from the Marion Superior Court, The Honorable Heather A.
Welch, Special Judge, Trial Court Cause No.
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.
OF THE CASE
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
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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
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
(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.
21st Amendment now appeals. Additional facts will