ILNews

COA rules on fireworks wholesalers' challenge

Jennifer Nelson
January 1, 2007
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The Court of Appeals ruling today that firework wholesalers have an administrative process to determine whether Indiana Code section 22-11-14-5 requires fireworks wholesalers to obtain certificates of compliance for each location reinforces an earlier Supreme Court decision on the matter.

In Roger Johnson, as Indiana State Fire Marshal v. Patriotic Fireworks, Inc. et al., the Court of Appeals reversed the trial court's denial of the fire marshal's motion to dismiss the consolidated complaints of Patriotic Fireworks and other fireworks wholesalers and remanded with instructions. The fireworks wholesalers challenged the fire marshal's requirement that fireworks wholesalers with multiple locations must obtain separate certificates of compliance for each location they operate.

At issue is whether the trial court erred in failing to dismiss Patriotic's complaint for lack of subject matter jurisdiction. The Court of Appeals, relying on Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 984 (Ind. 2005), found the trial court did not have subject matter jurisdiction.

In 1997, Patriotic filed a complaint in Marion Superior Court challenging the fire marshal's interpretation of Indiana Code 22-11-14-5 without first pursuing administrative review. Nine similar cases were consolidated with Patriotic's case.

In November 2005, the state filed a motion to dismiss the consolidated cases, saying the trial court lacked subject matter jurisdiction because Patriotic failed to exhaust all administrative remedies before filing the complaint. Patriotic argued the trial court should dismiss the state's argument because no administrative review existed. In April 2006, the trial court denied the state's motion for reconsideration and granted its motion to certify an interlocutory order for immediate appeal.

Citing Johnson, the Court of Appeals disagreed with Patriotic's claims that no administrative remedy existed. In Johnson, Celebration Fireworks also did not first seek administrative review through the Fire Prevention and Building Safety Commission when challenging the same code. The Supreme Court found the issue whether wholesalers with multiple locations were required to obtain separate certificates for compliance can be properly resolved through the administrative process. In Johnson, the Supreme Court reversed the trial court's judgment and remanded it with instructions to dismiss Celebration's complaint for lack of subject matter jurisdiction.

Because Patriotic did not first pursue administrative review before being granted access to the trial court for judicial review, the Court of Appeals ruled the trial court lacked the subject matter jurisdiction to hear the claim. The Court of Appeals reversed the trial court's judgment and remanded with instructions that Patriotic's complaint be dismissed.
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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