GREEN MOUSE follows up: "How Dollar Stores Became Magnets for Crime and Killing."

Picking up where we left off on February 13, when I asked, "What sort of upper crust prohibitionist’s rationale is being advanced here?"

GREEN MOUSE SAYS: Neo-prohibitionism, foppery and hypocrisy at Indiana Landmarks as Family Dollar on Vincennes gets a perfectly legal alcohol sales permit.

This led to a traumatic Facebook kerfuffle, deletions and recriminations, and subsequently I was made aware of other back-channel goings-on, but by then the dark pandemic clouds were gathering and nothing much happened with any of it. Honestly, I've no idea whether the Family Dollar in question ever received the alcohol permit.

At the time, I was perfectly well aware of the controversies engendered by the contemporary growth of Family Dollar, Dollar General and other such carpetbagging stores in the context of impoverished areas, employment practices, food deserts, inept local governments and a host of other ills that capitalism gleefully exploits for the benefit of the accumulators of capital, at the expense of ordinary people who exist to be steamrolled.

What particularly bothered me back in February was the involvement of Indiana Landmarks, whether active and real or merely tactically suggested by opponents of the Family Dollar alcoholic beverages permit, as well as the paternalistic attitude of more than one self-identified (and Reisz-stuffed) historic preservationist concerning their responsibility to help the poor folks lest too many paychecks get squandered on booze -- an argument that was tired and regrettable a century ago in the run-up to Prohibition.

To be precise, I take none of it back -- not a word -- and note only that with the intervention of more important matters, the discussion came to an end. So it goes.

Now, about Family Dollar, Dollar General and others of the species. ProPublica is a nonprofit newsroom that investigates abuses of power, and in this gripping long read, Alec MacGillis explains "How Dollar Stores Became Magnets for Crime and Killing."

 ... The Gun Violence Archive, a website that uses local news reports and law enforcement sources to tally crimes involving firearms, lists more than 200 violent incidents involving guns at Family Dollar or Dollar General stores since the start of 2017, nearly 50 of which resulted in deaths. The incidents include carjackings in the parking lot, drug deals gone bad and altercations inside stores. But a large number involve armed robberies in which workers or customers have been shot. Since the beginning of 2017, employees have been wounded in shootings or pistol-whippings in at least 31 robberies; in at least seven other incidents, employees have been killed. The violence has not let up in recent months, when requirements for customers to wear masks have made it harder for clerks to detect shoppers who are bent on robbery. In early May, a worker at a Family Dollar in Flint, Michigan, was fatally shot after refusing entry to a customer without a mask.

The number of incidents can be explained in part by the stores’ ubiquity: There are now more than 16,000 Dollar Generals and nearly 8,000 Family Dollars in the United States, a 50% increase in the past decade. (By comparison, Walmart has about 4,700 stores in the U.S.) The stores are often in high-crime neighborhoods, where there simply aren’t many other businesses for criminals to target. Routine gun violence has fallen sharply in prosperous cities around the country, but it has remained stubbornly high in many of the cities and towns where these stores predominate. The glowing signs of the discount chains have become indicators of neglect, markers of a geography of the places that the country has written off.

But these factors are not sufficient to explain the trend. The chains’ owners have done little to maintain order in the stores, which tend to be thinly staffed and exist in a state of physical disarray. In the 1970s, criminologists such as Lawrence Cohen and Marcus Felson argued that rising crime could be partly explained by changes in the social environment that lowered the risk of getting caught. That theory gained increasing acceptance in the decades that followed. “The likelihood of a crime occurring depends on three elements: a motivated offender, a vulnerable victim, and the absence of a capable guardian,” the sociologist Patrick Sharkey wrote, in “Uneasy Peace,” from 2018.

Another way of putting this is that crime is not inevitable. Robberies and killings that have taken place at dollar store chains would not have necessarily happened elsewhere. “The idea that crime is sort of a whack-a-mole game, that if you just press here it’ll move over here,” is wrong, Richard Rosenfeld, a criminologist at the University of Missouri-St. Louis, told me. Making it harder to commit a crime doesn’t just push crime elsewhere; it reduces it. “Crime is opportunistic,” he said. “If there’s no opportunity, there’s no crime” ...

BEER WITH A SOCIALIST: What is a "bar" and what is not; who can open now, and who must wait?

The Frozen Weenie Chronicles of 2014.

Last week my friend Jeff at Riverside Cigars/Match Cigar Bar in Jeffersonville posted a conundrum at this Facebook page.

So, Governor Holcolm says:

Restaurants and bars that serve food may open (on May 11) at 50% capacity with operational limitations. Bar seating will be closed with no live entertainment. Servers and kitchen staff must wear face coverings

But ATC (Alcohol & Tobacco Commission) says:

A business that merely meets the minimum food requirements outlined in 905 IAC 1-20-1 of having hot soups, hot sandwiches, coffee, soft drinks, and milk available does not qualify to open for on-premises sales during stage 2.

So, I have a question. Since when does "meeting requirements" mean one "does not qualify"? Their words, not mine!

The answer: Whenever the ATC says it does -- or doesn't.

However, in fairness to the ATC, if making sense of the laws handed by legislators to the agency is confusing during non-pandemic times, it can only be more impenetrable when some rules have been suspended, others have not, and there exists no real road map for wandering through the maze.

According to the governor's Back on Track economic reopening plan, bars without full food service cannot reopen until Stage 4, which lands on June 14th.

The ATC's official clarification can be found here.

