Judge Egan stated in his decision.
The contempt proceeding stems from a search warrant that was…continue
March 4, 2008
Today, the Legal Defense Fund successfully got the Florida Department of Agriculture and Consumer Services to admit that it had erroneously enforced the law against a pet food producer in that State. Stemming from a February 23rd incident, the DACS issued a “stop sale” order to The Dancing Goat, alleging that the farm was illegally selling pet food and eggs at a local farmers’ market. However, The Dancing Goat was a licensed commercial feed operator which meant that it could legally sell pet food, and The Dancing Goat was also the producer of the eggs that were being sold at the farmers’ market which meant that it could package and distribute them. All of the Goat’s products were clearly stamped as “not for human consumption, pet food only” and the Goat even had a copy of its commercial feed license with it at the market. “I’m glad that the DACS representative was reasonable and agreed that their inspectors had goofed” said Fund attorney Gary Cox. “It’s nice to get these regulators to recognize the errors of their ways once in a while” said Cox. The DACS representative stated that the stop sale order had been released and that it would not go on the record of The Dancing Goat. For a copy of the letter sent by Cox to DACS see this link.
Per Fund Attorney and Board Member Steve Bemis Reports – The Fund was asked two weeks before trial to help a farmer who had been representing himself in a criminal matter related to the unlicensed sale of value-added food products. A Fund attorney was able to negotiate a 50% fine reduction without a trial.
Georgia – GDA Drops Proposed Rule Requiring Dye in Pet Milk – A press release issued this afternoon, Georgia Commissioner of Agriculture Tommy Irwin announced that he is dropping the proposed rule amendment that would require a dye be added to raw milk sold as pet food. The announcement came shortly after a pre-hearing on the proposed rule (and other rule changes to the Georgia Feed Code) was held at the State Farmers Market in Atlanta. Approximately fifty people spoke at the hearing; every speaker opposed the dye. Many of the speakers were pet owners who promised they would be buying pet milk in South Carolina if the proposed rule were adopted.
The Georgia Department of Agriculture (GDA) received nearly two hundred letters opposing the dye. GDA claimed it proposed the rule on the dye “to prevent any confusion between milk sold for human consumption with that sold for animal consumption.” With opposition to the dye, GDA decided to concentrate on amending the labeling rules to make the distinction for the consumer. A final hearing on the remaining amendments to the Georgia Feed Code will probably be held sometime in the next month before their adoption as rules by GDA. Check the GDA website for scheduling.
There was talk after the hearing among opponents of the dye to revive a failed 2005 effort to pass a bill legalizing raw milk for human consumption. Raw milk for human consumption has been is illegal in the state since 1980. Congratulations to the producers and consumers successfully opposing the rule, especially to those who are members of the Farm-to-Consumer Legal Defense Fund.
Herdshares are now legal in Ohio – Judge Jonathan P. Hein of Ohio’s Darke County Court of Common Pleas ruled in favor of Carol Schmitmeyer, a dairy farmer who operates a herdshare with over 100 shareholders. Judge Hein’s decision vacated an earlier decision by Ohio’s former Director of Agriculture that she was illegally “selling” raw milk. For a more complete discussion of the Court’s opinion click here.