WESTON A. PRICE FOUNDATION
February 27, 2006
WAPF foundation members have never failed to answer the call when the consumer’s right to purchase the foods of their choice, including the right to consume raw milk, has been challenged in states like Pennsylvania, Colorado and Florida. Your help is now needed in Ohio. The Ohio Dept. of Agriculture (ODA) is trying to eliminate the availability of raw milk to the consumer. While the sale of raw milk is illegal in Ohio, there is no law prohibiting cow share or herd share agreements; and a number of herd shares currently exist. The ODA is threatening to put an end to one of the biggest herd share programs in the state and needs to be stopped. The ODA is investigating Paul and Carol Schmitmeyer and has scheduled a deposition of them on March 3 in Columbus.
ACTION TO TAKE
Read the lengthy BACKGROUND report below. It is important to understand what is happening in Ohio and the background to this case.
Call, email, fax, or write (or do all the above) the state officials listed below and demand that the ODA end their fishing expedition into the private dealings of the Schmitmeyers with their shareholders. Demand that the ODA stop their investigation and cancel the deposition.
Paul and Carol Schmitmeyer own and operate a Grade A licensed dairy farm located in Versailles in Dark County, Ohio. They have held the Grade A license for 23 years. Paul is also the herd manager for a herd share program at the farm that consists of over 150 shareholders and their families, representing some 400-500 consumers of raw milk.
Many of Paul’s shareholders live in neighboring Montgomery County and to make life easier for them, Paul has arranged for the pick up of milk and the payment of boarding fees there, with the boarding fees being paid to Paul’s agent at a farmer’s market in that county. In January 2006, a sixty-two-year old shareholder and the four-year old son of another shareholder, both of whom live in Montgomery County, became ill. While the four-year old recovered quickly, the sixty-two-year old man was in the hospital for about two weeks before being released. The symptoms in both cases were bloody diarrhea, cramping, fever, and vomiting. Both were diagnosed with campylobacter and prescribed antibiotics by their respective doctors. Under state law doctors prescribing antibiotics for campylobacter are required to contact the county health department; and the doctors did this.
Under Ohio law (and CDC guidelines) as little as two cases of a bacterial illness like campylobacter constitute a “food-borne illness outbreak” and so the Montgomery County Health Dept. (MCHD) was required to conduct an investigation. The one common denominator in the two illnesses that the MCHD found was that individuals drank raw milk produced on the Schmitmeyer’s farm. As far as is known, the MCHD did not look any further to find any other common links once they discovered this one.
The milk the two drank at the time they became sick was from milk produced either the week of Jan. 7 or Jan. 14, 2006. The MCHD took a sample of milk produced the week of Jan. 21 from the boy’s parents; and it tested negative for campylobacter. At the same time, Paul also ran a test on the farm’s milk for campylobacter, salmonella, and E. coli; the milk tested negative for all three pathogens.
Shortly after taking the sample, the MCHD requested that the Schmitmeyers release to the them a list of all their shareholders and the farm’s milk production records for January 2006-this in spite of only two of upwards of 500 people consuming the milk from the Schmitmeyer’s farm becoming ill. In addition, the boy’s mother had said that her son had been eating snow the day before he became sick. Water is a common vector for campylobacter. The Schmitmeyers complied with the MCHD’s request and at that time the MCHD Director informed Paul that there were no other campylobacter cases reported.
The ODA did not hesitate in responding to the “food-borne illness outbreak.” On Feb. 1, Lewis R. Jones, the ODA Dairy Division Chief, sent a memorandum to Health Commissioners and Directors of Environmental Health in each county in the state reminding them that the sale of raw milk was illegal in Ohio and asking them to notify the ODA if they found evidence of or suspected such activity. The memo did not mention the distinction between sales and cow/herd shares. What Dairy Division Chief Jones did say in the memo was that “recent cases of campylobacter resulted with Ohio consumers who drank unpasteurized milk purchased at a farmer’s market in Dayton”-a claim that has no proof.