May 8, 2020: Frequently Asked Questions on EO 20-26, Roadmap to Reopen Indiana

1. What is a “bar area”? The bar area for the purposes of Executive order 20-26 is the counter over which drinks are served. During Stage 2, this area should be for employees only. Chairs should be removed or marked as unavailable. Ordering, serving, and consuming food and drinks for on-premises consumption is prohibited in this area. To the extent that this area is being used for ordering and serving of carryout food orders, a business may continue to do this while following the CDC guidelines.
2. What is a bar or tavern that must remain closed under Paragraph 10. e. during Stage 2? A bar or tavern is a premises that prohibits the entry of anyone under the age of twenty-one and is not in the business of providing in-person full dining service. A business that merely meets the minimum food requirements outlined in 905 IAC 1-20-1 of having hot soups, hot sandwiches, coffee, soft drinks, and milk available does not qualify to open for on-premises sales during stage 2.
3. Can a retail restaurant permittee that is limited to customers twenty-one and over allow on-premises dining during Stage 2 at 50% capacity and following other social distancing and sanitation measures? Yes. The bar area must remain closed and the business must provide in-person full dinging service. A business that merely meets the minimum food requirements outlined in 905 IAC 1-20-1 of having hot soups, hot sandwiches, coffee, soft drinks, and milk available does not qualify to open for on-premises sales during stage 2.

It's clear enough to me. Bars not normally engaged in food service on-premise cannot reopen until June 14, and the ATC isn't allowing the frozen weenie dorm fridge or even a food truck to alleviate this interpretation.

My personal view is that all these reopenings are happening too soon, but no one asked me. However, if it's to be now, then it needs to be consistent. My former brewers' guild board mate Shane Pearson (Daredevil Brewing) said it best, encapsulating his viewpoint as well as mine:

"Some of this deciding what is in which stage seems random or just not trusting people to do the right thing. If you have social distancing then most retail businesses should be able to open at the same pace. Lots of room for people to stay under the radar. I've got no issue if they maintain social distancing & other requirements."

BEER WITH A SOCIALIST: The most recent ATC amendments to the previously recent carryout alcohol amendments.

One of the unforeseen side effects of traditional phone books going the way of the dodo and Edsel is that I'm precluded from using the image to illustrate Indiana's ridiculously huge collection of statutes pertaining to beverage alcohol.

Still, I'll mildly note that phone books are as obsolete as Indiana's approach to beverage alcohol regulation.

This is no fault whatever of the Indiana Alcohol and Tobacco Commission (ATC). Politicians erect an edifice of laws pertaining to beverage alcohol (and more significantly, taxation), and the ATC acts as the special police unit to enforce these statutes. Often the ATC is compelled to adjudicate weirdly conflicting statutes.

The commission is by no means perfect; its own interpretations clash at times, and as with any entrenched bureaucracy, there are those who consider themselves as priestly guardians of the Latin Mass, with no intention of seeing it translated into the vernacular at the risk of common people comprehending it.

In the main, I've found the ATC to be pleasant and helpful. Most of the complaints permit holders have about Indiana's bewilderingly complex alcoholic beverage laws are better directed to the state legislature, where the sausage is made.

But what of Dry-Sausaged Pastry IPA in our time of COVID-19?

Those of us in the food and drink business who derive sustenance from the sale of alcoholic beverages on-premise initially were kneecapped by COVID-19 curve-flattening measures that included prohibition for drinking on site. Governor Holcomb responded quickly by loosening age-old alcoholic beverage carryout rules (they vary by permit type), if nothing else allowing us to deplete inventory (read: ballast) while trying to find a channel for safe navigation amid these treacherous waters.

It's only been nine days since the governor revised the playbook, and the ATC has been defining and redefining the details ever since. It simply cannot be easy for the commission to relax its own time-honored enforcement mechanisms during the current crisis, but they're grinding it out. 

Over the weekend State Representative Ed Clere brought to my attention another of these ATC modifications to the governor's temporary changes -- or, "Amended Rules under Executive Order 20-05."

I called the ATC's District 4 office in Seymour to verify what I thought I was reading, and received confirmation:

Amended Floorplans
The Chairman orders 905 IAC 1-41-2(e) temporarily suspended to the extent that it does not include areas where alcohol is sold to a person located in an area for pick up immediately adjacent to the licensed premises. The Chairman further orders that all licensed premises are automatically extended to include the areas where alcohol is sold to a person located in an area for pick up immediately adjacent to the licensed premises, including a parking lot area for vehicles.

Carryout of Alcoholic Beverages at Clubs
The Chairman has temporarily suspended the provisions of 905 Indiana Administrative Code 1-13-3 to the extent it requires alcoholic beverages to be consumed on-premises, thereby allowing holders of club permits to sell alcoholic beverages for carryout consumption.

This means that licensed establishments now given a temporary dispensation to serve carryout alcoholic beverages can include these with the food when employees literally carry out the bags to customers waiting outside, most often in their cars. Customers needn't come inside any longer to get their alcoholic beverages, which the commission realized would defeat the broad purpose of curbside service.

Because the ATC's fundamental mechanism for regulating licensed establishments is the floor plan, the commission's temporary point of view is that floor plans now extend outside the building to the closest parking spaces where curbside customers await their orders. These might be the first row of parking spaces nearest the door at The Exchange's parking lot, or the street spaces nearest the entrance at Pints&union. It's my belief that as long as an establishment's curbside service plan of operation is direct and sensible, there'll be no issues.

Interestingly, yesterday the ATC released another "battlefield revision."

March 30th, 2020: Parking Lot Restaurants / Tailgating
The Governor’s executive order prohibits in person dining services, including service to vehicles for in person dining. The Governor’s Executive Orders are designed to eliminate large gatherings and maintain social distancing. Parking lot restaurants will be considered a violation of the Governor’s Executive Orders and will be treated accordingly.

"Parking lot restaurants" cannot be the same thing as someone hitting the drive-through at Rally's and parking while consuming burgers. Better that than driving while eating.

Rather, it seems to suggest that somewhere in Indiana, a food service establishment in search of loopholes decided to begin "waiting" on individuals in cars the way they'd do so at tables -- and that's a no-no.

The moral of the story? I'm actually quite hesitant to offer one. Interpretations and reinterpretations will continue through the duration of the special/temporary regulatory period, for as long as the coronavirus emergency persists.

And THAT might be a while.

Indiana is following suit as Kentucky temporarily allows alcoholic beverage carryout and delivery by licensed restaurants.

Governor Beshear temporarily loosens restrictions on alcoholic beverage carryout and delivery by licensed restaurants (Food & Dining Magazine)

Indiana's measures broke just before 9:00 p.m. on Thursday evening. The Alcohol & Tobacco Commission will be allowing restaurants already licensed to sell adult beverages inside their buildings to temporarily expand their permits to carryout sales.

