Appealing a decision by the USDA is of utmost importance when you receive a decision letter. Most of our clients depend on EBT for at least a significant portion of their gross revenues. The most common mistake that we see is when our client simply does not respond to the letter.
Standard of proof: Preponderance of the evidence
This is a very flimsy standard of proof when you are wagering whether or not to disqualify somebody from the EBT program and essentially destroy their business. Essentially, if it is simply “more likely than not, that trafficking has occurred at the store,” then, you may be found guilty of trafficking.
The most common charges that our clients receive from the USDA are:
- Transactions ending in the same amount ie. $4.88, $10.88. You need to ask yourself, can this logically happen?
- Manually entered transactions. How many of your customers have damaged cards? Are they present while this information is being entered?
- Transactions occurring within a short time period (within minutes or even seconds apart). Make sure to look for errors in the report such as transactions that seem to be close together in terms of time, but the dates are entirely different.
- Large transactions – are they really that large based on your store’s inventory? If you have a bodega and have transactions above $60.00 that is questionable. However, if you have a grocery store, then even $160.00 is a possibility.
Each one of these categories is discussed in greater detail in separate posts on our website. It is all too common that our clients will receive a 10-day notice, then, they will either themselves write a defense letter or get somebody not properly trained to respond to a USDA SNAP Trafficking charge letter and then come to us when their position is rejected. Obviously, as an Attorney dealing with SNAP and the USDA, we know that paying any Attorney legal fees for something out of the ordinary is something that most clients do not want to do. You will have to pay legal fees to our firm. However, you need to weigh the cost of having your EBT suspended indefinitely versus having things done the right way.
My employee did it, not me!
When you have violations at your store, the onus falls on the owner. Most of our clients tell us that it was not them who engaged in the violations, rather, it was their employee. This does not translate into a clear win, but it helps tremendously if it was not the owner.
In one of our cases, the store clerk, who is also an employee, was approached by a young and attractive woman. Said woman was an undercover USDA agent. The employee was trying to impress and create a relationship with this woman. At that point, he created a contract that the woman would purchase items on her EBT and then sell them to him at a lower price.
The employee was successful in creating the contract as well as getting his employer charged with trafficking SNAP benefits.
Overly aggressive USDA, undercover agents:
We have heard numerous stories of undercover agents, creating such a ruckus at the target store, but the store clerk has no other choice than to agree with an undercover agent in order to run their business.
The following court case deals with entrapment. Entrapment can be defined as an instance where the government agent seduces and induces an otherwise non-willing participant. But for this entrapment, the individual would have never engaged in the illegal activity.
Snap Trafficking Charges High Dollar Amounts
PAGE 7 OF THE SNAP MANUAL – RESPECT YOUR SNAP CUSTOMERS
Under this section, store owners are not allowed to restrict the time or purchase amount of its customers.
Is it not ironic that the SNAP manual written by the USDA tells you not to question your customers, but then they will send you a charge letter for having high-dollar sales?
Many of our clients sell large-dollar items such as raw meat, baby formula (Similac and Enfamil), and energy drinks at their stores. Now, couple that with large families such as in the West side of Chicago where you have a minimum of 4 kids per family and you now have a very high bill per customer.
The problem defending our clients starts when they cannot provide any documentation to support these claims. It is not a matter of obtaining sworn affidavits from customers, rather, it is a matter of producing your cost of goods purchased and matching them to z-tapes to support your claim that you have had to stock your store with expensive per item merchandise and that you actually sold that product.
Now, going back to page 7 of the SNAP Manual – Respect your SNAP customers – how is this possible when you have to make them legitimize their need for using their EBT card at your store to make a purchase? It is an impossibility to please the USDA and your client.
Administrative Appeals for USDA Snap Violations
Not responding to a letter is similar to that of any other default. You will get assessed in favor of the USDA and be responsible for the penalties and be disqualified from the program.
The difference between an initial charge response and an administrative review case is that in the latter, there will be more in terms of agency review as well as the length of time in closing a case. If you are already in an administrative review, you have probably already seen the response letter in the first case. It was most likely one and a half pages at most with boilerplate language. Did it sound like this: “Consideration has been given in your case. The USDA finds that it is more likely than not that trafficking has occurred at your store. Therefore you are being permanently disqualified from the EBT program.”
The outcome and/or judgment handed out in an administrative review case is anything but concise. The Agency analyzes each and every argument as well as the supporting documentation. They simply do not send a generic letter telling you that you lost.