Ghost lights for St. Mary's school.

Morning, July 30, 2013.

Got trench warfare if they want it.

However long this bizarre intrusion persists, and however far it goes, let's be perfectly clear about the fundamental issue.

The Floyd County Health Department continues to claim control where it lacks statutory justification for control, and in the absence of statutory justification, it proposes that we accept arbitrary interpretations of enabling language as sufficient justification. Tom and Julia suggest we ignore 70+ years of practice, and move the goalposts without an actual law to allow it.

In essence, one regulatory body in one Indiana county out of 92 says it may rewrite the rule book as it pleases. Such arrogance remains a usurpation without precedent, and it must be contested, because arbitrary whims cannot be permitted to stand. If one power grab is permitted to stand, what will be the next?

Yesterday's appeals board decision (below) is a contradictory mish-mash (how's "no fees/no refunds" make any sense at all?), and only two points of the five are relevant:

1. Permits are still needed.
4. Inspections are not suspended.

Well, they board is made up of medical professionals, not legal scholars, and I regard the board's decision as well-intentioned (as opposed to the frighteningly disingenuous condescension of staff), but there can be no taking our eyes off the ball: Control, where control is misplaced, must be challenged.

And challenge it we will.

Trust me: It isn't the way I'd prefer to spend our tome or our money, but one local health department out of 92 simply does not have a monopoly on principle, irrespective of its "public health and safety" mantra. Whatever the next appeals step is, we'll be exercising it. I'll keep readers informed insofar as I'm able, and we appreciate the non-partisan support we've received to date.

Floyd County Health Department Hearing Appeals Board

The Hearing Board, after hearing the testimony of witnesses and arguments of the attorneys, hereby finds and orders as follows:

The board feels that alcohol investigations as a food product, falls under the purview of the board of health and safety of people.

The board feels that the ATC applies to alcohol sales but not to safety products of vendors.

1. Permits are still needed.
2. Void the citation.
3. Suspend fees until further notice. Collection of fees from alcohol-only vendors will be suspended.
4. Inspections are not suspended.
5. No refund of fees.

Signatures:

Vice President, Jan Craig, RN

Hearing Member, Cindy Andres, RN

August schedule for the Bicentennial Park concert series.

And don't forget NABC's progressive and publicly safe pints of anti-bureaucratic medicine.

---

August Lineup, 91.9 WFPK Joins as Media Sponsor

Mayor Jeff M. Gahan and the City of New Albany are pleased to announce the full August lineup for the Bicentennial Park Summer Concert Series. Each show will be held on Friday nights from 6 p.m. to 9 p.m. throughout the summer in historic downtown New Albany’s Bicentennial Park, located at the corner of Spring Street and Pearl Street. Also, The City of New Albany is pleased to welcome 91.9 WFPK as a media sponsor in the series. WFPK will have a membership booth on site with fun give-aways each week.

August 2nd - Oh My Me – http://ohmyme.bandcamp.com/

Oh My Me was formed in Lexington, Ky in 2010. With a wildly-varying musical background, the group blends an eclectic mix of battering drums, psychedelia & heavy-soul vocals to form its uniquely theatrical sound. Surprising melodies & dynamic arrangements are keystones in the group's music. Coupled with an unflinching stage presence, they have quickly established themselves as a band that is as interesting to see as they are to hear. They released their self-titled e.p. in 2011.

August 9th - The Fervor – http://www.thefervor.com/cms/

Louisville’s The Fervor has formed around the pair of Natalie Felker’s voice and keys and husband Ben’s guitar and harmony. In 2007, they added drummer Mat Herron and set out on a slew of live shows to support their first full-length album. Michael Campbell joined on as bass, and together, the group criss-crossed the eastern half of the United States. After spending some time in San Francisco tracking their newest album, the band returned home to Louisville, where longtime friend and engineer Kevin Ratterman (My Morning Jacket, California Guitar Trio, Wax Fang) helped them finish what they started. With a focus on what the Fervor could do together in a room, sounds were mixed down to analog tape, and editing forgone in favor of a recording that is upfront with its humanity. From those sessions emerged “Arise Great Warrior,” a record that is gut-punching in impact, but life-affirming in its lasting spark and hopeful mysteries.

August 16th - Matt Duncan – http://www.matt-duncan.com/

Matt Duncan is an “inventive songwriter who understands how to use retro sounds as a tool, not a crutch (Paste Magazine, May 2012).” Mixtape Maestro described his sound as “smooth textures of its trombone and sax-seasoned arrangements coupled with Duncan’s cotton soft tenor,” and Washington, DC based website All Things Go described Matt as a “master songcrafter.” You will not want to miss Duncan’s perfectly crafted pop tunes on his visit to Bicentennial Park. Brooklyn, New York based group American Authors will open.

August 23rd - Bombadil – http://bombadil.squarespace.com/

Hailing from Durham, North Carolina, Bombadil is a four-piece group with guitar, bass, piano, and drums best known for their folk-pop music. The band is known for their creative and somewhat elusive lyrics, quirky sound, and upbeat, energetic live show.

Clear as mud: Floyd County Health Dept. Hearing Appeals Board has many feelings, but not very much law.

For now, just the decision; analysis comes later.

---

Floyd County Health Department Hearing Appeals Board

The Hearing Board, after hearing the testimony of witnesses and arguments of the attorneys, hereby finds and orders as follows:

The board feels that alcohol investigations as a food product, falls under the purview of the board of health and safety of people.

The board feels that the ATC applies to alcohol sales but not to safety products of vendors.

1. Permits are still needed.
2. Void the citation.
3. Suspend fees until further notice. Collection of fees from alcohol-only vendors will be suspended.
4. Inspections are not suspended.
5. No refund of fees.

Signatures:

Vice President, Jan Craig, RN

Hearing Member, Cindy Andres, RN

Dr. Tom plays his Goebbels card. Can Neidermeyer be far behind?

Congratulations to my Facebook friend Rob Y, who accurately "called" the screen shot above last week. It began on Wednesday, July 24, when I noted the following on FB:

At roughly 2:00 p.m. today, a truck marked "Floyd County Health Department" stopped on Bank Street in front of Bank Street Brewhouse. The passenger got out and took a picture of the truck, with BSB in the background, then got back inside, and the truck drove off. What does it mean?

