SECOND DIVISION

MILLER, P. J.,

DOYLE, P. J., and REESE, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

March 6, 2018

In the Court of Appeals of Georgia

A17A1923. BROAD STREET SUPERMARKET, INC., et al. v.

GEORGIA DEPARTMENT OF PUBLIC HEALTH.

DO-073

DOYLE, Presiding Judge.

We granted a discretionary application filed byBroad Street Supermarket, Inc.,

d/b/a Moon’s Supermarket (“Broad Street”), seeking review of the superior court’s

order affirming a decision of the Department of Public Health (“DPH”), which

disqualified Broad Street’s grocery stores from participating in the federal Special

Supplemental Nutrition Program for Women, Infants, and Children (“WIC”) in

Georgia. For the reasons that follow, we reverse.

In 2014,Broad Street obtained WIC authorization for Broad Street’sfirststore,

Moon’s Supermarket (“Moon’s”). On December 23, 2014, Broad Street bought

Monticello FamilyFoods (“Monticello”).Monticello was authorized as a WIC vendor
under its previous ownership, but Broad Street did not apply immediately for new

WIC authorization when it purchased Monticello. 

In February 2015, based on an automatic notification from the federal

government that Monticello was no longer a participant in the United States

Department of Agriculture’s Supplemental Nutrition Assistance Program(“SNAP”),

1

DPH conducted an on-site investigation of Monticello. During the February 13, 2015

site investigation, store manager Tracy Gilman told the investigatorsthat Monticello

“did not have any WIC vouchers on hand,” but the store still accepted the vouchers

and that owner Jim Morrell “comes into the store once a week to pick up the WIC

vouchers.” Later that day, DPH contacted Morrell, who told an investigator that he

had used Moon’s vendor stamp to accept WIC vouchers used at Monticello and

deposited those vouchersinto Moon’s account after Broad Street acquired Monticello

because Morrell believed that the WIC application for Monticello could not be

processed until March of 2015; he asked the investigator what he should do about

WIC vouchers while the application was pending for Monticello, and the investigator

1

In order to be a vendor in the Georgia WIC program, participation in the SNAP

program is required. 

2
advised him not to accept them at Monticello prior to application approval. Morrell

submitted a WIC vendor application for Monticello that same day.

DPH subsequently disqualified Moon’s fromWICparticipation for three years,

on the ground that Moon’s had engaged in “[a] pattern of receiving, transacting[,]

and/or redeeming food instruments or cash-value vouchers outside of authorized

channels,” under 7 CFR § 246.12 (l) (1) (iii) (D).2 An Administrative Law Judge

(“ALJ”) reversed Moon’s disqualification on grounds that: (i) the record did not

establish when or how often Monticello had accepted WIC vouchers; and (ii) DPH

had not given Broad Street the required notice and opportunity to take corrective

action before disqualifying Moon’s. On agency appeal, the agency disagreed with the

ALJ on both grounds, reversed the decision, and reinstated Moon’s disqualification.

The agency subsequently denied Broad Street’s request for reconsideration, and on

appeal to the superior court,the agency’s decision was affirmed. ThisCourt thereafter

granted Broad Street’s application for discretionary appeal.

1. The Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq.,

authorizes the superior court to reverse or modify an agency decision only if:

2 DPH also denied Monticello’s WIC application. Since that time, however, Broad

Street sold Monticello, and the denial of its application is not at issue in the instant appeal. 

3
substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and

substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion

or clearly unwarranted exercise of discretion.

3

Thus, courtsreview agency findings of fact “to determine whether they are supported

by any evidence,” while conclusions of law are reviewed de novo.

4

“Upon further

discretionary appeal to this Court, our duty is not to review whether the record

supports the superior court’s decision but whether the record supports the final

decision of the administrative agency.”

5

3 OCGA § 50-13-19 (h). See also North Atlanta Scan Assoc. v. Dept. of Community

Health, 277 Ga. App. 583, 583 (627 SE2d 67) (2006).

