U.S. Department of Agriculture Food and Nutrition Service Administrative Review Branch Alexandria, VA 22302

Transcription

1 U.S. Department of Agriculture Food and Nutrition Service Administrative Review Branch Alexandria, VA Cocoa Chevron, ) ) Appellant ) ) v. ) Case Number: C ) ROD 6 SNAP Office, ) ) Respondent ) ) FINAL AGENCY DECISION It is the decision of the U.S. Department of Agriculture, Food and Nutrition Service (FNS) that the permanent disqualification from the Supplemental Nutrition Assistance Program (SNAP) imposed upon Cocoa Chevron (hereinafter Appellant ) by the ROD (Retailer Operations Division, Investigations and Analysis Branch, hereinafter ROD Office ) is hereby sustained. ISSUE The issue accepted for review is whether the ROD Office took appropriate action, consistent with 7 U.S.C. 2021, 7 CFR 278.6(a) and 7 CFR (e)(1) and (i) in its administration of the SNAP when it imposed a permanent disqualification upon Appellant. AUTHORITY 7 U.S.C and the implementing regulations at 7 C.F.R provide that A food retailer or wholesale food concern aggrieved by administrative action under 278.1, or may file a written request for review of the administrative action with FNS. CASE CHRONOLOGY In a letter dated January 7, 2016, the Retailer Operations Division charged the Appellant with trafficking, as defined in Section of the SNAP regulations, based on a series of irregular SNAP transaction patterns that occurred during the months of June through November The letter noted that the sanction for trafficking is permanent disqualification, as provided by 7 CFR 278.6(e)(1). The letter also noted that the Appellant could request a trafficking civil money penalty (CMP) in lieu of a permanent disqualification within 10 days of receipt under the conditions specified in 7 CFR 278.6(i). The record reflects that the SNAP Office received and 1

2 duly considered Appellant s replies to the Charge Letter. By a letter dated February 29, 2016, Appellant was informed that it was permanently disqualified from participation as a retail store in the SNAP and was ordered upon receipt of the letter to cease accepting SNAP benefits; consequently, Appellant ceased to accept said benefits. On March 8, 2016, Appellant requested an administrative review of the SNAP Office s decision; the request was granted. STANDARD OF REVIEW In appeals of adverse actions an appellant bears the burden of demonstrating by a preponderance of the evidence that the administrative actions should be reversed. That means an appellant has the burden of providing relevant evidence which a reasonable mind, considering the record as a whole, would accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. CONTROLLING LAW The controlling statute in this matter is contained in the Food & Nutrition Act of 2008, as amended, at 7 U.S.C and in Part 278 of Title 7 of the Code of Federal Regulations (CFR). 7 U.S.C. 2021, Part 278.6(a) and Part (e)(1)(i) of the Regulations establish the authority upon which a permanent disqualification may be imposed upon a retail food store or wholesale food concern. 7 U.S.C. 2021(b)(3)(B) states, inter alia: a disqualification under subsection (a) shall be permanent upon the first occasion or any subsequent occasion of a disqualification based on the purchase of coupons or trafficking in coupons or authorization cards by a retail food store or wholesale food concern or a finding of the unauthorized redemption, use, transfer, acquisition, alteration, or possession of EBT cards 7 CFR 278.6(a) states, inter alia: FNS may disqualify any authorized retail food store if the firm fails to comply with the Food & Nutrition Act of 2008, as amended, or this part. Such disqualification shall result from a finding of a violation on the basis of evidence that may include facts established through on-site investigations, inconsistent redemption data, evidence obtained through a transaction report under an electronic benefit transfer system. (Emphasis added.) 7 CFR 278.6(e)(1)(i) states: Disqualify a firm permanently if: Personnel of the firm have trafficked as defined in