Rob replied:

I believe you'll see that photo again, as 'evidence' of having been onsite for some reason or another.

Bearing in mind that Dr. Tom "Dean Wormer" Harris's photo op was conceived before Otter and me made him aware of Fort Wayne v Kotsopoulos, it would seem that he's fully capable of juvenile (as opposed to Juvenalia) behavior, too.

Welcome to Delta House, Tom.

Hooray! It's a "Complete Streets Workshop" ... alas, in Jeffersonville, not New Albany.

Courtesy of the Greenway, here's a reminder of how New Albany is squandering its opportunities. I'm hoping the Indiana Department of Health's angle in this instance isn't searching for ways to license, regulate and inspect your walking shoes.

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Complete Streets Workshop
August 8th - 8:30 am to 2:30 pm

Dear Roger,

The City of Jeffersonville is hosting a free Complete Streets Workshop on Thursday, August 8th, presented by the Indiana Complete Streets Coalition and the Indiana State Department of Health.

The workshop will help participants build a better understanding of Complete Streets, Complete Streets policies, and best practices for design and implementation. Join us to learn about Jeffersonville's new Bicycle and Pedestrian Comprehensive Plan and to conduct a mobile Walk Audit to the Big Four Bridge that identifies challenges and opportunities in the local streetscape. All are welcome and free lunch will be provided courtesy of Butler, Fairman and Seufert Civil Engineers.

For more information and to RSVP visit online.org/">www.healthbydesignonline.org or call (317) 352-3804. Please note that registration is due by 5pm on Monday, August 5th.

Thanks for helping to make our communities pedestrian and bike friendly.

Very truly yours,

Shaunna Graf
Project Coordinator
Ohio River Greenway Commission

The ranks are thinning.

Posterity will record that on June 14, it was Matthew Myers who apologetically pulled the lanyard down in the alley by the trash bin and fired the health department's opening salvo in the Great Beer Pour War of 2013. I'll always appreciate the way that his body language revealed his confusion and distaste in being required to do so by his boss, Julia Hayes, and her immediate superior, Dr. Tom "Dean Wormer" Harris.

Here's to the foot soldiers of the world, and to the hope that in his new job, there'll be no such pressure applied from above.

Guest column: "The Health Department's Pussy Riot."

A guest column, by Brandon W. Smith.

Last month, HBO aired the stirring documentary Pussy Riot: A Punk Prayer about the ordeal of three women from the Russian punk group, Pussy Riot. In 2012, the women were sentenced to two years in prison labor camps for donning colorful balaclava masks and crashing a Russian Orthodox service in Moscow's rebuilt Christ the Savior Cathedral. The chaotic 40-second performance contained a strong anti-Putin message, asking the Virgin [Mary] to drive him away and referring to the unhealthy union between the Orthodox Church and Putin's regime as "God shit." Needless to say, this shocked the faithful in attendance and infuriated government officials.

This was not the first time Pussy Riot had staged radical, impromptu performances ("Putin has Pissed Himself" in Red Square, for instance), but this time they went too far. The police rounded up three members and arrested them for "hooliganism motivated by religious hatred," a charge that carries up to a 7 year sentence under Russian law. At what could be fairly described as a show trial, the young women remained defiant of the authorities but respectful of the faithful, apologizing to them and denying any motivation of religious hatred.

The judge handed down a "lenient" sentence of two years in a prison labor camp for what, in the United States, we would characterize as Constitutionally-protected free speech and expression. In Indiana, the disruption of a church service could be construed as misdemeanor disorderly conduct, but most would dismiss the intrusion as overzealous youthful rebellion. The First Amendment would have protected the content of the performance.

On "appeal," one of the women was able to hire a private lawyer and had her sentence suspended (she had been detained at the Cathedral before she could sing or dance), but the other two members, Maria Alyokhima and Nadezhda Tolokonnikova, remain imprisoned, repeatedly denied parole despite having young children at home. Amnesty International has designated the women as prisoners of conscience, and international interest in the fate of Alyokhima and Tolokonnikova remains high.

In this country, we cherish our freedom of speech and expression. With some narrow exceptions, we are free to use the pen, the guitar, the paintbrush to challenge society and the powers-that-be without fear of government retribution. When Rolling Stone magazine published the provocative image of Boston bomber Dzhokhar Tsaernav on its August cover, for example, reprisals were limited to counter-images, denunciation by the offended, and some loss of business for the magazine; government persecution was never on the table. This is how we handle unpopular speech in the United States, and we are better for it.

In school, we learn the history of presidents and wars and hopefully something about the history of our fundamental civil liberties. Most political history, however, is recorded in the everyday interactions between citizens and local bureaucracies. These interactions include places like the license branch, county clerk's office, traffic court, and in the case of New Albanian Brewing Company's Roger A. Baylor, the Floyd County Health Department.

Most local readers will be familiar with the squabble over whether alcohol vendors need temporary food server permits to pour at off-site events, which has been reported in the local paper and widely publicized by Mr. Baylor on his blog and social media activity. The striking thing about this tiff is not the legal challenge to the Department's expansion of its permit requirements; rather, it is the demonstration of why abstract principles like free speech and the rule of law are critically important in our lived reality.

The beer-pouring dispute has shined a spotlight onto the inner workings of the Floyd County Health Department, a usually anonymous branch of government concerned, in part, with keeping us safe from food-borne illness. This is an important, thankless job to be sure. What has become painfully obvious, however, is that the Department leadership is quite upset at the audacity of Mr. Baylor not only to competently challenge its actions but to do so in his usual style of intelligent, biting satire. This included such gems as the "Occupy the Health Department" posters and "Under Protest" permits displayed at the Bicentennial concert events and his regular blog and social media posts. At his administrative hearing to challenge the permits, which is supposed to be a neutral forum, the Department leadership went so far as to call these protests "somewhat juvenile."

Rather than being "juvenile," Mr. Baylor has used his creative talents to effectively raise awareness about a government bureaucracy arguably overstepping its power. He also marshaled the law, public pressure, and the Indiana Public Access Counselor to ensure his right to a full and fair hearing of his permit protest. Should he lose at the board level, he has meaningful redress before higher administrative boards and courts of law. Should he ultimately lose, he can seek to change the laws and regulations with which he disagrees.

