Fort Dodge Security Police, Inc. v. Iowa Department of Revenue

414 N.W.2d 666, 1987 Iowa App. LEXIS 1717
CourtCourt of Appeals of Iowa
DecidedAugust 26, 1987
DocketNo. 86-659
StatusPublished
Cited by1 cases

This text of 414 N.W.2d 666 (Fort Dodge Security Police, Inc. v. Iowa Department of Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fort Dodge Security Police, Inc. v. Iowa Department of Revenue, 414 N.W.2d 666, 1987 Iowa App. LEXIS 1717 (iowactapp 1987).

Opinion

SACKETT, Judge.

Petitioners Fort Dodge Security Police, Inc., Ted Anderson and Robert Ulstad appeal from a district court decision dismissing their petition for judicial review of the Department of Revenue’s revocation of the gambling license of Mid-Iowa Detachment Marine Corps. We affirm the decision of the district court.

Mid-Iowa was the holder of a bingo license. Anderson and Fort Dodge Security were the operators of the bingo games for Mid-Iowa. Ulstad is owner of the property where the bingo games were conducted. Mid-Iowa is not a party to this appeal. On June 17, 1985, the department issued to Mid-Iowa notice of a hearing August 5, 1985, “to appear and show cause” why Mid-Iowa’s gambling license should not be revoked for violations of bingo statutes and department rules. The notice stated in relevant part:

No gambling license may be issued for a location where a gambling license has been revoked within the last two years (Iowa Code Section 99B.2(1) and Rule 730-91.6, IAC).
Persons (other than licensee) owning an interest in the gambling location may petition to intervene in this matter.

Petitioners also received a copy of the notice to Mid-Iowa and notice of the revocation hearing which stated in relevant part:

Be advised that, if this license is revoked, no gambling license may be issued for this licensee’s location for a period of two years.

On July 19, 1985, Mid-Iowa filed an affidavit indicating a willingness to surrender the license in lieu of a revocation hearing. No action was taken on the affidavit. Thereafter the department held the hearing at which Jack Hebert, commandant of the licensee, and Everett Brown, adjunct paymaster of the licensee, testified. Petitioners neither petitioned to intervene in the hearing nor made any appearance at the hearing.

On August 23, 1985, the department issued an order revoking Mid-Iowa’s gambling license for two years. The order stated it would become the final order of the department unless appealed before September 10, 1985. The order was mailed to Mid-Iowa but not to petitioners since they had not intervened in the action. On October 31, 1985, after the deadline for appealing the proposed order, petitioners filed a notice of appeal to the department director. On November 6, 1985, the department director denied petitioners’ appeal (1) as untimely and (2) because petitioners’ lacked standing to appeal because they had not intervened and were not parties to the revocation proceedings.

[668]*668On November 14,1985, petitioners filed a petition for judicial review in district court contending (1) there was insufficient evidence to support the department’s decision, (2) the department’s decision was arbitrary and capricious because the licensee was willing to voluntarily surrender its license, (3) the statute governing revocation of gambling licenses, Iowa Code 99B.14 (1985), is unconstitutional and (4) Iowa Code § 99B.2(1) (1985), placing a two-year ban on conducting gambling at a specific location where a previous license for that location has been revoked, is unconstitutional.

The department moved to dismiss the petition as untimely. The district court sustained the motion to dismiss. This appeal followed.

I.

Our scope of review in'cases arising out of the Iowa Administrative Procedure Act is limited under Iowa Code § 17A.20 to the correction of errors of law. Boyd v. Iowa Department of Job Service, 377 N.W. 2d 1, 2 (Iowa App.1985). We review the decision of the district court, also rendered in an appellate capacity, and determine whether the district court applied the law correctly. Endicott v. Iowa Department of Job Service, 367 N.W.2d 300, 302 (Iowa App.1985). To make that determination this court must apply the standards of Iowa Code § 17A.19(8) (1985) to the agency action to determine whether this court’s conclusions are the same as those of the district court. Boyd, 377 N.W.2d at 2. Iowa Code § 17A.19(8)(f) (1985) provides in a contested case the court shall grant relief from an agency decision which is not supported by substantial evidence in the record made before the agency when that record is viewed as a whole. Myers v. Iowa Department of Job Service, 373 N.W.2d 507, 509 (Iowa App.1985). In making this determination we are limited to the record made by the hearing officer. Boyd, 377 N.W.2d at 2. We do not make an independent determination concerning the preponderance of the evidence. Budding v. Iowa Department of Job Service, 337 N.W.2d 219, 221 (Iowa App.1983).

II.

On appeal petitioners now contend (1) this case is not a “contested case” as to them, therefore the time limits governing judicial review of contested cases do not apply to them, and (2) the court erred in applying to them the time limits of appeals in contested cases because petitioners had never received notice of the start of the time period.

A. Judicial review of agency action is governed by the Iowa Administrative Procedure Act unless IAPA or another statute expressly provides otherwise. Iowa Department of Revenue v. Iowa State Board of Tax Review, 267 N.W.2d 675, 677 (Iowa 1978). This is shown in Iowa Code § 17A.1(2) (1987), which provides:

This chapter is meant to apply to ... all suits for the judicial review of agency action that are not specifically excluded from this chapter or some other portion by the express terms of another chapter.

In addition, Iowa Code § 17A.19 states:

Except as expressly provided otherwise by another statute referring to this Chapter by name, the judicial review provisions of this Chapter shall be the exclusive means by which a person or party who is aggrieved or adversely affected by agency action may seek judicial review of such agency action, (emphasis added).

The IAPA divides “agency action” into three categories: rulemaking, adjudication (referred to as a “contested case”) and “other agency action.” Allegre v. Iowa State Board of Regents, 349 N.W.2d 112, 114 (Iowa 1984). See Bonfield, The Definition of Formal Agency Adjudication under the Iowa Administrative Procedure Act, 63 Iowa L.Rev. 285, 286-87 (1977).

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414 N.W.2d 666, 1987 Iowa App. LEXIS 1717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-dodge-security-police-inc-v-iowa-department-of-revenue-iowactapp-1987.