3-0400-15591-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF AGRICULTURE

 

In the Matter of the Suspension of Manufacturing Grade Farm Certification of Don Lieser

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

         

The above matter came on for hearing before Administrative Law Judge Kathleen D. Sheehy on November 7, 2003 at the Stearns County Courthouse, Courts Facility Building, Room 128, St. Cloud, Minnesota.  The record closed at the end of the hearing.

David P. Iverson, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN  55101-2127, appeared on behalf of the Department of Agriculture.

Donald Lieser, 23511 Greenfield Road, Richmond, MN 56368, appeared for himself without counsel. 

NOTICE

This report is a recommendation, not a final decision.  The Commissioner of Agriculture will make the final decision after a review of the record.  The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations.  Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact Gene Hugoson, Commissioner, Department of Agriculture, 90 West Plato Bovd., St. Paul, MN  55107, to learn the procedure for filing exceptions or presenting argument.

 

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

 

STATEMENT OF ISSUE

          Should the Respondent’s manufacturing grade farm certification be permanently suspended for violation of the standards pertaining to somatic cell counts incorporated by Minn. Stat. § 32.415(a) and for violation of Minn. Stat. § 32.103(b), which permits suspension of certification for a refusal or physical threat that prevents the completion of an inspection?

          The Administrative Law Judge concludes that the Respondent’s milk certification should be permanently suspended.

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.       Somatic cells are dead white blood cells.  When present in milk, a high somatic cell count indicates the possibility of infection in the cow that produced the milk.[1]  A dairy farmer/producer’s milk must be sampled and tested for somatic cells by an approved laboratory at least four times in each six-month period at irregular intervals.  Anyone taking an official sample must be properly licensed to do so.  Typically, a field representative of the processing company that buys the milk from the producer does the sampling every time milk is picked up and forwards the samples to an approved laboratory.  The laboratory in turn analyzes the components of each sample for purposes of paying the producer and also forwards a sample test result to the appropriate dairy inspector on a monthly basis.[2]

 

2.       The quality standards for both Grade A and Grade B milk set a limit of 750,000 somatic cells per ml.[3]  If two of the last four consecutive somatic cell counts exceed 750,000 per ml, the dairy inspector issues a written warning notice to the producer.  If a third result within the last five counts exceeds the limits, the producer’s milk is excluded from the market until satisfactory results are obtained.[4]  If that happens, the producer is then granted a temporary permit, with full reinstatement to follow within 30 days if the farm passes a reinspection and if the producer can demonstrate five acceptable test results within 21 days.

 

3.       In 1988 Donald Lieser purchased a small dairy farm in Richmond, Minnesota.  In 1999 he sold his cows and left the dairy business after being taken off the market for high somatic cell counts.

4.       In April 2001 Lieser bought a new herd for the purpose of starting up his dairy operation again.  On April 19, 2001, he applied for a Grade A permit.  After inspection of the farm on April 24, 2001, Dairy Inspector Art Holdvogt approved the sale of raw Grade A milk effective April 25, 2001.[5]  At the time, Lieser was using AMPI as his milk processor.

5.       Sampling tests in June and July 2001 showed somatic cell counts over 750,000 per ml.  On August 10, 2001, Hildvogt issued a Notice of Intention to Suspend Lieser’s Grade A permit if three of five consecutive counts were to exceed the standard.[6]

6.       Sampling tests in August 2001 exceeded the standard, and on September 7, 2001, Holdvogt issued a Notice of Suspension of Permit providing that milk picked up after September 11, 2001 would not be acceptable for sale for human consumption.[7]

7.       Lieser obtained a temporary permit after obtaining an acceptable sample, but his temporary permit was suspended on September 27, 2001 for excessive somatic cell counts.[8]

8.       Because of Lieser’s concern that someone was tampering with his samples, Holdvogt did “split sampling” with the milk processor on October 23, 2001.  This involved Holdvogt meeting the field representative at the farm and splitting in half the sample taken that day.  The field representative took his sample to his approved laboratory for analysis; Holdvogt split his sample into three or four vials and took each vial to a different approved laboratory for analysis.  All the results were essentially identical, showing somatic cell counts of 1.6 to 1.7 million per ml.[9]