3 7 CFR states, inter alia: Trafficking means the buying, selling, stealing, or otherwise effecting an exchange of SNAP benefits issued and accessed via Electronic Benefit Transfer (EBT) cards, card numbers, (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone. 7 CFR 278.6(f)(1) states, inter alia: A civil money penalty for hardship to SNAP households may not be imposed in lieu of a permanent disqualification. 7 CFR 278.6(i) states, inter alia: FNS may impose a civil money penalty in lieu of a permanent disqualification for trafficking as defined in if the firm timely submits to FNS substantial evidence which demonstrates that the firm had established and implemented an effective compliance policy and program to prevent violations 7 CFR 278.6(b)(2)(iii) states, inter alia: If a firm fails to request consideration for a civil money penalty in lieu of a permanent disqualification for trafficking and submit documentation and evidence of its eligibility within the 10 days specified in 278.6(b)(1), the firm shall not be eligible for such a penalty. Additionally, in interpretation of the regulations, relevant policy provides, inter alia, that: the retailer must provide adequate proof that credit accounts existed at the time the suspicious EBT transactions occurred. The determining office shall compare the credit information provided by the retailer against the transactions in the Charge Letter and the recipient s personal identifying information If the retailer does not provide adequate proof the determining office shall permanently disqualify the retailer for trafficking. SUMMARY OF THE CHARGES Examples of transaction data contained in the SNAP Office s Charge Letter, as well as additional data reflected in the record, are included below to serve as a point of reference for the following discussion: 3

4 Excessively Large Transactions Cluster at Dollar Multiples of Five: APPELLANT S CONTENTIONS In Appellant s reply to the Charge Letter, in its written request for review dated March 8, 2016, and in subsequent correspondence, it was argued that: 1. The ROD Office has presented no actual proof of trafficking. While the patterns described in the ROD Office s Charge Letter may be an indication of malfeasance in some matters, in this particular instance that is simply not the case. The transactions at issue are readily explained by the shopping habits of customers using SNAP benefits at the Appellant firm. The ROD Office s Determination Letter did not state the reasons why Appellant was disqualified, but further discussion with the ROD Office revealed the basis for its rejecting Appellant s statements of fact and evidence for why no SNAPbenefit trafficking occurred. The decision was based upon transaction reports and conjecture from the ROD Office, whereas Appellant has provided actual proof refuting the allegations of trafficking. Appellant has more than met its burden of proof to rebut such allegations. No on-site investigation, such as a sting operation or a secret shopper, was conducted to uncover an illegal transaction. 2. Appellant received no prior warning of violations or that certain transactions were suspicious, unusual or irregular in any manner. 3. Regarding Attachment 1 to the Charge Letter, some customers do not keep track of SNAP account balances; as such they will purchase some items from the store to test if they have sufficient benefits to cover the purchase. If they do, they will make a subsequent purchase immediately afterward to again test if they have a sufficient amount to cover the second purchase. Additional attempts may be made thereafter, again, in a short time frame, and by this method multiple transactions occur in short time frames. 4

5 Appellant provides the example of 7 U.S.C (b)(6) & (b)(7)(c) and notes she used said method because of limited minutes on her cell phone and did not want to use those to check her SNAP balance. Appellant provides 7 U.S.C (b)(6) & (b)(7)(c) statement affirming same. The ROD Office stated that 7 U.S.C (b)(6) & (b)(7)(c) had not had her card recently swiped at the Appellant firm; however, this ignores the fact that the shopper did in fact buy items from the firm but may have been using a family member s card and PIN; thus merely looking at transaction reports for the data of 7 U.S.C (b)(6) & (b)(7)(c) would not show up, even though she did shopping there. The ROD Office also stated that purchases were not necessary in order to check card balances; while this is true, it ignores the actual conduct of the firm s customers. Appellant cannot be held responsible for the manner in which customers use SNAP benefits. The ROD Office questioned that large transactions could be conducted in short time frames. However, this is explained by the setup of the store; Appellant scans the total items on a register with a scan gun and then inputs that total amount into the EBT card reader. Appellant provides a DVD which provides a visual example of how this occurs. This demonstrates how a large transaction appears to be conducted in a matter of seconds but actually takes several minutes. 4. Regarding Attachment 2 to the Charge Letter, some customers purchase multiple large ticket items, such as cases of Gatorade and/or water of food items in bulk. Rather than multiple transactions (which the firm has also been charged with), customers make large purchases to avoid multiple trips to the Appellant store. This is in part due to the firm s bulk food offerings and to SNAP customers with limited means of transportation. Appellant cites the example of customer 7 U.S.C (b)(6) & (b)(7)(c), who lives within walking distance of the store and has no other means of transportation. She buys food and drink in bulk at the store in amounts ranging from $50.00 to $ in order to avoid multiple, inconvenient trips to the firm. She will also make multiple smaller purchases when she is unaware of her SNAP balance. Appellant provides a statement by 7 U.S.C (b)(6) & (b)(7)(c)affirming same. The ROD Office stated that 7 U.S.C (b)(6) & (b)(7)(c)had transportation to go to other stores. However, while 7 U.S.C (b)(6) & (b)(7)(c), may be able to locate transportation from time to time, her letter explicitly states that she does not have her own transportation and that she sometimes stays within walking distance to the firm, buys a portion of her food at the store and buys in large amounts because of her lack of transportation. That she also shops at super stores and supermarkets when transportation becomes available in no way contradicts her shopping habits at the Appellant store. The ROD Office stated that Appellant should have provided more evidence in the form of invoices, receipts, etc., that would show the sale and purchase of large bulk items. While the witness statements refute the allegations that large purchases were due to trafficking, Appellant could not have known that the ROD Office would prefer one form of evidence over another. Appellant provides copies of product purchase invoices/receipts in support of its administrative review request. 5. The ROD Office stated that the Appellant firm redeemed more SNAP benefits than other stores in the area. While Appellant has been provided no data from the USDA to confirm or review such a conclusion, assuming that said conclusion is accurate, that Appellant sells in bulk, provides a variety of food other stores do not and is in a convenient location provides a perfectly valid reason for the larger than normal SNAP 5

