News and Tribune

June 20, 2013

NABC appeals food permit citation

Health Department: Permit needed to sell alcohol during events



The New Albanian Brewing Co. has appealed a citation the business was issued Friday for dispensing beer without a temporary food permit. 

The Floyd County Health Department cited NABC during a concert sponsored by the city of New Albany at Bicentennial Park. NABC — which owns the downtown Bank Street Brewhouse and the Pizzeria and Public House off University Woods Drive — elected to appeal the citation. 

NABC co-owner Roger Baylor filed the appeal Wednesday with the Floyd County Health Department. In a statement sent to the News and Tribune, Baylor said the company “can find no coherent precedent” for requiring alcohol vendors to obtain a temporary food permit. 

Baylor said the state “clearly supports the Alcohol and Tobacco Commission as primary regulator of drinks businesses, both on- and off-premise.”

The other alcohol vendors at last Friday’s concert — River City Winery and The Irish Exit — also were cited for serving without having a temporary food permit. 

“We support the Floyd County Health Department’s daily work to ensure food safety for all of us, and we bear absolutely no malice toward those who have made this decision to ignore precedent and attempt an extension of the department’s control to an area which it lacks coherent statutory authority like that clearly possessed by the ATC,” Baylor said. 

However Floyd County Health Officer Dr. Tom Harris said Wednesday the regulation has been enforced for some time. The fee for the temporary food permit is nominal and alcohol is covered under the license, Harris said. Other people and groups have been cited for not having the temporary food permit, he continued. 

“A lot of times, it tends to be nonprofit groups that are setting up a booth to sell, say, corn dogs at the fair, and they just simply don’t know,” Harris said. 

While the temporary food permit typically is issued to vendors at festivals like Harvest Homecoming, Harris said it is also required when businesses or groups pour alcohol for public consumption at events. 

Just because the substance being sold is alcohol doesn’t guarantee it’s safe, he continued. 

“Beer is not sterile,” Harris said. 

NABC has possessed the ATC’s Type 222 Supplemental Catering Permit for all events that it serves beer at, and it’s the belief of the business that the permit is the only necessary license needed, Baylor said. 

“Furthermore, we believe that in legal terms, the health department cannot impose more pervasive regulatory restrictions on an existing ATC permit bearer, unless the Indiana legislature has specifically allowed it to do so,” Baylor stated in the appeal. 

The citation doesn’t carry a penalty fee, but Harris said NABC and other vendors that don’t obtain the temporary food permit will continue to be cited. Additional action can be taken if a vendor fails to garner the temporary permit after multiple citations, he continued. 

“It’s a state regulation,” Harris said. “We’re not singling him out.” 

NABC, River City Winery and The Irish Exit will be allowed to continue to sell beer and wine during the concert series, Michael Hall, director of operations for the city, said Wednesday. 

“There will be no change in the operations or format of the Bicentennial Park Concert Series,” Hall said. “We are hopeful that the vendors and the Floyd County Health Department can work together to ensure that Friday nights in downtown New Albany continue to be something special.” 

When it comes to appeals, Harris said the health department has sided with parties who objected to certain regulations. 

“We have agreed in the past that the law was unfair and helped the person with their protest,” he said. 

But when it comes to the NABC appeal, it doesn’t appear likely that the citation will be overruled. 

“If [Baylor] wants to overturn a statute, he basically has to go to court to get an injunction against a government agency invoking a statute,” Harris said. 

“In this case, we’ll be happy to hear him out, but it looks like something that’s fairly straightforward.”