There’s actually yet another story about undercover agents and raw milk. I was going to write about it a few weeks ago when Eliot Spitzer was being undone (you remember him, the former governor of New York), but various court decisions and other events in New York and California intervened.
I’m not certain, but I assume undercover agents played some role in the former governor’s undoing, which only makes sense, given what his henchmen at the state’s Department of Agriculture and Markets had an undercover agent doing in building that state’s case against Barb and Steve Smith and Meadowsweet Dairy LLC. As we await a decision in the state hearing portion of New York’s efforts to shut Meadowsweet down, I thought I’d recount from the hearing testimony in January the actions of Dennis Brandow Jr., who describes himself as a “confidential investigator” with the NY Department of Agriculture and Markets.
Brandow testified Jan. 17 at the hearing in Albany, intended to crush the Meadowsweet Dairy LLC by prohibiting it from distributing raw milk to the 130 or so members of its cowshare. A ruling by the hearing officer is expected shortly, but in the meantime, Brandow’s testimony is instructive in how the state spends our money as it goes about its risky work of uncovering wrongdoing, and maintaining law and order. The testimony takes up about 40 pages, so I can’t include it all, but here are some relevant portions, in response to questions by the attorney representing NY Ag and Markets:
Q: In the regular course of our duties, Mr. Brandow, did you have the opportunity to visit the Ithaca Farmer’s market in Ithaca, New York, on June 23 of 2007?
A. Yes, I did.
Q. Why don’t you just tell us what that market appears like.
A. It’s a series of stalls whereas various products are being sold—fruits, vegetables, foods, dairy products.
Q. And what was the purpose of your visit on that date?
A. To observe if Meadowsweet Dairy LLC was in operation.
Q. And what time did you arrive at the Ithaca Farmer’s Market on June 23?
A. Approximately—it was in the morning, eleven o’clock or so.
Q. And you mentioned that there’s a series of booths in this market. Did you approach a booth identified as being operated by Meadowsweet Dairy, LLC?
A. Yes, I did.
Q. Why don’t you describe how you made that identification.
A. Well, there was signage stating such.
Q. And was there a person who appeared to be in charge of that booth?
A. Yes.
Q. And did you, at some point on that date, learn that person’s name?
A. Yes, I did.
Q. And how did you so determine that name?
A. I introduced myself, and that person did as well.
Q. And what name did that person give you?
A. Barbara Smith.
Q. Mr. Brandow, did you determine if raw milk and raw milk products were available at this booth at that time?
A. Yes.
Q. And did you attempt to obtain raw milk and raw milk products when you first visited this booth?
A. Yes.
Q. Were you able to do so?
A. Not at first. I engaged Mrs. Smith in conversation and she explained to me that I had to become a member of their program and I’d have to fill out a form, which I did.
Q. She furnished a form to you at that time?
A. Yes.
Mr. Swartz (lawyer): I’d like to have marked for identification, please, as Department’s Exhibit 7 a one-page document. It’s two-sided…It has the name Meadowsweet Dairy, LLC on the upper left-hand side corner, apparently the front page…
Q. Mr. Brandow, I’m showing you Exhibit 7, that’s been marked for identification. Do you see that?
A. Yes, I do.
Q. And do you recognize it?
A. Yes, I do.
Q. Could you tell us what it is?
A. It’s a form identifying Meadowsweet Dairy LLC, it explains them, and there’s a section on the back side where you can sign, if you become a member, sign and get some information.
Q. Okay. And does that appear to be a blank copy of the form that was furnished to you by Mrs. Smith on June 23, 2007?
A. Yes, it does.
Q. Did you subsequently sign that form?
A. Yes, I did.
Q. What did you do with the signed copy?
A. I gave it to Mrs. Smith.
Q. And you might have mentioned this, was there also a fee associated with becoming a member of Meadowsweet Dairy LLC?
A. Yes, there was.
Q. And how much was that fee?
A. $50 fee.
Q. And did you pay it, sir?
A. In a cash payment.
Q. Mr. Brandow, after you paid the fee and filled out the form, were you allowed to obtain raw milk and raw milk products from Meadowsweet?
A. Yes, I was.
Q. And at what point were you allowed to do that?
A. It was a bit of time later I was advised by Mrs. Smith to come back at approximately 2:30 in the afternoon, and if there was any product available that was not picked up by customers that I would then be able to obtain product.
Mr. Gary Cox (lawyer for Meadowsweet): Object to the word ‘customers.’
Q. Would you rephrase that.
A. Individuals coming up to the booth being operated by Mrs. Smith to obtain products.
Q. And at some subsequent point you revisited this booth, is that correct?
A. Yes, I did.
Q. Approximately when did you do that?
A. It was approximately 2:25 in the afternoon.
Q. On the same day?
A. Same day, June 23.
Q. And at that time you were able to obtain raw milk and raw milk products?
A. Yes, I was.
Q. Why don’t you tell us what happened at that time?
A. I was able to obtain two gallons, glass gallons of raw milk, which I paid $10 for; two plastic quarts of yogurt; one plastic quart of cream; and one plastic quart of kefir.
