Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Inc. v. Indiana Alcohol & Tobacco Commission

Court of Appeals of Indiana

September 27, 2017

21st Amendment, Inc., Appellant-Petitioner,
v.
Indiana Alcohol & Tobacco Commission, Appellee-Respondent.

         Appeal from the Marion Superior Court, The Honorable Heather A. Welch, Special Judge, Trial Court Cause No. 49D01-1606-PL-20999

          ATTORNEYS FOR APPELLANT Michael A. Wukmer Derek R. Molter Robert A. Jorczak Ice Miller, LLP Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Patricia C. McMath Aaron T. Craft Deputy Attorneys General Indianapolis, Indiana.

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Petitioner, 21st Amendment, Inc. (21st Amendment), appeals the trial court's Order granting a motion to dismiss filed by Appellee-Respondent, the Indiana Alcohol & Tobacco Commission (Commission).[1]

         [¶2] We affirm.

         ISSUE

         [¶3] 21st Amendment raises one issue on appeal, which we restate as: Whether the trial court properly dismissed 21st Amendment's petition for judicial review of an administrative decision by the Commission on the basis that 21stAmendment lacks standing.

         FACTS AND PROCEDURAL HISTORY

         [¶4] LD Ventures, Inc. d/b/a Grapevine Cottage (Grapevine Cottage) holds a Type 115 grocery store alcoholic beverage permit, which allows it to sell beer and wine as a "specialty or gourmet food store" in Fishers, Hamilton County, Indiana. (Appellant's App. Vol. II, p. 36). After Grapevine Cottage filed applications with the Commission to renew and transfer the location of its permit, on March 8, 2016, the Hamilton County Local Alcoholic Beverage Board (Local Board) conducted a hearing. 21st Amendment, a permittee authorized to sell alcoholic beverages in Hamilton County and thus a competitor of Grapevine Cottage, appeared at the hearing as a remonstrator. 21st Amendment argued that Grapevine Cottage is ineligible for a Type 115 grocery store alcoholic beverage permit because it does not primarily engage in the sale of specialty foods as statutorily required. Rather, 21st Amendment presented evidence that the bulk of Grapevine Cottage's revenue is derived from alcohol sales. After the hearing, the Local Board voted to approve Grapevine Cottage's applications for renewal and transfer over 21st Amendment's remonstrance. On March 15, 2016, the Commission affirmed the Local Board's decision.

         [¶5] On April 5, 2016, 21st Amendment filed an Objection, Petition for Intervention, and Request for Appeal Hearing with the Commission. 21st Amendment sought to intervene on grounds that it would be "personally aggrieved or adversely affected if the permit is granted" because the value of its own Type 217 package store alcoholic beverage permit would be diluted. (Appellant's App. Vol. II, p. 36). Moreover, 21st Amendment asserted that it "has a statutory right to bring an action to abate the sale of alcohol . . . which constitutes a nuisance." (Appellant's App. Vol. II, p. 37). On May 13, 2016, the Commission denied 21st Amendment's petition to intervene, thereby denying 21st Amendment the right to administratively appeal the renewal and location transfer of Grapevine Cottage's Type 115 grocery store alcoholic beverage permit.

         [¶6] On June 13, 2016, 21st Amendment filed a Verified Petition for Judicial Review pursuant to the Administrative Orders and Procedures Act (AOPA). 21stAmendment contended that it had standing to contest the Commission's decision because it is "directly impacted and aggrieved or adversely affected by the agency's actions, " and because it is "a permittee with a statutory right to abate a nuisance." (Appellant's App. Vol. II, p. 18). On August 22, 2016, the Commission filed a Motion to Dismiss 21st Amendment's petition for judicial review pursuant to Indiana Trial Rule 12(B)(6). The Commission argued that 21st Amendment is barred from seeking judicial review of its decision under Indiana law. Alternatively, even if not barred by law, the Commission asserted that 21st Amendment lacked standing to seek judicial review. On September 6, 2016, 21st Amendment filed a response opposing the Commission's Motion to Dismiss, and on October 4, 2016, the Commission filed a response in opposition to 21st Amendment's opposition.

         [¶7] On October 24, 2016, the trial court heard arguments, and on November 22, 2016, the trial court issued an Order granting the Commission's motion to dismiss. The trial court found that

21st Amendment cannot seek to abate a public nuisance on petition for judicial review. . . . Abating a public nuisance is not a petition for judicial review. Rather, it is a separate cause of action that allows several individuals, including [an alcoholic beverage] permittee, to enjoin an act, practice, or manner of conducting business by a permittee or by a non-permittee that is contrary [to] a rule or regulation of the [Commission] or the [a]lcohol and [t]obacco statutes provided in the Indiana Code.

(Appellant's App. Vol. II, p. 13). Accordingly, the trial court determined that 21st Amendment lacked standing to proceed on a petition for judicial review. However, because "21st Amendment may still pursue its abatement of public nuisance claim, " the trial court accorded thirty days for 21st Amendment to file an amended complaint.

         [¶8] 21st Amendment now appeals. Additional facts will ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.