Next, the ODA took aim at the Schmitmeyers. On Feb. 13, the ODA faxed the Schmitmeyers a subpoena requiring their appearance at a deposition on Feb. 17 (since postponed to Mar. 3) “in reference to the production, handling, labeling, sale, holding or offer for sale and distribution of milk and other dairy products.” The ODA asked that the Schmitmeyers bring the following documents to the deposition:
All boarding contracts, cow share agreements, herd share agreements, and all other agreements to which Carol Schmitmeyer and/or Paul Schmitmeyer is a party, pertaining to (a) the care and milking of dairy cows, and (b) the bottling, handling, sale, or other delivery or distribution of milk and other dairy products. [The ODA had previously been provided with a copy of the herd share agreement that the Schmitmeyers use.] All bills of sale or other documents referring to the transfer of ownership in any dairy cows executed by Carol Schmitmeyer and/or Paul Schmitmeyer for the period from January 1, 2005 to the present. All weight slips, logs, and any other records regarding milk production and milk distribution maintained by Carol Schmitmeyer and/or Paul Schmitmeyer for the period from January 1, 2005 to the present. All documents referring to the purchase or other acquisition of milk containers and caps by Carol Schmitmeyer and/or Paul Schmitmeyer for the period from January 1, 2005 to the present. All documents referring to the purchase or other acquisition of other milk bottling equipment by Carol Schmitmeyer and/or Paul Schmitmeyer. All receipts, ledgers, spreadsheets, and other documents referring to the receipt of money by Carol Schmitmeyer and/or Paul Schmitmeyer during the period from January 1, 2005 to present, for (a) the sale of milk and other dairy products, (b) acquisition by any party of an ownership interest in any dairy cows or dairy herd, and (c) reimbursement on boarding expenses or any other expenses pertaining to the care of dairy cows and the handling and distribution of milk and other dairy products.
It’s clear that the ODA’s request is not for the purpose of finding the source of the campylobacter. Requests for bills of sale dating from January 2005 have nothing to do with a “food-borne illness outbreak” occurring in January 2006. The deposition is nothing more than a fishing expedition that has nothing to do with protecting the public health and everything to do with shutting down the Schmitmeyer’s herd share program with the eventual goal being the elimination of all cow/herd share operations in the state. The Schmitmeyers are the test case on the issue of whether cow/herd shares involve the sale of raw milk. There’s been a report elsewhere in the state that ODA agents have told farmers that they will prosecute anyone trying to form a cow share agreement to set the judicial precedent making cow shares (and herd shares) illegal. There has even been a report that a farmer running a cow share program outside of Dayton with just three milking cows was told by an ODA agent that he will be receiving a letter from the Department ordering him to stop. The constitutional right to contract and the fourth amendment right of shareholders to be free from unreasonable searches and seizures of personal records mean nothing to the ODA.
The ODA will use whatever means at their disposal to put farmers out of business who provide raw milk to consumers, whether it be through entrapment schemes, general harassment, or dragging financially-strapped farmers through administrative hearings and/or judicial court proceedings. Further evidence of this-and what the Schmitmeyers are facing-can be found in the recent case of Arlie Stutzman.
Arlie Stutzman is an Amish dairy farmer from Millersburg, who until recently had been operating a small herd share program on his farm that had about 20 shareholders. Until earlier this month, he had also held a Grade B manufactured milk producer’s license that enabled him to sell milk to cheese manufacturing plants.
On Sept. 20, 2005, an undercover enforcement agent from the ODA visited the Stutzman farm in an attempt to purchase raw milk. After asking several questions about how the visitor found out about the farm, the visitor’s background, and the reasons for purchase, Arlie asked the agent if he knew that the sale of raw milk was illegal in Ohio. The agent lied and said he did not. Arlie asked the agent if he had a container and when the agent said “yes”, he told him to get it from his car and give it to his son to fill with milk from the farm’s bulk tank. The agent asked what the cost for the milk was and Arlie said that there was no charge but that he could make a donation if he wanted.
