The Ohio Department of Agriculture (ODA) and the Lorain County General Health District (LCGHD) have until about January 15, 2009 to submit an answer to the civil lawsuit filed by the private food cooperative Manna Storehouse LLC and its owners, John and Jacqueline Stowers (click here for a copy of the complaint). The civil suit was filed in response to a raid of the Stower's residence and the Manna Storehouse conducted pursuant to a search warrant by the two agencies and the Lorain County Sheriff's Department on December 1, 2008. Law enforcement officials seized thousands of dollars in business and personal property, including over $8000 worth of the Stowers' personal food supply.
In the complaint the Stowers and Manna Storehouse ask for the return of all property seized and for an injunction against any further unconstitutional searches and seizures as well as an injunction prohibiting enforcement of the licensing requirements of the Ohio Uniform Food Safety Code upon the cooperative. ODA and LCGHD both claim that the co-op needs a retail establishment food permit to operate legally.
The lawsuit filed by Maurice Thompson of the Buckeye Institute and Gary Cox (General Counsel for FTCLDF) focuses primarily on two issues. The first is the constitutionality of the paramilitary style execution of a search warrant against a peaceful family (only women and children were home at the time of the raid) whose only alleged crime was failure to obtain a permit (a third degree misdemeanor under state law). As the complaint points out, the affidavit of ODA Agent William Lesho that was used to obtain the search warrant did not indicate that the Stowers were dangerous, that they would destroy evidence, nor that there were exigent circumstances related to executing the search warrant that would justify the use of force or threats in the execution of the warrant.
The deputy from the Lorrain County Sheriff's Department who served the warrant to the Stowers' daughter-in-law Katie is a member of the Northern Ohio Violent Fugitive Task Force (NOVFTF). According to information posted on a federal government website, NOVFTF is a "collaborative, four-county law enforcement effort spearheaded by the U.S. Marshals Service that is dedicated to the pursuit, apprehension, and successful prosecution of violent adult fugitives across the Northern District of Ohio with outstanding state and federal felony warrants for gun crimes." The complaint includes a detailed description of the excessive nature of the raid. Click here to view Jacqueline's account of the raid.
The second issue in this suit, and one with a potential impact on private food distribution clubs throughout the country, is whether state law actually requires the Stowers to obtain a food establishment permit. The Stowers' contention is that since Manna Storehouse is a private cooperative they do not need a permit. A review of the Ohio Uniform Food Safety Code indicates that the Stowers have an arguable claim that Manna Storehouse is not required to obtain a permit--a claim that should have been given consideration by ODA and LCGHD before resorting to a search warrant.
Under state statute, boards of health (like LCGHD) administering food licensure laws must abide by the Ohio Uniform Food Safety Code. This code requires that those operating a retail food establishment must obtain a permit unless the particular food operation is exempted by statute. The Code defines "retail" as "the sale of food to a person who is the ultimate consumer of the food" [OAC 3717-1(83)(a)]. The Code defines "consumer" as "a person who is a member of the public, takes possession of food, is not functioning in the capacity of an operator of a food service operation, retail food establishment or food processing plant, and does not offer the food for resale" [OAC 3717-1(18)]. As ODA Agent Lesho noted in his affidavit, the sign on the door leading to Manna Storehouse "indicates the store was private, not a business, and not open to the public."
LCGHD first made contact with the Stowers on November 29, 2007 when registered sanitarian Dorothy Kloos called the family and asked to inspect Manna Storehouse in order to determine whether the facility should be licensed. The Stowers informed Kloos that they would first like her to send documentation showing the grounds on which Manna Storehouse would be required to obtain a permit. Kloos agreed and the conversation was ended. The next day, Kloos and two other people came on the Stowers property without permission and attempted to do an inspection. The Stowers stopped them and asked them to leave the property. Before leaving, Kloos left a letter addressed to the Stowers with excerpts from the Code on the requirements for operating a retail food establishment as well as the agency's authority to enforce those requirements.
Jacqueline Stowers responded on December 10, 2007 to the information by sending a letter to Kloos stating that the family was not operating a retail food establishment and that "any perceived activities that might resemble a retail food establishment would fit under the statutory exemptions for licensure provided by state law." Jacqueline Stowers specifically asked Kloos to provide "copies of any statements, complaints, letters or similar materials that, pursuant to your letter, lead you to believe we are operating a retail food establishment . . . ." She also made the same request concerning Kloos' belief that the Stowers were "conducting any activities" that would not fit under the statutory exemption for licensure.