6 redemptions. ANALYSIS AND FINDINGS. The record reflects that the ROD Office has provided a lengthy and comprehensive case in support of its sanction determination, as will be discussed in further detail below. Appellant implies that the substance of the ROD Office s case against the firm is derived from data only and that there were no independent witnesses to affirm the trafficking allegations. 7 CFR 278.6(a), noted above, establishes the authority upon which FNS may disqualify any authorized retail food store on the basis of evidence obtained through a transaction report under an electronic benefit transfer system. Such cases are developed with the standard in mind that a prima facie preponderance of evidence is sufficient in order to charge a firm with SNAP-benefit trafficking. Various statistical tools and graphical reports are utilized, as well as store visit documentation reflecting the firm s nature and extent of inventory and the firm s logistical wherewithal. Compliance history and household data are evaluated. The record reflects that Appellant s firm was chosen for analytical investigation based upon numerous detailed and rigorous mathematical algorithms applied not only to Appellant s firm but to all SNAP-authorized firms, including all firms of a like type (convenience stores, in this case) in the state of Florida. The data analyzed includes numerous comparisons of information such as the average SNAP purchase amount in convenience stores in the state, which was $6.90 during the analysis period, dramatically lower than the transaction data contained within the Charge Letter. The record contains documentation, including photographs of the firm s interior and exterior, an inventory survey and a layout diagram, of a visit to Appellant s firm conducted on October 22, 2015: There were no shopping carts or baskets with which customers could transport large orders to the small check-out counter or to waiting transportation. One cash register and one POS device (card reader). No meat/seafood bundles/specials, fruit/vegetable boxes or other bulk or expensive items square feet of retail space. No food stored outside of public view. Comments by store visit personnel: Pre-manufactured refrigerated BBQ pork sandwiches counted as pork, with pork as #1 ingredient. Pre-made refrigerated chicken sandwiches counted as sandwiches since #1 ingredient is flour. There were approximately six of each in a small sparsely-stocked cooler (photo 4). The firm also operates as a gas station (photo 3). Most visible prices were in standard retail variations of $.x9 (photos 4, 6, 8, 11, 14, 17, 18). The cash register was located behind a Plexiglas barrier; the check-out counter was approximately 1.5 by 1.5 feet and surrounded by tobacco products, lottery tickets, candy, vapor products (non-tobacco smoke items) and other non-food items (photo 5). The firm carried typical convenience store stock consisting of a large inventory of snack food and single serving food items and accessory foods (photos 12, 2, 6). Firm maintained a substantial inventory of tobacco and tobacco-related products, alcohol, vapor products (non-tobacco smoking items), clothing, automotive supplies, paper products, cleaning supplies, charcoal and other non-food items. Dine-in area (one booth, photo 9). 6

