ELLSWORTH, Maine — A Blue Hill farmer has been ordered by Hancock County Superior Court to cease selling unlicensed, unlabeled raw milk from his farm stand in a decision that could set the scene for future challenges to local food rules that circumvent state law.
In her April 27 decision, Justice Ann Murray granted summary judgement for the state, which filed a suit against Dan Brown, doing business as Gravelwood Farm, in 2011.
The state contended that Brown broke three Maine laws by selling milk without a license, selling unpasteurized, or “raw,” milk without marketing it as such, and operating a food establishment without a license.
Brown said he was not required to have the state licenses because previous policy permitted him to sell milk without licensure. He also said his milk was labeled by way of a sign in his farm stand indicating it was unpasteurized.
Brown also said he was exempt from the permitting rules because Blue Hill had enacted a local ordinance protecting direct-to-consumer sales from state licensure and inspection. In total, nine Maine municipalities have enacted similar “local food sovereignty” rules.
The injunction orders Brown to stop operating a food establishment without a license. Brown said the decision effectively means his farming operation is being shut down. He can still sell what little produce and eggs he produces — about $100 total revenue a week, he said — but that’s not enough to survive on.
“This shuts me down completely,” he said Thursday. “It’s not just my dairy. It’s canned veggies, jam, jellies, all that can’t be done anymore. I’m not a farmstand to them. I’m Hannaford. This is probably going to put me out of business.”
Brown said he intends to appeal Murray’s decision. A hearing on what civil penalties may apply to the farmer will be held at 9 a.m. on May 16.
Brown has been selling milk products since 2006 and has never been a licensed milk distributor or food establishment. In 2011, a Maine Department of Agriculture inspector encountered Brown, who was selling produce and milk. The inspector told Brown he needed a license, but the farmer continued selling his products.
The state later sent Brown a letter, notifying him of the illegality of his operation and demanding he cease selling the milk until he was licensed. Brown disagreed with the state’s interpretation of what he was legally required to do and continued selling his products.
“The public health implications of permitting Brown to continue to sell milk without a license are substantial,” Murray wrote. She also noted that “the more Brown argues he will have to alter his production practices to satisfy the Department’s safety standards, the more the safety risks associated with his current unlicensed practices are called into question.”
Murray wrote that Brown was not protected by the local food rules adopted by Blue Hill in 2011. For one, she said, nothing in the ordinance clearly states that the town intended to include milk within the definition of “local food.”
Further, Murray rules that state law preempts local ordinance in this case. While the Legislature has enacted an exception for small farmers seeking to sell produce in a farm stand or farmers’ market, it specifically excluded milk products from that exception.
“This exclusion makes clear the legislative intent that milk products be subject to stricter regulation than other products and supports the state’s contention that Blue Hill may not exempt individuals selling milk from the statutory licensure requirements.”
She also wrote that it is self-evident that a town can only add to the requirements of state statute, not take away from those requirements, unless permitted to do so otherwise by the Legislature.
Brown said he’s been frustrated because the only reason he started selling dairy out of the farmstand in the first place is because the Department of Agriculture told him that it was the only place he could sell his product without licensing.
He said when he first started going to farmers markets, the state told him he couldn’t sell there without a license. But a farmstand on his own property would be allowed.
“They said, ‘sell from your farm, and we don’t know you,’” he said. “I spent $20,000 building that building, because they told me I could do it.”
Brown said he only began selling at area farmers markets again after Blue Hill passed its local food ordinance, which he thought made it legal for him to do so.
Still, Brown said he will comply with the injunction, even if it means seeking state assistance until he has a new source of income.
“I’ve said before that the ordinance is law until it’s proven not to be, and [Murray] has said it’s not law. I need to be a man and stand by my word.”
In the meantime, Brown said he’s exploring options including selling his cows for beef and applying for jobs as a sternman on a lobster boat.
“I don’t know what I’ll do in the meantime,” he said. “It’s all happening so fast.”
Follow Mario Moretto on Twitter at @riocarmine.