CONOVER, Judge.
The City of Indianapolis, its agents, and Fred L. Armstrong, City Controller (City) appeal the trial court’s granting of a preliminary injunction restraining the suspension of Joseph Tabak’s secondhand goods dealer license.
We reverse.
ISSUE
Because we reverse, we need only address one issue:
Did the trial court err when it restrained the suspension of Tabak’s secondhand goods dealer license?
FACTS
On December 18,1981, Tabak was arrested for attempting to receive stolen property, conspiracy to receive stolen property, failure to keep card records for police and unlawful purchases. Upon learning of this, the City Controller revoked Tabak’s secondhand goods dealer license on December 30, 1981. Tabak’s attorney wrote a letter to the controller on December 31st requesting a hearing on the matter. On January 6, 1982, Tabak’s attorney requested the Controller stay the suspension pending review. Apparently there was no response from the Controller.
On January 7, 1982, Tabak filed a complaint in the Marion Superior Court requesting a temporary restraining order against the suspension of the license. It was granted. After a hearing by the court, findings were entered on January 21st, a preliminary injunction granted until a hearing could be held according to the City Ordinance provisions for review on the merits of the suspension. From that decision, this appeal was perfected.
DISCUSSION AND DECISION
It is well settled in Indiana that when reviewing an administrative decision “judicial review shall be limited to a determination of whether the agency possessed jurisdiction over the matter and whether its order was made in accordance with proper legal procedure, was based upon substantial evidence, and did not violate any constitutional, statutory, or legal principle.”
Clarkson v. Department of Insurance,
(1981) Ind.App., 425 N.E.2d 203, 206-07. Also, a reviewing court may not overturn the granting of a preliminary injunction unless the trial court abused its discretion.
Grothe v. Herschbach,
(1972) 153 Ind.App. 224, 286 N.E.2d 868. Under these rules, we stand in the position of reviewing a discretionary decision overturning a discretionary decision.
Essentially there are two points in dispute here: first, the trial court’s finding the Controller erred in determining the requisite emergency existed which mandated the suspension; second, the trial court’s finding it was error for the Controller to suspend the license prior to a hearing. The City claims the trial court erred on both points. We agree.
The Consolidated City of Indianapolis Marion County In., Code § 17-49(b) (1975) provides the Controller may suspend a secondhand goods dealer license without a hearing when the licensee is charged with “an offense involving his fitness to hold a
license and an emergency exists .... ”
At the hearing held by the trial court, the Controller testified he believed an emergency existed because Tabak was charged with crime, and it was his duty to protect the public from Tabak’s illegal activities. The Controller did not abuse his discretion by finding an emergency existed under these facts. His findings and action were authorized by the Code.
The trial court also held it was a deprivation of Tabak’s constitutional right to due process not to hold a hearing prior to the suspension of the license. We disagree.
The law of due process is governed by broad guidelines. Generally, the requirements of due process mandate the consideration of two factors. First, there must be the deprivation of a constitutionally protected property or liberty interest. Second, a determination must be made of what process or procedural safeguards are then required.
Logan v. Zimmerman Brush Co.,
(1982) 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265;
Board of Regents v. Roth,
(1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. It is clear here Tabak had a protected property interest in his license and the City does not argue otherwise.
See
Barry v. Barchi,
(1979) 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365;
Memphis Light, Gas and Water Division v. Craft,
(1978) 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30;
Mathews v. Eldridge,
(1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18;
Bell v. Burson,
(1971) 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90.
Since there is a protected property interest in issue here, we must next determine what process is required to protect that interest. The three factors to be weighed when determining the process required were established by the United States Supreme Court in
Mathews v. Eldridge,
(1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id.
at 335, 96 S.Ct. at 903.
See also Wilson v. Review Board,
(1979) Ind., 385 N.E.2d 438
cert. denied
444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101;
Berzins v. Review Board,
(1981) Ind.App., 427 N.E.2d 1121;
Sandlin v. Review Board,
(1980) Ind.App., 406 N.E.2d 328.
