Farmer Dan Brown must stop selling milk. In a ruling by Hancock County Superior Court signed on April 27 and released May 2, Judge Ann Murray issued an injunction against Brown to stop 1) selling milk without a license; 2) selling unpasteurized milk without labeling it as such; and 3) operating a food establishment without a license.
In a May 3 telephone call, Brown said he will “absolutely appeal” the decision, and already has met with his attorneys Gary Cox and Sandy Collier to start the legal process.
However, he will comply with the court’s injunction. “Until we get to the Supreme Court and it overturns [the ruling], I have to honor [Murray’s] decision.”
Murray granted summary judgment to the Department of Agriculture on all three counts it brought against Brown on November 3, 2011, stating, “…the genuine and material facts of this case are undisputed.” Those counts are:
Count 1—The defendant has sold or offered to sell milk or milk products to other persons, without a milk distributor’s license, in violation of 7 M.R.S. 2901-C.
Count 2—The defendant has sold or offered to sell unpasteurized milk in a container that is not labeled “Not Pasteurized” in violation of 7 M.R.S. 2902-B.
Count 3—The defendant has operated a food establishment without being licensed for that purpose in violation of 7 M.R.S. 2167.
Murray enjoined Brown from further unlicensed operations pursuant to 7 M.R.S. sec. 2910-A, which states in part, “In case of violation of an injunction issued under this section, the court may cite the person for contempt of court.”
Counts 1 and 2
On the first count Brown asserted that the Department of Agriculture had advised him that he did not need a license before he began his dairy operation.
The Court replied: “Brown’s purported reliance on the State’s former policy, any delay by the State in enforcing the statute against him…does not outweigh the public health implications of permitting him to continue selling milk without a license.”
On the second count, Brown claimed that a sign at his farm stand stating his milk was unpasteurized fulfilled “substantial compliance with the law,” citing the 1849 case Hatch v. Lawrence (29 Me. 480).
In her judgment, Murray ruled this citation was not “analogous to the present case, where the statute clearly mandates that a warning label be placed on the product itself.”
Count 3—the ordinance, dairy and Home Rule
For the third count, Brown’s defense rested on the “home rule” provision of the state constitution, claiming the Local Food and Community Self-governance Ordinance enacted in Blue Hill in March 2011 allowed him to sell his products without a license.
The court disagreed, stating 1) “Nothing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of ‘local food,’…one could readily conclude that it was not intended to exempt dairy products from licensure.”
Further, Murray supports the State’s contention that Blue Hill may not exempt individuals selling milk from the statutory licensure requirements.”
Regarding Brown’s “home rule” defense, Murray cited a 2008 case (E. Perry Iron & Metal Co., Inc. v. City of Portland, 2008 Me 10): “Local action will be preempted by implication where it “prevents the efficient accomplishment of a defined state purpose.”
Blue Hill’s ordinance, Murray wrote, “clearly frustrate[s] the purpose of the state law.”
A hearing on civil penalties will be heard on Thursday, May 16, at 9 a.m.