7 Staple food shelves sparsely stocked (photo 16). Sparsely stocked cooler (photo 4). Three or four gallons of milk, five or six half-gallons, about a dozen single-serving sizes of milk (photo 22). These documents reflect the firm to have been a typical convenience store in all relevant respects. The record, including the firm s application to participate in the SNAP, thus reflects that the firm was correctly categorized as a convenience store. This and other data presented the ROD Office with a statistically valid prima facie indication of highly unusual transaction activity; the activity therein identified is not marginally aberrant, but markedly so. Properly analyzed and interpreted, the ROD Office does not contend that the EBT (electronic benefits transfer) transactions detailed in its Charge Letter are overtly suspicious when they occur on an occasional or intermittent basis, but when such transactions form repetitive patterns on a consistent and comparative basis over substantial periods of time such activity is identified for further analysis. 7 USC 2018 (b)(7)(e)the firm is then given the opportunity to reply to those charges and provide any information it deems appropriate in justifying as legitimate the transaction activity detailed in the Charge Letter. In the present case, these policies and procedures are shown by the record to have been duly performed in all relevant and appropriate detail. Moreover, as noted above, the regulations at 7 CFR 278.6(a) state that FNS may disqualify any authorized retail food store on the basis of evidence obtained through a transaction report under an electronic benefit transfer system; consequently, transaction data as a basis for the charges at issue is as valid as evidence obtained through an undercover investigation. Furthermore, the case presented by the ROD Office does not rest solely upon transaction data and printouts thereof (although the regulations do provide for such data-only charges) and was indeed obtained through a formal investigative process. As summarized herein, the record contains a comprehensive array of documentation and analytical work well beyond the data presented in the Charge Letter. The transaction data is indeed factual and specific, the existence and accuracy of which is not in dispute; redundant systems confirm numerous data points for each transaction including the date, time, store authorization number, terminal ID, amount transacted, prior balance and other particulars. It is worthwhile to restate as well that, as noted above, in appeals of adverse actions an appellant bears the burden of demonstrating by a preponderance of the evidence that the administrative actions should be reversed; Appellant must provide a preponderance of evidence that the transactions detailed in the charge letter were more likely than not due to the legitimate sale of eligible food in exchange for SNAP benefits. In the absence of compelling information/documentation weighed in comparison to that provided by the ROD Office, the evidence preponderates in favor of the ROD Office s determination that SNAP- benefit trafficking substantially produced the transaction activity at issue in the present case. Regarding contention 2 above, to the extent Appellant may imply that no prior warning was issued to the firm, it should be noted that a warning letter is not prerequisite to a disqualification: the presence of a prior warning may in some cases increase the sanction imposed on a firm (see 278.6(e)(2), (3)(i) & (ii), (4) and (6)) while the lack of a warning does not decrease a sanction properly imposed or prevent the imposition of such a sanction. 7 USC 2018 (b)(7)(e). Such provisions are prescriptive in that sufficient evidence of trafficking always warrants permanent disqualification unless a firm qualifies for a civil money penalty. 7

8 . With regard to contention 3 above, while some customers may make small transactions to check SNAP account balances, Attachment 1 contains multiple, large transactions. It is reiterated that the average SNAP transaction in convenience stores in the state of Florida was $6.90 during the analysis period. Yet Appellant asserts that customers are conducting transactions three to 16 times this amount (up to $129) to test their account balances; at the same time many subsequent large transactions occur in a minute or less following the prior transaction, which is highly implausible. Appellant s own DVD video of a transaction involving one sack of items required nearly four minutes to complete (a receipt was shown but was illegible). During this time, no other customers were able to conduct SNAP transactions at the register, which means that this transaction was conducted at least four minutes after the prior transaction, rather proving the ROD Office s point that such transactions are not typically conducted rapidly. Frequent and large transactions conducted rapidly in order to purchase eligible foods at Appellant s store are highly unlikely given Appellant s logistical wherewithal and store stock. The firm does not maintain the logistical wherewithal required to rapidly process these transactions. In light of the above, consider the time required to process a legitimate purchase and the steps involved: 1) unloading items from a cart or basket (the firm provided neither of which, however; thus it is unclear how customers transport large orders to the register or to waiting transportation), 2) separating eligible from ineligible items, 3) the cashier s handling of individual items to determine the price, which in this case involved manual keying of amounts, 4) weighing individual items if sold by weight, 5) entering prices into a register or adding machine, once for eligible foods and once for ineligible items, which is typical for larger purchases, 6) handling manufacturers cents-off coupons, if applicable, 7) bagging the items for carry out, 8) informing the customer of the totals (one for eligible foods and one for non-eligible items, if applicable, which for large purchases includes most transactions), 9) pressing the SNAP transaction key on the point-of-sale device/card reader, 10) swiping the card, 11) customer entry of the required PIN, 12) cashier entry of the purchase amount, 13) confirming customer has a sufficient benefit balance, 14) the transaction being processed by the system and receiving approval, 15) printing out receipts, 16) accepting an alternate form of payment for nonfoods and possibly handling cash change and 17) the customer removing products from the checkout area so the next customer in line can begin the next transaction. All or most of these steps are inherent in most legitimate large SNAP purchases, regardless of whether a firm utilizes a calculator or not. One can readily surmise that while such transactions may be completed in succession, performing these processes on large transactions is not done rapidly. The amount of time required is generally proportional to the dollar amount of the transaction; typically, the larger the dollar amount transacted the longer the time period between transactions. Limited counter space as well as manually key-entering 19-digit card numbers adds additional time to transactions. The Appellant firm processed orders in excess of $50 in approximately one minute or less, considerably faster than supermarkets typically process them, yet the firm has only one small checkout counter and none of the logistical tools such as conveyor belts, rotating bagging platforms or order separators that are routinely used in rapid throughput operations. One transaction for $ was conducted in one minute or less following the prior transaction; several others ranging from approximately $50 to $65 were conducted in one minute or less. Frequent and large transactions conducted rapidly in order to purchase eligible foods at Appellant s store are highly unlikely given Appellant s logistical wherewithal and store stock. Lastly, large transactions for the purchase 8