In some of its recent decisions, the United States Supreme Court has addressed the necessity of a hearing and when it should occur. In
Memphis Light, Gas and Water Division v. Craft,
(1978) 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30, the Court held, “Ordinarily, due process of law requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.”
Id.
at 19, 98 S.Ct. at 1565. Furthermore, in
Parratt v. Taylor,
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CONOVER, Judge.
The City of Indianapolis, its agents, and Fred L. Armstrong, City Controller (City) appeal the trial court’s granting of a preliminary injunction restraining the suspension of Joseph Tabak’s secondhand goods dealer license.
We reverse.
ISSUE
Because we reverse, we need only address one issue:
Did the trial court err when it restrained the suspension of Tabak’s secondhand goods dealer license?
FACTS
On December 18,1981, Tabak was arrested for attempting to receive stolen property, conspiracy to receive stolen property, failure to keep card records for police and unlawful purchases. Upon learning of this, the City Controller revoked Tabak’s secondhand goods dealer license on December 30, 1981. Tabak’s attorney wrote a letter to the controller on December 31st requesting a hearing on the matter. On January 6, 1982, Tabak’s attorney requested the Controller stay the suspension pending review. Apparently there was no response from the Controller.
On January 7, 1982, Tabak filed a complaint in the Marion Superior Court requesting a temporary restraining order against the suspension of the license. It was granted. After a hearing by the court, findings were entered on January 21st, a preliminary injunction granted until a hearing could be held according to the City Ordinance provisions for review on the merits of the suspension. From that decision, this appeal was perfected.
DISCUSSION AND DECISION
It is well settled in Indiana that when reviewing an administrative decision “judicial review shall be limited to a determination of whether the agency possessed jurisdiction over the matter and whether its order was made in accordance with proper legal procedure, was based upon substantial evidence, and did not violate any constitutional, statutory, or legal principle.”
Clarkson v. Department of Insurance,
(1981) Ind.App., 425 N.E.2d 203, 206-07. Also, a reviewing court may not overturn the granting of a preliminary injunction unless the trial court abused its discretion.
Grothe v. Herschbach,
(1972) 153 Ind.App. 224, 286 N.E.2d 868. Under these rules, we stand in the position of reviewing a discretionary decision overturning a discretionary decision.
Essentially there are two points in dispute here: first, the trial court’s finding the Controller erred in determining the requisite emergency existed which mandated the suspension; second, the trial court’s finding it was error for the Controller to suspend the license prior to a hearing. The City claims the trial court erred on both points. We agree.
The Consolidated City of Indianapolis Marion County In., Code § 17-49(b) (1975) provides the Controller may suspend a secondhand goods dealer license without a hearing when the licensee is charged with “an offense involving his fitness to hold a
license and an emergency exists .... ”
At the hearing held by the trial court, the Controller testified he believed an emergency existed because Tabak was charged with crime, and it was his duty to protect the public from Tabak’s illegal activities. The Controller did not abuse his discretion by finding an emergency existed under these facts. His findings and action were authorized by the Code.
The trial court also held it was a deprivation of Tabak’s constitutional right to due process not to hold a hearing prior to the suspension of the license. We disagree.
The law of due process is governed by broad guidelines. Generally, the requirements of due process mandate the consideration of two factors. First, there must be the deprivation of a constitutionally protected property or liberty interest. Second, a determination must be made of what process or procedural safeguards are then required.
Logan v. Zimmerman Brush Co.,
(1982) 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265;
Board of Regents v. Roth,
(1972) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. It is clear here Tabak had a protected property interest in his license and the City does not argue otherwise.
See
Barry v. Barchi,
(1979) 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365;
Memphis Light, Gas and Water Division v. Craft,
(1978) 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30;
Mathews v. Eldridge,
(1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18;
Bell v. Burson,
(1971) 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90.
Since there is a protected property interest in issue here, we must next determine what process is required to protect that interest. The three factors to be weighed when determining the process required were established by the United States Supreme Court in
Mathews v. Eldridge,
(1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id.
at 335, 96 S.Ct. at 903.
