The opinion of the court was delivered by: TROUTMAN
On July 11, 1984, the above captioned plaintiff filed a complaint against the United States of America, Department of Agriculture, Food and Nutrition Service (hereinafter FNS) seeking de novo review of his permanent disqualification from participation in the Food Stamp Program pursuant to the provisions of the Food Stamp Act, 7 U.S.C. § 2023. The matter was tried before the Court on September 11, 1985.
During the trial, testimony was presented by a number of witnesses on behalf of both parties. Evidence was also received in the form of a Stipulation of Facts submitted by the parties. They stipulated as follows:
1. Jesus Rivera is an individual d/b/a LaFavorita Grocery Store, located at 1053 E. 3rd St., Bethlehem, Pa.
2. Rivera was first approved for participation in the Food Stamp Program in 1969.
3. Rivera and his partner, Felix Curet, were disqualified from participation in the Food Stamp Program in 1973 for six (6) months based upon the sale of ineligible items.
4. Rivera was disqualified from participation in the Food Stamp Program in 1977 for six (6) months based upon sales of ineligible items.
5. Rivera was disqualified from participation in the Food Stamp Program in 1981 based upon the sale of ineligible items for a period of ninety (90) days.
6. Rivera was reauthorized to participate in the Food Stamp Program after his most recent disqualification on October 23, 1981.
7. Statistical data gathered by the Food and Nutrition Service of the Department of Agriculture demonstrates that Rivera's store, LaFavorita Grocery, had an unusually high rate of food stamp redemption compared to other stores in the area between October 23, 1981 and April 1, 1982.
8. On April 26, 1982, Food and Nutrition Service Food Program Specialist Gerald Repasky telephoned Jesus Rivera to discuss FNS limitations on sales under the food stamp program and the results of failure to comply with these limits, and this conversation was confirmed by letter dated April 29, 1982.
9. The letter dated April 29, 1982 from Donald M. Hardie, Officer in Charge, Philadelphia FNS Office to plaintiff was received by plaintiff.
10. On September 10, 1976, Hilda Curet sold the one-half (1/2) partnership interest of her deceased husband, Felix Curet, to Jesus Rivera and at that time the firm became a sole proprietorship instead of a partnership.
At trial, the United States presented evidence through two witnesses. In its case-in-chief, Carlos L. Gran, an investigator with the FNS, testified that he visited LaFavorita "undercover" six (6) times, and was allowed to purchase ineligible items on five (5) of those occasions, specifically on November 6, 8, 9, 15 and 16, 1983. The plaintiff in response to the Government's case relied upon the testimony of three (3) witnesses: Marilyn Nassry, Ires Cintron and Jesus Rivera. Ms. Nassry and Ms. Clintron testified as to the lack of alternative sources in the community for the purchase of the ethnic Hispanic foods sold by LaFavorita. In rebuttal to this testimony, Gerald Repasky testified as to the availability and proximity of such alternative sources. The plaintiff called upon Altagracia Nieves to rebut the testimony of Mr. Repasky.
Based upon the evidence presented at trial, we now make the following
1. On November 4, 6, 8, 9, 15 and 16, 1983, LaFavorita was visited by a representative of the FNS, specifically, Carlos Gran.
2. On November 6, 8 and 9, 1983, employees of LaFavorita allowed Gran to purchase all of the ineligible items he presented to them.
3. On November 15, 1983, employees of LaFavorita allowed Gran to purchase certain ineligible items, but at the same time refused to allow him to purchase certain other ineligible items, specifically, a ...