Judge Joseph Bianco
Coffee shop and restaurant operator Dover Gourmet buys fresh produce from wholesalers. It prepares that produce into food sold to consumers. Dover never bought more than $230,000 of produce in any year. Alleging violation of the Perishable Agricultural Commodities Act (PACA), wholesaler Fresh Pick NY Inc. sued Dover over not paying for $27,051 worth of "mostly unusable" produce. District court granted Dover judgment dismissing Fresh Pick's PACA claim. Persuaded by J. Ambrogi Food Distribution v. Top Dog America's Bar & Grill of PA and Bix Produce v. Bilimbi Bay Minn., it rejected Fresh Pick's argument that because it altered the produce, Dover was not exempt from PACA's definition of "dealer" which includes restaurants spending more than $230,000 on produce in any calendar year. The dealer exception's use of the phrase "solely for sale at retail" neither comments nor alludes to a requirement that the produce must remain unaltered. Under PACA's plain meaning, a restaurant is exempt from "dealer" status if it buys less than $230,000 of produce in any calendar year regardless of whether it sells the produce in unaltered form. Because Dover never bought more than $230,000 of produce in a year, it is not subject to PACA regulation.
