<b>A BERRY STICKY SITUATION:</b>  The owner of Oxnard-based Harry’s Berries, Molly Gean, is the President of the Farmers Market board. She is accused of squeezing out smaller, more local family farms for the sake of profit.

Paul Wellman

A BERRY STICKY SITUATION: The owner of Oxnard-based Harry’s Berries, Molly Gean, is the President of the Farmers Market board. She is accused of squeezing out smaller, more local family farms for the sake of profit.

Farmers Market Lawsuit Heats Up

Association Mulls Fee Hike to Pay Lawyers

Thursday, June 20, 2013
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The Santa Barbara Certified Farmers Market Association is considering a temporary fee hike for vendors in order to pay lawyer’s fees resulting from a complaint filed by two members and one ex-member. Currently, members fork over 5 percent of their gross sales for operating costs. The market grossed about $10 million last year.

The antitrust lawsuit alleges breach of contract, price-fixing, and restraints of trade. It was first brought by Jeff and Roxanne Hendrickson of Santa Rita Flower Farm and then joined by the owners of Wellington Farm and Dey Dey’s Best Beef Ever. They contend that the market favors larger out-of-town sellers, does not keep transparent waiting lists, and does not follow its own bylaws.

In a tentative ruling, Santa Barbara Superior Court Judge Thomas Anderle said that the plaintiffs’ lawyer must better define the market relevant to the suit. That definition is likely the key determinant to whether the case goes to trial.

Plaintiffs’ counselor Matthew Da Vega (who recently left Christman Kelley and Clarke to cofound Da Vega & Fisher) said in his amended complaint that the Farmers Market so dominates the “direct-to-retail” agricultural market in Santa Barbara County that no other option could provide his clients “fair and equal access.”

In his demurrer, the Farmers Market attorney Tim Trager said this definition of a market is “unsustainable.” Direct-to-retail, he said, is a method of sale rather than a marketplace. The borders of Santa Barbara County are arbitrary, and the designation of “agricultural products” is overly broad. The plaintiffs have many other venues for the sale of their products, the document says, and furthermore, they take advantage of them. More relevant is whether consumers have options. California’s Cartwright Act, an antitrust law that plaintiffs contend the Farmers Market violated, is designed to protect consumers rather than sellers.

“We originally sent them a letter asking that they deal with it privately, and they told us to go jump in a lake.”

In a memo to the Farmers Market board distributed on May 23, Trager exhorted members not to speak publicly about the suit. “The facts and arguments which we are confident will demonstrate the plaintiffs’ claims lack merit will be made in court,” he wrote. Vendors contacted by The Santa Barbara Independent have followed that advice, but some ​— ​not perfectly content with the market’s administration ​— ​privately worry that the lawsuit could bankrupt the market and/or put it out of operation. Da Vega, however, said he wants to fix the market, not destroy it. He did not file the lawsuit precipitously, he said. “We originally sent them a letter asking that they deal with it privately, and they told us to go jump in a lake.”

As far as the allegation that the market has breached a contract in breaking its own rules, Trager argues that even if rules were broken, the rules do not form the basis of a contract. According to him, the tenor of the lawsuit suggests that the plaintiffs want to protect themselves from competition, not the consumer from a lack of competition ​— ​the standard by which an antitrust case gains merit. Furthermore, he wrote, “It’s not membership in SBFM [Santa Barbara Farmers Market] that plaintiffs are interested in; it’s the ‘pick of the litter’ of the market locations.”

Trager has declined to speak on the record himself, but his demurrer is chock-full of colorful language. He referred to “an apparent epiphany” on the part of the plaintiffs that led to them adding five boardmembers to their amended complaint. [editor’s note: Elizabeth Poett, a member of the Farmers Market’s Board of Directors who is named in the lawsuit, is the daughter of this paper’s editor in chief, Marianne Partridge. Attorney Trager represents Partridge in her legal issues with publisher Randy Campbell.] Trager also wrote that “this case has nothing to do with that [sic] magic-word phrases,” and stated that the “plaintiffs’ bald allegation in the SAC that defendants compete against them are words of wind held aloft only by an implausible definition.”