4 Ga. Dept. of Community Health v. Fulton DeKalb Hosp. Auth., 294 Ga. App. 431

(669 SE2d 233) (2008) (punctuation omitted). 

5

 (Punctuation omitted.) North Atlanta Scan Assoc., 277 Ga. App. at 584.

4
7 CFR § 246.12 “sets forth design and operational requirements for food

delivery systems,” including electronic benefit transfer systems, home delivery, cashvalue vouchers and food instruments, among others; and provides a framework for

states to authorize private vendors to distribute supplemental food under the federal

SNAP program.

6

As discussed above, DPH disqualified Moon’s under 7 CFR § 246.12 (l) (1)

(iii) (D), which is part of a larger subsection listing “[m]andatory vendor sanctions.”

These sanctions include (i) permanent disqualifications for “trafficking in food

instruments or cash-value vouchers or selling firearms [and other items] for food

instruments or cash-value vouchers;” (ii) six-year disqualificationsfor “one incidence

of buying or selling food instruments, or cash-value vouchers, for cash . . . or firearms

[or otheritems];” (iii) three-year disqualifications, and (vi) one-year disqualifications.

Under 7 CFR § 246.12 (l) (1) (iii), 

The State agency must disqualify a vendor for three years for:

(A) One incidence of the sale of alcohol or alcoholic beverages or

tobacco products in exchange for food instruments or cash-value

vouchers;

6

 7 CFR § 246.12 (a).

5
(B) A pattern of claiming reimbursement for the sale of an amount of

a specific supplementalfood itemwhich exceedsthe store’s documented

inventory of that supplemental food item for a specific period of time;

(C) A pattern of vendor overcharges;

(D) A pattern of receiving, transacting and/or redeeming food

instruments or cash-value vouchers outside of authorized channels,

including the use of an unauthorized vendor and/or an unauthorized

person;

(E) A pattern of charging for supplemental food not received by the

participant; or

(F) A pattern of providing credit or non-food items, other than alcohol,

alcoholic beverages, tobacco products, cash, firearms, ammunition,

explosives, or controlled substances as defined in 21 USC § 802, in

exchange for food instruments or cash-value vouchers.

Subsection (l) (1) (xii) discusses “[m]ultiple violations during a single investigation.”

It states that

[w]hen during the course of a single investigation the State agency

determines a vendor has committed multiple violations (which may

include violations subject to State agency sanctions), the State agency

must disqualify the vendor for the period corresponding to the most

seriousmandatory violation. However, the State agencymust include all

6
violationsin the notice of administration action. If a mandatory sanction

is not upheld on appeal, then the State agency may impose a State

agency-established sanction.

The notice requirement at issue is found in § 246.12 (l) (3), which explains that:

The State agency must notify a vendor in writing when an investigation

reveals an initial incidence of a violation for which a pattern of

incidences must be established in order to impose a sanction, before

another such incidence is documented, unless the State agency

determines, in its discretion, on a case-by-case basis, that notifying the

vendor would compromise an investigation.[7] This notification

requirement applies to the violations set forth in paragraphs (l) (1) (iii)

(C) through (l) (1) (iii) (F),[8] (l) (1) (iv), and (l) (2) (i) of this section.

(i) Prior to imposing a sanction for a pattern of violative incidences, the

State agency must either provide such notice to the vendor, or document

in the vendor file the reason(s) for determining that such notice would

compromise an investigation.[9]

7 There is no indication in the current record that DPH determined that providing

pre-disqualification notice to Broad Street or Moon’s would compromise an investigation.

8

 Applying to the violation at issue.

9

“This provision will help vendors to comply with their responsibilities and thus

prevent sanctions.” 71 FR § 43371, 43372 (I).

7
(ii) The State agency may use the same method of notification which the

State agency uses to provide a vendor with adequate advance notice of

the time and place of an administrative review in accordance with §

246.18 (b) (3).

