[Market-farming] Market Legal Problems -- Assistance Requested

Guy Clark guyclark at socket.net
Tue Nov 2 17:59:38 EST 2004


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&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&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&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&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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