9 of legitimate food items (which at this store would have been a substantial number of lower priced items), using no carts or baskets and very little checkout-counter space, processed rapidly is implausible. Appellant s rationale regarding how it may conduct such transactions rapidly is not compelling. Moreover, once a purchase is conducted a receipt is printed, which displays the available balance; there would not be a reason to then test again. In addition, a purchase is not required to check SNAP card balance as a simple swipe at the terminal can determine a card s balance. While there are legitimate reasons why a SNAP recipient or household member might return to a convenience store during a short period of time; such purchases are more typically in small amounts and for obtaining just a few items. The examples in Attachment 1 indicate a series of repetitive purchases that total large amounts. Customers spending such substantial amounts of SNAP allotments in a typically-stocked convenience store, when there are other larger food stores nearby which carry substantially larger varieties of food at lower costs, is implausible. Multiple transactions over a short period of time, especially of high dollar value, are very suspicious because they are typical of stores and SNAP customers which are attempting to diminish attention to signs of SNAP-benefit trafficking. Moreover, the record further reflects that Appellant s number of repetitive transactions during the analysis period was 124 times that of the four nearest comparable stores (all convenience stores from just over one-third mile to just under one mile). There is no compelling rationale to explain why only Appellant s customers made repetitive visits spending large amounts in short timeframes. The record reflects, as noted below, that Appellant s store is a typical convenience store in all relevant respects and provides no plausible bases for customer s unusual attraction to the firm and unorthodox transaction patterns. Appellant states that 7 U.S.C (b)(6) & (b)(7)(c) transactions would not necessarily have been reflected in agency data if she had used another household member s card. However, it seems highly unlikely that a SNAP recipient would use another household s card for an entire year. Moreover, in SNAP parlance, household refers to members using a single SNAP account; thus 7 U.S.C (b)(6) & (b)(7)(c) were merely using another household member s card it would nonetheless debit the same account and would be reflected in agency data. In regard to contention 4 above, Appellant indicated that a case of Gatorade was priced at $30.00; however, there are only 4 transactions for $30.00 which might explain $120 of the transactions. If a customer purchased two cases of Gatorade the total would be $60.00; there is one transaction amounting to $ Thus Appellant s explanation could at best explain $ in Attachment 2 transactions, which is a near negligible fraction of the attachment total of $19, As noted above, documentation obtained as a result of the store visit conducted on October 22, 2015 did not confirm the presence of cases of Gatorade or water and no advertised bulk items for sale were apparent. Appellant provides copies of product purchase invoices/receipts, yet none of these reflect the purchase of Gatorade during the analysis period, which Appellant states accounts for large purchases during this same period. Only one receipt dated within the analysis period contained purchases of water; this receipt contained the purchase of six cases of water. 9