If only officials at all levels of government were so effectively reminded of their duties and the limits on their power. In the end, the Department must defer to Mr. Baylor's Constitutional rights by proceeding in a neutral manner and offering him a full and fair opportunity to be heard. It may not retaliate against him. It may not seek criminal action or civil penalties for being satirized. In fact, much to the Department's annoyance, this is not Putin's Russia, and it must grin and bear its own Pussy Riot, because the rule of law remains, and the public is on notice.

The Health Department, of course, is not Putin, and Mr. Baylor is not Alyokhima or Tolokonnikova. These two events, however, illustrate that the way in which fundamental rights are practiced in everyday life matters to the health and well-being of a free society. On a societal level, we owe a healthy dose of respect to those who challenge us with expressive activity, even if we consider such activity “juvenile,” because they force us to grapple with the rights we hold dear and provide scrutiny that improves our government.

"Frankly Mr Shankly" by The Smiths.

I'm not sure why this song has been in my head all week, although "flatulent pain in the ass" might have something to do with it.

In the search for Instigator Zero, expect papers to be shredded.

Irrespective of the Floyd County Health Department board's decision on NABC's appeal, as presumably reached Thursday evening, and expected to be revealed early in the coming week, there are outstanding issues still to be played out.

And rest assured, I like to play.

One is the cavalier attitude of Dr. Harris and counsel toward the department's obvious foot dragging in the matter of our public access request. Not only did insultingly minimal compliance (a grand total of six records produced in a period beginning 9/22/12) come at the last possible moment prior to the hearing, but it was accompanied by Dr. Harris's sneering suggestion that I hadn't phrased the request correctly.

Interesting, isn't it?

If the request wasn't written adequately, why was it sufficient grounds for the public access office in Indianapolis first to reply to me in depth, and later to approve and expedite our formal complaint against the health department for its delay in complying with the request?

Perhaps Dr. Harris answers only to one or the other God, and not the public access arm of Indiana government.

Another is the question of exactly when and why the health department connived its decision to usurp decades of Indiana Alcohol & Tobacco Commission precedent and to declare expansionist activism by asserting regulatory control of alcoholic beverages. In its minimalist, condescending response to our public access request, the health department conceded in effect that its interest in temporary food server permits in the context of draft beer at ATC-sanctioned events began around the time of June 14, 2013.

From the start, we've countered: Why this, why now, and why NABC?

The department's obtuse and Orwellian reply has been to pretend that it's been this way all along, but seeing as its own records illustrate otherwise, aren't we obliged to pursue the next logical step of tracing the statutorily indefensible move to its actual source? Isn't that what any epidemiologist worth his or her advanced degree would seek to learn?

It isn't about smoking bans, but smoking guns.

Consequently, I'm thinking that a fresh, new public access request needs to be filed, this time asking for all health department meeting minutes for the last five or so years. These might read depressingly like The Lancet ... and they also might be highly instructive, don't you think?

Needed is döner kebab, or perhaps falafel, maybe Cornish pasties.

It was quarter to 8 on Friday night. I was with Blake at Party Time Liquor in Greenville, wrapping a beer tasting, and neither of us had eaten since lunch.

Was there any way we could grab a quick bite in downtown New Albany without eating chain fast food, and still make the beer stand in the alley at Bicentennial Park in time to have Houndmouth or two?

My first thought was DP UpDogs.

I searched the web on my i-Phone and couldn’t find the hours of operation; the phone kept ringing, so apparently our best bet wasn’t open. The problem is that downtown’s sit-down indie restaurants are packed on Friday (that’s a very good problem to have, by the way), and it would be unlikely to score a carry-out sandwich quickly at any of them.

Granted, we were grilling out in the beer garden at Bank Street Brewhouse, but I dislike getting in the way of paying customers, of whom there were a few queued up as we arrived. In the end, we each drank two hygienic plastic cups of dinner amid the music, and resolved to snack at home. That’s okay. We’re trained professionals. I can’t speak for Blake, though I had cheese and crackers.

The gospel of the free market suggests that this situation eventually will solve itself. The solution might come more quickly if the city completes downtown streets, and the number of walkers and bikers escalates. At some point there will be a food truck, or existing establishments will do what we’re trying to do with the grilling program, at least in fair weather.

But what I really, really wish we had here was döner kebab, just like in good ol’ Germany … with a streetside window.

online.wsj.com/article/SB10001424052702304432704577350194262835880.html">There's Nothing More German Than a Big, Fat Juicy Döner Kebab, by James Angelos (WSJ)

In fast food, Germany is better known for wurst. But few German street snacks are more appreciated than the Turkish döner kebab.

Brought to Germany four decades ago, the döner is to Berlin what pizza is to New York: a transplanted food that has taken on a new life in its adopted land. Today, there are more döner stands in Berlin than in Istanbul. And about 720 million servings are sold nationally each year according to an industry association.

German-style döners are seasoned meat processed into a large cylindrical loaf, roasted on a vertical spit, then thinly sliced with a long knife and wrapped in flat bread with vegetable toppings and, sometimes, a spicy sauce.

Something contagious?

While unwilling to argue the specific merits of the relationship in question, I'm struck by lawyer Mosley's characterization.

Rift widens between New Albany police chief, Floyd County prosecutor; In letter, New Albany police Chief Sherri Knight changes search warrant process, by Gary Popp (N and T)

... While (David) Mosley, the Jeffersonville attorney, has more than a quarter of a century arguing litigation, he said (NAPD Chief Sherri) Knight’s current stance toward the prosecutor’s office is something he has never witnessed.

“I have never heard of that, a police department telling the prosecutor they are not going to be involved in the investigation until the conclusion,” Mosley said. “I can think of no good reason for that.”

Seems locally, there's a lot of "never heard of that" going around. Does anyone know exactly why?

Overheard at Bank Street Brewhouse.

Last evening at Bank Street Brewhouse, graphics wizard Tony overheard a visitor explain our system.

"Yeah, we're not going to like any of this. This is a brewery. They make shit for people who like beer."

Copper Moon Art Gallery coming to where the Democrats were.

The Floyd County Democratic Party is without a bricks and mortar home. Adam Dickey told me it's a cost-saving move in a year without local elections. Why not? All one needs these days are some laptops, cell phones and a barroom for using them. Voila -- mass movement.

