Court split over whether petition for review should be dismissed

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.