News Feature

Blue Hill
Originally published in The Weekly Packet, June 26, 2014
Court rulings in Dan Brown case offer narrow interpretation of local ordinance

“Farmer” Dan Brown and his cows

Dan Brown of Gravelwood Farm in Blue Hill shown with Sprocket(left) and her daughter Princess, lost his Maine Supreme Court appeal on June 17, 2014 on three civil convictions related to the illegal sale of raw milk without a license.

Photo by Anne Berleant Order prints of selected PBP photos.

by Anne Berleant

On June 17, the Supreme Court upheld a summary judgment issued by the Superior Court against Blue Hill farmer Dan Brown on three counts related to the sale of milk and milk products without being licensed by the state do so.

Brown had based his defense and subsequent appeal, in part, on the Local Foods and Community Self-governance Ordinance passed by Blue Hill in 2011, which allows for direct farmer-to-consumer sales without state licensing. (The towns of Penobscot and Sedgwick passed a similar ordinance early in 2011; Brooksville, Brooklin and Isle au Haut followed.) The specific section of the ordinance cited by both courts is §5.1, which states:

“[P]roducers or processors of local foods in the Town of Blue Hill are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption.” The ordinance rests its authority on the Home Rule contained in the Maine State Constitution.

But, what good is the ordinance if the state’s highest court gives it no weight?

Both the lower and Supreme Court decisions offered interpretations of the ordinance that sidestepped the question of local authority.

“It is very interesting that both of the courts, in a legalese way, looked for a way not to address the issue,” said Heather Retberg, a Penobscot farmer and co-author of the ordinance.

In the Superior Court decision against Brown, issued in May 2013, Judge Ann Murray wrote that the ordinance could be “read in conformity” with a state statute that exempts the sale of food from farm stands and farmers markets, “yet retains the bar against dairy products,” stating further that “[n]othing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of ‘local food.’”

The Supreme Court offered its own interpretation of the ordinance, stating in its decision that the ordinance “may be read to exempt local food producers from Blue Hill’s regulations,” not from those of the state. It continues:

“We construe the plain language of the Blue Hill Local Food Ordinance to exempt local food producers and processors only from municipal licensing and inspection requirements.”

In addressing Home Rule, and Brown’s assertion that the ordinance permitted him to sell his products without state licenses, both courts fell squarely on the side of state law.

The Supreme Court decision, citing case law, states that municipal legislation will be invalidated “when the Legislature has intended to occupy the field and the municipal legislation would frustrate the purpose of state law.”

Murray, in her Superior Court decision, stated that Brown “avers that his farm stand operations did not violate” state licensing statute based on Home Rule and the Blue Hill ordinance.

But if the ordinance “were to be read in the light Brown attempts to portray it, that ordinance would clearly frustrate the purpose of the state law.”

Blue Hill Selectman Jim Schatz called the Supreme Court ruling unsurprising. “We were always uncertain of the viability [of the ordinance] if it was tested. We supported the sentiment of the ordinance.”

Penobscot Selectman Paul Bowen agreed. “We made it very clear at the town meeting when [voters] passed [the ordinance] that state law trumps local law. If anyone is surprised by that, they shouldn’t be.” Like Schatz, he said the sentiment was “useful” in outlining the community position on “some of these matters.”

That position, according to Retberg, is that local communities should have a voice in state government and regulations.

“The intent of the ordinance…wasn’t an attempt to side-step regulations,” she said. “It really was meant as a way to address the lack of representation in the rule-making system.”

The second function of the ordinance, Retberg continued, was to “define a legally protected space for the direct exchange of food to continue (as it has traditionally) between individuals within a community without state or federal intervention.”

Since the Supreme Court decision, “a lot of people have been checking in,” she concluded. “A lot more towns are interested in passing a [similar ordinance].”

Changing the legislation to allow for unlicensed direct sales of local food is ongoing, she said, despite two bills aimed at allowing direct, unlicensed raw milk sales failing to pass or being vetoed by Governor Paul LePage. “That’s what we have in Augusta,” she said. “The corporate lobbyist pressure has been greater than that of communities.”