News and Tribune

August 15, 2013

Battle brewing in New Albany over website photo

Health department subject of tort claim notice from brewery owner

By JEROD CLAPP
jerod.clapp@newsandtribune.com

NEW ALBANY — Already embroiled with the Floyd County Health Department over a permit issue, a local business owner has filed a tort claim notice over a photo that appeared on the department’s website.

The photo showed a department vehicle parked in front of the New Albanian Brewing Company’s Bank Street Brewhouse, along with a posting about E. coli.

Roger Baylor, co-owner of the restaurant and its parent company, said while the picture was labeled as a stock photo, he believes it was taken and posted in response to his fight with the department over temporary food service permits that he and other alcohol-serving vendors were fined for not having at an event in June.

“We disagreed and fought in a respectable way, so I think the photo was retaliation,” Baylor said. “It’s juvenile, when you stop to think about it.”

Baylor said one of his employees witnessed health department employees taking the photo on July 24.

The tort claim, sent to the department by Baylor’s attorney, Brandon Smith, on Aug. 2, demanded the photo’s removal from the website and a “corrective statement” to be posted.

The department removed the photo, at least as of Tuesday, but a corrective statement or apology has yet to be posted.

Rick Fox, the attorney for the department’s board of directors, said he just received the tort claim on Tuesday and hasn’t met with the department’s board to discuss it yet.

But he said to make sure there weren’t any misconceptions about the photo and the associated post on E. coli, they decided to take it down.

“They removed the photo, not in that the health department had done anything wrong, but we most certainly don’t want to give the wrong idea,” Fox said. “If they think someone’s getting the wrong idea, we don’t want to do that. As I understand it, the Floyd County Health Department truck was just showing that they were doing their normal inspections. Those [inspections] are subject to public review, the truck could have been in front of any business.”

Tom Harris, Floyd County health officer, did not return phone calls for this story as of press time.



Citation conflagration

Baylor was cited by the Floyd County Health Department for not having a temporary food service permit on June 14. He appealed the citation on the grounds that his license from the Alcohol and Tobacco Commission was sufficient.

On June 21, during the Exclusively New Albany event, four more citations were issued to other alcohol-serving vendors.

After submitting a records request for all citations issued by the health department for the last five years, Baylor said the records showed six citations had been issued in that time, but none older than September 2012 and none were issued to alcohol-only vendors.

Baylor also questioned the timing of the fulfillment of his records request. After filing his complaint with the state public access counselor in June, Baylor said his attorney received the records via fax late on July 23, giving them only one day to review the documents before their hearing with the health department board the following day.

He said he mailed his complaint to the state public access counselor the day before the records came in. The department’s website now has a post touting the complaint’s rejection by the state public access counselor, Joseph Hoage.

At the board’s meeting, a decision to require the temporary permits stood, but the fee for them was waived for alcohol-only vendors.

“With what they’ve done right now, they’re not going to charge an alcohol-only service,” Baylor said. “They’ve established a separate class of citizenship. It’s $20 a day for food, but if you’re pouring beer only, you don’t have to have it.”

He said the arrangement is unfair for food vendors, including those who serve at events like Harvest Homecoming.

The department’s board has upheld its permit requirement by referencing a state official who said beer can qualify as a drink under a city and county ordinance, which makes it subject to health department ordinances.

“We have a letter from the state representative that has our territory and he said most certainly, these types of things that are served qualify as food under the statute,” Fox said. “So this isn’t our local health department making this determination, that’s the state health department.”

But in a 1998 Indiana Court of Appeals decision in Fort Wayne v. Kotsopoulos, the state ruled the Alcohol and Tobacco Commission’s preempts local statutes, meaning Baylor’s license with the body could carry the weight needed to supersede the health department’s ordinance.

Fox said the purpose of the ordinances is to ensure the safety of people by creating a record of vendors in case a group of people get sick from consuming something sold by vendors at city events.

“I know that one of the arguments made at the hearing was that he has his license and can have other people serve under his license,” Fox said. “That may be true under the alcoholic beverage area, but that’s not true in the food area.”

Baylor said he’ll continue to get the permits, though under protest, but he thinks the state will work out the issue of state licenser over local ordinances on its own, contending the local health department doesn’t have much ground to stand on.

“I think [the ruling] kind of guts their case, because you either have to have it or you don’t,” Baylor said. “Their legal basis of this is really very shaky.”