In short, take home a few beers with your food. The relaxation does not apply to draft beer, which remains the domain of small breweries.

In some instances, it appears this may extend to deliveries, too; it's a little-known fact that several types of ATC permit always have allowed deliveries, even if few establishments take advantage of it.

The ATC will be requiring establishments to apply for a supplemental carryout addendum, and the "devilish" details are as yet not forthcoming. Then again it's been only 12 hours. There'll undoubtedly be hitches and glitches, but I can say with certainty that quality people are "on it," and I'll try to thank them all profusely in due time.

Maybe ... to repeat MAYBE ... some restaurants will have permission by the end of the business day today (Friday). If not, next week seems probable.

ON THE AVENUES: If it's a war, then the food service biz needs to be issued a few weapons. We need improvisation and flexibility to survive the shutdown.

GREEN MOUSE SAYS: Neo-prohibitionism, foppery and hypocrisy at Indiana Landmarks as Family Dollar on Vincennes gets a perfectly legal alcohol sales permit.

Heavens, these people make it hard to take a sabbatical, but someone has to provide the "free press" counterweight by offering an opposing point of view, and it might as well be the Green Mouse. Jeeebus, can you let us rest for once?

In which Greg Sekula of Indiana Landmarks, evidently unaware that the docket for the monthly meetings of the Alcohol & Tobacco Commission’s local board us announced weeks in advance, and furthermore, finds at long last that 1:00 p.m. weekday meetings are difficult for normal folks to attend, strenuously objects to an Indiana alcohol sales permit approved for Family Dollar on Vincennes, and does so on behalf of his employer Indiana Landmarks, which if I’m not mistaken in the past has actually hosted a meeting of the Brewers of Indiana Guild in Indianapolis (which I attended), at which the viability of alcohol sales as a means of saving (that’s right) landmarks was both discussed and advocated.

In fact, is there not a special class of Indiana alcohol sales permits precisely intended for listed historic structures (not newer “shittier” non-contributing buildings), to be used primarily in dense downtown areas, and available as a means of placing alcohol permits where they otherwise might be rejected (in cases of proximity to a church, for example)?

And, isn’t the long existing Uptown Liquors equidistant from New Albany High School? Is the same effort being undertaken to shut it down?

We’re all aware of the Dollar General/Family Dollar opprobrium. It’s real enough, and these sort of stores generally are opposed by the well-heeled, who resent untrammeled capitalism’s inelegant but apparently thriving solution to the absence of shopping options in poor neighborhoods.

You don't hear them questioning untrammeled capitalism, do you?

It’s also quite hard to see how hypocritically massing New Albany’s elite clique cadre against Family Dollar on the grounds of alcohol sales makes sense given the proximity of Uptown Liquors to the high school.

There are numerous reasons why the Vincennes Street corridor has declined, and most begin with the closing of the automobile lanes on the K & I Bridge 40+ years ago. Family Dollar’s very presence in this neighborhood is a symptom of numerous other issues pertaining to institutionalized squalor, which four decades of New Albany civic “leadership” refused to address, and now the beautiful people are disturbed by the ensuing mess.

I’m no fan of Family Dollar, but in terms of alcohol sales permits, what exactly has the company done wrong? If the store is located too close to the school, the local ATC board would not receive a recommendation to approve it. If the store elects to sell to minors, you can rest assured the ATC will intervene, as it does elsewhere. There are very few state institutions that perform their functions as capably as the ATC, trust me.

What sort of upper crust prohibitionist’s rationale is being advanced here?

Is it because Family Dollar won’t be selling $20 six-packs of craft beer, but reasonably priced mass market beers (even hard seltzer) to people who don’t have ready surpluses of disposable income -- or, precisely the reason why Family Dollar exists where it does in the first place?

The supreme irony is this: if the K & I Bridge reopened tomorrow as a pedestrian and bicycle link to Louisville, overnight the desirability of alcohol sales permits located on the Vincennes Street corridor would skyrocket, and just as quickly, Sekula and his pals would be advocating on behalf of Indiana Landmarks to expand the riverfront development area to include the corridor and make more three-ways available for the investors who’ll save historic buildings by selling $15 martinis to gentrifiers.

Those opposed to Family Dollar's lawful exercise are planning a remonstrance with the ATC. It’s not clear to me what real-world criteria they have to oppose it (precious little, me thinks), but I’ll try to keep abreast of this and inform you.

Greg, if you’re reading -- You're okay, but please, enough of this hypocritical elitism. It’s woefully shabby. Can you and Barksdale just stick to buildings and inanimate objects? You’re both very good at that, although the wheels invariably come flying off every time local preservationists pretend to think about actual people.

Following is the correspondence the Green Mouse stumbled across (thanks, D).

---

Subject: Family Dollar, Vincennes Street Alcohol Sales Permit Issued - URGENT ACTION NEEDED

New Albany colleagues,

At today’s meeting of the Floyd County Board of the Indiana Alcohol Tobacco Commission, a permit/license for beer and wine sales was approved for the Family Dollar on Vincennes Street. Unfortunately, I was alerted about this meeting at the 11th hour and was luckily able to be in attendance to voice my objection on behalf of myself (a nearby resident) and Indiana Landmarks. Regrettably, only four individuals were in attendance (myself, David Barksdale, John Clere, and a representative of Carter Management), all of whom spoke in opposition to the permit. Other than the Family Dollar representative (who was not from the area and even acknowledged that he was not familiar with the local store), no one spoke in favor of the application. Since the meeting was at 1 in the afternoon, many folks were unable to attend due to work or school obligations.

Shockingly, the Board voted to recommend approval of the license to the State Board! There is a 15-day appeal time frame, the application of which is attached along with the state guidelines that govern the license process. See attachment and link.

