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market-farming - Re: [Market-farming] Market Legal Problems -- Assistance Requested

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  • From: Guy Clark <guyclark AT socket.net>
  • To: cheselka AT theriver.com, Market Farming <market-farming AT lists.ibiblio.org>
  • Cc:
  • Subject: Re: [Market-farming] Market Legal Problems -- Assistance Requested
  • Date: Tue, 02 Nov 2004 16:59:38 -0600

Hey folks-

Last summer the Columbia, MO Health Department shut down our egg producers siting that they did not have:
1. City/County Business License with criminal background check etc. It cost about $170.
2. Health Inspection which cost about $30.
3. They also said eggs were not being held at the proper temperature.
4. All of our egg producers were inspected and licensed by the state which cost about $10.

I did a lot of research and found out that the city was wrong on all counts. First, cities and counties are forbidden by Missouri law from requiring any licenses or fees or taxes. They can require (rightly so) that you meet any health concerns and they can inspect you, but they cannot charge you any fee or make you get any license. Secondly, state law declares that anyone producing an agricultural product is not a merchant. Thirdly, the temperature they were requiring was incorrect by several degrees.

After finding the proper statutes, we hired a local lawyer to essentially sign a letter that I had written. The city relented for egg producers and, much to our surprise, meat producers, but said that value-added agriculture producers were going to have to get the licenses and inspections and pay the fees. I discussed it with our lawyer and we agreed that this was incorrect and he fired off another letter. They relented again, but said they may challenge the notion that some of our growers/producers were agricultural producers and were in fact merchants. Needless to say, we were overjoyed and our customers were ecstatic. Several of our egg,  meat, and value-added producers have talked about suing the city to get the illegally collected money back. The Columbia Farmers' Market will not take part as our market is on city property.

We have a larger question regarding city/county sales tax. The forms for that come from the MO Dept. of Revenue and already have the city and county percentages on the sheets. It seems to us, me really, that it is illegal for cities and counties to collect sales tax on agricultural products sold by producers. We will probably address that fight over this off-season.

We had won a similar fight a couple of years ago over sampling and food handling issues. Our health department is notoriously arbitrary and heavy handed.

This just goes to show that you can fight city hall, but you damned well better be pretty politic about it. We had several levels of attack lined out, but the first tier worked and that saved us the more gnarly options. Our strategy included the following:
1. If possible, go directly to the agency/bureaucracy involved quietly, but firmly with all your information and legal stuff in order. Good to have a lawyer involved.
2. Next go to the politicians quietly. Ideally, go to your allies and let them address your foes. If you can convince one of them that you are right, they may be able to convince the rest of them.
3. Then go to the press. Probably the best way is to try to convince the editor of your position. Give them a bulleted piece of paper that lays out your position and have a conversation. The piece of paper will help them write the editorial. If that fails, write a letter to the editor or try to drum up interest from a reporter.

But give each level the necessary time to work and always be courteous.

Now, regarding the issue at hand the Arizona statutes are available online: http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp

The agricultural section is Section 3:
http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=3

The first section of the Arizona statutes regarding marketing of agricultural products sets the tone:
 
http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/3/00402.htm&Title=3&amp;DocType=ARS      

3-402. Policy or purpose

Marketing agricultural products of this state is in the public interest. The policy and purpose of this article are to promote the general welfare of this state by enabling and encouraging fresh fruit and vegetable producers and shippers to help themselves. This state will benefit by ensuring the availability of high quality fruit and vegetables and in establishing orderly, equitable, efficient and unhampered marketing, grading and standardizing of the commodities as well as providing for research, promotion and educational programs involving fresh fruit and vegetables.

Here comes the good parts:
Article 7
http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/3/00561.htm&Title=3&amp;DocType=ARS

3-561. Definitions

In this article, unless the context otherwise requires:

1. "Producer" includes owners, proprietors or tenants of agricultural lands, orchards, farms and gardens whereon food products are grown, raised or prepared for market.

2. "Food products" include every product of the soil in its natural or manufactured state, and swine, fowls, eggs and milk and the products thereof.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/3/00562.htm&Title=3&amp;DocType=ARS

3-562. Restrictions on sales by food producers prohibited

A. The producers of food products on agricultural lands, farms and gardens shall never under any pretext be denied or restricted the right to sell and dispose of their products, except in the manner and to the extent provided in this article, and subject to inspection by lawful authority when the inspection is uniform as to the same product and without cost to the producer.

B. The right to sell and dispose of food products shall extend to the producer in person, members of his family, his agents and all persons in his service, when the products are sold or disposed of on his behalf and for his benefit.

http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/3/00563.htm&Title=3&amp;DocType=ARS

3-563. Tax, license or fee against producers prohibited

A. No tax, license or fee shall be imposed, levied upon, demanded or collected from a producer for a sale of a food product as defined in this article, and no penalty or punishment shall be imposed on account of the sale, except for violation of laws providing for inspection.

B. A municipal ordinance which seeks to impose or subject a producer to a tax, license or fee shall be void, except that all such products in common with similar products offered for sale by persons not the producers thereof shall be subject to inspection. A municipal ordinance providing for inspection shall not be valid unless it applies in the same manner and terms to other persons offering similar products for sale.

I would suggest taking these to the county lawyer and watch his/her face turn red. If they won't back down get a lawyer. It shouldn't cost much because you will have done all the necessary research, or most of it. S/he may have some luck like finding more stuff in the arcana of Arizona law through Findlaw or something.

Best of luck,
Guy Clark
President of the Board
Columbia Farmers' Market, Inc.
Fertile Crescent Farms
Sustainable Farms & Communities
 
 
 



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