COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Department of Public Health,

Petitioner

v. Docket No. PH-08-668

Saleem Corp. d/b/a Market del Sol and
Mohammad Saleem,

Respondents

SUMMARY OF DECISION

The respondents appeal a three-year disqualification from participation as a vendor in the WIC Program. The motion for summary decision filed by the Department of Public Health 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 12, 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 Saleem Corporation d/b/a Market Del Sol and with Mohammad Saleem, president and owner of the corporation (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. Saleem, on September 26, 2008. The appeal, thus, is timely.


Following a prehearing conference, the DPH filed a motion for summary decision. It argued that no material factual dispute exists because the respondents admit that the violations occurred. Rather than contest the violations, the respondents seek an alternate penalty, which, the DPH argues, an administrative magistrate has no discretion to grant in an administrative hearing. The respondents did not respond to the motion. 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 issued by the DPH on September 12, 2008 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 one occasion, failing to observe the WIC buyer sign the check or to ensure that the signature on the check matched the signature on the authorized WIC ID card;

c) on four occasions, failing to fill in the purchase amount in the presence of the WIC buyer before the WIC buyer countersigned the check;

d) on four occasions, failing to affix the price to items offered for sale; and
e) on one occasion, substituting unauthorized food products for authorized items specified on the WIC check.

Motion for Summary Decision, Att. A.

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 states: "I agree with your decision. But I just request … another chance." Motion for Summary Decision, Att. B. The respondents did not respond to the motion for summary decision. The respondents admit the allegations made by the DPH in its Notice of Termination. Accordingly, based on the pleadings and admissions on file, I conclude that there is no material factual dispute concerning whether the violations alleged by the WIC Program occurred.

In their appeal the respondents ask for another chance, that is, they seek to have the sanction imposed 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. Saleem signed the agreement on the vendor's behalf. Exh. 1.B. The vendor agreed to, among other things, 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.

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.
Accordingly, the sanction imposed by the WIC Program was that required under the Vendor Agreement entered into by the respondents. Furthermore, the affidavit of Mary Blocksidge, submitted with the DPH's motion for summary decision, avers that termination of the Vendor Agreement and disqualification for three years is the sanction uniformly imposed without variation on vendors found to have engaged in overcharging. Att. C.

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 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 16, 2009