COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals

Department of Public Health,

Petitioner

v. Docket No. PH-08-667

Latina Market
Santiago Infante and Mercedes Vincente

Respondents


SUMMARY OF DECISION

The respondents appeal a three-year disqualification from participation as a vendor in the WIC Program. The Department of Public Health's motion for summary decision is granted based on the respondents' admissions. Also, the Division of Administrative Law Appeals lacks authority to amend the sanction imposed by the WIC Program.

DECISION

Introduction

On September 17, 2008, the Massachusetts Department of Public Health, which implements the federal Special Supplemental Food Program for Women, Infants, and Children (WIC) Program in Massachusetts, terminated its 2008-2009 WIC Vendor Agreement with Latina Market and its owners, Santiago Infante and Mercedes Vincente (respondents). The WIC Program further disqualified the respondents from participating in the program for three years. The WIC Program received the respondents' appeal, filed by Mr. Infante, on September 22, 2008. The appeal, thus, is timely.

Following the prehearing conference on November 12, 2008, a hearing was scheduled for January 7, 2009, in order to accommodate a request by Mercedes Vincente. The DPH filed its proposed exhibits on November 12, 2008. The respondents were ordered to file their proposed exhibits by January 2, 2009, but did not do so.

Mr. Infante appeared alone for the hearing. He stated that he did not intend to call any witnesses or offer any exhibits. He requested a continuance so that the respondents could hire an attorney. The DPH objected to the request. It argued that the respondents had ample opportunity to retain counsel during the months since the notice of termination was issued on September 17, 2008. DPH further argued that it would be prejudiced by any delay because the DPH had incurred travel and lodging expenses for one of its witnesses.

In addition, Mr. Infante was informed at the prehearing conference that an attorney is not required in these administrative proceedings, but he should think carefully about whether the assistance of an attorney would be helpful. He was informed about the availability of programs that offer legal services for a reduced fee.

I denied Mr. Infante's request because he could not explain why he had not sought counsel earlier. He made no attempt prior to the hearing to look into hiring an attorney. He could not describe any change in his circumstances, economic or otherwise, that would allow him to now obtain counsel. The DPH moved for summary decision after the hearing opened but before testimony was taken. It argued that no material factual dispute exists because the respondents admitted on the record that the violations occurred. Rather than contest the violations, the respondents seek another chance to correct their mistake.

I conclude that the DPH's motion is adequately made and supported both as to the existence of the violations and as to the sanction imposed. I further conclude that, as a matter of law, the DPH should prevail. Accordingly, its motion is granted and the appeal dismissed.

Discussion

The procedural rules that apply to this appeal are 801 CMR 1.02, the Informal/Fair Hearing Rules. 801 CMR 1.02 does not describe specific types of motions that parties may file. Instead, 801 CMR 1.02 (7) (c) provides simply that a party may request rulings or relief in writing at any time or orally during a hearing. In keeping with their informal nature, the rules allow parties to seek the relief appropriate to a given case. When the relief requested is a summary disposition, the language at 801 CMR 1.01 (7) (h) of the formal rules is helpful. It provides that:

When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law, the Party may move, with or without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as to part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues.

801 CMR 1.01 (7) (h).

A motion for summary decision may be granted when there is no genuine issue of fact regarding the claims presented and a party is entitled to prevail as a matter of law. Under such circumstances, a hearing would serve no useful purpose. Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass. App. Ct. 775, 785-786, 405 N.E.2d 151, 156 (1980). The language of 801 CMR 1.01 (7) (h) borrows heavily from the standard for summary judgment set forth in Mass. R. Civ. P.56. It is well established that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56(c); Community Nat'l Bank v. Dawes, 369 Mass. 550, 340 N.E.2d 877, 879 (1976). A party opposing summary judgment must respond with specific facts showing that there is a genuine, triable issue. Id.; Mass. R. Civ. P. 56(e).