Before the son filled the container, the agent told Arlie that he did not want to get him in trouble. Arlie believed that this transaction was not a sale and said that he did not believe anyone would get in trouble. After the son filled the container, the agent again asked what the price was; Arlie replied “whatever you think it is worth.” The agent gave Arlie two dollars asking “is this all right?” Arlie put the money in his pocket and the agent then left.
The timeline for the rest of Arlie’s case is as follows: Dec. 5, 2005 – Lewis R. Jones, ODA Dairy Division Chief, sends a letter to Arlie advising him that the ODA proposed to revoke his Grade B manufacture milk producer license for selling milk that was in violation of labeling laws under the Ohio revised code. Selling milk in an unlabeled container constituted misbranding under state law. The ODA also claimed that Arlie sold adulterated milk in violation of state law. The ODA proposed revoking Arlie’s license despite the fact that in over 12 years as a license-holder Arlie had not been penalized a single time by the ODA for any violation.
Dec. 19 – The ODA files for a preliminary injunction in the Holmes County Court of Common Pleas to restrain Arlie from committing further violations of the food adulteration and misbranding laws.
Jan. 11, 2006 – After an earlier postponement, an administrative hearing on the proposed revocation of Arlie’s Grade B license is held. Arlie represented himself at the hearing.
The ODA undercover agent testified against Arlie at the hearing,admitting that Arlie told him there was no charge for milk but that the agent could make a donation if he wanted.
Dairy Chief Jones testified at the hearing that the milk “sold” was misbranded because it did not have a label containing the name, weight and product identification. He indicated that the milk was adulterated because it was not tested for bacteria and there were questions regarding the cleanliness of the container and the cleanliness of the person filling the container.
When it was his turn to testify, Arlie said that he had been taught that if any person asks for food, one should give it if he has such. His training is that he should share food with anyone that asks. Arlie said that he did not realize there was a requirement to label other people’s containers.
Arlie admitted that the testimony of the agent about the Sept. 20 transaction was correct. He did testify that he asked the agent if he knew that selling raw milk was illegal. Interestingly, this last testimony was not included in the report of the hearing examiner (the ODA-appointed attorney who was conducting the proceedings).
Jan. 17 – The hearing examiner issues a report recommending that the ODA revoke Arlie’s Grade B license.
Also on this day in the Holmes County Court of Common Pleas, the judge hearing the ODA’s motion for the injunction filed Dec. 19, grants the ODA a preliminary injunction against Arlie restraining him from violating state food adulteration and misbranding laws.
Feb. 6 – Arlie (through an attorney) asks the ODA to reduce the penalty revoking his Grade B license to a 60-day license suspension for the following reasons:
- Arlie did not realize the failure to label a container provided to him was improper.
- His Amish culture taught him to give food to those in need.
- He had pledged to adhere to all laws in the future.
- The preliminary injunction against him, which he does not contest, will assure that he will comply with all laws in the future without need for license revocation.
- The ODA’s actions constituted entrapment (the Ohio Supreme Court has held that “the defense of entrapment is established where the criminal design originates with the officials of the government and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute”). Arlie never solicited a sale of milk, never set a price for the milk, never requested compensation of any kind for the milk, and never provided an unlabeled container.
- State law requires that a licensee be given the opportunity to correct any violation charged before a dairy license can be revoked. This has been done because Arlie has never committed another violation and there is no evidence that he intends to do so.
Feb. 8 – ODA Director Fred L. Dailey adopts the hearing examiner’s recommendation and issues a final order revoking Arlie’s license. [The ODA is prosecutor, judge and jury on the administrative side of the law.]
Feb. 23 – Arlie has 15 days to appeal the Director’s final order to the Holmes County Court of Common Pleas but declines to do so because of the cost involved among other reasons.
