Thursday, August 14, 2008

Barbeque

Mindy Waldron is an administrator with the Fort Wayne-Allen County Department of Health. Yet she has taken it upon herself to actually create law. In her recent article she wrote:

“After SB 404 was adopted into law, local health departments cannot create any local standards or be less restrictive than state standards.”

“though Indiana’s Food Code doesn’t specifically forbid permanent outdoor cooking, it doesn’t specifically account for it either, which puts Indiana counties in a difficult position when regulating this issue for the safety of the consumer.”

“So what happens when a law is silent on an issue? You rely on an interpretation of the law by the official agency in charge. “

I looked up SB 404 and found it did not deal with food at all. Therefore, I contacted Wendy. She provided me with the following IC-16-42-5-0.5/0.7, IC-15-52-5-5.2 and IC-16-19-3-4.

Except as provided in this chapter, a corporation or local health department may not impose any: (1) sanitary standards on; or (2) locally prescribed monetary penalties for the violation of any state law or rule concerning; food handling or food establishments.” The plain and literal language is clear, Wendy is not authorized to write rules in this area. All that she is allowed to do is follow the rules identified by the state.

If a statute does not address a particular concern or is silent, then there is no law or statute forbidding it. Statutes restrict, they do not give rights. She states Indiana’s Food Code doesn’t specifically account for or allow permanent outdoor cooking, therefore, it is not illegal. In other words the law is moot.

What Mindy Waldron (the state) has done is extend by implication a statute beyond its plain and literal language given it by our elected representatives and signed by the governor; in essence she has created law. This is a violation of Indiana’s Constitution, Article 1.
If the law is silent on an issue, you do not interpret something that is not there, you remain silent as well.

However, as my recent experience dealing with FWCS and FWPD taught me, there is no shortage of ignorant state workers who attempt to do the exact same thing; extend by implication a statute beyond its plain and literal language given it by our elected representatives and signed by the governor and in essence create law, yet know there is no law prohibiting what you are questioning. Just be careful when you question the “state”; they may arrest you for exercising your first amendment right to question them and when they cannot, may arrest and charge you with disorderly conduct.

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