ON THE AVENUES: NABC before the FCHD Board 3.


ON THE AVENUES:  NABC before the FCHD Board 3.

A weekly web column by Roger A. Baylor. 

Part one here
Part two here
Breaking news: Fee suspension (noon Friday)

There is much to say about last evening’s appearance by NABC before the board of the Floyd County Health Department, and it will take quite some time to say it all.

Unfortunately, as much as I’d like to spend every waking hour on the noble cause of NABC v FCHD, other matters are pressing. There’s beer to be sold — while we’re still able, before every pull of a draft handle must be accompanied by a written waiver, KY Jelly and hand sanitizer.

The health department’s board now has seven days to render a decision. Board members asked very good questions, and I don’t doubt for a moment that they’ll give their deliberations an honest effort.

Granted, one of them stated for the record that she believes any substance capable of being ingested should fall under rigorous health department control, but aside from the potential for this to discourage oral sex, I took it as a sign that there’ll always be predispositions.

We don’t expect to “win” the first round, but at the very least, we fought them to a standstill, and to be perfectly honest, I think Lee and me kicked their butts (department heads and counsel, not board).

Yes, I’m biased; however, we possess the single clearest point of actual, glaringly obvious “good” law: Fort Wayne v Kotsopoulos, which is plain and unmistakable even to a layman like me. Meanwhile, the department’s entire case rests on one opinion of what the word “drink” means, as defined by a solitary functionary in Indianapolis.

Accordingly, by mid-hearing, attorney Fox had largely abandoned legal references. He embarked instead upon the fallacy of the emotional appeal. It was rather disappointing.

With Kotsopoulos serving as 800-lb gorilla in the room, the case quickly became one of NABC and Roger portrayed as conniving villains and selfish opponents of the department’s ceaseless toil in protecting public health and safety. This portraiture owes precisely to my recalcitrance, as hinging on attorney Rick Fox’s big surprise, and because this exchange is vital for the record, I’ll explain it in detail.

Having endeavored to establish the ironclad (nope) nature of the department’s legal case, Fox abruptly shifted gears and introduced the element of compromise. Paraphrasing:

C’mon, Roger; since this is about protecting public health and safety from pathogens that we cannot document s having once been found to exist in draft beer, how about we drop the $20 fee and merely require NABC to register with the health department before every temporary pouring event? That way, when dozens of people are poisoned by pathogens we can’t prove exist, we’ll know who to look for.

I told him that an answer was utterly impossible without a question of my own: Would this proposed scenario come with or without mandated inspections of the temporary kit?

He demanded I answer his question. I replied the same way, and so on. I’ll now be depicted as refusing compromise, and as such, I’ll save them the trouble of devising a new nickname for me. It’s already been determined by Graham Phillips and Matt Weirich: “Typhoid Roger.”

So, why maintain the hard line when compromise is offered?

Because the compromise (a) is offered from weakness, and/or (b) it is meant to entice one to shift attention from the crux of the matter, which is this:

I completely believe the health department when it says money isn’t the issue, because $20 tithes are small beer compared to the ultimate objective (whether the objective’s author is Julia Hayes, Tom Harris, Steve Bush, Keith Henderson, or all four in tandem) of establishing a precedent for local health department control of alcoholic beverages.

Their stance in seeking control is purely activist; what is being sought is an expansion of previous limitations on control, and so what is needed for the expansion is statutory justification (exceedingly shaky) and a firm precedent that those about to be controlled accept being shackled.

The department is angling for our acceptance of a precedent allowing it to control beer as food, and whatever the merits of beer as food rhetorically, poetically or philosophically, neither existing statute nor the entire history of Indiana’s regulatory stance toward beer supports the department’s intended precedent, which if implemented, obviously becomes one applicable to the remainder of the state.

This is why the compromise is illusory. It isn’t about the money with me, either. It’s about the precedent – and they can’t have it without a good scrap. We’re not merely defending ourselves here in Floyd County. We’re defending our brethren in the other 91 counties.

Having said all this, the hearing was great fun, especially during those moments when Dr. Tom Harris flailed and huffed. Television’s “House” has nothing on Dr. Tom, who is such a stereotypical representation of the flawless, god-like physician frowning on the dumbass plebes that he might be a computer-generated caricature. At one point, the good doc referred to my weekly protests of health department intrusion as “somewhat juvenile.”

Maybe, although if protests of a power grab are juvenile, perhaps I’m justified to refer to the power grab itself as farcical – even fascistic.

Seeing as Dr. Tom had to be made aware that the words “beer” and “wine” are mentioned explicitly as exempt in his own professional field’s food handlers’ guidelines FAQ, might I offer him a thesaurus?