“We’re not arguing that everyone who applies should get in. It’s a balance,” said Da Vega. Consumers deserve “access to organically grown, straight-from-the-producer, agricultural stuff,” he said. As for his complaint, he is asking for “threefold the damages determined to have been sustained” by his clients, attorney’s fees, “disgorgement of ill-gotten gains,” and an injunction against said alleged conspiratorial practices.


Independent Discussion Guidelines

Shopping at Tri-Counties Produce on Milpas Street has always been a better deal than the Farmers Markets.

foofighter (anonymous profile)
June 20, 2013 at 9:15 a.m. (Suggest removal)

I hope local farms are making a contingency plan to continue farmers markets under the current org or a new one so their food remains consistently available.
If the current org needs to hike fees to pay lawyers, they need new lawyers. The end run of a fee hike will have a neg impact on consumers and the innocent farmers who only wish to sell their harvest.

As for weirdos and their better deals, have at it.

Ken_Volok (anonymous profile)
June 20, 2013 at 12:21 p.m. (Suggest removal)

All I know is when one's defense is that the set of rules written by them does not constitute a contract, we know that something is fishy. So essentially they are not required to follow the rules they wrote. Where else would a corporation that does $10 million a year in sales not know they need to follow their bylaws, let alone a non-profit corporation that does business on city property at a very, very affordable rate. The only thing more arrogant than these people are their prices. How about a "locals only" farmers market?

giosurfer (anonymous profile)
June 20, 2013 at 3:57 p.m. (Suggest removal)

Wow!!! An article went to press this morning and it is already in the archives. The Indy is definitely trying to bury this article. Come on Marianne, your conflict of interest is clouding the Independent's journalistic integrity. This is a story SB is interested in, didn't you see the 30+ comments from the January story? VERY DISAPPOINTING!

hikindude (anonymous profile)
June 20, 2013 at 9:54 p.m. (Suggest removal)

The SBFM is way overpriced. Wondering why people flock to it every week when they can get better deals on local produce shopping the sales at places like Lazy Acres and Whole Foods.

banjo (anonymous profile)
June 21, 2013 at 8 a.m. (Suggest removal)

$10 million a year gross with VERY little overhead and they need to raise the rates to pay for lawyers?!?!?! Where's all the money going? They claim to be a nonprofit but I'm unable to find their name on the IRS website under tax exempt orgs. Santa Brabarans should demand a new (legitimate) org take over/start new markets within the city.

villagegoesgreen (anonymous profile)
June 21, 2013 at 9:30 a.m. (Suggest removal)

Um, yeeeeeah. Why again is an Oxnard grower in charge of the Santa Barbara Farmer's Market?? That should be the first item addressed on the agenda... then work on all the rest from there. I'd imagine with much less bickering and back-stabbing going on, there would be much less need (and costs associated) for lawyers involved.

MotoBella (anonymous profile)
June 21, 2013 at 9:35 a.m. (Suggest removal)

Getting to look like Farmer Piety is not so pure minded after all.

foofighter (anonymous profile)
June 21, 2013 at 11:24 a.m. (Suggest removal)

I think Oxnard is close enough, anyone in the 805. Let's not add narrowminded to the list of things Santa Barbara is known for.

Ken_Volok (anonymous profile)
June 21, 2013 at 11:38 a.m. (Suggest removal)

Fair enough, makes perfect sense and I could easily agree to that, and for the sake of being transparent, how about:

1) Change the name of the organization to the "Tri-County Farmer's Market", so that it is representational of who is actually participating. Farmers, from the Tri-County region.

2) Consider placing a cap on max farm-size, to truly keep it "small farms" oriented.

I'm all for shopping local, even from Oxnard! I'm not at all for further lining lawyers pockets, while this current group running the show can't figure out how to work together for the greater good of the local Farmer's Market and the community that shops with them.

MotoBella (anonymous profile)
June 21, 2013 at 11:59 a.m. (Suggest removal)

Sounds like a plan. Why do they need the most expensive lawyers? That looks guilty from the get go.