The Notice of Termination alleges that the respondents violated the Vendor Agreement by:

a) on four separate occasions, overcharging the WIC Program by writing a higher amount on the check than the actual price of the items purchased by the WIC compliance buyer;

b) on four separate occasions, charging the WIC compliance buyer and/or the WIC Program a set price by check type instead of pricing each check for the actual items purchased;

c) on four separate occasions, failing to comply with federal, state, and local laws concerning the disclosure of prices for items offered for sale;

d) on four separate occasions, failing to observe the WIC compliance buyer sign the check or to ensure that the signature on the check matched the signature on the authorized WIC ID card; and

e) on four separate occasions, failing to fill in the purchase amount in the presence of the WIC compliance buyer before the WIC compliance buyer countersigned the check.

(Pleading A, filed September 25, 2008).

The Vendor Agreement is a requirement of federal law; vendors are required to comply with its terms. See 7 CFR 246.12 (h) (3) (xxii).

The respondents' hearing request filed by Mr. Infante, states: "I want to apologize for what happened. … I was not here and I was the one who took the training and I did not explai[n] anything to the person who was in the store [and] I am the one responsible for not explaining anything … I promise it will not happen again." (Pleading B, filed on September 25, 2008).

At the hearing, Mr. Infante did not dispute any of the facts underlying the alleged violations. He stated that he was not in the store on the days the violations occurred, that his wife was probably the cashier, but that it could have been his son or daughter. He reiterated that a mistake was made, he was sorry for what happened, and he needed a second chance because the economy was bad.
The respondents do not dispute that the violations alleged by the DPH in its Notice of Termination occurred. Accordingly, based on the pleadings and admissions on file, I conclude that there is no material factual dispute concerning whether the violations occurred.

The respondents ask for a second chance, that is, they seek to have the three year sanction reduced or modified. I conclude, however, that I have no authority to do so.

7 CFR 246.18 (8), a provision of federal law governing the WIC Program's administrative review procedures, provides that state procedures reviewing agency action must provide an impartial decisionmaker whose determination is based solely on whether the state agency has correctly applied federal and state statutes, regulations, policies, and procedures governing the WIC Program. No provision authorizes that decisionmaker to alter the sanction imposed.

The respondents entered into the WIC Vendor Agreement for 2008-2009. Exh. 1.A. Mr. Infante signed the agreement on the vendor's behalf. Exh. 1.B. The vendor agreed, among other things, to write on the check a price no higher than the actual, current shelf price of only those WIC products authorized on the check and actually purchased by the authorized WIC shopper. Exh. 1.A. ¶ 6.b. at 3. In addition, the vendor agreed not to price WIC transactions by check type instead of pricing each check for the items actually purchased. Exh. 1.A. ¶ 6.g. at 3.
The Vendor Agreement also sets forth the WIC Program's sanction policy for vendor noncompliance. Exh. 1.A. at 8. Under the Vendor Agreement, different classes of violations carry different sanctions. Those violations within Class II "will result in mandatory disqualification for three years for first time offenders." Exh. 1.A. at 8. A pattern of overcharging the WIC Program is a Class II violation. Exh. 1.A. at 22. A pattern is defined as two or more incidences of a violation. Exh. 1.A. at 21. The respondents engaged in overcharging on four occasions. A pattern of charging the WIC compliance buyer and/or the WIC Program a set price by check type instead of pricing each check for the actual items purchased also is a Class II violation. Exh. 1.A. at 22. The respondents engaged in charging a set price by check type on four occasions.

Accordingly, the sanction imposed by the WIC Program was that required under the Vendor Agreement entered into by the respondents. Each of these violations standing alone would have resulted in a three-year disqualification.

The respondents have not offered any evidence to the contrary. They have not come forward with facts that would show the existence of a material factual dispute regarding the sanction imposed. They have not, for example, shown that another vendor alleged to have overcharged WIC shoppers or to have charged a set price by check type received a lesser sanction. Nor have the respondents offered any argument to support their view that an administrative magistrate is authorized to alter a sanction imposed by the WIC Program.

Conclusion

Consequently, I find that the DPH is entitled to summary decision. There is no material factual dispute as to whether the alleged violations occurred or as to whether the sanction

imposed by DPH may be varied. The respondents are disqualified from the WIC Program for three years from the date they received the Notice of Termination.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Bonney Cashin

Administrative Magistrate

Dated: March 19, 2009