The ugly incident, which occurred on August 11, 1996, has finally reached its inevitable destination: the federal courthouse in Fort Lauderdale, where both Winn-Dixie and the Broward Sheriff's Office are slated to be tried in civil court this fall in a case that includes allegations of false arrest, battery, and malicious prosecution.
Vernon Mekertin, age 50, suffered a broken nose and a gashed eye when he was driven face-first to the floor. His assailants were another customer and BSO deputy Christopher Geary. Geary was arresting Mekertin for trespassing in the store after an irate manager demanded that Mekertin leave. When Mekertin froze in place, he was slammed down by the other customer, who'd jumped in to help Geary. Before sending Mekertin to the hospital to have his wounds treated, Geary arrested him for trespassing and resisting arrest without violence. For good measure Geary also slapped the cuffs on Mekertin's wife, Marilyn, and charged her with trespassing, too.
A year later the Mekertins were cleared of any wrongdoing in a criminal trial when a judge ruled that neither had done anything wrong. Instead it was the Mekertins who were wronged, according to their current federal suit against Winn-Dixie and BSO. The Mekertins' attorney, Stephen Marino, is seeking punitive damages that could reach into the millions of dollars.
So what had the Mekertins done to inspire such rage? They were beating Winn-Dixie at its own game.
It all began with the couple trying to earn $1 coupons, good for purchases of Winn-Dixie groceries, by participating in a seemingly benign and well-intentioned program called "Help Keep Us Right."
The promotion was begun in the fall of 1995, shortly after the State of Georgia fined several Winn-Dixie stores for failing to take expired and potentially harmful foods off their shelves. The Jacksonville-based chain, which has some 1185 stores in 14 states, decided to give its customers a chance to help keep them honest by advertising the "Help Keep Us Right" program, which promised customers a buck in cash back for every expired product they could find. Later the reward was changed from cash to dollar-off coupons good for Winn-Dixie groceries.
The Mekertins were intrigued by the program. They were suffering hard times financially, says Marino. Vernon Mekertin, who is a jeweler by trade, was unemployed at the time, while his wife was working as a guitar teacher. One evening they visited several stores, hunting for old food. "To their surprise the Mekertins discovered several hundred dollars' worth of outdated and expired items," Marino wrote in the federal complaint.
The Mekertins went pro, finding literally thousands of dollars' worth of outdated items. They made scheduled rounds to stores throughout South Florida and consistently left them with bundles of coupons -- even after repeated visits to the same stores. While the Mekertins wouldn't comment on their case for fear it could hurt their chances, Marino says they were unbelievably successful in helping keep the stores "right." In Marino's law firm, the lawyer brings out a blue accordion folder bulging with thousands of pink Winn-Dixie coupons, placed in plastic baggies, that the Mekertins never got a chance to redeem. "I haven't counted, but there has to be three to four thousand dollars' worth of coupons in here," Marino says.
The day that the "Help Keep Us Right" program went wrong began routinely for the Mekertins -- plucking outdated food from the shelves, this time at the Dania Beach store. When their cart was nearly filled with booty, "things took a strange turn," says Marino.
A stock clerk named Rick Gramlich, unhappy that the Mekertins were messing up his shelves, approached the couple. What happened next is in dispute. The Mekertins claim that Gramlich became angry and yelled obscenities and threats at them. Gramlich testified that it was Vernon Mekertin who made a threat, challenging him to "step outside."
Mekertin swore he never said that, and Gramlich's version of the story certainly lends itself to a comical image: Mekertin stands a physically unprepossessing five-foot-seven and weighs in at an out-of-shape 175 pounds. Gramlich is six-foot-seven and weighs 250. "How can I threaten such a big man?" Mekertin asked at trial.
Whatever the truth the manager of the store, Keith Williams, was summoned, as was Deputy Geary, who was in the store working an unrelated shoplifting case. Williams and Mekertin began arguing, prompting Williams to demand that the husband leave the store. Mekertin then asked if he could at least cash in the outdated items before leaving. Williams agreed to the request but then changed his mind, ordering: "I want them out of the store now!"
Geary, a rookie two months out of the academy at the time, reacted by giving Mekertin 15 seconds to get out. Mekertin testified that he tried to move his cart, but someone's foot was in the way. At that point he and his wife were surrounded by the six-foot-seven stockman, two angry store managers, the deputy, and another Winn-Dixie customer who'd become interested in the goings-on: volunteer auxiliary Dania Beach police officer Clarence Mitchell, who stepped in to give Geary a hand.
"I freezed," Mekertin testified. "I was worried for my wife's safety and my own. The man [Mitchell] snuck behind me, so I just stood there."
When Geary counted to 15 and Mekertin was still standing there motionless, both the deputy and Mitchell grabbed Mekertin to handcuff him. Mekertin shifted his arms, resisting their efforts but without aggression. "And we took him to the ground," testified Mitchell, who also said that, though he'd never been a bona fide police officer, he'd been through the academy and was sworn "to uphold the law as a police officer."
Mitchell kicked Mekertin's legs out from under him, driving Mekertin to the floor with Geary on top of him. Then a bloody Mekertin was handcuffed and sent to the hospital. Marino says that Mekertin, who has no health insurance, still needs surgery to straighten his nose.
When Broward County Judge Mary Rudd Robinson cleared the Mekertins, she pointed out that Marilyn Mekertin had never been asked to leave the store and dismissed that charge. As for Vernon Mekertin, Robinson noted that Winn-Dixie had "invited" him into the store to search for outdated goods in the first place. She also said it seemed that he intended to leave and that 15 seconds wasn't enough time to exit the large supermarket, she said. "Based on all that, the court would find Mr. Mekertin not guilty," Robinson pronounced, ending the criminal case.
The federal case, however, is just beginning and is expected to go to trial in October. Mickey Clerc, the spokesman for the Winn-Dixie corporation, refused to comment on the case. Fort Lauderdale attorney Bruce Jolly is representing Geary and Sheriff Ken Jenne, who is named in the federal case in his official capacity as head of BSO. Jolly says he will argue that the deputy's actions were "proper under the circumstances" and that Geary had probable cause to effect Mekertin's arrest.
While Geary's actions will certainly be at the heart of the trial, the presence of all that expired food on the shelves -- which doesn't seem to bode well for shoppers -- will likely be only a peripheral issue. And the Mekertins weren't alone in making the "Help Keep Us Right" program a profitable venture.
"People took advantage of it," says Guillermo Tostado, an assistant manager at the Dania Beach Winn-Dixie. "One guy quit his job to do it full-time. It was ridiculous."
Tostado also says, "We don't sell expired goods." But if they did, there aren't people like the Mekertins around anymore to keep the store right. The Winn-Dixie chain discontinued the program shortly after the incident.
Apparently Winn-Dixie didn't really want all that help.
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