STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 08 DHR 2263

PEARLINE H. WHITE, )

)

Petitioner, )

) DECISION

v. ) AND

) ORDER GRANTING

N.C. DEPARTMENT OF HEALTH AND ) SUMMARY JUDGMENT

HUMAN SERVICES, )

)

Respondent. )

This matter came on for hearing before the undersigned administrative law judge on December 17, 2008, to consider the Respondent's Motion for Summary Judgment filed on November 7, 2008. Petitioner responded to the Motion on November 21, 2008. The Respondent was represented by Donna D. Smith, Assistant Attorney General, and the Petitioner appeared pro se.

ISSUES

The issues are:

(a) Whether the Petitioner, or owner(s), officer(s), manager(s), agent(s), or employee(s) of Petitioner's store, Liberty Butcher Shop, violated 10A N.C.A.C. 43D.0706(c)(23), .0706(h)(2)(B)(ii), and the WIC Vendor Agreement on or about September 2, 2008, and September 10, 2008, by failing to stock minimum inventory;

(b) Whether the Petitioner, or owner(s), officer(s), manager(s), agent(s), or employee(s) of Petitioner's store, Liberty Butcher Shop, violated 10A N.C.A.C. 43D.0706(b)(7), .0706(c)(39), .0706(h)(2)(B)(iii), and the WIC Vendor Agreement on or about September 2, 2008, and September 10, 2008, by failing to mark the current shelf prices of all WIC supplemental foods on the foods or have the prices posted on the shelf or display case;

(c) Whether the Petitioner, or owner(s), officer(s), manager(s), agent(s), or employee(s) of Petitioner's store, Liberty Butcher Shop, violated 10A N.C.A.C. 43D.0706(c)(23), .0706(h)(2)(A)(i), and the WIC Vendor Agreement on or about September 2, 2008, by stocking WIC supplemental foods outside of the manufacturer’s expiration date; and

(d) Whether disqualification of Liberty Butcher Shop would result in hardship to WIC participants in accordance with 15A N.C.A.C. 43D .0706(l)(3).

Upon consideration of the pleadings, the Respondent’s Motion with attached affidavit, Petitioner's response to the Motion, and such other materials, authorities, and arguments presented by or on behalf of the parties, the undersigned makes the following:

UNDISPUTED FINDINGS OF FACT

1. Petitioner filed a petition with the Office of Administrative Hearings on October 1, 2008, to contest a September 22, 2008 Notice of Intent to Disqualify Liberty Butcher Shop as an authorized vendor in the Special Supplemental Nutrition Program for Women, Infants and Children ("WIC Program") for 225 days.

2. On September 2, 2008 and September 10, 2008, Liberty Butcher Shop was monitored by the WIC Program for compliance with WIC Program requirements. On each of these dates the store was assessed 5 sanction points for failure to stock minimum inventory. On each of these dates the store was also assessed 5 sanction points for failure to mark the current shelf prices of all WIC supplemental foods. Additionally, the store was assessed 2.5 sanction points for having expired foods on September 2, 2008.

3. Petitioner voluntarily admits the violations cited in the September 22, 2008, Notice of Intent to Disqualify from WIC Program. However, Petitioner did not fully understand the WIC Program's sanction point system and that the sanction points assessed against her store resulted in a 225-day disqualification from the WIC Program.

4. Prior to issuing its Notice of Intent to Disqualify, the Respondent determined pursuant to 10A N.C.A.C. 43D .0706(l)(3) that disqualifying Liberty Butcher Shop from the WIC Program would not result in participant hardship. There are seven authorized WIC vendors between 1.1 and 2.4 miles of Liberty Butcher Shop and two authorized WIC vendors within 0.2 and 0.4 miles of the health department.

Based upon the foregoing undisputed Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. Title 10A N.C.A.C. 43D .0706(h)(2)(B)(ii) provides that 5 sanction points shall be assessed for each occurrence of failure to stock minimum inventory. The Respondent's assessment of 10 sanction points for this violation on September 2, 2008 and September 10, 2008 was proper.

2. Title 10A N.C.A.C. 43D .0706(h)(2)(B)(iii) provides that 5 sanction points shall be assessed for failure to mark the current shelf prices of all WIC supplemental foods on the foods or have the prices posted on the shelf or display case. The Respondent's assessment of 10 sanction points for this violation on September 2, 2008 and September 10, 2008 was proper.

3. Title 10A N.C.A.C. 43D .0706(h)(2)(A)(i) provides that 2.5 sanction points shall be assessed for each occurrence of stocking WIC supplemental foods outside of the manufacturer's expiration date. The Respondent's assessment of 2.5 sanction points for this violation on September 2, 2008 was proper.

4. Title 10A N.C.A.C. 43D .0706(h)(3) states that if a vendor accumulates 15 or more sanction points, the vendor shall be disqualified. The formula contained in Rule .0706(h)(3) for calculating the disqualification period requires a 225-day disqualification for the violations and sanction points assessed against the Petitioner's store.

5. Disqualifying Liberty Butcher Shop from the WIC Program for 225 days will not result in participant hardship pursuant to 10A N.C.A.C. 43D .0706(l)(3).

6. Because Petitioner voluntarily admits the violations cited in the Notice of Intent to Disqualify Liberty Butcher Shop and because disqualification of the store will not result in participant hardship, there is no genuine issue as to any material fact and the Respondent is entitled to summary judgment as a matter of law.

7. Respondent’s disqualification of Liberty Butcher Shop from the WIC Program for 225 days was proper.

Based upon the foregoing undisputed Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

WHEREFORE, it appearing to the undersigned that there is no genuine issue of material fact with regard to the Respondent’s disqualification of Liberty Butcher Shop for 225 days from the WIC Program and that the Respondent is entitled to judgment as a matter of law pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, Summary Judgment is hereby GRANTED.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with G.S. § 150B-36(b3).

NOTICE

The decision issued by the undersigned Administrative Law Judge hereby disposes of all issues in this contested case. The parties have the right to file exceptions and to present written arguments to the agency making the final decision. G.S. § 150B-36(a). The agency making the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Public Health. The agency is required to serve a copy of the final decision upon each party and to furnish a copy to each party’s attorney of record and the Office of Administrative Hearings. G.S. § 150B-36(b3). In accordance with G.S. § 150B-36(d), if the agency making the final decision does not adopt the Administrative Law Judge’s decision, it shall set forth the basis for failing to adopt the decision and shall remand the case to the Administrative Law Judge for hearing.

This the 7th day of January, 2009.

______

Julian Mann, III

Chief Administrative Law Judge

XXX

A copy of the foregoing was mailed to:

Pearline H. White

Liberty Butcher Shop

2849 North Liberty Street

Winston-Salem, NC 27105

PETITIONER

Donna Smith

Assistant Attorney General

NC Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ATTORNEY FOR RESPONDENT

This the day of January, 2009.

______

Donna D. Smith

Assistant Attorney General