Moving into the space is the Copper Moon Art Gallery, and Kim Murphy Johnson told me about it on Facebook:

I'm the longtime (more than 20 yrs) Director of Art in Speed Park - the art show held in Sellersburg. I'm opening an art gallery on Pearl St this Fall ... so excited to be part of the historic district downtown!

After music at Bicentennial Park, there's the Aftershow at BSB.

Bicentennial Park Summer Concert Series: Tonight, Daniel Ellsworth & the Great Lakes.

It's easy to forget that PourGate was commenced back on June 14 at the second show of the Bicentennial Park Summer Concert Series, which resumes tonight from 6 p.m. to 9 p.m. at Bicentennial Park. Weather tonight should be fine. Come out and help us pay our legal fees.

JULY 26TH - DANIEL ELLSWORTH & THE GREAT LAKES

       This indie group from Nashville  has been playing together since 2009, and currently consists of keyboardist/guitarist/singer Daniel Ellsworth from Minnesota, dummer Joel Wren from Kansas, and guitarist Timon Lance and bassist Marshall Skinner both from Ohio.  Their first album, Civilized Man, was named by Amazon MP3 the number 76 album out of the top 100 albums of the year 2011, and also named their single “Shoe Fits” the number seven song of the year.  

Daniel Ellsworth – http://danielellsworthandthegreatlakes.com/

NABC before the FCHD Board 4: Late breaking news.

At 11:12 a.m., I received a phone call from the Floyd County Health Department's lead environmental officer (and presumed mastermind behind the department's "beer as food" mantra) Julia Hayes. She said she'd been told to inform me that while the board's decision hadn't yet been issued in writing, and NABC is expected to have a temporary food servers permit for beer pouring at tonight's Bicentennial Park show, we'd not be charged for the permit.

I've explained why the cost of the permit means nothing, but since we remain in an interim period of "somewhat juvenile protest" (Dr. Tom's frothing) with regard to the very notion of temporary food server permits pertaining to the pouring of beer under ATC permits that have statutory primacy ... well, okay. Whatever. There'll be nothing remotely resembling clarity until the board's decision is released in written form. Until then, all is shifting, seemingly by the hour.

What it probably tells us is that Laszlo was right: They're going to try to split the baby in half, by removing the fee and retaining the control. But the issue is control, not money. As long as the department seeks to go places where no regulator has gone before, this isn't over.

NABC's case
Floyd County Health Department's case
ON THE AVENUES: More on the case

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?

NABC before the FCHD Board 2: NABC's case.

The Floyd County Health Department's case is here.
ON THE AVENUES: Roger's take is here
Breaking news: Fee suspension (noon Friday)

To preserve formatting as save time, I'm cutting and pasting this statement, which was given to Dr. Tom Harris, the Floyd County Health Department board members, and counsel Rick Fox. NABC's case might be summarized as (a) explicating ambiguity in statutory definitions of words like "drink" and "beverage"; and (b) holding that it doesn't matter, since in the state of Indiana, the Alcohol & Tobacco Commission golds primacy of place when it comes to regulating all aspects of alcoholic beverages.

Toward the latter, we introduced as evidence a 1998 Indiana Court of Appeals decision called Fort Wayne v Kotsopoulos, which is summarized by this paragraph:

The appeal presents one dispositive issue: Whether the Indiana statutes controlling the sale of alcoholic beverages preempt Fort Wayne's Transient Merchant ordinance ... We affirm.

In short, the city of Ft. Wayne enacted an ordinance placing a fee structure upon events just like the Bicentennial Park concert series. The caterer objected, maintaining that the ATC's supplemental caterers' provision was the only permit needed. The court agreed, and held in no uncertain terms that the ATC's imprimatur was supreme. In effect, if the health department begins its case by citing a New Albany ordinance allowing the heath department to impose an additional layer of regulation and fees atop a supplemental catering permit, the ordinance itself is invalid and should be changed. Sounds like a good idea to me, but more on this later. Here is my statement to the board.

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25 July, 2013

To the Board of the Floyd County Health Department, et al

The 18^th Annual Indiana Microbrewers Festival was held in Indianapolis on July 20, 2013. Along with more than 90 breweries from Indiana and outlying states, the New Albanian Brewing Company (NABC) set up a booth with temporary draft dispensing equipment. Most of the participants used tap systems referred to as jockey boxes, or cold plates. Some poured beer directly from firkins in the English style.

Early on, before it got busy, I walked around the grounds and quizzed a dozen or so breweries, each time asking their staff members the same question:

Has the Marion County Health Department (MCHD) inspected and approved your draft beer set-up today?

Without exception, they looked at me like I was an elderly punk on dope. In fact, none of them had witnessed a MCHD officer inspecting or checking beer dispensing stations.

I then asked a second question:

Does your county health department back home inspect your temporary set-up at events like this one?

Again there was uniformity: Nope … never seen it … why on earth would they?

Based on my sampling at the festival, here is a list of Indiana counties in which health departments are not currently confusing temporary beer dispensing with temporary food serving.

Adams
Allen
Bartholomew
Benton
Blackford
Boone
Brown
Carroll
Cass
Clark
Clay
Clinton
Crawford
Daviess
Dearborn
Decatur
De Kalb
Delaware
Dubois
Elkhart
Fayette
Fountain
Franklin
Fulton
Gibson
Grant
Greene
Hamilton
Hancock
Harrison
Hendricks
Henry
Howard
Huntington
Jackson
Jasper
Jay
Jefferson
Jennings
Johnson
Knox
Kosciusko
La Porte
Lagrange
Lake
Lawrence
Madison
Marion
Marshall
Martin
Miami
Monroe
Montgomery
Morgan
Newton
Noble
Ohio
Orange
Owen
Parke
Perry
Pike
Porter
Posey
Pulaski
Putnam
Randolph
Ripley
Rush
St. Joseph
Scott
Shelby
Spencer
Starke
Steuben
Sullivan
Switzerland
Tippecanoe
Tipton
Union
Vanderburgh
Vermillion
Vigo
Wabash
Warren
Warrick
Washington
Wayne
Wells
White
Whitley

That makes 91 of 92 counties, with Floyd County seeking to be the sole exception, and that’s why we’re here today.

