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Saif Food Market v. Commissioner

July 8, 2003

SAIF FOOD MARKET, RELATOR,
v.
COMMISSIONER, STATE OF MINNESOTA, DEPARTMENT OF HEALTH, RESPONDENT.



Department of Health Agency File No. 6-0900-14776-2

Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

SYLLABUS BY THE COURT

1. Evidence that a vendor first sold infant formula for a WIC voucher, then accepted the return of the formula in exchange for part of its cash value and tobacco, and later redeemed the voucher for the full value of the formula, supports vendor's disqualification under Minn. R. 4617.0084, subp. 3(A) (2001).

2. Failure to provide notice to a vendor of alleged prior violations of one subpart of Minn. R. 4617.0084 (2001) does not preclude disqualification for a later violation of another subpart of Minn. R. 4617.0084.

The opinion of the court was delivered by: Harten, Judge

Affirmed

OPINION

Respondent Minnesota Department of Health disqualified relator, a vendor, from participating in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) for six years. An administrative law judge (ALJ) found by a preponderance of the evidence that relator violated WIC rules by purchasing a WIC voucher for cash and tobacco and exchanging tobacco for a WIC vouchers. The Commissioner of Health adopted the ALJ's report and imposed the recommended six-year disqualification. Relator appeals by writ of certiorari, arguing that respondent did not prove the violations and failed to provide adequate notice of prior violations.

FACTS

The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) is a federally funded, state managed program that provides pregnant women, nursing mothers, infants, and children up to age five with nutritional supplements and other health care services. In August 2001, relator Saif Food Market and respondent Minnesota Department of Health entered into an agreement allowing relator to participate as a WIC vendor. Relator was permitted to accept WIC vouchers in exchange for specific food products but prohibited from purchasing vouchers for cash or exchanging tobacco for vouchers. Respondent ensures compliance with WIC rules through covert investigations.

On 11 December 2001, respondent sent an undercover investigator to relator with two WIC vouchers, each allowing her to purchase three cans of infant formula. Before entering the store, the investigator disposed of a cigarette as relator's owner, Abdul Muwahid, watched. After the investigator exchanged the vouchers for the infant formula, Muwahid gave her a pack of cigarettes. The investigator did not request the cigarettes.

On 2 January 2002, the same investigator returned to relator and presented a voucher for four cans of infant formula. Muwahid filled in the voucher for $63.96 (the cost of four cans of formula) and told the investigator that he would buy back the formula if she returned later. The next day, the investigator returned with the four cans of formula. She gave the formula to Muwahid, and Muwahid gave her $20 in cash and a pack of cigarettes. Relator later redeemed the voucher for $63.96.

Respondent determined that relator violated WIC rules by exchanging cash and tobacco for a WIC voucher. On 4 February 2002, respondent notified relator that it was disqualified from participating in WIC for six years. Relator appealed. An ALJ found by a preponderance of the evidence that relator bought a WIC voucher for cash and exchanged tobacco for a voucher in violation of Minn. R. 4617.0084, 7 C.F.R. ยงรก246.12(k)(1), and the Retail Food Vendor Agreement. On 30 December 2002, the commissioner issued an order adopting ...


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