Ken_Volok (anonymous profile)
June 21, 2013 at 12:04 p.m. (Suggest removal)

I'm not going to pretend to know how this case should be settled. All I know is there are a lot of farms and consumers that will be negatively impacted with fee hikes.

Ken_Volok (anonymous profile)
June 21, 2013 at 12:06 p.m. (Suggest removal)

Sounds like we need more farmer's markets!

That, at least, is not a bad thing.

loonpt (anonymous profile)
June 21, 2013 at 1:08 p.m. (Suggest removal)

Ken, You comment multiple times a day on every single story. Don't you have anything else to do but inject your narrow views into the community? Views that are neither well thought out or indicative of intelligence to begin with....its probably time for you to find a new soap box to stand upon. Its getting old to see your name attached to so many of the same comments, over and over and over and over...

Go farm something.

iamsomeguyinsb (anonymous profile)
June 21, 2013 at 2:46 p.m. (Suggest removal)

The market sounds GUILTY! Can't they get a lawyer pro-bono? Why must our community pay to cover-up for some questionable farmers, selling questionable produce, from outside our county. Looks like I will be shopping from Tri-County where I know that at least some of my dollars will stay in my community. $10 million a year! Where does OUR money go?

sarahbofsb (anonymous profile)
June 21, 2013 at 3:04 p.m. (Suggest removal)

Why is someone from Oxnard running our markets? And doing so in such a way that does not allow our local small farms to participate. We need these new young farmers to have a place to sell so our future can grow. We deserve better.

giosurfer (anonymous profile)
June 21, 2013 at 10:07 p.m. (Suggest removal)

Sellers shouldn't be denied because a particular niche is "saturated". Variety equals the best choices at the best price.
No space? Ha! Get a bigger parking lot. There's plenty of em.

JHL (anonymous profile)
June 23, 2013 at 7:56 a.m. (Suggest removal)

Going to the over-priced and undistinguished product Farmers Markets reminds me of Prius drivers - you get a healthy does of faux piety along with your purchases. Priceless.

foofighter (anonymous profile)
June 23, 2013 at 10:28 a.m. (Suggest removal)

The Board of SBCFMA is like the Catholic Church hierarchy, long on excuses, short on transparency, and unwilling to evolve. The City, which grants SBCFMA its permit to operate on City streets and parking lot (Saturday), should do a thorough review of SBCFMA practices and demand changes that will benefit the community before renewing SBCFMA's permits. When are those permits up, by the way? Come on, Independent, given the locals' long standing support for the Farmers Market, this is a big story and it deserves better coverage.

As for the $10 millions in yearly sales, remember that's the total income to all the farmers involved, not the income to SBCFMA, which gets 5%, so about $500,000.00, out of which the association has to pay rent for its office, the staff that sets up and supervises the markets, insurance, permit fees, vehicles and equipment, and marketing. At between $350 and $500/hour, lawyers' fees can quickly accumulate to unsustainable amounts.

As a 501C.6, SBCFMA's primary legal responsibility is to its members, NOT to the community, as would be the case for a 501C.3. Check: for an explanation of the difference. However, in the case of SBCFMA, the benefit to the members ends if the association is perceived to ignore the wishes of the community.

A final thought: Given the defendants' argument that " ... More relevant is whether consumers have options. California’s Cartwright Act, an antitrust law that plaintiffs contend the Farmers Market violated, is designed to protect consumers rather than sellers", maybe the plaintiffs' lawyer should invite local consumers who feel SBCFMA's board is depriving them of a fair marketplace to join the suit.
After all, notwithstanding other comments on this board, the Farmers Market still offers the freshest, best tasting produce in town, if not always the lowest price. The Tuesday market is packed pretty tight, so unless the City is willing to close an additional block of State Street I don't see how additional growers could attend. On the other hand, there are holes in the Saturday market. New Vineland's breads, present at the Friday Montecito market, would be a welcome addition, as would some of the high quality local organic farms that currently sell at the Thursday Goleta Market.