---

On June 14, Mr. Myers of the Floyd County Health Department (FCHD) inspected the bar enclosure area in the alley by Bicentennial Park and wrote a citation to NABC for not possessing the required “temporary food serving permit,” and my question then, as now, is this:

Since when has such a FCHD temporary permit been required of operators who are doing business with alcoholic beverages under daily Alcohol & Tobacco Commission (ATC) supervision in the general regulatory sense, but more specifically, under the provisions of the ATC’s Type 222 Supplemental Caterers’ Permits?

The reason I’ve been asking this question is simple. Like my colleagues in Indianapolis last week, and during a quarter century in the beer business, I’ve never once heard of such a health department requirement, here or elsewhere.

Consequently, when coherent and consistent answers were not exactly forthcoming from the various FCHD employees quizzed in the immediate wake of the first citation on June 14, I took two steps.

First, I first asked for an appeal hearing before the FCHD board.

Second, I elected to file an Indiana Public Access information request with the FCHD, asking for a five-year history of citations pertaining to temporary food serving permit violations, so as to look for other instances in the past when such a ticket was issued to a beer purveyor for failure to possess a temporary food serving permit.

The way these two requests have been handled is revealing. 

                                                           

As for today’s board hearing, the FCHD’s own rules state clearly that “written notice … shall be served upon the operator” (115.41 C and D). I’ve yet to receive the statutorily required written notice, even as I’ve been instructed to abide by newfound requirements for beer pouring for which no definitive statutory proof has yet been offered.

As for the Public Access request, after a whole month went by with neither a reply nor an explanation from the FCHD, yesterday I had no choice but to file a formal complaint with the Public Access officer in Indianapolis. The complaint was given priority status owing to today’s hearing. Yesterday morning, Dr. Harris was sent notification of my complaint, and subsequently copies of a mere six citations for five years’ time were faxed to us, sans explanation, which beggars belief, but it remains that not one of them pertains to beer.

Three are for farmers market food vendor violations, and one each for violations at Harvest Homecoming, Jingle Walk and Indie Fest. None of them are dated prior to September 22, 2012. Does this imply that from 2008 through Sept 22, 2012, no citations were issued to holders (or non-holders) of temporary food server permits? What about the two citations (NABC and River City Winery) written on June 14, and eligible for inclusion during the five-year period?

In summary, the FCHD’s record of compliance with my Public Access request has been laggardly, disingenuous and ineffectual.

But no matter, because taken as a whole, these six sheets of paper amply serve to illustrate the point I’ve been trying to make, which is that previously the FCHD has not undertaken to equate temporary food serving permits with temporary beer pouring events, and it cannot show that it has.

The overarching question remains: Why now, and on what statutory authority? Since the FCHD seems unable or unwilling to openly and honestly answer this question, valuable time must be expended in pursuit of explanations, leading me to surmise that such harassment was the original intent.

---

As I understand it, the FCHD’s mandate for operations in the city of New Albany derives from rules of engagement formulated at the state level, and then adopted by local governing bodies -- in Floyd County’s case, both county and city.

Various rules of thumb apply, among them that local governing bodies typically cannot enact rules more strict or excessive than those existing at the state level, except when expressly allowed to do so by the state, as in the case of recent anti-smoking legislation, in which the state explicitly allows local entities to enact more restrictive rules.

Here in New Albany, the FCHD’s regulatory domain is delineated in the “Code of Ordinances, Chapter 115: Food Establishments,” with the relevant state statutes being referenced therein. It is the suggestion of the FCHD that the following passage provides justification for intervention in requiring temporary food serving permits:

RETAIL FOOD ESTABLISHMENT

SANITATION REQUIREMENTS

TITLE 410 IAC 7-24

410 IAC 7-24-34 “Food” defined

Sec. 34. “Food” means the following:

(1) Articles used for food, drink, confectionery, or condiment whether simple, mixed, or compound.

(2) Substances or ingredients used in the preparation of the items described in subdivision (1).

Thus, the health department seeks to establish a precedent whereby beer is food, and yet the state’s own guidelines contradict such a conclusion. For instance, “beverage” is defined separately in the same rule (Rule 24):

410 IAC 7-24-7 "Beverage" defined

Authority: IC 16-42-5-5

Affected: IC 16-42-5

Sec. 7. "Beverage" means a liquid for drinking, including water. 

The existence of a separate definition for beverage suggests that at times, a beverage is not considered food. As an example, perhaps chocolate milk and its components (milk and powder or syrup) is food because they are articles used in the preparation of a drink, while beer, which requires no preparation outside the brewhouse, is a beverage. If there weren't such a distinction, there would be no need for a separate definition.

In addition, as a useful example outside of 7-24, alcoholic beverages are specifically excluded from the definition of low-acid food in Rule 21, which pertains to wholesale operations:

410 IAC 7-21-20 "Low-acid food" defined

Authority: IC 16-42-5-5

Affected: IC 16-42-5

Sec. 20. "Low-acid food" means any food, other than alcoholic beverages, with a finished equilibrium pH greater than 4.6 and a water activity (aw) greater than eighty-five hundredths (0.85).

Rule 24 doesn't contain the same language, although the definitions of acid foods in Rule 21 and Rule 24 are parallel.

Consequently, with alcoholic beverages deemed not potentially hazardous, they are explicitly exempt from the food handling requirements:

410 IAC 7-22-15 Certified food handler requirements

Authority: IC 16-42-5.2-13

Affected: IC 16-42-5.2

Sec. 15. (a) A corporation or local health department may not impose any registration, certification, or licensing requirements on food handling or food handlers.

(b) After December 31, 2004, at least one (1) food handler at a food establishment must be a certified food handler. A food

handler's certification must be recognized by the Conference for Food Protection or an equivalent nationally recognized certification examination as determined by the department.

(c) A food establishment shall have at least one (1) certified food handler responsible for all periods of the food establishment's operation. However, a certified food handler need not be present at the food establishment during all hours of operation. It shall be the responsibility of the certified food handler to provide the certificate, letter, or document for verification of passing the examination.

(d) A food establishment that begins operation or changes ownership shall comply with subsection (b) not later than six (6) months after beginning operation or changing ownership.

(e) If a food establishment does not have a certified food handler because the certified food handler terminates employment with the food establishment, the owner or operator of the food establishment shall comply with subsection (b) not later than three

(3) months after the termination date of the previous certified food handler.