Allowing Family Dollar to sell alcohol will be a setback for efforts to revitalize the Vincennes Street Corridor and surrounding historic neighborhoods – Midtown, Uptown, and Depauw Ave. Historic District. Close proximity to New Albany High School is a major concern in addition to trash potential and access to cheap alcohol by a vulnerable population. Successful efforts have been mounted in neighboring states (specifically Dayton , OH, and Louisville, KY) to stop licenses from being granted to specific stores, particularly in vulnerable neighborhoods.

I believe a united effort is needed to stop this! What is uncertain is whether someone who was not in attendance can enjoin an appeal. Shane Gibson, can you see what options we have?

Greg Sekula,
Indiana Landmarks

THE BEER BEAT: A brief Pints & Union beer list report (yay) and a Yuengling correction (shrug).

It's ironic, although not entirely unexpected, that the more beer I drink as part of a solemn imperative to research (alas, someone's got to do it), and the greater the amount of time translating this diligent research into a beer list for Pints & Union, the less opportunity to write idly about beer in general.

It's a lesson I'm relearning. By the way, there is good news: a June local board hearing date for the three-way license.

Hallelujah.

The past few days I've been poring over the pour sheets from four larger wholesalers and two or three smaller ones. That's around 70 pages combined, much of it written in very small print. The range of choice boggles even this fairly experienced mind.

These days an aspiring pub entrepreneur might choose to sell lists made up of imports only, or all domestic; just bottles, or cans alone; beer from California, or Indianapolis; all ales, or exclusively lager; or entirely wood-aged as opposed to fruit-flavored.

One beer we likely won't be selling is Yuengling Golden Pilsner, which I sampled earlier in the week. Frankly, I'm amazed at being informed this beer is all-malt, without the corn grits that are the norm in the brewery's other beers.

Granted, I'm a tad rusty when it comes to beer judging, but to my nose and tongue, that characteristic sweetness seemed a dead giveaway. It reminded me of the last time I was compelled to hold my nose and drink a Miller High Life.

Obviously, Yuengling's house character must owe to other factors, and so it goes. What was I tasting and smelling that might be confused for corn? Anyway, one cannot be right all the time, and I'll add that the second Golden Pilsner was consumed at a near-freezing temperature, and tasted much better as a result.

THE BEER BEAT: Yuengling Golden Pilsner, or how I mourn the taste of corn in the morn (and afternoon).

Getting back to the Pints & Union list, there's no need to go into great detail apart from a reminder that the ultimate intent is a relatively small inventory of bottled and canned "classics" and "greatest hits," not a swirling kaleidoscope. There'll be stylistic diversity, and we'll work seasonal beers and "new" selections into the set list as we go.

As for draft, the ideal plan hasn't changed: eight faucets, five of which are fixed, with two seasonal/specialty rotators and a cider.

Overviews are easy, and the devil resides in those 70 pages of details. If you'll excuse me, I'll get back to them.

THE BEER BEAT: The pervasive fog of Hoosier regulatory wars.

On Friday, Indiana Lieutenant Governor Suzanne Crouch was in town. State Representative Ed Clere organized a series of meetings in various locations, each addressing a different core topic.

Ed's been a noteworthy friend to Hoosier fermenters and distillers, and I appreciated his invitation to participate in the lunchtime session at Huber's Orchard, Winery and Distillery in Starlight.

The overarching topic of conversation was the ever-expanding intersection of beverage alcohol production, agriculture and tourism. Examples of places where these pursuits come together are farmers markets, special events and fests, and the floor plan of Huber's.

What is the Alcohol and Tobacco Commission's stance on regulating these activities -- and what will it be tomorrow?

Those are the questions.

Local alcohol makers sick of changing Indiana regulations, by Danielle Grady (Jeffersonville News and Tribune)

STARLIGHT — Rick Otey makes and sells beer, but recently he’s started to feel as if he deals in more dangerous goods.

“Sometimes I tell people, it’s like we produce weapons-grade plutonium,” he said. “That’s how it feels sometimes.”

Otey is upset by the regulations imposed upon Indiana brewers and distillers by the legislature. Those laws are sometimes reinterpreted without warning by the Alcohol and Tobacco Commission, which enforces the rules and, in turn, affects Otey’s business.

Otey, along with several other craft brewers, winemakers and distillers voiced their concerns with the ATC to Lt. Gov. Suzanne Crouch on Friday when she visited Huber’s Orchard and Winery for a tour and lunch.

The commission declined to comment on this story through an email to the News and Tribune.

In the commission's defense, the Indiana's alcoholic beverage code is like an unkempt thicket. Each legislative session, new rules arrive for implementation, but old ones aren't always pruned. Even when intentions are good, there's an understandable necessity to make interpretations, then reinterpretations, then fresh new interpretations atop the previous patchwork.

Obviously, it isn't my job to absolve the ATC from blame for the shifting whims of its political appointees. But the entire regulatory edifice needs tearing down and building back into something rational for the present age, and toward this end, something called the Alcohol Code Revision Commission was created to consider recommendations for improvement.

There was media optimism as recently as November 25.

Alcohol changes yield winners, losers, by Scott L. Miley (CNHi Statehouse Reporter)

INDIANAPOLIS — Nearly 20 recommendations for alcohol-related legislation floated through a three-hour meeting recently of the Indiana General Assembly-created Alcohol Code Revision Commission.

Here is a breakdown of some preliminary drafts facing the panel that meets again on Dec. 1. Included are suggestions of winners and losers if legislation passes the General Assembly.

• Cold beer and Sunday sales: One preliminary draft of legislation allows a package liquor store, grocery store, convenience store or drug store to sell alcohol for carryout on Sundays. Beginning July 1, 2019, convenience stores, drug stores and groceries could sell cold beer.

Who loses: Package liquor stores, though they could be open Sundays, won't be the only outlets selling cold beer, as they are now.

Who wins: Hoosiers who forgot to buy a six-pack for a Sunday Colts game.

In between: In a unique partnership, the Indiana Retail Council (big box groceries) and the Indiana Association of Beverage Retailers (package liquor shops) support Sunday sales but not the expansion of cold beer sales ...

A week later ... well, so much for that. In spite of opinion polls indicating overwhelming public support for cold beer everywhere at any time, it appears Indiana will remain the only state regulating beer based on temperature.