Q. Regarding the milk products, not the milk that you testified to, did you furnish any money in exhcnage for those milk products?
A. Yes, I did.
Q. Can you elaborate on that, please?
A. I furnished a total of $20 for the total of the products.
Q. And that includes all of the products—all of the milk and milk products that you obtained?
A. Correct.
Q. On June 23?
A. Correct.
Q. And insofar as you recall, was the amount that you paid consistent with the price list on the reverse side of Exhibit 7 that’s in the record?
A. Yes.
Q. Once you obtained them, what did you do with them?
A. I proceeded to walk towards my vehicle, leave the Farmer’s Market.
Yes, Mr. Brandow’s busy day wasn’t over, not by a long shot. We then get a blow-by-blow of how he put the items in his car and gave them numbers according to department regulations, placed the items into coolers, and took them to a state lab, where he turned them over to a lab technician.
But you probably get the idea that the purpose of this seemingly interminable Q&A is to prove that milk was “for sale” as opposed to being distributed to shareholders. In the next installment, Gary Cox, the lawyer for the Smiths, from the Farm-to-Defense Legal Defense Fund, cross-examines the witness.
that’s a good point. however, the LLC is different from the typical ohio herdshare operation. for the LLC, all you need to do to become a member of the LLC is to be informed of the so-called "risks" associated with consuming raw dairy products and then sign an application. under the LLC, the herd is owned by the LLC itself, not the individual members. under the LLC the members contribute (usually monthly) working capital toward the costs of maintaining the herd and in exchange they receive equitable distributions (usually monthly) in the form of raw dairy products. nothing illegal about it under new york law. thus, the LLC doesn’t need a boarding agreement or a bill of sale.
no wonder the judge closed out the session by saying "this is easy". can ny ag&markets be sued for harassment or damages? the problem with our system is that those wielding the power are so well insulated from recourse. plus the silent majority is too busy focusing on running their lives and it’s hard to even imagine what the noisy minority wants to do is even rational. yet here we are…
I can’t stand this police lingo — copious and gratuitous use of "proceed", strong preference for inappropriately general nouns ("vehicle" instead of "car") and verbs of latin origin ("purchase" vs. "buy"). The recent movie _Idiocracy_ lampooned this behavior, among other things, to great effect.
At least he didn’t say "…exit the Farmers’ Market."
And to hugh betcha, the judge’s remark you allude to was made in the court suit brought by the Smiths and Meadowsweet; this testimony was taken in an administrative hearing held by NY Ag & Markets–a separate proceeding. It’s confusing, with so much going on.
I do realize that logistically it is easier for the members of the LLC to make their working capital contributions when they pick up their distribution at the Ithaca Farmer’s Market, but again handing over money and receiving milk contributes to the appearance of a retail sale. I would think that a safer approach would be for the members to mail in checks for their monthly contributions, or for the LLC to send out statements requesting funds toward working capital. Obviously this is more overhead and paperwork, but it might have made it more difficult for NY Ag & Markets to have brought this case to trial.
We do something similar in our herdshare – I developed a web site and a custom application for our herd manager that allows us to submit orders, automates his picking and shipping and also tracks boarding fees and payments for non-dairy items. The boarding fee is automatically added to each shareholder’s statement for the first week of each month as a reminder when it is due.
The system has worked out quite well, and it’s made everyone’s life much easier being able to submit our weekly orders using the web site. Our manager used to spend a few hours each week keying in everyone’s emailed orders, while now he simply pushes a button and pulls all the information down from the web site. We’re probably the most automated and high-tech herdshare in the country. 🙂
actually, the smiths and meadowsweet do have a policy of not allowing a member who joins the LLC on one day to get a share of their equity on the same day. however, with mr. brandow’s situation, he was insistent. "i live so far away, and i only come here so very infrequently, so can’t i at least have some today, PLEEEEEEEASE, because otherwise i won’t be able to get any for a long time?" barb smith felt sorry for him and relented. we know what the consequence was of her kindness.
that’s the approach these undercover agents take, they’re insistent. just like they were with arlie stutzman, an amish fellow in holmes county ohio who got busted for taking a donation for raw milk. the undercover agent wanted to buy raw milk from arlie but he told the agent repeatedly that it was illegal, so the agent pleaded to allow arlie to take a donation for the milk. when arlie took the donation the undercover agent reported back to the ohio dept. of agriculture and the next thing you know the oda attorney was in court seeking an injunction.
typical of government. i should know. i worked for government for 14 years and know all their tricks. 🙂
In general it makes sense to have a member who only picks up occasionally (as Mr. Undercover Milk Cop presented himself) just pay for their portion of product share as they procure it – a lot less paperwork that way; but I can see that may "appear" like a sale to someone who’s determined to have it appear that way! .