(f) If more than one (1) food establishment operated by the same individual is located on the same property or on contiguous properties, only one (1) certified food handler is required for the food establishments.

(g) Except as provided in subsection (h), the certified food handler requirement does not apply to a food establishment when the food establishment's food handling activities are limited solely to one (1) or more of the following:

(1) Heating or serving precooked foods.

(2) Preparing or serving a continental breakfast such as rolls, coffee, juice, milk, and cold cereal.

(3) Preparing or serving nonalcoholic or alcoholic beverages that are not potentially hazardous beverages or ice.

(4) Preparing or serving packaged or unpackaged foods that are not potentially hazardous foods, including elephant ears,

funnel cakes, cotton candy, confectionaries, baked goods, popcorn, and chips and grinding coffee beans.

As such, the sheet called “Food Handler Certification Rule: Frequently Asked Questions Regarding 410 IAC 7-22” shows this exemption for beer and wine quite clearly:

EXEMPT FOOD ITEMS

• Heating or serving precooked foods

• Any prepackaged food sold in its original package, either potentially or non-potentially hazardous

• Popcorn, kettle corn, caramel corn, and chips

• Shaved ice products and ice

• Cotton candy, elephant ears & funnel cakes

• Continental breakfast items (i.e., rolls, coffee, juice, milk,

cold cereal)

• Pretzels with open dips (i.e., cheese and marinara that are pre-manufactured)

• Roasting and grinding of coffee beans

• Deli’s that only serve pre-sliced meat and cheese

• Deli’s serving pre-manufactured salads (i.e., potato and macaroni salads)

• Baked goods (i.e., bread, doughnuts, rolls, cookies)

• Confectionaries (i.e., candy, jams, jellies)

• Any non-potentially hazardous beverages (i.e., “slushies”, wine, beer, soft drinks)

• Spices and dry rubs

• Vegetables, fruit and herbs (i.e., produce stands that are not cutting melons)

• Hot dogs with simple condiments (i.e., ketchup, mustard, relish)

• Canned soups, sauces, and dips

• Waffles and pancakes, syrup

• Honey, maple syrup and sorghum

• Air-cooled hard boiled eggs

Observe that while other regulatory usages have centered on more vague or broader terminology, as in “drink” and “beverage,” in the preceding, the specific and exact terms “beer” and “wine” are used, and just as explicitly exempted.

Thus, the ongoing absurdity of NABC’s temporary pouring of beer as being explicitly exempted from regulatory coverage under the dictates of the Food Handler Certification Rule, even as FCHD employees arrive each week to inspect us, and to demand compliance with provisions of food handling rules (hand sanitizer, the exact location of cardboard boxes containing sealed sleeves of plastic cups), which, in effect, comprises material never covered in class but included on the test – because if we’re not compelled to attend the class, how can we know the material on the test?

These same FCHD employees cannot decide how many entities are present at the temporary event to be improperly inspected and mistakenly ticketed, primarily because the FCHD seems intent on refusing to familiarize itself with the ATC permit process under which we operate, most often with the Supplemental Caterer’s Permit (Type 222). At the Bicentennial Park events, NABC has been the holder of the Type 222, and other beer pourers present are to be considered sub-caterers under NABC’s control.

One FCHD inspector told us that for two beer-pouring stations to be considered as one entity, the tables from which they serve must touch each other. Another observed separate tables on one occasion and did nothing, then on her next visit, wrote our sub-caterers a citation for not possessing the temporary food serving permit that NABC, the master caterer, already had acquired, if under written protest. A third inspector did and said nothing at all.

It is not a coincidence that I have used the term Orwellian to describe the past six weeks.

Perhaps, then, it finally has come time for the FCHD to consider the very nature of regulatory spheres in the state of Indiana, because had it done so previously, we’d not be here today.

There are reasons why beer and wine are identified by the state’s own health guidelines as non-potentially hazardous, and thus exempt from food handling regulations, and arguably the most important of these are because alcoholic beverages fall under the ATC’s regulatory jurisdiction. Alcoholic beverages and tobacco are on one side of the fence, and other forms of human consumption are arranged in various places on the other. This is the way Indiana has approached the topic since the repeal of Prohibition.

It is speculative interpretation rooted neither in precedent nor practice for the FCHD to belatedly conclude that an operator pouring beer from a keg with the written permission of the ATC must also purchase a temporary food servers permit and be subject to regulation by the health department, because any power the FCHD possesses in this regard derives from the legal code of the municipality of New Albany, and as such, it has been determined by the Court of Appeals of Indiana in the case of City of Fort Wayne v Kotsopoulos (attached) that Indiana statutes controlling the sale of alcoholic beverages, including Supplemental Caterers’ Permits (IC 7.1-3-9.5 Chapter 9.5.), preempt additional local regulation.

Period.

---

For the moment, Floyd County’s health department stands alone in its insistence that local speculative interpretation trumps ATC regulatory pre-eminence and the Court of Appeals ruling introduced here, but why?

Surely the intent of the state regulations we’ve reviewed is to have each county using the same playbook, not constructing 92 separate playing fields, possibly impeding both commerce and rationality in the process.

From the start, my assertion has been that by demanding temporary food serving permits of beer pourers operating under ATC rules, the FCHD seeks to dramatically expand the regulatory perimeter and exceed pre-established boundaries, and as such, the burden of proof rests with the department. As I’ve shown today, there is scant (if any) statutory foundation for such activism.

I urge the board to re-apply the proper boundaries, and to reverse the policy requiring ATC permit holders to acquire temporary food serving permits and be subject to inspections. The ATC regulates beer pourers already. Further regulation is both excessive and unconstitutional.

I’m aware that the FCHD board has seven days to provide written notice of its decision in this manner. As a show of good faith, I ask that until the decision is rendered, we be allowed to go about our usual business at temporary beer pouring events without acquiring the FCHD temporary food server permit.

Also, seeing as NABC itself has shown good faith in the fairness of the appeal process by duly purchasing the temporary food serving permits since June 21, I ask that in the event the board rules such permits to be superfluous, NABC is remunerated for the monies already spent.

As of Thursday, July 25, this total is $120 (Bicentennial Park concert series on June 21 and 28, and July 5, 12 and 19; also, July 3 fireworks show at the Riverfront Amphitheater -- $20 each for six events).

Finally, I ask that in addition to NABC’s “violation” of June 14, other citations issued to sub-caterers be nullified.