Effort to expand cold beer sales fizzles in tight vote by legislative commission, by Tony Cook (Indy Star)

The prospect of getting a cold six-pack at your local grocery store has once again fallen flat.

After a nail-biter vote, a panel working to revise Indiana’s alcohol laws will not recommend allowing pharmacies, grocers and convenience stores to sell cold beer — something that has long been the well-protected province of liquor stores.

The recommendation failed even though the vote was 8-7 in favor. That's because 9 of the 17 members had to vote in favor of the recommendation for it to pass. Two members — Gina-Gail Fletcher and Alex Huskey — were absent.

The tight vote was even more dramatic because one member — Judge William Boklund — switched his vote in the middle of the roll call, joining proponents of cold beer access.

The result was a big blow for consumers who want to be allowed to buy cold beer for carryout at convenience, grocery and drug stores. Right now, only liquor stores are permitted to sell cold beer for carryout in Indiana, with few exceptions.

Missing committee members, invasive lobbyists, back room wheeler-dealers; there's a complete panoply of underachievement to consider.

To me, the worst of it isn't the fix being in. It's that ongoing Sunday sales prohibitions and temperature-based considerations achieve nothing apart from treating adults like children.

District 22 Pizzeria will offer pizza AND beer delivery in New Albany.

As displayed in the Indiana Code, Title 7.1 (Alcohol and Tobacco) runs 371 soul-crushing pages. It actually includes a section listing "miscellaneous" prohibitions, which is instructive.

For background, you might spend a morning scrolling through these pages (as I just now did), or take a quick glance at the number of different alcoholic beverage permits available in Indiana. Conversely, you might stab knitting needles into your eyes.

More expansively, an article in the Indianapolis Business Journal ("Thirst rises for liquor licenses in Marion County") offers a glimpse into the potential vagaries of Indiana's ATC permit regime. Permitting might be so much easier, but it isn't. There we are, and if you've decided to be in the business of selling alcoholic beverages in Indiana, you learn, just like with any other heavily regulated field.

Having chatted with Matt McMahan on a couple of occasions about the artful manner in which permits, exceptions, prohibitions and allowances can be linked and layered together to achieve a desired end -- in perfect legality, although at times the Alcohol & Tobacco Commission itself must consult the oracle to determine routes out of the labyrinth -- I can attest to Matt's patience and diligence in taking the time to learn what he might and might not to with the space to the right of Big Four Burgers + Beer NA, which used to be the South Side Inn's carry-out portal.

It is to be called District 22 Pizzeria, and Danielle Grady's piece in the News and Tribune provides the overview (it also mentions progress toward Matt's CIDEways cidery project at the corner of Elm and Pearl).

Market niches like this come with risks and rewards, but to me, Matt's biggest challenge won't be the alcohol delivery service. Rather, it will be creating and positioning the pizza.

There is plenty of space in the Big Four kitchen and a top-quality chef, so the omens are good.

Pizza and beer delivery service coming to New Albany; District 22 Pizzeria to open in March

NEW ALBANY — If you’ve ever been at home watching the game, hungry and craving a beer that isn’t there, but not wanting to leave, Matt McMahan wants to help.

The Southern Indiana entrepreneur’s latest venture is District 22 Pizzeria, a beer and pizza delivery joint slated to open in March. Yep, you’ll be able to get beer (and food) delivered to your home.

The restaurant will be based out of 110 E. Main St. in New Albany — right next to McMahan’s other restaurant, Big Four Burgers + Beer.

A message to Harvest Homecoming food vendors about temporary food (and beer) service fees.

Harvest Homecoming food vendors, please take note.

You'll soon be paying the usual tax of $20 per day to legally sell food during New Albany's annual fest.

You should know that in 2013, the Floyd County Health Department gave its regulatory wheel a mighty heave and decided that beer qualifies as food, but when NABC took them to the mat, they Dr. Tom Harris mustered a feeble compromise in an effort to keep us quiet. Now they say beer is food, and beer pourers must get a temporary food serving permit -- but we beer pourers don't have to pay the $20 fee.

The rest of you?

You still do.

That's really dumb, isn't it?

If beer is food, isn't food also beer?

If so, exactly why are YOU still being compelled to pay for these temporary food permits when beer pourers are not required to fund the department's rampantly intrusive slush?

Really, shouldn't you ask the health department flunkies this very question when you go to the Taj Mahal of Health Fascism on Bono Road to pay for a permit, one that according to Dr. Tom at our hearing in July, 2013, isn't "about the money" at all?

If it isn't about the money, then why should any of us pay?

And, for anyone else contemplating a temporary beer event: If the fine for not having a temporary food serving permit is half the cost of the permit, and it there is no charge for the permit, then what's the fine? Think carefully, because after all, careful thinking puts you five steps ahead of the Floyd County Health Department.

Meanwhile, as I've indicated on several occasions, NABC is perfectly content to fight the ongoing Cold War with the health department, and do so for the foreseeable future. In late 2013, the Attorney General of the state of Indiana actually did agree with NABC on the matter of the health department's ineptitude in improperly usurping the Alcohol & Tobacco Commission's regulatory turf. The complete text can be viewed here, but since the local health department refuses to acknowledge the decision, we're still in the trenches

Kindly note that the other side of the coin -- the health department's juvenile on-line defamation, picture above -- still remains very much in play ... in 2014, as in 2013. It isn't going away any time soon, which is just fine with us ... because neither are we.

Too bad we had to close the restaurant.

Hmm, you don't think the health department's defamation had anything to do with it, do you?

Here is a rough sketch of the Boomtown Ball site plan for May 25, with explanation.

(April 29 update: All about the bands slated to perform on the outdoor stage)

To understand how the Boomtown Ball on May 25 is to be done, it helps to be acquainted with Indiana's Alcohol & Tobacco Commission.

The ATC licenses and regulates any business that serves beverage alcohol. Integral to the ATC's operational philosophy is the concept of a floor or site plan -- basically, a map showing the ATC one's everyday bricks and mortar business layout.

