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Valesky's Market v. Department of Health

Denial of petitioner's application to participate in the Special Supplemental Nutrition Program for Women, Infants and Children affirmed because Department did not err in interpreting its own regulations requiring participating stores to reasonably expect to serve 25 participants per month and to satisfy freshness requirements with regard to allowable foods.

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Submitted: May 25, 2001

Valesky’s Market (Petitioner) petitions for review from a January 10, 2001 order of a Hearing Examiner for the Department of Health (Department) that affirmed the July 19, 2000 decision of the Department’s Division of Special Food Programs to deny Petitioner’s application to participate in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC Program).*fn1 , *fn2

According to the WIC regulations at issue, a WIC authorized store “shall serve or reasonably expect to serve at least 25 participants per month” and “may not have stale-dated allowable foods on its sales floor.” 28 Pa. Code �1103.4(a)(2) and (4). The two issues before us are whether the Hearing Examiner erred in denying Petitioner’s application on the grounds that (1) several expired containers of lacto-free Enfamil formula were found on the store’s shelves during an announced, on-site review; and (2) the store did not reasonably expect to serve twenty-five participants per month. For the reasons that follow, we affirm. *fn3

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