(iii) If notification is provided, the State agency may continue its

investigation after the notice of violation is received by the vendor, or

presumed to be received by the vendor, consistent with the State

agency’s procedures for providing such notice.

(iv) All of the incidences of a violation occurring during the first

compliance buy visitmust constitute only one incidence of that violation

for the purpose of establishing a pattern of incidences.

(v) A single violative incidence may only be used to establish the

violations set forth in paragraphs (l) (1) (ii) (A), (l) (1) (ii) (B), and (l)

(1) (iii) (A) of this section.

10

The ALJ determined that, under § 246.12 (l) (3), when DPH first learned that

Moon’s had redeemed WIC vouchers received by Monticello, DPH was required to

notify Broad Street that a violation had been revealed before documenting another

violation for purposes of establishing the pattern that would support a three-year

disqualification. On review, the agency and the superior court disagreed, concluding

10

 7 CFR § 246.12 (l) (3).

8
that no notice was required because (i) the initial investigation revealed a pattern of

violations; and (ii) the violations were not discovered during a “compliance buy

visit,” meaning that 7 CFR § 246.12 (l) (3) (iv) did not apply.

We agree with Broad Street that DPH’s interpretation of the notice regulation

isincorrect.

11 Under DPH’sinterpretation, the initial discovery ofmultiple incidences

of violations of § 246.12 (l) (1) (iii) (D) during a “compliance buy”

12

(an undercover

purchase) would require notice and evidence of subsequent incidences of violations

in order to establish the necessary pattern of violations prior to disqualifying a

vendor, whereas the discovery of multiple incidences of a violation during an overt

monitoring visit(such asthe visit here) would authorize immediate disqualification.

13

This interpretation would eviscerate the notice requirement in many cases to which

11 See Eagle West, LLC v. Ga. Dept. of Transp., 312 Ga. App. 882, 888 (720 SE2d

317) (2011) (“[P]articular words of statutes are not interpreted in isolation; instead, courts

must construe a statute to give sensible and intelligent effect to all of its provisions, and

must consider the statute in relation to other statutes of which it is part.”) (punctuation

omitted). 

12

“Compliance buy means a covert, on-site investigation in which a representative

of the Program poses as a participant, parent or caretaker of an infant or child participant,

or proxy, transacts one or more food instruments or cash-value vouchers, and does not

reveal during the visit that he or she is a program representative.” 7 CFR § 246.2.

13

“Routine monitoring means overt, on-site monitoring during which program

representatives identify themselves to vendor personnel.” 7 CFR § 246.2.

9
the main paragraph of § 246.12 (l) (3) — the notice requirement, which explicitly

applies to violations of § 246.12 (l) (1) (iii) (D) — otherwise would apply.

14

Moreover, it leads to an absurd result in which vendors that hide violations from

investigators making routine visits are protected while those vendors who admit to

such violations are punished. Accordingly, because the DPH failed to comply with

federal notice requirements before imposing a three-year sanction for the violations,

we reverse the superior court’s order affirming the agency’s decision.

15

2. Based on our conclusion in Division 1, we do not address Broad Street’s

remaining enumerations of error.

Judgment reversed. Miller, P. J., and Reese, J., concur.

14

 See 71 FR § 43371, 43376-43377 (II) (1) (b) (explaining implementation of the

proposed regulatory change resulting in the current form of 7 CFR § 246.12 (l) (3) and the

result that states are required to issue notification to vendors for violations prior to

sanctions even if evidence of a pattern is uncovered during the first compliance buy).

15 Cf. Ramzi, Inc. v. Dept. of Public Health, 85 Mass. App. Ct. 353, 359-360 (1) (d)

(10 NE3d 139) (2014) (holding that the agency failed to provide appropriate notification

before imposition of a sanction, and therefore, overturning the sanctions at issue).

10