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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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