I hasten to conclude that we seek only for this situation to be resolved, not for punitive measures. We merely wish to work in the specified manner of our ATC permits, according to the stipulated regulatory system in the state of Indiana.

Thank you for listening.

Roger A. Baylor

New Albanian Brewing Company

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/a> 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.

These magic moments: Health department board, 5:30 p.m., today.

ON THE AVENUES is postponed until Friday.

There's no time for creative writing today, with far too much to do in preparation for this evening's much-anticipated gig at the Floyd County Health Department, performing before its board of directors.

Heavens, what shall I wear? And on such a wretched hair day, too.

Here is the board, as identified on the FCHD's web site:

Tom Andres, MD
Cindy Andres, RN
Edward J. Cook, Jr.- CPA
Beverly Jan Craig, RN
Cindy Dickey, RN
William H. Garner, III, M.D.
Alice Miles, RN

The board's attorney is Richard "Rick" Fox, who yesterday afternoon faxed us six temporary food server permit citations sans explanation; we presume these are intended to comprise all such citations for the past six years. Observing merely that it required a month and a formal complaint with the state to compel the transmission of six sheets of paper, readers should be able to grasp the dismissive attitude of the health department's leadership toward due process in general, and this appeals process in particular, to date.

Whatever. I've written a statement, and perhaps they'll even let me read it. There'll be documentation, too. The board will have seven days to render a decision. At the moment, I'm a bit constrained as to what I can publish (apart from invective, that is), but rest assured that when possible, the history of this sordid experience will be posted in this space.

Several persons have gone out of their way to be helpful, and their kindness is appreciated. They know who they are. Thanks. Invoking the memory of Gene Lind and Tom Young ... time to wade in there and see what happens. The hearing is this afternoon at 5:30 p.m. at the FCHD's bike-rack-less compound at 1917 Bono Road, and if you want to come see the show ... well, why not?

Dr. Tom drove me to drink. That's the one thing I'm so indebted to him for.

As we await learned Floyd County Health Department instruction as to the proper amount of head for crowning a draft beer, here is a consideration of why writers drink. I've always thought it's because the absence of vice renders life (and art) unacceptably banal -- as in Mitt Romney.

Why do writers drink?, by Blake Morrison (Guardian)

... Does it help writers to drink? Do they drink any more heavily than any other social group – doctors, lawyers, shop assistants or (see Mad Men) advertising executives? A famous drinker himself, (Kingsley) Amis considers this question in his Memoirs, and – comparing writers to actors – suggests "displaced stage fright as a cause of literary alcoholism. A writer's audience is and remains invisible to him, but if he is any good he is acutely and continuously aware of it, and never more so while it waits for him to come on, to begin p.1. Alcohol not only makes you less self-critical, it reduces fear." According to Amis, a large glass can supply "that final burst of energy at the end of the day" but should be avoided any earlier: "The writer who writes his books on, rather than between, whisky is a lousy writer. He is probably American anyway."

Let's see if a formal complaint will do the trick.

In the time elapsed (less than two hours) since my posting earlier this morning, here is what has happened:

• The Indiana Public Access counselor has answered my e-mail.
• I have filed a formal complaint against the Floyd County Health Department with Public Access, noting that the department has not provided a five year history of temporary permit citations, as I requested one month ago, and has not provided an explanation to me. 
• Given the hearing date tomorrow, I've asked for priority status.
• As of 9:10 a.m., the Public Access office is processing my complaint. 

To reiterate: All this has occurred in less than two hours, while in the 40 days since the first citation was written on June 14, the health department has been unable to issue me a formal notification of the hearing date (as stipulated by its own enabling ordinance), or to honor an Indiana Public Access request.

At this point, I'm not much interested in what Dr. Tom's political bosses in county government think about this. I'm curious whether they think at all.

Update: as of 11:00 a.m., Dr. Harris has been served his papers by the state.

The hearing is tomorrow, but the Floyd County Health Department is stonewalling about its public access obligations.

Update: Let's see if a formal complaint will do the trick.

It appears that NABC's hearing before the Floyd County Department Board is to occur on Thursday, July 25, at 5:30 p.m. at the department's headquarters bunker on Bono Road. The only reason I know this is that it was relayed to me verbally by the department's attorney via my lawyer.

And yet, as the department's own playbook states:

§ 115.41 APPEALS SECTION.

(A) An operator aggrieved by an order is entitled to a review of the final order before a Hearing Board by filing a written request therefore with the Health Officer (Secretary of the Board of Health; see I.C. 16-20-1-10). The written request must be sent by certified mail or by hand delivery to the Health Officer at 1917 Bono Road, New Albany, Indiana 47150, during regular hours of operation, and must be received within 15 days after the date such order is issued. The written request must set forth with specificity the factual and/or legal grounds for appeal, and only those matters set forth in the written request may be argued before the Hearing Board.

(B) Upon the Health Officer's receipt of such request, the Hearing Board shall hear the matter in an open hearing after at least five-days' written notice of the time, place and nature thereof. The time shall be measured pursuant to the Indiana rules of court. (A shorter period of time for hearing may be requested and granted in the sole discretion of the Chairperson of the Floyd Board of Health, provided that such shorter time must permit compliance with I.C. 5-14-1.5.)

(C) The notice of the hearing date shall be served upon the operator requesting the review by delivering such notice to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.

(D) The Hearing Board shall establish the rules of procedure for the hearing and shall advise the operator of the same prior to the start of the proceedings. Such rules shall provide that an order may only be supported, in whole or in part, by a majority decision of the Hearing Board.

(E) Within seven days from the conclusion of the hearing, The Hearing Board shall make written findings of facts and conclusions concerning the final order or determination and shall deliver the same to the operator requesting the review by delivering the same to the address of the bed and breakfast establishment, retail food establishment or temporary food establishment listed on the permit application or by facsimile or by had delivery to such other address (if within Floyd County), as the operator shall designate in the letter of request to the Health Officer. Such delivery may be made by leaving the notice at the required address or by regular U.S. Mail.

(Ord. G-08-14, passed 5-5-2008)

Previously I had designated my home address. I've received no letter from the department -- not at home, and not at either NABC location. The notice is supposed to go to me. What gives?

Interesting, isn't it?