9.       In October 2001, Lieser obtained a sample with an acceptable somatic cell count.  After reinspection of the farm in October and December 2001, Holdvogt certified the farm for production of Grade B milk as of December 11, 2001.  At this time Lieser had switched to Bongard’s as his milk processor.[10]

10.     On December 12, 2001, Holdvogt repeated the split sampling procedure, with the same results.[11]

11.     On December 14, 2001, Holdvogt met with Lieser and the Bongard’s field representative to discuss the chronic problem with high somatic cell counts.  Based on test results in November and December, Holdvogt hand-delivered another Notice of Intention to Suspend the permit.[12]  Lieser indicated that he had problems with stray voltage and milking equipment and that he was checking individual cow samples for culling and withholding milk.  Holdvogt went over the requirements with him and reiterated that whenever three of the last five consecutive samples provided to the state were unacceptable, the permit would be suspended.[13]

12.     On January 10, 2002, Lieser’s permit was suspended again for high somatic cell counts, the third time within six months.[14]  Lieser’s milk was off the market effective January 15, 2002.

13.     On January 22, 2002, after obtaining a sufficient number of good samples, Lieser’s permit was reinstated.[15]

14.     In June and July of 2002, Lieser received warning letters for a high bacterial count and for adulteration of his milk with added water.[16]

15.     In June and July of 2002, Lieser’s test samples again indicated high somatic cell counts.  On July 30, 2002, Holdvogt issued a Notice of Intention to Suspend Permit.[17]  At the same time, Lieser switched to using NFO as his milk processor.

16.     Lieser’s permit was suspended for high somatic cell counts on September 3, 2002, and reinstated September 12; suspended October 31, 2002, and reinstated November 8; and suspended December 5, 2002, and reinstated December 23.[18]  During this timeframe, Lieser switched from using NFO as his milk processor to Bongard’s, and from Bongard’s to Dairy Farmers of America (DFA).[19]

17.     In late October and early November 2002, Lieser made a series of phone calls to Holdvogt’s home to tell Holdvogt that he (Lieser)  was going to get Holdvogt fired.  Lieser also insinuated that he would ruin someone else’s milk if his own milk did not get picked up.  In response, Holdvogt directed that additional security measures be taken with regard to sealing a milk truck that typically was parked on a road near Lieser’s home for several hours at a time.[20]

18.     On December 27, 2002, Elaine Santi, Holdvogt’s supervisor, wrote to Lieser expressing the Department’s concerns about repeated somatic cell count violations.  She scheduled a meeting, which took place January 2, 2003, with herself; Holdvogt; John Schneider, Lieser’s DFA field representative; and Lieser.  At the meeting Santi offered Lieser an agreement, the terms of which provided that if he would agree to an immediate suspension of his permit, without further notice or a hearing, any time his somatic cell counts justified suspension during the next two years, the Department would agree not to revoke his permit immediately and would further agree that it would not act to revoke his permit permanently unless it were suspended more than three times in the next two years, at which point he could request a hearing.[21]  Lieser declined to sign the agreement.[22] 

19.     In January 2003 Holdvogt accelerated the schedule for reporting test results, requesting that the processing laboratory send him the results for every sample taken each time DFA picked up Lieser’s milk.[23] 

20.     Lieser’s permit was suspended for high somatic cell counts on March 3, 2003, and reinstated March 4; suspended May 5, 2003, and reinstated May 6; May 22, 2003, and reinstated June 5; suspended July 29, 2003, and reinstated August 5; and suspended for the last time on September 8, 2003.[24]

21.     DFA representative John Schneider worked with Lieser to try to determine the cause of the high somatic cell counts.  Schneider did a culture of Lieser’s bulk tank and determined that it had high levels of strep and staph bacteria.  Despite these results, Lieser indicated to Schneider that he did not believe his cows had infections because he could not see any evidence of it in his milk filters.[25]

22.     On the morning of September 9, 2003, John Schneider visited Lieser’s farm to sample the milk in his tank.  Lieser came into the milkhouse where Schneider was working and told Schneider that he did not believe the results of the somatic cell testing and that he believed the state was out to get him.  He also said that he was going to put a bullet between Art Holdvogt’s eyes, that he was going to jail anyway so he might as well kill Art, that he could tell Art what he [Lieser] had said, and that he had nothing to live for.  Schneider responded that Lieser had a family to live for, had a good work ethic, and kept his milkhouse and barn clean.  After leaving the farm, Schneider immediately summarized the conversation for his file and reported it to his supervisor, Elaine Santi, Art Holdvogt, and the Stearns County Sheriff’s Department.[26]

23.     Santi reported the incident to her supervisors, who instructed her not to let Holdvogt or any other Department employee return to Lieser’s farm.  Neither Holdvogt nor John Schneider has been back to the farm since September 9, 2003.

