Showing posts with label Fort Wayne v Kotsopoulos. Show all posts
Showing posts with label Fort Wayne v Kotsopoulos. Show all posts

Sunday, May 12, 2019

Remembering the Great Beer Pour War of 2013: Bank Street Brewhouse, the Floyd County Health Department and the flight of the bureaucrats.


Last week's announcement by the New Albanian Brewing Company that Bank Street Brewhouse will close on May 25 (NABC's Pizzeria & Public House remains open, cooking and brewing) brought back many memories of BSB's ten-year run, like the time I fought the law and the law won -- but only temporarily.

In the following post from May 20, 2015 the whole story is told and a compendium of links provided. My personal favorite is this, the most-read "guest column" in the blog's (almost) 15-year history.

ON THE AVENUES: PourGate (the Great Beer Pour War of 2013) and Dr. Tom's prescription: "Kneel and Kiss My Ring, You Degraded Alcoholic."


It probably has escaped your notice, since not one of you care very much about public health and safety, not to mention your own disgusting standards of personal hygiene, but vast numbers of our fellow Americans are clueless sheep wallowing in a medieval squalor of bacteria. If not for the efforts of selfless heroes like me, you'd doubtless be bathing daily in your own raw sewage.

You really must see yourselves some time. Your filthy, germ-ridden body parts hang flabby and exposed from inadequate, scant clothing. You continue to smoke cigarettes even after we kicked you outside. You have sex before you’re married, refuse to use condoms, decline to exercise, and “dine” regularly on Big Gulps and Fritos. Any of you ever met a whole fried chicken, deep-fried Twinkie or fat-laden burger you wouldn’t stuff by the dozen into your gaping pie holes? I didn’t think so.

We try our best to ban all these substances that hurt you, but do you thank us? No, you just keep babbling about your right to determine your own destiny and live your own lives, as though we can tolerate free will when pathogens are everywhere. What have we become in America, a nation of philosophers?

I was one-third owner of Bank Street Brewhouse from incorporation in 2008 until my NABC buyout was finalized in February, 2018. In all that time, I received one paycheck for BSB. The buyout wasn't worth much more. But that's just fine, because beating The Man was worth every lost penny.

Things like that are what I live for.

It feels wonderful to have played a small role in checking the health department's 2013 over-reach and clarifying the state law to prevent other entities from launching similar shenanigans about licensing. Not only that, but our subsequent (albeit smaller) hassle with the Alcohol & Tobacco Commission's rules about the availability of food led to statutory adjustments as to what Indiana brewery taprooms can do to ease the weight of compliance with an obviously outdated standard.

If you're managing a brewery taproom and no longer are compelled to keep frozen weenies in a dorm fridge next to the microwave ... you're welcome.

State representative Ed Clere did the heavy lifting in both cases, and I'm grateful to him for this -- and to Lee and Bob for their efforts during PourGate.

In terms of writing, I think my coverage of PourGate is worthy of inclusion in NA Confidential's Greatest Hits. Kick back, pour a stiff one and don't forget the good times we had at Bank Street Brewhouse.

---

PourGate 2013: It took two years, but this new law silences Dr. Tom Harris and the Floyd County Health Department.

As it began.

On June 14, 2013, the New Albanian Brewing Company was peaceably vending beer at Bicentennial Park, by means of a supplemental catering permit issued by the company's governing agency, the Indiana Alcohol and Tobacco Commission.

The Floyd County Health Department arrived and said that NABC also needed a temporary food serving permit.

I said no, that's incorrect.

They persisted, and a two-year-long struggle commenced.

An Indiana Public Access Request was filed, and the Dr. Tom Harris and the FCHD's attorney laughed it off. NABC filed an appeal, based on a previous Indiana appeals court ruling (Ft. Wayne v Kotsopoulus; thanks, Bob) and the FCHD's board slightly moderated the department's error, but did not correct it.

The FCHD then childishly slandered NABC with a web site photo equating Bank Street Brewhouse with e coli, and NABC filed a tort claim notice. An ultimately fruitless search for adults in county government began.

They blamed it on the webmaster.

By late 2013, the Indiana Attorney General's office had agreed with NABC's reference to the court ruling, and found the FCHD to have absolutely no basis for its claim that a temporary food service permit was needed to pour beer.

The FCHD overtly and publicly stated that it would ignore this directive.


Throughout 2014, NABC and other vendors adhered to the FCHD's improvised 2013 requirement, which although amended, remained utterly baseless and without statutory authority.

Now a new summer vending season is beginning in 2015, and there is a new development.

On July 1, 2015, when a "beer bill" authored by Rep. Ed Clere officially becomes state law, it will be demonstrated for a third (and we trust final) time that the FCHD and its head, Dr. Tom Harris, were mistaken all along.

The new law is clear and explicit, as based on the two preceding legal precedents, both hitherto ignored by the FCHD.

All thanks to Ed Clere.

His hard work in compelling local government functionaries to obey their own laws will not be forgotten, especially by me.

If we lived in a culture of accountability, Dr. Tom Harris would be cashiered on July 1, 2015, when the new law takes effect. For two years, Harris and his department have made a mockery of Indiana state law and the principle of due process. For what purpose?

Following is the text of the new law. After that, there is a (maybe) complete compendium of NAC links telling the story of PourGate.

---

“HOUSE ENROLLED ACT No. 1311, AN ACT to amend the Indiana Code concerning alcohol and tobacco.”

SECTION 6. IC 16-42-5-30 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Sec. 30.