Since the Orwellianism began on June 14, NABC has been expected to comply with a previously unknown, ad hoc "law" compelling us to purchase temporary food serving permits to pour beer from kegs at events for which we've already obtained a permit from the Indiana Alcohol & Tobacco Commission, as conjured by a health department functionary likely basing his or her interpretation on a solitary nebulous word ("drink") that the entirety of Indiana state precedent regards as irrelevant owing to the existence of the ATC and its clearly defined regulatory function ... but when it comes to my request for a hearing, the health department hasn't yet notified me in writing of the date, as its own charter says it must ... and when the topic is my Indiana state public access request for records, nothing has been done for a whole month.

June 22: Roger has issued a Indiana Public Access request to the Floyd County Health Department.

June 27: My note to the Indiana Public Access Counselor, informing the office of my request of the Floyd County Health Department.

Looks like a return e-mail to the public access counselor is merited. Here's what he had to say back on June 27:

At this point, the (Health) Department is required to produce all records responsive to your request, minus any applicable exceptions, within a reasonable period of time. See IC 5-14-3-3(b). The public access counselor has stated that among the factors to be considered in determining if the requirements of section 3(b) have been met include, the nature of the requests (whether they are broad or narrow), how old the records are, and whether the records must be reviewed and redacted prior to disclosure. The APRA requires an agency to separate and/or redact confidential information in public records before making the disclosable information available for inspection and copying. See I.C. § 5-14-3-6(a). Section 7 of the APRA requires a public agency to regulate any material interference with the regular discharge of the functions or duties of the public agency or public employees. See I.C. § 5-14-3-7(a).

However, Section 7 does not operate to deny to any person the rights secured by Section 3 of the Access to Public Records Act. See I.C. § 5-14-3-7(c). The ultimate burden lies with the public agency to show the time period for producing documents is reasonable. See Opinion of the Public Access Counselor 02-FC-45. This office has often suggested a public agency make portions of a response available from time to time when a large number of documents are being reviewed for disclosure. See Opinions of the Public Access Counselor 06-FC-184; 08-FC-56; 11-FC-172. Further nothing in the APRA indicates that a public agency’s failure to provide “instant access” to the requested records constitutes a denial of access.

And here's what I wrote to him today. :

Dear Joe,

Here's a status report.

Attached is the only comment I've received to date from the Floyd County Health Department as to my request for public records. It's been just shy of a month.

In fact, it will be month tomorrow since the response letter from Dr. Tom Harris was dated, and perhaps not coincidentally, tomorrow (July 25) is NABC's appeal hearing before the department's board -- the very hearing for which I need the public access records in order to help make our case.

It's fairly obvious that the health department is evading its obligations,
as you outlined previously.

What's my next step?

Thanks you for your assistance,

Roger

What are the odds that as we enter the board room on Thursday, we'll be handed a stack of records?

Can this sham get any more ridiculous?

Terre Haute's newspaper on Mitch Daniels, as reprinted by our newspaper.

I suppose it's mildly interesting that the News and Tribune consistently reprints editorials from elsewhere, but every time another one appears, don't you find yourself wondering why the paper itself can't seem to do more on the editorial front?

In the following reprint, the newspaper in Terre Haute pretty much rests the case against former Indiana kingpin Their Man Mitch's attacks on academic freedom while governor. Hell, we knew all about it already; it's just nice that a newspaper somewhere in the state can say it out loud, even if ours can't or won't.

I wonder what publisher-of-the-year Bill Hanson thinks about this?

Come to think of it, I don't.

---

Hoosiers can expect more from a former governor

Purdue University President Mitch Daniels is indignant over an Associated Press report this week that revealed provocative emails from his days as governor that suggest he sought to eliminate what he considered liberal “propaganda” at Indiana’s public universities.

The AP obtained the internal emails through a public records request. Some of the messages showed that Daniels requested that historian and anti-war activist Howard Zinn’s writings be banned from classrooms and asked for a “cleanup” of college courses. In others, he talked about cutting funding for a program run by a local university professor who was one of his sharpest critics.

We’re willing to take at face value the former governor’s explanation that he was not trying to censor opinions or quash academic freedom, although it’s understandable to question him about that given that he’s now the leader of a major public institution of higher learning. He claimed he was only trying to prevent what he viewed as false or widely discredited versions of history from being taught in the state’s K-12 classrooms.

Mitch Daniels, after all, is a conservative with strong conservative credentials. It should come as no surprise that he espouses the oft-repeated conservative view that higher education is a bastion of elitist liberals who haven’t done a very good job of preparing its students for the real world.

Rather, our primary concern is Daniels’ reaction and response to the AP report. In its aftermath, he doesn’t just clarify the intent of his emails or explain his motivation for sending them. Instead, he attacked the article, which we published at the top of Page 1 on Wednesday, as “unfair and erroneous” in interviews with reporters at Purdue.

Unfair and erroneous. Serious charges, to be sure. What in the article was incorrect? What did Daniels view as unfair?

Would he care to elaborate? Apparently not. He now refuses to talk to the AP or answer those questions.

Having no specifics from Daniels to consider, we’re all left to judge the matter on our own.

And here’s how we see it. The Associated Press report is newsworthy, thorough, fair, well-researched and well-written. The story is told largely through Daniels’ own words via the emails obtained and contains a variety of comments from appropriate parties.

Without further explanation and discussion from Daniels, we find his response to the AP report to be weak and defensive.

None of this, of course, may matter much. His job is undoubtedly secure at Purdue, where he became the university’s president in January after being unanimously selected by the board of trustees, most of whose members he appointed while governor. As the AP reported, the trustees reaffirmed their support for him on Wednesday.

“President Daniels has stated and demonstrated his complete commitment to freedom of inquiry and has been an emphatic voice for that freedom,” the board said in a statement.

It should also be noted that the Purdue board followed Daniels’ lead in attacking the AP report.

“The board rejects as totally misleading the original article and reaffirms its unanimous and complete support of President Daniels,” its statement reads.

Totally misleading? Would Purdue trustees care to elaborate on that claim? Apparently not. That’s where the statement ends.

Daniels answers only to his board now. The people of Indiana have little direct influence over him. But, in terms of his reactions and responses to newsworthy items pertaining to him and his tenure as their governor, Hoosiers have a right to expect better.

— Tribune-Star, Terre Haute