24.     On September 23, 2003, Santi notified Lieser that the Department was permanently suspending his certification in Minnesota for two reasons:  (1) repeated violation of the standards pertaining to somatic cell counts; and (2) violation of Minn. Stat. § 32.103(b), which provides that “[a] refusal or physical threat that prevents the completion of an inspection . . . may result in the suspension of the offender’s permit or certification.”[27] The notice further informed Lieser that he had an opportunity for a hearing before the permanent suspension became effective.       

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.     The Commissioner of Agriculture and the Administrative Law Judge have jurisdiction in this matter under Minn. Stat. § § 14.50, Section 3 of the PMO, and Minn. Stat. § 32.103(b).

2.     The Department of Agriculture gave proper and timely notice of the hearing in this matter.

3.     The Department has complied with all substantive and procedural requirements of law and rule.

4.     For repeated violations of the PMO, the commissioner may revoke a permit following reasonable notice to the permit holder and an opportunity for a hearing.[28]

5.     Grade B farm certification means that an inspector has certified that a producer’s herd, milking facility and housing, milking procedure, cooling, milkhouse or milkroom, utensils and equipment and water supply have been found to meet the applicable requirements of subpart D for the production of milk to be used for manufacturing purposes.[29]  Farm certification shall authorize the sale from that farm of milk for manufacturing purposes that meets the qualify standards of section C2 to C4 of subpart C (including standards for somatic cell counts) as determined by the procedures described in sections C2 to C11 of subpart C.[30]

6.     The Department has proved that revocation of the Respondent’s Grade A permit and/or permanent suspension of his Grade B farm certification are justified for repeated violations of the quality standards pertaining to somatic cell counts.

7.          Minn. Stat. § 32.103, pertaining to inspection of dairies, provides in relevant part as follows:

(a)  At times the commissioner determines proper, the commissioner shall cause to be inspected all places where dairy products are made, stored, or served as food for pay, and all places where cows are kept by persons engaged in the sale of milk, and shall require the correction of all insanitary conditions and practices found. . . .

(b)  A refusal or physical threat that prevents the completion of an inspection or neglect to obey a lawful direction of the commissioner or the commissioner’s agent given while carrying out this section may result in the suspension of the offender’s permit or certification.  The offender is required to meet with a representative of the offender’s plant or marketing organization and a representative of the commissioner within 48 hours excluding holidays or weekends or the suspension will take effect.  A producer may request a hearing before the commissioner or the commissioner’s agent if a serious concern exists relative to the retention of the offender’s permit or certification to sell milk.

          8.       The Respondent’s threat to kill the dairy inspector constitutes a refusal or physical threat that prevents the completion of an inspection because the Department can no longer send its inspector to the farm due to safety concerns.

          9.       The Department has proved that permanent suspension of the Respondent’s Grade B farm certification is justified for violation of Minn. Stat. § 32.103. 

          Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED:  That the commissioner’s order permanently suspending Donald Lieser’s milk certification be affirmed.

Dated this 14th day of November, 2003.

 

 

 

 

S/ Kathleen D. Sheehy

KATHLEEN D. SHEEHY

Administrative Law Judge

Reported: Taped (five tapes)

 

 

 

 

 

MEMORANDUM

 

          The Department provided compelling evidence that Art Holdvogt, Elaine Santi, and Mr. Lieser’s various field representatives gave Mr. Lieser every opportunity to find and correct the source of his problems with somatic cell counts before the Department acted to suspend his certification.  Despite being taken off the market 13 times in two and one-half years, the Department took no action to permanently stop Mr. Lieser from selling his milk until Mr. Lieser threatened to kill the dairy inspector.  The Administrative Law Judge believes that Mr. Lieser made the threat exactly as described by John Schneider and further finds that Mr. Lieser’s testimony that Schneider fabricated the entire incident is not credible.  The commissioner is clearly justified in permanently suspending Mr. Lieser’s farm certification. 

 

                                                                                K.D.S.