In the letter, Stowers warned that she would take legal action against Kloos if she came on the family's property again without the Stowers written permission. Stowers also requested that all future communications between the LCGHD and the family be in writing. Instead of answering the Stowers legitimate questions and clarifying the reasons for the belief that Manna Storehouse needed a permit, LCGHD referred the matter to the Lorain County Prosecutor's office asking the prosecutor for a response to the Stowers' letter. The Prosecutor's ofice subsequently requested assitance on this case; and on September 16, 2008, James Boddy of LCGHD sent a letter to Charles Kirchner of ODA's Food Safety Division requesting that ODA "assist the Health Department in gathering evidence regarding the Manna Storehouse operation and, if this operation must be licensed, assist the Health Department in preparing case prosecution if necessary."
Maurice Thompson recently talked with an inspector at LCGHD who told him that the reason the health department did not respond to the Stowers was that agency "didn't like the tone" of Jacqueline Stower's letter and "didn't think it was appropriate", ignoring that the reason for the "tone" of the letter was the Stowers felt betrayed by Dorothy Kloos' surprise visit and had every right to order her off their property since she did not have a warrant.
ODA could have started a respectful dialogue with the Stowers in working towards a determination as to whether Manna Storehouse was, in fact, a retail food establishment. Instead, the agency resorted to a tactic it had used in the past--sending an undercover agent to the co-op to "make a buy". Agent Lesho showed up unannounced at Manna Storehouse on September 30, 2008 trying to purchase food. The Stowers rejected him, saying all the food the co-op had in stock was to be divided up among the members. In his affidavit Lesho claimed that John Stowers told him to "make an appointment and come back because it was a holiday and the storehouse wasn't open." On October 7, Lesho returned in another attempt to purchase food from Manna Storehouse. According to the Stowers, this time Lesho told them that he had a sick mother whose health he believed could benefit from eating the eggs the co-op distributed. The Stowers tried to get Lesho to leave the premises but he would not go. Eventually, the Stowers told him he could have a dozen eggs for free. Lesho took the eggs and departed leaving an unsolicited $3.25 for the eggs and $5.00 for a membership in the co-op. In his affidavit, Lesho said the Stowers allowed him to complete a membership application to join the co-op.
This incident is the strongest "evidence" ODA had that Manna Storehouse was "selling" food to members of the public. Lesho's statement in the affidavit that he purchased eggs from the co-op is arguably false. The Stowers did not want to sell him eggs nor accept a donation for giving him eggs. They simply gave him the eggs to get rid of him. There was no agreement between the two parties that would constitute a sale under Ohio law.
In his affidavit, Lesho sought the authorization to seize "any records with an indicia of hidden wealth and/or fruits of illegal income; any contraband as probable cause exists that illegal activity is being conducted from the establishment." This type of request is typically made for a suspected drug dealer, not for a food cooperative suspected of only a third degree misdemeanor for failing to obtain a permit. ODA and LCGHD could have treated the Stowers as law-abiding citizens who had a good-faith dispute with the agencies over the interpretation of the food licensure laws. Instead, they treated them as criminals and as the enemy.
There are situations in which the sale of meat and dairy products, such as the products the Stowers distribute to their co-op members, would not be subject to the food establishment permit requirements. Possibly, ODA and LCGHD did not answer the Stowers' questions about how the food permit requirement applies to Manna Storehouse because the agencies refuse to consider that a private buyers' club could be beyond their jurisdiction and control. The judge hearing the Stowers' case could establish what the law considers to be a private food co-op in the context of the Ohio Food Safety Code.
In talking about the Manna Storehouse raid, Jacqueline Stowers said, "Between the physical things they took and the emotional and spiritual trauma they caused our lives, it's our hope we can somehow help others with this [suit]." Thousands of people who belong to food cooperatives and food buyers' clubs will be following the Stowers' case to see if a precedent will be set on private food clubs being exempted from the regulatory process.
Updates on the lawsuit will be posted at www.farmtoconsumer.org under the Litigation tab. Click here to listen to the podcast "Buckeye Voices: Stowers v. Boggs - 12/18/08" by Maurice Thompson.
|
