Mickey Luker has been working on a remodel of Caney Fork General Store ever since he purchased the property in 2011, but now the county commissioner candidate is claiming that politically motivated nefariousness caused the county health department to deny him the wastewater permit he needs to add a deli line to his business.
“The Jackson County Department of Public Health is politically motivated to harm the Petitioner (Caney Fork),” reads a court statement filed June 3. “The Jackson County Commission is predominantly Democrat. The Petitioner is owned by … a Republican who is running for County Commissioner against an incumbent Democrat opponent who also sits on the Board of Public Health.”
So, in March Caney Fork General Store filed suit against Jackson County’s health department, claiming that the department had “substantially prejudiced” his rights, acting “erroneously,” “arbitrarily,” and failing to “use proper procedure” or “act as required by law or rule.”
“It’s impacted us for over a year now,” Luker said. He spent about $60,000 on kitchen equipment to get the deli going, he said, and he hasn’t been able to see any return on that investment thus far.
County Commissioner Mark Jones — the incumbent Democrat who sits on the health board Luker had mentioned in the lawsuit — bristles at the accusation of political misconduct.
“I find it somewhat humorous that he would try and pull my name into this situation,” Jones said. “We on the Board of Health, we’re not privileged to the information on day-to-day operations and inspections.”
County Commission Chairman Brian McMahan says he doesn’t know why Luker’s application was denied but can’t see how politics would have been part of the decision. The commissioners have no involvement in the permitting process, he said.
“It doesn’t come under our jurisdiction, and I find it interesting that Mr. Luker would take this route that he’s taking to try to cry politics when politics really isn’t in play,” McMahan said.
Luker, meanwhile, maintains that the reasons given for denial just don’t make sense.
“There has been this type of facility before,” he said. “This is not a change of venue or anything.”
According to court documents filed by Luker’s attorney Jay Coward, the deli was installed in 1994, before Luker owned the business. Luker disconnected the deli lines to the wastewater treatment line after he bought the business in 2011 and began to remodel. Prior to construction, say court documents submitted by Caney Fork, Luker and health department personnel met to talk about the renovations, and Luker received verbal approval for the plans. Franklin-based Mountain Soils Inc. consulted on the project, and at its suggestion Luker decommissioned an apartment unit below the store to ensure that overall wastewater discharge would be reduced.
However, when inspection results came in on Feb. 24, Luker’s permit was denied. The letter he received stated that the reconnection would violate state regulations dealing with daily flow requirements and minimum horizontal distances.
The legal journey
Luker filed a petition to contest the outcome, but the legal process following was anything but smooth.
When the suit against the county health department hit the books, County Attorney Heather Baker responded with a motion to dismiss. The Jackson County Department of Public Health has no culpability in anything dealing with permitting, she wrote — the state’s Department of Health and Human Services should be the defendant. While the health department is a county entity staffed by county employees, the inspections they carry out deal with state law, and they execute them in their capacity as state agents.
“Anytime they’re working in their capacity as environmental health specialists, they’re really working for the state,” she explained.
The letter Luker received outlining his denial explained as much, Baker wrote. The instructions say “Do not serve the petition on your local health department. Sending a copy of your petition to the local health department will not satisfy the legal requirement (in state law).”
“Despite, and contrary to, the above informative statements in the document constituting agency, Petitioner (Caney Fork) chose to bring a contested case hearing at the Office of Administrative Hearings against the Jackson County Department of Public Health,” Baker wrote.
Caney Fork, meanwhile, responded that the Jackson Health Department should indeed be the body served with a suit.
“It is action taken by the Jackson County Health Department that is being protested, not the Department of Health and Human Services, which is nowhere mentioned,” the response reads.
A look at the letter Luker received does show that petitioners are asked to serve a copy of the petition to the NC DHHS. The letter does state that petitions should not be served on the local health department.
The court agreed that the Jackson health department was the wrong entity to sue, so Caney Fork had to amend its petition to name the state DHHS instead.
That was met by another motion to dismiss, this time from the state. The motion claims that Caney Fork can’t bring the petition because it did not serve the petition to DHHS — as required by state law — within the 30-day window following notice of inspection results. The letter mailed to Luker in February had instructed him to serve his petition to DHHS, but in a June 2 court document DHHS said it had not yet received a petition. So, it argued, the statute of limitations was exceeded.
Caney Fork replied by repeating its argument that the instructions for serving the petition were not nearly as clear as the state claims they were. Dismissing the claims would be “a flagrant misuse of process and a violation of any potential litigants’ constitutional rights.”
Administrative Law Judge David Sutton has yet to rule on the motion to dismiss. But if Caney Fork’s suit survives, the case will be heard in Waynesville the week of Aug. 1.
Luker is one of two Jackson County Republicans running to unseat Democratic county commissioner incumbents in the November elections. Luker is looking to oust Mark Jones, who has held his seat since 2006, while Ron Mau — a finance professor and councilmember for the Village of Forest Hills — is hoping to beat out Commissioner Vicki Greene, who is finishing up her first four-year term.
Luker filed for election on Dec. 21. His property was inspected on Dec. 1 and the letter informing him the permit had been denied is dated Feb. 24.