Summary of Lima Dairy – Denial of Petition for Reconsideration

Employer was served with the citations by certified mail acknowledged by a return receipt indicating they were received at Employer's address on September 24, 2001. Employer filed its appeal by telephone on May 28, 2002---over 7½ months later. The Board sent a letter on September 12, 2002, informing Employer of the late appeal and informing Employer that for the Board to consider extending the appeal period, it must provide a written statement explaining the specific reasons why the appeal was not timely filed. (§359(b)) The letter also stated that Employer must submit the information to the Board no later than September 27, 2002. Because no response was received from Employer, the Board ordered that the appeal not be docketed and that the file be closed, i.e., denied the late-filed appeal.

In its petition for reconsideration from the Board's order denying late appeal, Employer stated that it did not receive the Board's September 12 letter for the subject violations but did receive a letter from the Board dated September 19 which required submission of the same information but for a different identified inspection made by the Division (and for a different appeal filed by Employer). Since Employer timely responded to the September 19th letter on October 2, 2002, within the period specified therein, Employer essentially argues that it effectively responded to the Board's September 12th letter for purposes of the instant appeal.

The Board did not find merit in Employer's argument. A completed appeal form is required for each contested Division action. (§359.1) Employer filed separate appeal forms for alleged violations made pursuant to two separately identified inspections. Each of the two Board letters to Employer identified the proceedings by reference to the respective inspection numbers as indicated on the face of the citations. Thus, Employer's response to the Board's September 19th letter, referencing only one of the inspection numbers, cannot be interpreted to apply to the other identified inspection number.

Lima Dairy, 02-9231 (MS Word)
Lima Dairy, 02-9231 (Adobe Acrobat)

May 14, 2003