NABC before the FCHD Board 1: The health department’s case.


NABC’s side (part two) is here
ON THE AVENUES: Roger’s take is here
Breaking news: Fee suspension (noon Friday)

Conceding that I’m neither a lawyer nor able to present the Floyd County Health Department’s case in the grandeur of its own florid and often exaggerated language, the legal specifics of the case are as follows. Remember that the health department’s eternally non-communicative attitude toward daylight mimics that of Howard Hughes, so this is Roger’s interpretation of the department’s legal case. Don’t put words in board attorney Rick Fox’s mouth. The hearing was conducted almost as a trial, with statements, cross-examinations, witnesses and rebuttals.

1. NABC must acquire a temporary food servers permit from the health department because the city of New Albany’s own code of ordinances stipulate it, specifically here: Chapter 115: Food Establishments. Counsel for the FCHD maintains that the most recent “update” to the city’s ordinance came in 2008. What this means in practical terms is that the city has periodically, formally adopted boilerplate legal language pertaining to allowable health department activities, as does county government. Sometimes the city augments the department’s mandate, as in its notorious Frisch’s law of 1965 (“Drive-In Restaurants”).

Accordingly, within the city’s code is authorization for the FCHD to require temporary food serving permits for “food or drink,” and for permit holders to accept FCHD inspections of temporary operations. The New Albany ordinances define such terms no more rigorously than this, and so to understand what “drink” means, the FCHD must go further up the regulatory ladder.

2. On or around June 14, 2013, when the FCHD decided for the very first time since the dawn of history (and the 2008 ordinance revision) to expand the customary working definition of “drink” into inclusiveness for alcoholic beverages (remember, the department itself has not been able to produce evidence to the contrary, i.e., that it had ever enforced such a definition prior to June 14 – that’s why I requested records in the first place), it needed statutory justification, scant or otherwise. At this point, Julia Hayes wrote to her superiors at the Indiana State Department of Health (e-mail below), where Dr. George “He Stopped Loving Her Today” Jones provided the necessary interpretation.

It is not an exaggeration to point out that at the present time, the entirety of the FCHD’s case rests on Dr. Jones’s interpretation of the word “drink,” seeing as the FCHD cannot provide a single documented instance of another county health department viewing the word as inclusive of alcoholic beverages; hence, the local department’s activist stance in seeking a precedent with this interpretation … and why I cannot accept a compromise that sheds the fee while preserving the precedent (more on that later).

3. Having established that (a) New Albany says the FCHD can enforce temporary food servers permits, and (b) that the word “drink” is inclusive of alcoholic beverages for such permits, it follows that state code 410 IAC 7-24-51 provides the applicability – in short, if this means this and that means that, then we must obey this law.

In the legal sense, the preceding is the health department’s case.

But what you’ll be hearing from now on has little to do with statute and legalities. Rather, this now becomes the forum for polemics and agitprop, in that it’s all about the paramount importance of protecting public health and safety by means of the local health department serving as miniature NSA, omnipresent and intrusive, using any means necessary to know who is barbecuing pork or toasting weenies or pouring beer from kegs at any given time, so that outbreaks of sickness can be traced to the source. It soon became evident last night that not unlike “whatever it takes to beat terrorism,” the department will be doing its level best to ensure public fear about draft beer.

When NABC counsel Lee Cotner asked Dr. Harris whether there were any recorded instances locally (apart from drunk-induced vomit) of mass sickness owing to alcoholic beverages, Harris conceded that there have been none, but that it’s always possible, because beer is not sterile, and bacteria (“yeast is in it”) are always on hand.

But I digress. More later.