(a) As used in this section, "permit holder" means the holder of:

(1) a farm winery permit under IC 7.1-3-12-5; or
(2) a brewer's permit under IC 7.1-3-2-7(5).

(b) A permit holder that sells or furnishes alcoholic beverages by the glass at a festival, fair, or other temporary location authorized by the permit holder's permit under IC 7.1, is not considered to be a food establishment and is exempt from the requirements of this title that apply to food establishments, if the following requirements are met:

(1) The holder of a farm winery permit furnishes only the following for consumption on the premises, regardless of whether there is a charge:

(A) Wine samples.
(B) Wine by the glass.

The holder may not serve or furnish any food, including any fruit, condiment, flavoring, or garnish added to the wine after the wine is poured from its original container.

(2) The holder of a brewer's permit furnishes only the following for consumption on the premises, regardless of whether there is a charge:

(A) Beer samples.
(B) Beer by the glass.

The holder may not serve or furnish any food, including any fruit, condiment, flavoring, or garnish added to the beer after the beer is poured from its original container.

(c) A local unit of government (as defined in IC 14-22-31.5-1) may not require any licensure, registration, or certification of a permit holder as a condition of providing alcoholic beverages at a festival, fair, or other temporary location authorized by the permit holder's permit under IC 7.1, if the permit holder meets the requirements of this section.

---

Following is as complete a compendium of links as could be mustered in an hour and a half without Roger losing his mind. I should be awarded a effing Pulitzer Prize for this. They appear in reverse chronological order.

2014

October 9, 2014: Not only that, but I even washed my hands before pressing "send."

October 6, 2014: A message to Harvest Homecoming food vendors about temporary food (and beer) service fees.

June 2, 2014: Is Hot Water More Effective than Cold for Washing Tom Harris Right Out of My Hair?

May 27, 2014: A fresh round of bald-faced lies from the Floyd County Health Department's resident Red Shirts.

April 9, 2014: Rick Fox speaks the prettiest public access language I've ever heard. Is that Mark Seabrook I hear chortling?

February 28, 2014: The Floyd County Health Department admits to being mistaken ... in only one instance, but hey, it's a start.

FALL AND WINTER 2013

December 28, 2013: In which the Floyd County Health Department ignores the Attorney General of the state of Indiana.

December 21, 2013: N and T: "State: Floyd County Health Department shouldn’t require permit."

December 11, 2013: Complete text: “Floyd County/ New Albany ordinance issue in violation of IC 7.1-3-9-2, 7.1-3-9-6″

December 10, 2013: Banner headline Tuesday, Part One: In the matter of PourGate, total and unequivocal defeat for the Floyd County Health Department.

November 16, 2013: Your PourGate update for Saturday, November 16: A waiting game.

September 7, 2013: Yo, Floyd County Health Department, your invoice is ready. Cash only, please. I'm not sure I trust your checks.

September 4, 2013: In which we learn percentages: "That minus is too low to see."

September 3, 2013: Your PourGate update for Tuesday, September 3, and a letter to the editor.

AUGUST 2013

August 27, 2013: Your PourGate update for Tuesday, August 27.

August 24, 2013: My second favorite News and Tribune reader comment yet.

August 21, 2013: Any adults in county government surface yet?

August 20, 2013: Your PourGate update for Tuesday, August 20.

August 19, 2013: My favorite News and Tribune reader comment yet.

August 17, 2013: N and T: "JEERS ... to the Floyd County Health Department ... "

August 17, 2013: These machines kill fascists, pathogens and bureaucrats.

August 16, 2013: When pressed by Eater Louisville and N and T, FCHD unable to get its story straight.

August 15, 2013: ON THE AVENUES: When the whip comes down.

August 15, 2013: Solid News and Tribune story places spotlight on the Health Department's chronic disingenuousness.

August 14, 2013: Citizen to FCHD: "I will not stand for our public officials and public departments to promote ... public bullying.

August 14, 2013: Your Wednesday PourGate Update: Health department spins the web site wheel twice on Tuesday.


August 14, 2013: GAW News: "Pride of the Dipshits (UPDATE) Floyd County Health Department."

August 13, 2013: Now the Floyd County Health Department is working to keep food safe from Roger -- not E coli.

August 13, 2013: Floyd County Health Department adds photo of handsome devil to its web site, but retains actionable photo.

August 13, 2013: A cease and desist, a tort claim notice, and Dr. Tom at large.

August 13, 2013: NABC to Floyd County Commissioners, Health Department: "This malicious activity has caused, and continues to cause, financial harm to the claimants’ businesses and corresponding reputations."

August 13, 2013: NABC to Floyd County Commissioners, Health Department: "Cease and desist."

August 12, 2013: At Eater Louisville: "Floyd County Health Department Uses Bank Street Brewhouse to set 'Foodborne Diseases' Photo Shoot."

August 8, 2013: ON THE AVENUES: The fruitless search for adults in county government.

August 7, 2013: Midweek PourGate update: What's up with the Health Department these days?

August 3, 2013: Hegemony in action.

August 2, 2013: Local citizen journalist views health department's web site retaliation and expresses revulsion.

August 2, 2013: Equal protection from health department bureaucrats? Just give that wheel a heave.

August 1, 2013: ON THE AVENUES: "Kneel and Kiss My Ring, You Degraded Alcoholic."

JULY 2013

July 31, 2013: Got trench warfare if they want it.

July 30, 2013: Clear as mud: Floyd County Health Dept. Hearing Appeals Board has many feelings, but not very much law.

July 30, 2013: Dr. Tom plays his Goebbels card. Can Neidermeyer be far behind?

July 29, 2013: Guest column: "The Health Department's Pussy Riot."

July 28, 2013: In the search for Instigator Zero, expect papers to be shredded.

July 26, 2013: NABC before the FCHD Board 4: Late breaking news.

July 26, 2013: ON THE AVENUES: NABC before the FCHD Board 3.

July 26, 2013: NABC before the FCHD Board 2: NABC's case.

July 26, 2013: NABC before the FCHD Board 1: The health department’s case.

July 25, 2013: These magic moments: Health department board, 5:30 p.m., today.

July 24, 2013: Let's see if a formal complaint will do the trick.

July 24, 2013: The hearing is tomorrow, but the Floyd County Health Department is stonewalling about its public access obligations.

July 23, 2013: Dressing up for a date with the Health Department board.

July 18, 2013: ON THE AVENUES: Sunscreen, lube, and Dr. Tom's cabin.

July 1, 2013: Where bureaucrats are bureaucrats ... and yeast are scared.

July 1, 2013: Tuneless zombie bureaucrats? These and more pesky facts at Louisville Beer Dot Com.

JUNE 2013

June 29, 2013: Democrats address "controversy" over Health Department's actions.

June 29, 2013: BicenPk concert of Jun 28: Let's just Occupy the Health Department.

June 28, 2013: Concert tonight, but the PourGate saga continues as we prepare to vend Progressive Pints under protest.

June 28, 2013: I'm a voyeur. I was there to watch the show, not instigate it.

June 27, 2013: My note to the Indiana Public Access Counselor, informing the office of my request of the Floyd County Health Department.

June 26, 2013: Health Department refers public access request to same attorney who advises commissioners -- making a full circle.

June 26, 2013: "In an effort to facilitate seemingly scant communication," my e-mail to Dr. Harris.

June 25, 2013: Isn't this an indictment of our entire American society?

June 24, 2013: Updating the Floyd County Health Department's "Beer Pour War" of 2013.

June 22, 2013: Roger has issued a Indiana Public Access request to the Floyd County Health Department.

June 22, 2013: Bureaucrats, potato chips and the need for a city health department.

June 21, 2013: Jeeebus, what a week. Here's a review.

June 20, 2013: On the song and dance routine of Dr. Tom Harris.

June 20, 2013: ON THE AVENUES: The long train of usurpations adds a caboose.

June 20, 2013: Health Department's revenue enhancement + Develop New Albany's event calendar = ?

June 19, 2013: No parking lot for bicycles.

June 19, 2013: Preview: NABC's appeal to the Floyd County Health Department.

June 18, 2013: Sentenced to county septic inspections?

June 18, 2013: No Tricentennial for DNA in wartime, unfortunately.

June 17, 2013: Food handling, panhandling and regulatory free-basing.

June 16, 2013: Another day, another Floyd County Health Department power grab.

Wednesday, May 20, 2015

PourGate 2013: It took two years, but this new law silences Dr. Tom Harris and the Floyd County Health Department.

As it began.

On June 14, 2013, the New Albanian Brewing Company was peaceably vending beer at Bicentennial Park, by means of a supplemental catering permit issued by the company's governing agency, the Indiana Alcohol and Tobacco Commission.

The Floyd County Health Department arrived and said that NABC also needed a temporary food serving permit.

I said no, that's incorrect.

They persisted, and a two-year-long struggle commenced.

An Indiana Public Access Request was filed, and the Dr. Tom Harris and the FCHD's attorney laughed it off. NABC filed an appeal, based on a previous Indiana appeals court ruling (Ft. Wayne v Kotsopoulus; thanks, Bob) and the FCHD's board slightly moderated the department's error, but did not correct it.

The FCHD then childishly slandered NABC with a web site photo equating Bank Street Brewhouse with e coli, and NABC filed a tort claim notice. An ultimately fruitless search for adults in county government began.

They blamed it on the webmaster.

By late 2013, the Indiana Attorney General's office had agreed with NABC's reference to the court ruling, and found the FCHD to have absolutely no basis for its claim that a temporary food service permit was needed to pour beer.

The FCHD overtly and publicly stated that it would ignore this directive.


Throughout 2014, NABC and other vendors adhered to the FCHD's improvised 2013 requirement, which although amended, remained utterly baseless and without statutory authority.

Now a new summer vending season is beginning in 2015, and there is a new development.

On July 1, 2015, when a "beer bill" authored by Rep. Ed Clere officially becomes state law, it will be demonstrated for a third (and we trust final) time that the FCHD and its head, Dr. Tom Harris, were mistaken all along.

The new law is clear and explicit, as based on the two preceding legal precedents, both hitherto ignored by the FCHD.

All thanks to Ed Clere.

His hard work in compelling local government functionaries to obey their own laws will not be forgotten, especially by me.

If we lived in a culture of accountability, Dr. Tom Harris would be cashiered on July 1, 2015, when the new law takes effect. For two years, Harris and his department have made a mockery of Indiana state law and the principle of due process.

For what purpose, Mark Seabrook?

Following is the text of the new law. After that, there is a (maybe) complete compendium of NAC links telling the story of PourGate.

---

“HOUSE ENROLLED ACT No. 1311, AN ACT to amend the Indiana Code concerning alcohol and tobacco.”

SECTION 6. IC 16-42-5-30 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2015]:

Sec. 30.

(a) As used in this section, "permit holder" means the holder of:

(1) a farm winery permit under IC 7.1-3-12-5; or
(2) a brewer's permit under IC 7.1-3-2-7(5).

(b) A permit holder that sells or furnishes alcoholic beverages by the glass at a festival, fair, or other temporary location authorized by the permit holder's permit under IC 7.1, is not considered to be a food establishment and is exempt from the requirements of this title that apply to food establishments, if the following requirements are met:

(1) The holder of a farm winery permit furnishes only the following for consumption on the premises, regardless of whether there is a charge:

(A) Wine samples.
(B) Wine by the glass.

The holder may not serve or furnish any food, including any fruit, condiment, flavoring, or garnish added to the wine after the wine is poured from its original container.

(2) The holder of a brewer's permit furnishes only the following for consumption on the premises, regardless of whether there is a charge:

(A) Beer samples.
(B) Beer by the glass.

The holder may not serve or furnish any food, including any fruit, condiment, flavoring, or garnish added to the beer after the beer is poured from its original container.

(c) A local unit of government (as defined in IC 14-22-31.5-1) may not require any licensure, registration, or certification of a permit holder as a condition of providing alcoholic beverages at a festival, fair, or other temporary location authorized by the permit holder's permit under IC 7.1, if the permit holder meets the requirements of this section.

---

Following is as complete a compendium of links as could be mustered in an hour and a half without Roger losing his mind. I should be awarded a effing Pulitzer Prize for this. They appear in reverse chronological order.

2014

October 9, 2014: Not only that, but I even washed my hands before pressing "send."

October 6, 2014: A message to Harvest Homecoming food vendors about temporary food (and beer) service fees.

June 2, 2014: Is Hot Water More Effective than Cold for Washing Tom Harris Right Out of My Hair?

May 27, 2014: A fresh round of bald-faced lies from the Floyd County Health Department's resident Red Shirts.

April 9, 2014: Rick Fox speaks the prettiest public access language I've ever heard. Is that Mark Seabrook I hear chortling?

February 28, 2014: The Floyd County Health Department admits to being mistaken ... in only one instance, but hey, it's a start.

FALL AND WINTER 2013

December 28, 2013: In which the Floyd County Health Department ignores the Attorney General of the state of Indiana.

December 21, 2013: N and T: "State: Floyd County Health Department shouldn’t require permit."

December 11, 2013: Complete text: “Floyd County/ New Albany ordinance issue in violation of IC 7.1-3-9-2, 7.1-3-9-6″

December 10, 2013: Banner headline Tuesday, Part One: In the matter of PourGate, total and unequivocal defeat for the Floyd County Health Department.

November 16, 2013: Your PourGate update for Saturday, November 16: A waiting game.

September 7, 2013: Yo, Floyd County Health Department, your invoice is ready. Cash only, please. I'm not sure I trust your checks.

September 4, 2013: In which we learn percentages: "That minus is too low to see."

September 3, 2013: Your PourGate update for Tuesday, September 3, and a letter to the editor.

AUGUST 2013

August 27, 2013: Your PourGate update for Tuesday, August 27.

August 24, 2013: My second favorite News and Tribune reader comment yet.

August 21, 2013: Any adults in county government surface yet?

August 20, 2013: Your PourGate update for Tuesday, August 20.

August 19, 2013: My favorite News and Tribune reader comment yet.

August 17, 2013: N and T: "JEERS ... to the Floyd County Health Department ... "

August 17, 2013: These machines kill fascists, pathogens and bureaucrats.

August 16, 2013: When pressed by Eater Louisville and N and T, FCHD unable to get its story straight.

August 15, 2013: ON THE AVENUES: When the whip comes down.

August 15, 2013: Solid News and Tribune story places spotlight on the Health Department's chronic disingenuousness.

August 14, 2013: Citizen to FCHD: "I will not stand for our public officials and public departments to promote ... public bullying.

August 14, 2013: Your Wednesday PourGate Update: Health department spins the web site wheel twice on Tuesday.


August 14, 2013: GAW News: "Pride of the Dipshits (UPDATE) Floyd County Health Department."

August 13, 2013: Now the Floyd County Health Department is working to keep food safe from Roger -- not E coli.

August 13, 2013: Floyd County Health Department adds photo of handsome devil to its web site, but retains actionable photo.

August 13, 2013: A cease and desist, a tort claim notice, and Dr. Tom at large.

August 13, 2013: NABC to Floyd County Commissioners, Health Department: "This malicious activity has caused, and continues to cause, financial harm to the claimants’ businesses and corresponding reputations."

August 13, 2013: NABC to Floyd County Commissioners, Health Department: "Cease and desist."

August 12, 2013: At Eater Louisville: "Floyd County Health Department Uses Bank Street Brewhouse to set 'Foodborne Diseases' Photo Shoot."

August 8, 2013: ON THE AVENUES: The fruitless search for adults in county government.

August 7, 2013: Midweek PourGate update: What's up with the Health Department these days?

August 3, 2013: Hegemony in action.

August 2, 2013: Local citizen journalist views health department's web site retaliation and expresses revulsion.

August 2, 2013: Equal protection from health department bureaucrats? Just give that wheel a heave.

August 1, 2013: ON THE AVENUES: "Kneel and Kiss My Ring, You Degraded Alcoholic."

JULY 2013

July 31, 2013: Got trench warfare if they want it.

July 30, 2013: Clear as mud: Floyd County Health Dept. Hearing Appeals Board has many feelings, but not very much law.

July 30, 2013: Dr. Tom plays his Goebbels card. Can Neidermeyer be far behind?

July 29, 2013: Guest column: "The Health Department's Pussy Riot."

July 28, 2013: In the search for Instigator Zero, expect papers to be shredded.

July 26, 2013: NABC before the FCHD Board 4: Late breaking news.

July 26, 2013: ON THE AVENUES: NABC before the FCHD Board 3.

July 26, 2013: NABC before the FCHD Board 2: NABC's case.

July 26, 2013: NABC before the FCHD Board 1: The health department’s case.

July 25, 2013: These magic moments: Health department board, 5:30 p.m., today.

July 24, 2013: Let's see if a formal complaint will do the trick.

July 24, 2013: The hearing is tomorrow, but the Floyd County Health Department is stonewalling about its public access obligations.

July 23, 2013: Dressing up for a date with the Health Department board.

July 18, 2013: ON THE AVENUES: Sunscreen, lube, and Dr. Tom's cabin.

July 1, 2013: Where bureaucrats are bureaucrats ... and yeast are scared.

July 1, 2013: Tuneless zombie bureaucrats? These and more pesky facts at Louisville Beer Dot Com.

JUNE 2013

June 29, 2013: Democrats address "controversy" over Health Department's actions.

June 29, 2013: BicenPk concert of Jun 28: Let's just Occupy the Health Department.

June 28, 2013: Concert tonight, but the PourGate saga continues as we prepare to vend Progressive Pints under protest.

June 28, 2013: I'm a voyeur. I was there to watch the show, not instigate it.

June 27, 2013: My note to the Indiana Public Access Counselor, informing the office of my request of the Floyd County Health Department.

June 26, 2013: Health Department refers public access request to same attorney who advises commissioners -- making a full circle.

June 26, 2013: "In an effort to facilitate seemingly scant communication," my e-mail to Dr. Harris.

June 25, 2013: Isn't this an indictment of our entire American society?

June 24, 2013: Updating the Floyd County Health Department's "Beer Pour War" of 2013.

June 22, 2013: Roger has issued a Indiana Public Access request to the Floyd County Health Department.

June 22, 2013: Bureaucrats, potato chips and the need for a city health department.

June 21, 2013: Jeeebus, what a week. Here's a review.

June 20, 2013: On the song and dance routine of Dr. Tom Harris.

June 20, 2013: ON THE AVENUES: The long train of usurpations adds a caboose.

June 20, 2013: Health Department's revenue enhancement + Develop New Albany's event calendar = ?

June 19, 2013: No parking lot for bicycles.

June 19, 2013: Preview: NABC's appeal to the Floyd County Health Department.

June 18, 2013: Sentenced to county septic inspections?

June 18, 2013: No Tricentennial for DNA in wartime, unfortunately.

June 17, 2013: Food handling, panhandling and regulatory free-basing.

June 16, 2013: Another day, another Floyd County Health Department power grab.

Tuesday, December 10, 2013

Banner headline Tuesday, Part One: In the matter of PourGate, total and unequivocal defeat for the Floyd County Health Department.


In June of 2013, overnight and without warning, the Floyd County Health Department decided that temporary food serving permits of the sort required of elephant ear vendors at Harvest Homecoming would henceforth be required of alcoholic beverage permittees dispensing beer at similar events. As justification, the health department pointed to the enabling ordinance, a form of which has been on both city and county books for decades, and most recently was updated by the city in 2008.

NABC strongly disagreed.

We pointed out that there was no legal precedent for such control, that no other health department in the state presumed to possess such authority, and that permits issued to us by the Indiana Alcohol & Tobacco Commission are the only ones we need to operate in a temporary fashion.

Furthermore, we backed up our case with an Indiana Court of Appeals ruling known as Fort Wayne v Kotsopolous, which was so clear that even a layman could grasp it. But the department's attorney didn't, and in spite of our efforts, an obviously befuddled health department board did not rule in favor of our appeal, instead offering a half-baked compromise involving ongoing regulation without fees.

It was a farce. We persisted.

In August, NABC took the case to the board of the Brewers of Indiana Guild, which agreed that the FCHD's position was improper. Legal wheels in Indianapolis promptly were set into motion, and the ATC asked the Indiana Attorney General's office for an advisory opinion. The opinion was issued roughly three weeks ago, and although we knew the outcome then, only now do we have the 2,100-word text of the opinion.

From top to bottom, the advisory opinion completely vindicates NABC's position as expressed on the very first evening in June, when the FCHD issued a citation to us for failure to possess a temporary food serving permit that we did not need to have. We were right, and the health department was wrong. Period.

The AG's advisory opinion is no mere technicality. It is a 360-degree slam dunk from the foul line, referencing the very same appeals court ruling presented to the health department's attorney at the board hearing in July. I'll publish the entirety of the text soon, after we've had a chance to review it and to decide what comes next.

For now, here is a key passage that makes it quite clear:

The regulation imposed by Floyd County for Temporary Food Service Permits is similar to the ordinance in Kotsopolous in that it is now the policy of the Floyd County health department to require all alcoholic beverage establishments to obtain this permit even if they have a three way permit with Type 222 privileges attached. This “lev[ies] a tax, fee or license requirement on alcohol sales,” which the court in Kotsopolus found to be invalid. Kotsopolus, 704 N.E.2d at 1072.

When NABSB participates in festivals they are participating in the sale and traffic of their product and the Floyd County ordinance imposes a restriction on those sales by not allowing NABSB to sell their product without first acquiring an additional permit at an additional cost. By regulating the sale of NABSB’s beer in this way, the Floyd County ordinance has interfered where the state has already regulated. Not only is this in violation of what is expressly stated in IC 7.1-3-8-2 and I. 7.1-3-9-6 regarding local regulation of alcohol and tobacco, but it also is a violation of the Home Rule Act.

Also, here is the conclusion:

The Temporary Food Permit ordinance enacted by Floyd County requiring a permit for businesses, such as the New Albanian Bank Street Brewery to participate in festivals, is not valid. The ordinance limits the ability of NABSB to sell its products at local festivals and interferes with the permission given by the state permits already held by NABSB for this activity. This is in direct conflict with IC 7.1-3-9-2 and IC 7.1-3-9-6 which restrict this type of local regulation of alcohol sales. In addition to this, the ordinance is in violation of the Home Rule Act which allows for localities to broadly regulate as long as those regulations do not directly interfere with a statute or agency action or if a statute is comprehensive enough that it preempts the local regulation.

What this means to me is that any way one chooses to look at it -- the enabling ordinance itself, and the health department's whimsical interpretation of it -- the requirement to possess a permit in addition to the ATC's is utterly groundless.

In short: What NABC said, all along.

It's one down, one to go. The matter of the defamatory photo shown below is not connected with the advisory opinion issued by the AG, although perhaps now the Floyd County commissioners at long last will start paying attention and exercising the oversight they've shirked thus far.

Given the AG's submission, these same commissioners may be well advised to look outside their bunker, and seek legal opinions elsewhere -- if you know what I mean.

Next:


Tuesday, September 03, 2013

Your PourGate update for Tuesday, September 3, and a letter to the editor.


NABC's dispute with the Floyd County Health Department remains in a Cold War phase, and that's about all there is to say. We will continue to pursue remedies.




As for the letter below, I submitted it to the newspaper two weeks ago and have since grown weary of the draft residing at the top of the blog's queue. I'll link to the eventual placemarker in Hansonville when it finally appears -- but be sure to turn off your laptop's sound, lest you hear the dentist explain yet again her commitment to healthy teeth.

---

To the editor of the News and Tribune:

The New Albanian Brewing Company (NABC) certainly appreciates the News and Tribune’s stance in “Cheers and Jeers” (August 17 & 18, by editor Shea Van Hoy).

Van Hoy jeers the Floyd County Health Department (FCHD) “for its petty posting of a photo on its website taken in front of a local business.”

Unfortunately, petty is the least of it.

The photo, now finally removed, is defamatory and retaliatory. It testifies eloquently to a hubris-laden institutional culture in desperate need of instruction as to the etiquette suitable for taxpayer-supported government actors.

The source of my company’s current imbroglio with the FCHD is its misstep in seeking to require temporary food serving permits for beer pouring events. Moreover, it’s about the proper regulatory jurisdiction of the FCHD in relation to the Indiana Alcohol and Tobacco Commission (ATC).

Van Hoy writes, “The legality of such permitting can — and has — been debated,” and while this is true, readers may not be aware of the extent to which the FCHD’s legless argument has been demolished.

The crux is this: Who regulates NABC when it comes to pouring beer at temporary events, such as this summer’s excellent Bicentennial Park concert series?

The FCHD’s answer comes from thin air: Ignore both statute and precedent, wave a magic administrative wand, and declare without warning that henceforth, beer is food. Actually, no other county health department in Indiana currently is making this spurious claim.

That’s because seventy-plus years of Indiana regulatory history and all prevailing precedents indicate otherwise. As beer dispenser, NABC is governed solely by the ATC, and in the course of appealing the FCHD’s over-reach, we managed something the health department could not: We produced a court ruling clearly affirming our position.

In Fort Wayne v Kotsopolous (1998), the Indiana Court of Appeals clearly and succinctly confirms the ATC’s regulatory pre-eminence in Indiana. In short, NABC’s supplemental catering authority, as licensed annually by the ATC, is all we need to temporarily pour beer at Bicentennial Park or elsewhere – provided, of course, that we abide by the ATC’s guidelines … and we do.

The FCHD has absolutely no part in this permit process, and its attempted justifications to date have been arrogant, irrelevant and tortuous, reminding me of the way “The Economist” magazine once described a speech by the former British prime minister, Harold Wilson:

“It contained difficult passages in which it is impossible to disentangle what the words really meant to him from what they were intended to mean to others and what they might later be said to have meant at the time.”

Whether inventing baseless regulations or posting actionable photos, is this really the way we want county government to operate?

Tuesday, August 20, 2013

Your PourGate update for Tuesday, August 20.


This cockamamie business with the health department started more than two months ago, and we're now in the inevitable waiting phase. It can be frustrating to sit on one's hands, but I'm fairly serene about it.

As it pertains to the questionable notion that a solitary county health department -- only one of ninety-two -- can somehow ignore precedent and the Indiana Court of Appeals by imposing a heretofore unknown permit process from sheer whim ... well, let's just say that I like the odds of this gambit being shot down in flames, and I believe it will. If our roles were reversed, I'd be in a mood to sue for peace.

Since the onset of the over-reach, I've spoken much about Fort Wayne v Kotsopoulos, the relevant appeals court decision. We ceremoniously plopped it onto the plasticized tabletop back on July 25, and immediately heads began exploding. Perhaps it's time to offer the whole text for your perusal (it was linked here previously).