The very same idea applies to temporary serving permits for temporary events, and so when the idea of the Boomtown Ball was being minted this winter, and the decision was made to include alcoholic beverages as part of the plan, the range of possibilities immediately narrowed. If alcoholic beverages are to be vended, in this case with NABC acting as master caterer and procurer of the requisite supplemental catering permit, certain fundamentals must be observed.

As the entity applying for the permit, it is NABC's (read: my) job to follow the ATC rules and be sure the pertinent legalities are observed, and it's something we take seriously. Hence, the site plan pictured above, which was submitted with the standard application. The beverage vending will be done by NABC and a team of downtown ATC permit holders; stay tuned for further information.

An event like this must be enclosed, generally by being fenced, with the familiar orange or green plastic utility fencing being the ATC's preference. There can be various points of entry and exit, but alcoholic beverages can not be carried in or out, meaning there usually must be personnel manning these points (as city police do during the Bicentennial Park concert series). If the greater expanse of the fenced grounds is to be occupied by all ages, then the bar area itself must be enclosed and allow only persons 21 and over to enter. Those of legal age can purchase beverages at the bar, and carry them into the all-ages area.

From the inception of Boomtown Ball, Houndmouth (the band), Production Simple (the music agent) and the city conceived of a Sunday street festival with music, the Flea Off Market's diverse booths, and both food and beverages. The original idea was to locate it on Market and Pearl Streets, but this proved to be too difficult a fit, for two reasons: First, from the standpoint of the ATC's licensing needs, and second, because it would have blocked access to existing independent businesses located on these two streets, which needed to have the opportunity to participate if desired.

It was suggested that the event be moved to the vicinity of the farmers market, and as the diagram shows, this radically simplifies the required layout, as well as impacting far fewer local businesses; in fact, the shops on the ground floor of the Odd Fellows building and near them on Bank Street will not be blocked by booths within the adjacent enclosure, will have full access near the event entry portals, and should nicely benefit from the patronage of the event's attendees, should they choose to open.

Meanwhile, current ATC permit holders (Habana Blues, the Frenchman, Toast and maybe La Bocca, if it's up and running again) on The Grand's short block of Market Street can conduct their business normally while drawing increased trade from the Boomtown Ball attendees, especially as ticket holders for the Houndmouth indoor show at The Grand begin arriving. Pearl Street remains open, not shut off and with businesses blocked, as it would have been at first.

I'm explaining these things in this forum for a variety of reasons.

To help spread the word.

To familiarize readers with some of the esoteric factors that lie behind the plans for events like the Boomtown Ball.

To reiterate that New Albany's indie business community downtown is "cool" of its own merit.

To note that on the 25th, there'll be ample opportunity for these downtown businesses to shine for what should be good crowds.

To ask for better overall communication between the various downtown stakeholders, all of the time.

As observed previously, there are two meetings scheduled this coming week: Sons and daughters of the former Merchant Mixer on Tuesday, and drinks purveyors on Wednesday (if you are among the latter and wish to attend, please let me know).

At both of these gatherings, a prime topic of discussion will be how to make localism as much a part of the Boomtown Ball event as humanly possible, both on the day of the show itself and the week preceding it, which we're calling Houndmouth Week as a working title, or some such.

Please stay tuned, and I'll tell you what I know, as I know it.

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

Dr. Tom Harris has long since retreated from public comment on the topic of PourGate, but on August 1, we imagined his probable response: ON THE AVENUES: "Kneel and Kiss My Ring, You Degraded Alcoholic."

Baylor, we live in a world that has walls, and those walls have to be guarded by men with syringes. Who's gonna do it? You? Lee Cotner? I have a greater responsibility than you can possibly fathom. You weep for the ATC, and you curse the health care supermen. You have that luxury. You have the luxury of not knowing what I know -- that my random personal opinions about food safety, while unsupported by Indiana law or precedent, saves lives; and my existence, while grotesque and incomprehensible to you, saves lives.

Maybe so, big guy.

Now, about the way the Attorney General looks at it differently ...

State: Floyd County Health Department shouldn’t require permit, by Daniel Suddeath (N and T)

NEW ALBANY — The Floyd County Health Department incorrectly charged businesses for temporary food permits to sell beer at festivals and events, the Indiana Attorney General’s Office has concluded.

In June, the New Albanian Brewing Co. protested citations it was issued by the health department for not obtaining a temporary food permit before selling beer during concerts at New Albany Bicentennial Park.

Other vendors were also issued citations during the city’s summer concert series at Bicentennial Park, and four citations were handed out during a Develop New Albany event in June.

Floyd County Health Officer Dr. Tom Harris maintained the department had required the permits for some time, and that such inspections are necessary to ensure food and alcohol is safe for consumption.

However, NABC challenged the health department’s stance, as it claimed the business had served beer at dozens of events in New Albany over the years without having to obtain the temporary food permit.

NABC co-owner Roger Baylor said there are existing state regulations that cover beer and alcohol sales, and that the company had already obtained its small brewer’s permit, three-way riverfront permit and a supplemental catering permit.

Essentially NABC’s case was that the Alcohol and Tobacco Commission’s authority preempts local ordinances, and the attorney general’s office agreed after being asked for an advisory opinion by the ATC.

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:

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

The issue has not gone away -- and thanks to readers who continue to express interest in the outcome.

NABC remains willing and able to hunker in the trenches and fight the ongoing Cold War with the Floyd County Health Department, and to do so for the foreseeable future.

We merely wait for the office of the Indiana Attorney General to reach what (to us) is the inevitable conclusion that only the Indiana Alcohol & Tobacco Commission has statutory control over temporary permits for pouring beer. The ATC and the AG have talked, but state wheels can turn slowly.

No matter; it's only a question of time. Since June 14, the issue primarily has been one of hidebound bureaucratic control, and secondarily, enhanced future revenues once the precedent of control has been accepted.

We do not accept the precedent, and we'll continue to fight the health department's ham-fisted aggression. Note that the other side of the coin -- the health department's juvenile on-line defamation (photo above) -- still remains very much in play. It isn't going away any time soon, which is just fine with us ... because neither are we.

