Originally published in The Weekly Packet, June 20, 2013
Judge fines Dan Brown $1,000, judgment holds
Will “think about” motion to stay
Dan Brown is trying to lift a court injunction against selling raw milk, pending his appeal on a summary judgment finding him guilty of selling his products without a license or labels.
by Anne Berleant
In a June 14 hearing in Hancock County Superior Court, Judge Ann Murray denied a motion filed by Dan Brown’s attorneys to amend or alter her summary judgment issued on April 25. She then assessed $1,000 in civil penalties and $132 in court costs against Brown.
Dan Brown of Blue Hill was found guilty in a suit filed by the Maine Department of Agriculture of selling unlicensed raw milk without a license, selling raw milk without an identifying label, and operating a retail food establishment without a license.
While attorneys Sandra Collier and Gary Cox argued motions on Brown’s behalf, Brown himself was out on a lobster boat.
Brown is working to compensate income lost by the injunction, Collier said in court.
Murray did not award the Department of Agriculture full court costs because, she said, the state had changed requirements for farmers selling raw milk.
She referred to an email from a state inspector sent within the Department of Agriculture and filed by Brown’s attorneys as evidence in the case that referred to Brown as “a test case.”
“The state changed its position on what was allowable and not allowable,” Murray said. “The state understood that change could well result in litigation.”
The state had asked for $1,140 in court costs, along with $1,000 in civil penalties. Court costs awarded cover $29 for service of process and $102 in travel costs.
Civil penalties break down to $350 each for two instances of selling unlabeled raw milk, $250 each for two instances of selling without a license, and $150 each for two instances of operating a retail food establishment without a license. However, Murray ruled the penalties for selling without a license run concurrent with those for selling unlabeled product.
Selling unlabeled product was an “easily correctable” provision that “would let people know what product” they were consuming, Murray stated in her ruling.
Attorney Gary Cox of the Farm to Consumer Defense Fund proffered photos and the inspection report of Brown’s milking facility and those of Deborah Evans, a Brooksville farmer recently awarded a license to sell raw milk, during the penalty phase of the hearing.
If the court is going to put a penalty on Brown, the court should know Brown tried to obtain a license, Cox said.
Cox said the “pretty nearly identical” milking facilities were given different licensing requirements, with Brown asked to make $20,000 of changes to conform.
“The question becomes, why Brown and not Evans?” Cox said.
Assistant Attorney General Mark Randlett held that Brown “wanted [the state] to be as specific as possible so [there would be] no surprises.”
“Is it the state’s position he wouldn’t have to do all those things?” Murray asked.
“I don’t know,” Randlett said, as Brown never applied for the license after receiving the report.
In the end, Murray accepted the photos of Brown’s facility into evidence, but not those of Evans.
Murray also heard arguments from Brown’s attorneys asking to stay the court injunction against Brown selling his raw milk and milk products, pending his appeal.
“I’ll think about it,” Murray said.
Collier based her argument on criteria established in Ingraham v. Univ. of Maine at Orono (1982), claiming that the injunction creates “irreparable harm” that outweighs harm to the state by allowing the sales.
“This has, essentially, put Brown out of business,” said Collier, after he had invested $22,000 in a farm stand to sell his milk and milk products based on state requirements at the time. “The issue is [whether] the mere fact that someone doesn’t have a license translates into [the] milk being harmful.”
Randlett disagreed. “The public shouldn’t have to wait until someone is sick or dies…The whole point is to protect the public from contaminated milk.”
While Murray called raw milk bill LD 1282, recently passed by the House and Senate, and brought to her attention by Cox, “a blue elephant—or whatever color,” she did say if the bill was signed into law, she would change the injunction “to allow the defendant to do whatever the new law will allow him to.”
The passage of LD 1282 would permit sales of under 20 gallons of raw milk without a license, provided it was properly tested and labeled.
“If LD 1282 becomes effective, that will be what the attorney general’s office enforces,” Randlett said immediately after the hearing. “The other provisions [of Brown’s summary judgment] would still be under effect.”
LD 1282, passed by the House and Senate in the first week of June, is now waiting to be either signed into law by Governor LePage or vetoed. If vetoed, the legislature may override with a two-thirds vote in each chamber.