And so a farmer who had never had a penalty levied against him by the ODA and who had never had a complaint filed against him in over 12 years of business had his license revoked because he was entrapped into accepting two dollars for a gallon of milk. The ODA’s treatment of Arlie Stutzman makes clear what the Schmitmeyers are confronting.
WHAT YOU CAN DO
The Schmitmeyers are presently in a difficult situation. If they uphold the privacy (4th amendment) rights of their shareholders and refuse to provide the requested documents at the deposition, the ODA will likely initiate administrative proceedings to revoke their Grade A license for failure to cooperate with an investigation. Additionally, the law provides a judge with the power to fine the Schmitmeyers up to $500 per day for each day they have refused to comply with all terms of the subpoena.
If the Schmitmeyers do turn over whatever documents they have that the ODA is requesting, it is likely, given their past actions, the ODA will find something in their records as a pretext to file for an order in judicial court enjoining the Schmitmeyers from operating their herd share program, claiming it constitutes the illegal sale of milk.
The only way to halt the momentum of the process the ODA has begun against the Schmitmeyers is PUBLIC PRESSURE. The ODA has broad legal powers to conduct investigations of dairy farmers but only those parts of a dairy farmer’s business that pertain to sales of milk, not to private contractual arrangements with shareholders consuming their own milk.
Call, email, fax, or write (or do all the above) the state officials listed below and demand that the ODA end their fishing expedition into the private dealings of the shareholders with the Schmitmeyers. Demand that the ODA stop their investigation and cancel the deposition.
Ask these officials why the ODA would deny the right of citizens to legally consume their own food, food they believe is critical for their health and the health of their families. Please send them testimonials as to how raw milk has benefited your health and the health of your family (please also email any testimonials to the Schmitmeyers at smitty77 (at) direcway.com ).
Ask them why the tax dollars of the citizens of the state of Ohio fund the harassment and intimidation tactics of the ODA, tactics that have no place in a free society. Tell them you want an end to the climate of fear the ODA has created for health-conscious consumers and for small farmers producing healthy food.
The Schmitmeyer’s deposition is scheduled for Friday March 3. PLEASE ACT NOW.
WHOM TO CONTACT
Fred L. Dailey, Director Governor Bob Taft
State Dept. of Agriculture 30th Floor
Bromfield Administration Bldg 77 South High Street
8995 East Main Street Columbus, OH
Reynoldsburg, OH 43086-3399 Ph: 614-466-3555 or
dailey (at) mail.agri.state.oh.us
Lewis R. Jones, Chief Senator Larry A. Mumper
Division of Dairy Chair,
Senate Agriculture Committee
State Dept. of Agriculture Senate Building
Bromfield Administration Bldg Room #222,
8995 East Main Street Columbus, OH 43215
Reynoldsburg, OH 43086-3399 Ph: 614-466-8049
SD26 (at) mailr.sen.state.oh.us
jones (at) mail.state.oh.us
Senator Joy Padgett
Vice Chair, Senate Agriculture Committee
Room #035, Ground Floor
Columbus, OH 43215
SD20 (at) mailr.sen.state.oh.us
Senator Charlie Wilson
Ranking Minority Member, Senate Agriculture Committee
Room #226, Second Floor
Columbus, OH 43215
MCWilson (at) mailr.sen.state.oh.us
Senator Larry A. Mumper
Chair, Senate Agriculture Committee
SD26 (at) mailr.sen.state.oh.us
Representative Jim Aslanides
Chair, House Agriculture & Natural Resources Committee
77 S. High St.
Columbus, OH 43215-6111
district94 (at) ohr.state.oh.us
Representative Jim McGregor
House Agriculture & Natural Resources Committee
77 S. High St.
Columbus, OH 43215-6111
district20 (at) ohr.state.oh.us
Representative John Domenick
Ranking Minority Member,
House Agriculture & Natural Resources
77 S. High St.
Columbus, OH 43215-6111
district95 (at) ohr.state.oh.us
Ohio residents can also contact their state and local representatives
found in the links below: