August 26, 2010
By Brian W. Walsh
If Fairfax County's fire marshal has his way, two fire-breathing mixologists will find themselves behind prison bars for decades to come. Their crime? Entertaining their customers.
On July 24, fire investigators arrested 33-year-old Tegee Rogers and 39-year-old Justin Fedorchak at Jimmy's Old Town Tavern in Herndon. The two bartenders were caught in the act: performing fire-breathing tricks. They've been doing that at Jimmy's for 13 years. No one was injured; nothing was damaged.
Still, the two barkeeps were handcuffed and charged with three felonies and several misdemeanors. They face up to 45 years in a Virginia penitentiary.
The charges sound malevolent: manufacturing an explosive device, setting a fire capable of spreading and burning or destroying a meetinghouse. But the state statutes are so loosely worded that they could land most any Virginian in prison for a "crime" no more dastardly than barbecuing at a church picnic.
Section 18.2-86 of the Virginia Code makes it a felony to "set fire to any ... thing capable of spreading fire on land." Let's hope you're not planning a campfire on your next Boy Scout trip. To make this charge stick, prosecutors must prove that the fire was started "maliciously" - a term Virginia courts have interpreted in various ways. County officials must believe it can be stretched to convict bartenders who had no intention of torching the bar, much less "spreading fire on land." Conviction on this count is good for up to five years in state prison.
Section 18.2-85 has similarly vague, overbroad language on "manufacturing an explosive device" and carries a maximum sentence of 10 years. It defines an explosive device as "any instrument, apparatus or contrivance ... that is capable of producing or intended to produce an explosion." Its circular definition of "explosive materials" includes anything that "can be used for the purpose of producing an explosion." Better think twice before refilling your lawnmower's gas tank.
Then there's the "arson" charge, brought under Section 18.2-79. Good for up to 20 years of hard time, it's written so broadly that it can conceivably be construed to cover recreational fire-breathing.
Granted, no halfway reasonable person could think Mr. Rogers and Mr. Fedorchak were really trying to commit arson. In putting on a show that had successfully - and safely - attracted customers for years, they were trying to benefittheir "meeting place," not burn it down.
A letter to county officials that tries to justify the outlandish charges against Mr. Rogers and Mr. Fedorchak exemplifies the mindset that leads to overcriminalization. "Every woman with a child over the age of 5 knows you prevent danger from happening in the first place. You don't wait until the accident happens," wrote Herndon resident Vicki Dorman, a former legislative assistant in the General Assembly. The assumption here is that government can and should child-proof American life and that anyone who - knowingly or unknowingly - strays outside government-approved safe behavior deserves to be locked up for decades.
It's a view both fatuous and pernicious. As tavern owner Jimmy Cirrito notes, no restaurant can be danger-free, even if every fire-breather is rounded up and thrown in the clink. "There's a lot of fire in restaurants," he observes. "I've been served flaming desserts. I've roasted marshmallows on tables. I've seen 75 candles and sparklers on cakes."
Newsflash: Some restaurants even have knives - sharp ones. Under the rationale motivating Ms. Dorman and Fairfax County officials, Japanese steakhouses and baked Alaska are causes for criminal charges.
Any open flame, even from a birthday candle, poses some danger. Fire-breathing is no exception. Yet the felony charges levied against Mr. Rogers and Mr. Fedorchak were intended for, and should only be used against, people who intentionally start wildfires, make real bombs and commit real arson.
It's just common sense - something that tavern owner Mr. Cirrito seems to have in abundance. He points out that county officials never raised concerns about his establishment's bar tricks before the arrests. Nor did they warn that Mr. Rogers and Mr. Fedorchak were deemed to be suspected terrorists and arsonists. Had officials said something, Mr. Cirrito says, he would have stopped the practice.
Alternatively, even if unintentional "violations" like these actually posed a significant risk to public safety, there's no need to resolve the issue through jail time. The civil justice process - i.e., fines - could deal with the problem quite effectively.
Criminal penalties should be reserved for criminals. But that's not the way the Fairfax County nanny-staters see it. As a result, two unsuspecting bartenders face what essentially amount to life sentences.
Brian W. Walsh is the senior legal research fellow in the Heritage Foundation's Center for Legal and Judicial Studies.
First appeared in The Washington Times
Brian W. Walsh
Senior Legal Research Fellow
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