STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINSTRATIVE HEARINGS
WAKE COUNTY
04 DHR 2157
______________________________________________________________________________
El Mandado Supermercado
)
Marco Roldan
)
Petitioner
)
)
v.
)
)
DECISION
NC Department of Health and Human
)
Services, Div. of Public Health,
)
Women’s and Children’s Health
)
Services
)
Respondent
)
______________________________________________________________________________
THIS MATTER came on for hearing before Beryl Wade, Administrative Law Judge, in
the Office of Administrative Hearings on January 24, 2005, pursuant to N.C.G.S. §130A-24 and
§150B-23 and 10 N.C.A.C 43D .0800, upon Notice of Hearing dated January 3, 2005.
Appearing for the Respondent, NC Department of Health and Human Services, Division
of Public Health, Women’s and Children’s Health Services, was Dana F. Barksdale, Assistant
Attorney General, Raleigh, North Carolina. Appearing for the Petitioner, El Mandado
Supermercado and Marco Roldan, was William E. Parker III, attorney, of Raleigh, North
Carolina. Witnesses for the Respondent were Cory Menees, Linda Whitley and Carolyn Wynns.
Witness for the Petitioner was Marco Roldan. Based upon the exhibits admitted into evidence,
testimony of the witnesses, and arguments of the parties and counsel, the Judge makes the
following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1.
Petitioner is an authorized vendor under the North Carolina WIC (Women’s, Infants,
Children) Program (“WIC”) and entered into a WIC Vendor Agreement to participate as a
vendor providing WIC supplemental foods to WIC participants.
2.
El Mandado Supermercados was monitored pursuant to 10A N.C.A.C. 43D .0706(c)(29)
on November 3, 2003, November 17, 2003, and September 1, 2004. The monitor reported
inventory insufficiencies of WIC supplemental foods in violation of 10A N.C.A.C. 43D
0706(c)(23), .0706(h)(2)(B)(ii), and the WIC Vendor Agreement.
3.
An additional monitoring inspection of El Mandado Supermercados was conducted on
September 1, 2004, and the monitor determined that the inventoried WIC supplemental foods
contained products that were outside of the manufacturer’s specified expiration dates in violation
of the provisions set forth 10A N.C.A.C. 43D .0706(c)(24), .0706(h)(2)(A) and the WIC Vendor
Agreement.
4.
Consistent with the requirements set forth in 10A N.C.A.C. .0706(h)(2)(B)(ii) and 10A
N.C.A.C. .0706(h)(2)(A), the Petitioner accumulated 17.5 sanction points. The Respondent
applied N.C.A.C. .0706(h)(3) to the aforesaid 17.5 sanction points and determined that the
Petitioner should be disqualified as a WIC vendor for a period of 135 days.
5.
The Respondent notified the Petitioner of its intent to disqualify the Petitioner from the
WIC Program on October 27, 2004.
6.
The Petitioner requested a formal appeal as provided by law (see statutory reference in
paragraph 1, hereof).
7.
At the hearing in this matter, the Respondent, by way of testimony of its witnesses and
exhibits, established the violations of WIC inventory requirements that led to its decision to seek
the 135 day disqualification.
8.
The Petitioner, through its witness, cross examination of Respondent’s witnesses, and
oral arguments, established the Petitioner’s good-faith efforts to comply with the WIC Program
inventory requirements and the negative impact of disqualification upon program participants
whose language barriers were minimized by their ability to deal with Petitioner’s store which has
a predominantly Hispanic clientele.
CONCLUSIONS OF LAW
1.
The Office of Administrative Hearings has jurisdiction over all the parties hereto and
over the subject matter of the hearing.
2.
The issues before the Judge are:
(a)
Whether the Petitioner and its officers, agents, or employees violated the pertinent
provisions of 10A N.C.A.C. 43D 0706(c)(23), .0706(h)(2)(B)(ii), and the WIC Vendor
Agreement regarding minimum inventory requirements of WIC supplemental foods;
(b)
Whether the Petitioner and its officers, agents, or employees violated the
provisions set forth 10A N.C.A.C. 43D .0706(c)(24), .0706(h)(2)(A) and the WIC Vendor
Agreement regarding stocking of foods outside of the manufacturer’s expiration date;
(c)
Whether the resulting disqualification by the Respondent of the Petitioner as a
WIC program vendor will result in a significant inconvenience to Petitioner’s customers who are
WIC Program participants and who are predominantly Hispanic and prefer to deal with a WIC
vendor in their own language; and
(d)
Whether the resulting disqualification by the Respondent of the Petitioner as a
WIC program vendor will result in an undue economic hardship on Petitioner notwithstanding
his good faith efforts to comply with inventory requirements of the WIC program in view of the
language difficulties presented to Petitioner’s predominantly Spanish-speaking staff.
2.
The violations presented by the Respondent through the testimony of its witnesses and
exhibits clearly establish that the Petitioner was not in full compliance with the applicable rules
cited herein.
3.
The testimony of Petitioner’s witness, arguments of its counsel, and cross examination of
Respondent’s witnesses confirm that the Petitioner attempted to comply with the strict
requirements of the WIC program inventory rules but that Petitioner’s efforts fell short of said
requirements.
4.
Petitioner presented persuasive evidence of its value to the Hispanic WIC program
participants that it uniquely serves and of the negative impact on said participants that a lengthy
disqualification as a WIC vendor will present.
ORDER
1.
The determinations of the Respondent set forth in a letter to Petitioner dated October 27,
2004, notifying the Petitioner of disqualification of El Mandado Supermercado as an authorized
vendor from the WIC Program for a period of one hundred thirty-five (135) days are affirmed
subject to the following modifications:
2. Provided however, Petitioner’s disqualification as a WIC vendor shall be for an active period
of sixty (60) days. The remaining seventy-five (75) days disqualification shall be stayed on the
condition that the Petitioner incurs no additional WIC violations for a period of two (2) years
from the date hereof.
3. 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, N.C. 27699-6714, in accordance
with North Carolina General Statute 150B-36(b).
NOTICE
The decision of the Administrative Law Judge in this contested case will be reviewed by
the agency making the final decision according to the standards found in G.S. 150B-36(b)(b1)
and (b2). The agency making the final decision is required to give each party an opportunity to
file exceptions to the decision of the Administrative Law Judge and to present written argument
to those in the agency who will make the final decision. G.S. 150B-36(a).
The agency that will make the final decision in this contested case is the NC Department
of Health and Human Services, Division of Public Health, Women’s and Children’s Health
Services.
This the 6th day of April, 2005.
___________________________
Beryl E. Wade
Administrative Law Judge