Have you spotted any adults in county government lately, or perhaps forensic traces suggesting they once existed? If so, let us (and them) know about it.

A message to Harvest Homecoming food vendors ... and your PourGate update for Monday, September 30.

Harvest Homecoming food vendors, take note.

You'll soon be paying $20 per day to sell food during New Albany's annual fest.

You should know that earlier this year, the Floyd County Health Department decided that beer qualifies as food, but when NABC took them to the mat, they offered a feeble compromise in an effort to keep us quiet. Now they say beer is food, and beer pourers must get a temporary food serving permit -- but we beer pourers don't have to pay the $20 fee.

The rest of you? You still do.

That's really dumb, isn't it?

If beer is food, isn't food also beer? If so, exactly why are YOU still being compelled to pay for these temporary food permits when beer pourers are not required to fund the department's rampant slush?

Really, shouldn't you ask the health department flunkies this very question when you go to the Taj Mahal on Bono Road to pay for a permit, one that according to Dr. Tom Harris at our July hearing isn't "about the money" at all?

If it isn't about the money, then why should any of us pay?

And, for anyone else contemplating a temporary beer event: If the fine for not having a temporary food serving permit is half the cost of the permit, and it there is no charge for the permit, then what's the fine? Think carefully, because after all, careful thinking puts you five steps ahead of the Floyd County Health Department.

Meanwhile, as I've indicated on several occasions, NABC is perfectly content to fight the ongoing Cold War with the health department, and do so for the foreseeable future, as we await the relevant state agencies reaching what (to us) is the inevitable conclusion that only the Indiana Alcohol & Tobacco Commission has statutory control over temporary permits for pouring beer. State wheels can turn slowly. No matter; it's only a question of time. Since June 14, the issue primarily has been one of hidebound bureaucratic control, and secondarily, enhanced future revenues once the precedent of control has been accepted.

We do not accept the precedent, and we'll continue to fight. Note that the other side of the coin -- the health department's juvenile on-line defamation -- still remains very much in play. It isn't going away any time soon, which is just fine with us ... because neither are we.

Your PourGate update for Tuesday, August 27.

My friend Jim H. submits the following.

A quote from an interview with Professor Steve Bamforth; UC Davis in Scientific American dated May 2007:

"Until very recently, wasn't water dangerous to drink? Is that part of why wine and beer were the drinks of choice throughout the last 8,000 years or so?

Bamforth: Yeah! Beer is certainly not hospitable for the growth of microorganisms. You know, we don’t have coli scares in beer. Pathogens will not grow in beer and the beer—of course during production it's boiled—beer contains hops which has got antimicrobial components, and so, you know, ales and beers over the years have been safer to drink rather than the water because of these reasons."

Of course, from the very start, the Floyd County Health Department's very last consideration has been factual in this pathogenic context. Since June 14, the issue primarily has been one of hidebound bureaucratic control, and secondarily, enhanced future revenues once the precedent of control has been accepted.

Of course, NABC does not accept it.

As I've indicated on several occasions, we're content to fight the cold war for the foreseeable future, and wait for the relevant state agencies to reach what (to us) is the inevitable conclusion that only the Alcohol & Tobacco Commission has statutory control over beer pouring. When this decision is made, I promise to don my best Martin Luther duds and tape it to Mark Seabrook's exurban door frame.

But the other side of the coin -- the health department's juvenile on-line defamation -- still remains very much in play. That one isn't going away any time soon, and commissioner Seabrook might as well ring the insurance company with the good news ... after his latest "render unto Caesar" tantrum, and before the Camm trial bills start coming due.

Harvest Homecoming food vendors, take note: You'll soon have to pay $20 per day to sell food. The health department says beer is food, but that beer pourers don't have to pay the fee. If beer is food, isn't food also beer? So, exactly why are YOU paying for these temporary food permits when beer pourers are not?

And, for anyone contemplating a beer event: If the fine for not having a temporary food serving permit is half the cost of the permit, and it there is no charge for the permit, then what's the fine?

Think carefully, because after all, careful thinking puts you five steps ahead of the Floyd County Health Department.

Right, Mark?

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.

---

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).

---

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?

Live @ Five returns to the 400 block of Bank Street this Friday with Jimmy G and the Sidewinders.

The city's Live @ Five summertime concert series returns to the 400 block of Bank Street this Friday, June 22. Jimmy G and the Sidewinders will perform, and there is not a cover charge.

It is my understanding that the Bank Street venue will remain the same for the remainder of the summer. On June 29, the featured band is Sub-Urban Situation. There will be no Live @ Five on July 6 owing to the annual 3rd of July concert and fireworks show earlier in the week, but it will resume on July 13 and continue on Fridays through the end of August.

Last week was the first collective effort by NABC and the city to render the Bank Street temporary fest site suitable according to what is expected of us by the state of Indiana's Alcohol and Tobacco Commission (ATC). In order to obtain these weekly temporary permits, we must provide the ATC with a floor plan that shows where and how we will be running the event. There must be fencing or barricades, delineated entrances, and a division between the over-21 beer serving area (the bar) and the all-ages area (the family room).

A key point is this: During the Live @ Five shows, while it may seem perfectly reasonable to buy a beer at Bank Street Brewhouse and carry it into the festival area to drink, this is not permitted. Nor is it allowable to buy the beer inside the fest area and carry it out. For the purpose of licensing, the Live @ Five grounds and Bank Street Brewhouse are entirely separate entities.

Please remember this when you attend Live @ Five. For this Friday's show and the ones to come, we're implementing a modified festival layout to ensure compliance with relevant state laws. The same one will be used for Saturday night's Art Walk party, and also future events in the vicinity, providing a better event template for set-ups, tear-downs and the shows themselves. Thank you for your support.

Hey, bartender, how old is that bean soup in the freezer bags?

The lawyers can correct me on this one, but my reading of Indiana's ridiculously huge collection of statutes pertaining to beverage alcohol -- regrettably, soon I'll no longer be able to compare it to a phone book because phone books are becoming as obsolete as Indiana's approach to beverage alcohol regulation -- uncovers only two sections pertaining to food on licensed premises.