10 Thus the invoices do very little to support Appellant s contentions that the transactions contained in the Charge Letter were more likely due to the sale of eligible food items than due to trafficking. Moreover, as noted in the examples provided above (page 10 through 13), the record reflects that SNAP customers conducting repetitive and/or excessively large transactions at Appellant s firm also shopped at better-stocked and very likely more competitively priced super stores and supermarkets on or about the same day, calling into question what customers could obtain at Appellant s typically-stocked convenience store that they could not obtain at full-line super stores and supermarkets. Similarly, as seen in the table below, 7 U.S.C (b)(6) & (b)(7)(c) also conducted implausible transactions at the Appellant firm on or about the same day as shopping at super stores;.. The purchase of a cart or basket (which Appellant did not provide to customers, calling into question how large orders were transported to the register or to waiting transportation) of eligible food items typically approximates a random total amount. As noted above, there is no basis for customers attraction to the Appellant firm, there being no superior selection of staple foods, no evidence of a price advantage, no evidence of package, bulk or promotional items, no extensive variety of otherwise unavailable ethnic food items and no evidence of custom or special services rendered. Also as noted, the average transaction in a convenience store in the state of Florida during the analysis period was $6.90, reflecting the fact that SNAP customers do not routinely make large purchases at convenience stores. The transactions in Attachment 2 do not resemble random numbers but rather clearly appear contrived. Regarding contention 5 above, the ROD Office notes that at the time of the sanction decision there were 22 SNAP-authorized stores within a two mile radius of the Appellant firm, including one super store, four supermarkets, one small grocery store and 18 other convenience stores. Agency data indicate that there are currently nine SNAP-authorized firms within a onemile radius, including one super store (at just over one-third of a mile from the Appellant firm), two supermarkets (one at just over one-third of a mile), one combination grocery/other store (at just over one-third of a mile) and 5 other convenience stores (two from just over one-third mile to just under two-thirds of a mile). As noted, the data reflected in the examples on pages 10 through 13 above indicate many customers clearly have access to and routinely shop at betterstocked super stores, supermarkets, grocery stores and combination grocery/other stores in the immediate area, calling into question what customers were able to obtain at Appellant s typically-stocked convenience store/gas station that they were not able to obtain at much betterstocked and more competitively-priced stores. This information further indicates that these customers were conducting implausible transactions only at or primarily at the Appellant firm. The Appellant store was clearly not the only store in the immediate area offering food items to 10

11 SNAP customers; as noted above, it was clearly not the best-stocked firm in the area and it was clearly not the only store being visited by Appellant s customers. The record reflects that Appellant s average SNAP redemption during the analysis period was nearly four times that of the state store-type average during the same period and from over four to over five and one-half times that of the nearest four SNAP-authorized convenience stores. Furthermore, agency data reflect that the numbers of Appellant s SNAP transactions in several transaction bands during the analysis period were multiple times that of the store-type average in the state of Florida:. As noted, the firm is a typically-stocked convenience store in all relevant respects; there exists in the record no legitimate basis for the nature and level of the firm s transaction and redemption activity. Lastly, once trafficking is established, there is no latitude to impose a lesser sanction, with the exception of civil money penalty. There is provision at 7 CFR 278.6(i) for the imposition of a civil money penalty in lieu of permanent disqualification for trafficking. Appellant was advised of this provision in the SNAP Office s Charge Letter dated January 7, 2016 which also advised that documentation of eligibility for that alternative sanction was to have been provided within a specific time limit. In the absence of any such documentation, a civil money penalty was not imposed in lieu of permanent disqualification by the SNAP Office. The SNAP regulations are specific at 7 CFR 278.6(b)(2)(iii) in that if a firm fails to request consideration for a civil money penalty in lieu of a permanent disqualification for trafficking and submit documentation and evidence of its eligibility within the 10 days specified (within 10 days of receiving the letter of charges), the firm shall not be eligible for such a penalty. As Appellant did not request such consideration and provided no evidence or information in support thereof, the SNAP Office s decision not to impose a civil money penalty is sustained as appropriate pursuant to 7 CFR 278.6(b)(1); 278.6(b)(2)(ii), 278.6(b)(2)(iii) and 278.6(i). CONCLUSION In view of the above, the decision of the ROD 6 SNAP Office to permanently disqualify Appellant from participation in the SNAP is hereby sustained. The decision will become final upon the 30 th day following Appellant s receipt of this document. RIGHTS AND REMEDIES Applicable rights to a judicial review of this decision are set forth in 7 U.S.C and 7 CFR If a judicial review is desired, the complaint must be filed in the U.S. District Court for 11

12 the district in which Appellant s owner resides, is engaged in business, or in any court of record of the State having competent jurisdiction. This complaint, naming the United States as the defendant, must be filed within thirty (30) days of receipt of this decision. Under the provisions of the Freedom of Information Act (FOIA), it may be necessary to release this document and related correspondence and records upon request. If such a request is received, FNS will seek to protect, to the extent provided by law, personal information that if released could constitute an unwarranted invasion of privacy. December 2, 2016 DANIEL S. LAY ADMINISTRATIVE REVIEW OFFICER DATE 12