Legalese can be daunting, but have no fear. The message herein may have eluded the erudition of health department counsel, and evaded the well-meaning "compromise" effort offered by the health department's board, and yet most readers should be able to grasp the important points with little difficulty.

I've highlighted only one passage.

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City of Fort Wayne vs. George Kotsopoulos and M. Robert Benson

FOR PUBLICATION

ATTORNEY FOR APPELLANT: APPELLEE PRO SE:
TRINA GLUSENKAMP GOULD M. ROBERT BENSON
City of Fort Wayne Law Department Benson, Pantello, Morris, James & Logan
Fort Wayne, Indiana Fort Wayne, Indiana
ATTORNEY FOR APPELLEE KOTSOPOULOS:

ROBERT E. CONNOLLY
Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
CITY OF FORT WAYNE, ) ) Appellant-Plaintiff, ) ) vs. ) No. 02A03-9705-CV-170 ) GEORGE KOTSOPOULOS and ) M. ROBERT BENSON, ) ) Appellees-Defendants. )
APPEAL FROM THE ALLEN CIRCUIT COURT
The Honorable Thomas L. Ryan, Judge
Cause No. 02C01-9504-MI-41

January 14, 1999

OPINION - FOR PUBLICATION
KIRSCH, Judge The City of Fort Wayne (the City) appeals from a summary judgment that dismissed citations the City had issued to George Kotsopoulos and M. Robert Benson (collectively, the Merchants) for violation of the City's Transient Merchant ordinance. The appeal presents one dispositive issue: Whether the Indiana statutes controlling the sale of alcoholic beverages preempt Fort Wayne's Transient Merchant ordinance.See footnote 1

We affirm.

FACTS AND PROCEDURAL HISTORY See footnote 2
The City issued citations to the Merchants for operating beer tents during local Germanfest and Three Rivers festivals without obtaining Transient Merchant permits. The City claimed that the failure to obtain permits violated the Transient Merchant ordinance, which requires merchants to obtain local Transient Merchant permits if they intend to sell alcoholic beverages in tents or other temporary structures during a festival. Fort Wayne, Ind., Ordinances § 117.02 (1993). To obtain permits, merchants must pay fees ranging from $500 to $1000 per day, with additional fees of $300 to $500 per hour for every hour of operation after certain designated times. Ordinances § 117.04.

The Merchants challenged the City's claims, arguing that the beer tents were exempt from the Transient Merchant ordinance and that the ordinance was invalid. The Merchants sought partial summary judgment, which the trial court granted on the ground that the ordinance was preempted by the Indiana alcoholic beverage statutes. The court entered final judgment on the City's claims, and the City appeals.See footnote 3

DISCUSSION AND DECISION

I. STANDARD OF REVIEW
Summary judgment is appropriate when no material facts are in dispute in the litigation. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind. Ct. App. 1995). When reviewing a summary judgment, this court applies the same standard as the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind. Ct. App. 1994), trans. denied (1995). A summary judgment must be affirmed on appeal if the evidentiary materials properly presented to the trial court demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d 575, 576 (Ind. Ct. App. 1997), trans. denied (1998). In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.

II. PREEMPTION
Fort Wayne is entitled to a presumption that its ordinance is valid. City of Indianapolis v. Clint's Wrecker Service, Inc., 440 N.E.2d 737, 747 (Ind. Ct. App. 1982). This presumption will give way where the State has preempted local issuance of permits. Id. at 746-47. The Merchants contend that the State has indeed preempted local permitting. To this end, the Merchants cite various state statutes, and maintain that the state Alcoholic Beverage Commission has the sole power to issue alcoholic beverage permits. In response, the City contends that the state statutes leave room for local regulation of transient merchants as defined in the ordinance. See footnote 4

Both parties' contentions turn on the scope and breadth of the Indiana alcoholic beverage statutes. Accordingly, the analysis here must begin with a review of those statutes. Codified as Title 7.1 of the Indiana Code, the statutes regulate and limit the manufacture, sale, possession, and use of alcoholic beverages. The Title is broad in scope and purpose; its purpose includes "protect[ing] the economic welfare, health, peace and morals of the people of this state." IC 7.1-1-1-1; see Barco Beverage v. Indiana Alcoholic Beverage Comm'n, 595 N.E.2d 250, 254-55 (Ind. 1992).

The breadth of the statute is illustrated in Article 3, the article that describes various alcoholic beverage permits. IC 7.1-3-1-1 -- 7.1-3-24-12. The Article authorizes the state Alcoholic Beverage Commission to issue at least seventeen different types of permits. Three types are pertinent to the City of Fort Wayne's ordinance: Liquor Retailers' Permits, Supplemental Caterers' Permits, and Three-way Permits. These permits are linked to each other in the statute. For example, a Liquor Retailer's Permit entitles a merchant to sell liquor on the premises referenced in the permit. IC 7.1-3-9-1. If that merchant wishes to sell beer and wine on the premises, the merchant must obtain a Three-way Permit. IC 7.1-1-3-47; IC 7.1-1-3-20. If a Three-way Permit holder then wishes to sell alcoholic beverages in another location temporarily, the permit holder must obtain a Supplemental Caterers' Permit. IC 7.1- 3-9.5-1.
Neither the statute defining Three-way Permits nor the statute defining Supplemental Caterers' Permits address the issue of local regulation. In the chapter addressing Liquor Retailers' Permits, however, there is an express preemption provision: "a city or town legislative body . . . shall have no power or jurisdiction to regulate the sale of, traffic in, or transportation of alcoholic beverages, or to levy a tax, fee, license fee, or to issue or require a license."

