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December 20, 2013

State: Floyd County Health Department shouldn’t require permit

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.

There are broad state regulations that govern alcohol sales, and Floyd County’s ordinance requiring a fee and inspection for a temporary food services permit interferes “where the state has already regulated,” the opinion stated.

According to the ruling, the health department’s ordinance “does not comport with the requirements of the Home Rule Act.”

There are two statutes that expressly limit the authority of local jurisdictions to regulate alcohol and tobacco, the opinion also stated.

“The Floyd County ordinance is not permitted by these statutes and is attempting to regulate something that is already comprehensively regulated by a state agency,” the opinion stated.

Through an employee at the health department, Harris declined to comment to the News and Tribune when contacted Friday about the ruling.

Health department attorney Rick Fox wasn’t immediately available on Friday when the News and Tribune attempted to contact him for the story.

Baylor said Friday that the ruling vindicates NABC’s decision to fight the health department’s stance.

“At the time, the health department was fond of saying that if NABC didn’t ‘like’ the law, that we should change it,” Baylor said.

“Turns out we knew more about the law than the health department, and the fact that any of this ever happened reflects not only on the health department as an entity, but on Floyd County government for twiddling its thumbs and doing nothing.”

However, what the opinion means moving forward is unclear, as health department officials haven’t responded as to whether the fines will be repaid, or if the temporary food permit will no longer be required.

The opinion was published by Baylor on his website, as a spokesman with the attorney general’s office said the department’s legal advice to clients is confidential.

The attorney general’s office does publish some legal opinions on its website, but the NABC case was not listed there on Friday.

The department was charging $20 a day for temporary food permits, with the price increasing to $30 if the vendor doesn’t obtain the document prior to the event they serve at.

Baylor said NABC had been charged about $200, and that he had received no indication from the health department as to whether it would be repaid. The money will be donated to charity if it is returned, he continued.

Another issue surfaced between the health department and NABC following the business’s protest over the permits.

In July, the department published a photograph of a department vehicle parked in front of NABC’s Bank Street Brewhouse on its website. The photograph was linked with a posting about E. coli.

Baylor claimed the photo was retaliation for NABC’s battle with the health department, and the company filed a tort claim over the matter, and the photo was later removed from the site.

The Floyd County Health Department board of directors didn’t rule in favor of NABC’s appeal of the temporary food permit in August. The board did nullify charging alcohol-only vendors for the permit.


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