Anyone interested in learning more can call SBCFMA at (805)962-5354 and ask when the next Board meeting is happening, and where it will take place. The public can also request that an item be placed on the agenda for discussion, and ask to see the bylaws of the organization from its inception to the present.

blackpoodles (anonymous profile)
June 23, 2013 at 1:14 p.m. (Suggest removal)

"Long on excuses, short on transparency, and unwilling to evolve". For a minute, I thought you were talking about the teachers unions.

foofighter (anonymous profile)
June 24, 2013 at 9:22 a.m. (Suggest removal)

BTW: after paying the higher prices at multiple Farmers Markets in town, I was disappointed I did not get better tasting fruits or produce.

Nor did I have any way of validating its alleged freshness compared to other venues like Tri-Counties Produce. I was only left with the Farmer's Market higher prices for meh results. I voted with my feet, and never went back.

Too much hassle and no value in return. I don't eat piety.

foofighter (anonymous profile)
June 24, 2013 at 9:28 a.m. (Suggest removal)

Then don't go, there's no shortage of happy customers.

Ken_Volok (anonymous profile)
June 24, 2013 at 11:08 a.m. (Suggest removal)

No wonder so many people complain they "can't afford to live in Santa Barbara" when they chose to only purchase their food at farmer's markets or organic retailers.

foofighter (anonymous profile)
June 24, 2013 at 11:22 a.m. (Suggest removal)

Where do you live Foo, Piru?

Ken_Volok (anonymous profile)
June 24, 2013 at 11:29 a.m. (Suggest removal)

All your doing is continually posting hate on every topic and returning to double down on hate and ignorance time and again.

Ken_Volok (anonymous profile)
June 24, 2013 at 11:31 a.m. (Suggest removal)

KV: As Judge Judy would always say ..........DPOMLATMIIR.

foofighter (anonymous profile)
June 24, 2013 at 11:56 a.m. (Suggest removal)

Without a community voice on the board, how does the market address what the community wants and needs? I have asked many times lately if there were any avenues for us to give the association comments/complaints and all that I am told is that we can simply tell management. How do we know that we will be heard when there is no formal way to make comments/complaints? I am too busy on Saturday to attend a board meeting, as BP suggested above, does that mean I can't be heard? Also BP wants us to know all of the costs associated with having the market and I still do not see it equaling a half million dollars. They definitely do not spend it on advertising. Have you seen their website? When was the last time it was updated? And the facebook page is a joke! Customer questions go unanswered, and why don't they feature farmer profiles, rather than pictures of cat's antics and photos of the beach. This is not my grandma's FB page afterall. Once again, the more that I look into the markets, the more I see things I do not want to support.

sarahbofsb (anonymous profile)
June 25, 2013 at 2:40 p.m. (Suggest removal)

Sarah, unless you can attend a Board meeting, I am afraid that your chances of being heard by the Board of SBCFMA are nil.
On the other hand, your chance of being heard by the SB City Council, which grants SBCFMA its permit to operate, is pretty good. The bylaws of SBCFMA used to mandate 2 non farmer community members on the Board. Under the influence of Molly Gean, owner of Harry's Berries and current Board president, that provision was removed. The City could demand that the community members be reinstated as a condition of renewing the markets' permit to operate on City property. It could also demand that the provision favoring local farmers be reinstated as well.

As for the $500,000 budget, it sounds like a lot of money, but it really doesn't go that far if you have 5 employees (market managers and assistants, bookkeeper). That alone, once you account for payroll taxes and healthcare benefits, probably costs at least $300,000. Then SBCFMA has to pay rent. Let's say it's $36,000 (just guessing). Then they need to buy and maintain the 2 vans that take the equipment to market and pay for vehicle insurance. Let's assume each van drives about 200 miles per week, that's another $15,000/year. Then liability insurance, general supplies, business tax, permit fees, marketing (they do buy print ads in the Independent, Edible, etc.. and those are not cheap), and a small contingency fund, and your $500K is basically gone once you have to pay a lawyer.

blackpoodles (anonymous profile)
June 26, 2013 at 12:31 a.m. (Suggest removal)

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