This matters only because last night, New Albany's city council voted 8-1 in favor on the first reading of an ordinance to expand the boundaries of the city's riverfront development area westward. Think of it as the Holiday Inn Express Law, and note that I'm in favor of doing it, and furthermore believe the scope of the state's enabling legislation should be expanded to require inexpensive three-way permits be issued to any acreage adjacent to a church, without exception.

In short, riverfront development areas constitute exemptions to the quota, and make possible inexpensive three-way permits. In the run-up to last evening's vote, there was much discussion about booze versus food, and the desirability of restaurants as opposed to bars. Council member and mayoral candidate Jack Messer voted against the expansion, citing public safety concerns relating to the fearsome possibility that dive bars will proliferate.

But as the Indiana State Police already has proven with its incessant poaching over the past few years, the availability of food at targeted establishments makes no difference whatsoever.

In fact, all licensed establishments are compelled by law to offer food. As I suggested earlier this week, past judgments by visiting ATC officers have included the advice that an unopened package of weenies in a freezer compartment is sufficient to meet the requirement. Whether this is right, wrong or indifferent, it's still a matter for the ATC to enforce, and not local cops. I doubt the constitutional veracity of any city council effort to add food requirements to those already in existence, although I'd cherish the sight of council members with clipboards poking their noses into kitchens.

I cannot find any reference to food sales percentages, which I believe formerly were part of the system when it came to Sunday opening hours, and later were discarded when regulations were made slightly more reasonable (Hoosier fundamentalism precludes universal reasonableness owing to something Moses once said). There remains an obligation for some licensees to report food/alcohol percentages on the annual renewal application, although my understanding is this applies to the existence of separation in barrooms and family rooms, i.e., how under-21-year-olds and over-21-year-olds co-exist (or do not) in proximity.

However, I'm a publican, not an attorney, and surely I'm missing an esoteric something or three here, so please correct me if you find it. Following are the two ATC regs I found mentioning food:

IC 7.1-3-20-9
Restaurants; general requirements
Sec. 9. Restaurants: General Requirements.
In order to be considered a "restaurant" within the meaning of this title and to be eligible to receive an appropriate restaurant permit under this title, an establishment shall meet the following requirements: (a) It shall be provided with special space and accommodations where, in consideration of payment, food, without lodging, is habitually furnished to travelers; and, (b) It shall have accommodations at which at least twenty-five (25) persons may be served at one (1) time.
(Formerly: Acts 1973, P.L.55, SEC.1.)


905 IAC 1-20-1
Minimum menu requirements
Authority: IC 7.1-2-3-7; IC 7.1-3-24-1
Affected: IC 7.1-3-20-9
Sec. 1. Under the qualification requiring that a retail permittee to sell alcoholic beverages by the drink for consumption on the premises must be the proprietor of a restaurant located, and being operated, on the premises described in the application of the permittee; and under the definition of a "restaurant" as "any establishment provided with special space and accommodations where, in consideration of payment, food without lodging is habitually furnished to travelers,"–and "wherein at least twenty-five (25) persons may be served at one time;" the Commission will, hereafter, require that the retail permittee be prepared to serve a food menu to consist of not less than the following:

Hot soups.
Hot sandwiches.
Coffee and milk.
Soft drinks.


Hereafter, retail permittees will be equipped and prepared to serve the foregoing foods or more in a sanitary manner as required by law.

(Alcohol and Tobacco Commission; Reg 36; filed Jun 27, 1947, 3:00 pm: Rules and Regs. 1948, p. 58; readopted filed Oct 4, 2001, 3:15 p.m.: 25 IR 941; readopted filed Sep 18, 2007, 3:42 p.m.: 20071010-IR-905070191RFA)

HARBESON: "Maintaining misguided laws not the answer for alcohol licenses."

The opening paragraph in Debbie's column is a true classic.

HARBESON: Maintaining misguided laws not the answer for alcohol licenses

When I first heard Clarksville’s Redevelopment Director Rick Dickman say that most restaurants would love to have a three-way, I thought the Southern Indiana area might finally be getting a Cincinnati-style chili franchise. But then I realized it had to do with Indiana’s asinine alcohol laws.

Skyline is the only food and drink chain that I ever patronize.

Note that we did not confer before penning our respective columns. While my take on riverfront development districts is based on the reality we’ve been handed by the state’s regulatory regime, there’s absolutely no doubting that the state’s regulatory regime makes little sense and is skewed toward serial over-regulation. Debbie’s column makes this point with aplomb.

ATC hearings: Steinert's to Redmen Club, Redmen to former B & B, and Wick's not yet on the docket.

Wondering when Wick’s Pizza will be coming to the former home of the Speakeasy?

Me, too.

Taking a glance at the schedule for the next two local alcoholic beverage board hearings (July 7 and August 4), which take place for the purpose of issuing final approval on permit applications, Wick’s isn’t yet on the docket for either of them -- yet.

This implies an answer of “September at the earliest.” They'll also presumably need an Indiana resident to make it happen, which I'm assuming will be the building's owner unless another local partner has come on board.

But here’s the answer to another pressing question, also gleaned from the local board’s published agenda for August.

SMOKEY BEAT INC
RR2226083
221-3 Historic River Vessel
New
DBA: STEINERT'S GRILL & PUB
401 E MAIN ST
New Albany IN 47150

IMPROVED ORDER OF REDMEN 276
RC2203244
211-4 Fraternal Club
Transfer
DBA: REDMEN CLUB
211 E MAIN ST
New Albany IN 47150

And so the declining Redmen hastily vacate their shiny new building for the tiny former home of Ermin’s and B & B (adjoining Studio’s), while the name attached for generations to the historic Charlestown Road building destroyed by fire last year resurfaces on Main Street.

Also, to R: There appears to be no limit to the number of “riverfront” three-way permits allowable within the delineated geographical boundaries, and subject to the usual considerations of proper distance from churches, which I view as a violation of church-state separation.

Downtown's getting crowded.

Who'd have thunk it?