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Court split over whether petition for review should be dismissed

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The dissenting judge in a case involving the dismissal of a company’s petition for judicial review of a decision by the Alcohol and Tobacco Commission believed the petition must be dismissed based on the language of the Administrative Orders and Procedures Act. The majority ordered resolution of the issue on the merits.

In Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission, 49A02-1210-MI-826, Lebamoff Enterprises, which operates liquor stores in northern Indiana and holds a liquor dealer permit, received six citations from the ATC alleging violations of its permit stemming from the use of common carriers to transport product to customers for sales generated through fulfillment companies. Lebamoff appealed, and an administrative law judge found the company violated statute by using the common carriers. A fine was imposed and it was recommended that Lebamoff’s permit be suspended for 60 days but deferred as long as Lebamoff paid the fines and didn’t have any more violations. The ATC approved the recommendations in February 2012.

Lebamoff filed a petition for judicial review on Feb. 29, 2012, but did not file an agency record within 30 days or seek an extension. The ATC moved for dismissal, which the trial court granted in September. Lebamoff did not receive and file the certified agency record until May 2012.

Lebamoff admits it didn’t timely file the record or an extension but said it followed the spirit of the AOPA by including in its petition a statement that it would transmit the agency record within 30 days after receiving notification that the ATC prepared the record. The COA disagreed with Lebamoff that the Legislature’s intent was to permit automatic extensions. Requiring a petitioner to request and be granted an extension leaves it in the court’s hands to determine whether good cause has been shown, Chief Judge Margret Robb wrote.

“While, as outlined above, the filing of a request for extension plays a valuable role in the larger context and moreover is required by the statute, the ATC was hardly being harmed by a delay in filing the record where the ATC itself was the cause of that delay,” she wrote. “We believe the onus was on Lebamoff to file an extension, but the actions of the ATC here are of the sort that would begin to lend support to concerns that the AOPA could in some cases be a ‘trap’ for unwary litigants.”

But the majority found dismissal was not mandatory, citing Ind. Family & Soc. Servs. Admin. V. Meyer, 927 N.E.2d 367, 370-71 (Ind. 2010). Because there is a question of law regarding the interpretation of the statute as it concerns use of common carriers, and there were no disputed facts, the limited findings of the ALJ were sufficient to allow judicial review of the issue, even in the absence of the agency record, Robb wrote, ordering the case back to the trial court for resolution on the merits.

Judge Kirsch argued that the AOPA is the exclusive means for judicial review of an administrative action and the mandates of the Act as adopted by the General Assembly are clear. Lebamoff did not follow them so that failure is cause for dismissal.

 

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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