State ex rel. Ale House, Inc. v. Rueger

406 N.E.2d 292, 76 Ind. Dec. 671, 1980 Ind. App. LEXIS 1534
CourtIndiana Court of Appeals
DecidedJune 23, 1980
DocketNo. 1-180A15
StatusPublished
Cited by3 cases

This text of 406 N.E.2d 292 (State ex rel. Ale House, Inc. v. Rueger) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Ale House, Inc. v. Rueger, 406 N.E.2d 292, 76 Ind. Dec. 671, 1980 Ind. App. LEXIS 1534 (Ind. Ct. App. 1980).

Opinion

ROBERTSON, Presiding Judge.

Ale House, Inc. has appealed the decision of the trial court, which affirmed the action [293]*293of the Alcoholic Beverage Board of Vander-burgh County (Local Board) and the Indiana Alcoholic Beverage Commission (ABC). The Local Board’s action denied Ale House the transfer of a three way permit. Ale House has alleged twenty nine errors on appeal, some of which ask us to declare parts of the alcoholic beverage law unconstitutional and to also determine that they were denied equal protection and due process of law. We cannot reach the merits of these issues, however, because of our determination that the trial court was without jurisdiction to resolve the matter. Therefore, we dismiss Ale House’s appeal.

During the summer of 1977, Ale House entered into negotiations to purchase another piece of property in order to expand their liquor store business. Prior to the purchase, the feasibility of transferring their present license was discussed with the president of the Local Board, who was not on the Local Board when the final decision was made. At that time, the president saw no problems with the transfer. The matter came before the Local Board on November 21, 1977. During the intervening period, the Local Board received phone calls and letters from persons protesting the transfer. These remonstrators were not present at the November 21 hearing. Counsel for Ale House objected to the letters being placed in the record, as they were hearsay, and also objected to any continuance of the hearing. The Local Board determined that the hearing would be continued in the interest of fairness and to allow all interested parties the opportunity to be heard.

The hearing was eventually completed on December 19, 1977, when both Ale House and twenty to thirty remonstrators were present. Although the Local Board conceded that Ale House met all the legal requirements, they voted unanimously to deny the transfer on the basis that the liquor store would not add anything beneficial to the neighborhood. Prior to the decision, counsel for Ale House requested that three members of the Local Board disqualify themselves, as they were biased and prejudiced against Ale House and as a result, Ale House was not able to get a fair hearing. This request was denied.

Ale House subsequently sought review from the ABC, which was denied. They were informed that the ABC could not be of any assistance in the matter, because Ind. Code 7.1-3-19-11 states in essence that the ABC shall defer to the recommendations of a local board when a majority of its members have voted to deny a permit. Although this letter was dated January 9, 1978, it is agreed by both parties that the letter was not received by Ale House until late January, 1978. This action, captioned as a Complaint for Declaratory Judgment, was not filed until March 20, 1978.

The Attorney General alleges in his brief that this court should dismiss the appeal for lack of jurisdiction, citing Zehner v. Indiana State Alcoholic Beverage Commission, (1977) Ind.App., 364 N.E.2d 1037. Following a thorough review of the alcoholic beverage laws, Ind.Code Title 7.1, the Administrative Adjudication Act, Ind.Code 4-22-1-1 et seq., and case law interpreting the purposes, scope, and intent of the legislature in enacting this legislation, we are constrained to agree.

There can be no doubt that the legislature vested the ABC with wide powers to control the use, manufacture, sale and possession of alcoholic beverages. IC 7.1-1-1-1 declares that the purposes of the title (Title 7.1 Alcoholic Beverages) are “[t]o protect the economic welfare, health, peace and morals of the people of this state.” Similarly, the title is to be liberally construed to effectuate these purposes and is an exercise of the police powers of the state. IC 7.1-1-2-1.

The legislature also gave the ABC “absolute discretion” in the issuance, suspension, and revocation of permits of any type. IC 7.1-3-19-1. Because of the nature of the activity controlled, the legislature also provided that no court shall have jurisdiction “to compel the issuance of a retailer’s or dealer’s permit of any type, . . . IC 7.1-3-19-2. These sections do not, however, mean that judicial review of ABC action is unavailable. IC 7.1-3-23-8 makes [294]*294the Administrative Adjudication Act (AAA) applicable in certain instances. Likewise, the AAA is also made applicable to retail permits revoked or suspended for at least 60 days, IC 7.1-3-23-9, and for nonrenewal of a permit. IC 7.1-3-23-11. Section 11 continues, “[h]owever, this section shall not apply to a denial of a transfer of a permit to either another holder, or location, or both.” A later section in Title 7.1 states that a transfer of a permit is to be treated as a case of an original application. IC 7.1-3-24-3. Under these sets of provisions, it would appear that a denial of a transfer of a permit results in no judicial appeal by the aggrieved party since no procedure is found in Title 7.1. Because the ABC is an agency within the definition of the AAA, in resolving this question, reference must be made to the AAA provisions.

The intent of the legislature in enacting the AAA was to establish a uniform method of administrative action by all state agencies and to establish a uniform method of judicial review. IC 4-22-1-1. Quoting from Zehner, 364 N.E.2d at 1038, 1039, the definitional section of the AAA states in pertinent part:

The word ‘agency’ whenever used in this act [4-22-1-1 — 4-22-1-30] shall mean and include any officer, board, commission, department, division, bureau or committee of the state of Indiana other than courts, the governor, military officers or military boards of the state, state colleges or universities supported in whole or part by state funds, benevolent, reformatory or penal institution [institutions], the industrial board, state board of tax commissioners and the public service commission of Indiana: .
‘Administrative Adjudication’ means the administrative investigation, hearing and determination of any agency of issues or cases applicable to particular persons, excluding, however, . . . ; determinations by the Indiana alcoholic beverage commission other than determinations to which this act is specifically made applicable by any other law; . (Original emphasis).

The procedure for obtaining judicial review of an order or determination of any agency is found in IC 4-22-1-14. In pertinent part, that section requires a petition for review to be filed within fifteen (15) days after receipt of such order or determination by the agency. Unless this petition is timely filed, all rights of judicial review and all rights of recourse to the courts shall terminate. The section further provides that within fifteen (15) days after filing the required petition, a certified copy of the transcript of the proceedings shall be obtained from the agency and filed with the clerk of the court. An extension of time to file is allowed for good cause, and the inability to obtain the transcript is good cause.

The above mentioned rules and procedures create a virtual labyrinth in which even the most careful party can become trapped. The ABC is a curious creation, in that it is an agency within the meaning of the AAA, but its administrative adjudications are specifically excluded from the same act unless the ABC expressly adopts the AAA provisions. In

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Bluebook (online)
406 N.E.2d 292, 76 Ind. Dec. 671, 1980 Ind. App. LEXIS 1534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ale-house-inc-v-rueger-indctapp-1980.