See also Wilson v. Review Board,
(1979) Ind., 385 N.E.2d 438
cert. denied
444 U.S. 874, 100 S.Ct. 155, 62 L.Ed.2d 101;
Berzins v. Review Board,
(1981) Ind.App., 427 N.E.2d 1121;
Sandlin v. Review Board,
(1980) Ind.App., 406 N.E.2d 328.
In some of its recent decisions, the United States Supreme Court has addressed the necessity of a hearing and when it should occur. In
Memphis Light, Gas and Water Division v. Craft,
(1978) 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30, the Court held, “Ordinarily, due process of law requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a significant property interest.”
Id.
at 19, 98 S.Ct. at 1565. Furthermore, in
Parratt v. Taylor,
(1981) 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, after summarizing several of its decisions which focused on the balancing of private and governmental interests discussed in
El-dridge,
the Court stated:
These cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, satisfy the requirements of procedural due process.
Id.
at 539, 101 S.Ct. at 1915 (footnote omitted). Therefore, “the Court’s decisions suggest that, absent the necessity of quick action by the State or the impracticality of providing any predeprivation process, a post deprivation hearing here would be constitutionally inadequate.”
Logan v. Zimmerman Brush Co.,
(1982) 455 U.S. 422, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265.
In
Barry v. Barchi,
(1979) 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365, the Court emphasized the risk of erroneous deprivation. In that case, a horse trainer’s New York license was suspended without a prior hearing when a post-race test revealed the presence of drugs in his horse. The court held a prompt post-suspension hearing was a sufficient protection of due process. The “post termination hearing [was] permitted where the decision to terminate- was based on a reliable pre termination finding.”
Logan
102 S.Ct. at 1158 discussing the
Barry
decision.
The private and governmental interests at stake in
Barry
are similar to those here. In both cases, the licensee loses an opportunity to make a living and the government is seeking to protect its citizens from illegal activity. The question then becomes whether the probable cause giving rise to the indictments against Tabak is a “reliable pre termination finding” as in
Barry.
In
Bell v. Burson,
(1971) 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, the Supreme Court held a driver’s license could be suspended under a Georgia law prior to a hearing only when there was a “reasonable possibility” that an accident victim could obtain a judgment against the driver. Other cases have permitted the suspension of a license without a hearing when the licensee previously has been convicted of some offense which is relevant to the licensed activity.
See, e.g., Dixon v. Love,
(1977) 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172. These cases are not clearly determinative of
the present situation, however. Here, Ta-bak is not being sued in a private action. His alleged actions were criminal in nature. Furthermore, he only has been charged with certain illegal actions — not convicted.
A more analogous situation was presented in
Feinberg v. Federal Deposit Insurance Corp.
(D.D.C.1976) 420 F.Supp. 109. In that case, a bank president was indicted for mail fraud. The F.D.I.C. issued a Notice and Order of Suspension suspending Feinberg from his positions of president and director and prohibiting him from voting his stock in the bank or participating in its affairs. Feinberg requested and was denied a hearing. As to the question of when the hearing must be held, the court stated:
Balancing the effect of the deprivation upon the individual with the governmental-public interest to be served, it appears that the minimal process constitutionally permissible under the circumstances would be an immediate post-suspension hearing.
Id.
at 120.
We find these cases persuasive because Tabak’s alleged conduct involved “his fitness to hold a license,” the Controller “may” suspend the license, and the purpose of the code section is to protect the public. Here, too, a hearing was required to determine whether these charges did involve Tabak’s fitness and whether the statutory purpose was satisfied by the suspension.
Under the Indianapolis Code Tabak had the right to a hearing with the Controller within 10 days of the suspension.
Beyond that he had a right to a review of the Controller’s decision by the review board, also within 10 days.
This is a sufficiently prompt post-suspension hearing to protect his due process rights.
The trial court abused its discretion in granting the preliminary injunction. Judgment is reversed and remanded for further proceedings consistent with this opinion.
YOUNG, P.J., and MILLER, J., concur.