IC 7.1-3-9-2.
Despite the broad language in the provision (referred to herein as Section Two), the City suggests that Section Two preempts liquor permits only, leaving room for local issuance of other permits. This suggestion overlooks the statutory structure that renders Supplemental Caterers' Permits a subset of Liquor Retailers' and Three-way Permits. Because Supplemental Caterers' Permits are a subset, the Section Two limitation on the power of municipalities to regulate holders of Liquor Retailers' Permits necessarily limits municipalities' power to regulate holders of Supplemental Caterers' Permits.
In addition, another section (referred to herein as Section Six) proscribes any local ordinance that
"directly or indirectly regulates, restricts, enlarges, or limits the operation or business of the holder of a liquor retailer's permit as provided in this title. A city or town shall not enact an ordinance covering any other business or place of business for the conduct of it in such a way as to . . . interfere with or prevent the exercise of the permittee's privileges under the permit."

IC 7.1-3-9-6. If, as the City suggests, Section Two pertains only to liquor retailers, then Section Six would be largely superfluous.See footnote 5 Further, if the legislature had intended the Section Two preemption provision to apply only to liquor permits, the preemption would have referenced only liquor. The legislature demonstrated its intent that the Section Two preemption apply to all alcoholic beverages by using the defined term "alcoholic beverages," which means "a liquid or solid that (1) is, or contains, one-half percent (0.5%) or more alcohol volume; (2) is fit for human consumption; and (3) is reasonably likely, or intended, to be used as a beverage." IC 7.1-1-3-5; compare IC 7.1-1-3-21 (definition of liquor). Given Section Two's broad language and its use of a statutorily defined term, Section Two must be deemed to apply to all alcoholic beverages, not just to liquor. The City attempts to avoid the Section Two preemption provision by claiming that its ordinance is in the nature of a zoning ordinance, i.e., that its ordinance regulates an event rather than a merchant. In support of this claim, the City cites O'Banion v. State ex rel. Shively, 146 Ind. App. 223, 253 N.E.2d 739 (1969). The O'Banion case, however, involved facts completely different than those presented here. In O'Banion, the appellants claimed the state alcoholic beverages statutes preempted a local zoning ordinance because the ordinance attempted to regulate the location of taverns. Id. at 232, 253 N.E.2d at 740. This court found the ordinance valid because it regulated the use of real property rather than the sale of alcohol. Id. at 234, 253 N.E.2d at 745. The court specifically noted that the ordinance did not levy a tax, fee or license requirement on alcohol sales. Id. Here, in contrast, the ordinance at issue expressly requires merchants to obtain a local permit before selling alcohol during festivals. This requirement conflicts with the Section Two preemption provision. As noted above, the various state-issued alcohol permits are linked to each other, and local regulation of one aspect of the permits would interfere with state regulation of other aspects of the permits. See IC 7.1-3-9.5-1 (supplemental caterers must hold Three-way Permit); IC 7.1-3-9-9 (Three-way applicant must have or apply for Liquor Retailers Permit). Given that the City's ordinance attempts to impose local permit requirements upon holders of state-issued alcohol permits, the ordinance is invalid.

III. SEVERABILITY
When one section of a city ordinance is invalidated, the remaining sections remain valid if they can be separated from the improper section. Hobble v. Basham, 575 N.E.2d 693, 699 (Ind. Ct. App. 1991). Here, our holding invalidates Ordinances § 117.02 to the extent it requires holders of state-issued permits to obtain local Transient Merchant/Alcohol Permits. We make no decision as to the remainder of the ordinance.

Affirmed.

FRIEDLANDER, J., and MATTINGLY, J., concur.

Footnote: 1 Fort Wayne, Ind., Ordinances ch. 117 (1993).Footnote: 2 This case was fully briefed on July 17, 1997. Because of an administrative glitch in the office of the Clerk of the Supreme Court and Court of Appeals, the case was not transferred to this court until October 29, 1998. We apologize to the parties and their counsel for the delay and attendant inconvenience.Footnote: 3 The Merchants also filed a counterclaim against the City. The counterclaim is not at issue in this appeal. Footnote: 4 The ordinance states, "It shall be unlawful for any transient merchant to do or transact any business in the sale of goods, wares or merchandise of any and every kind, make and description, without first obtaining a permit therefor as herein provided." Ordinances § 117.02. The permit at issue here is required of "[a]ll persons, both as principals and agents, who engage in the sale of alcoholic beverages to the general public, as licensed to do so by the Indiana Alcoholic Beverage Commission through a Caterer's Permit or Temporary Beer or Temporary Wine Permit, who do so in a temporary structure, tent or mobile building during any of the same days that a festival is occurring in the city." Ordinances
§ 117.01. Footnote: 5 Section Six also clarifies small cities' powers regarding liquor retailers within city limits. See IC 7.1-3-9-3 (small city exception to liquor permit issuance).

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As a refresher, in its own words, here is what the health department's board decided after misunderstanding the preceding.

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.

Surreal and Orwellian, eh? Once again, I urge readers to contact Harvest Homecoming food vendors and let them know that the health department has instituted a fee schedule that exempts some "food" (beer) while levying fees for all others. It's logical nonsense, and a bluff that needs to be called.

Someone once said, "Winning the war is easier than winning the peace." We can rest assured that state government players actually will grasp the court's message, and so the war's all but over when it comes to the original point of contention. The peace stands to be made far more difficult by the health department's Internet follies, although that's really not NABC's problem, is it?