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.

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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.

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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.

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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