*1 specifically Katner examined Although ENTERPRISES, INC., LEBAMOFF regarding con- provision
the forfeiture substances, Appellant-Petitioner, it noted that the rela- trolled tionship prerequisites two factual between “the con- necessary for vehicle forfeiture is INDIANA ALCOHOL & TOBACCO
nection between a vehicle’s use and COMMISSION, Appellee- for which it is used.” Id. at purpose Respondent. analysis applies' the nexus We believe provision regarding the forfeiture stolen or No. 49A02-1210-MI-826. property. converted Appeals Court of of Indiana. acknowledge Supreme the Indiana the owner of a Court’s statements charged need not be or convicted vehicle Rehearing May Denied underlying offense for forfeiture to on the State, occur. See Serrano v. (Ind.2011); Katner,
1139, 1140 Indeed, person’s
N.E.2d at 348. vehicle if it
may be forfeited even was another
person transport who used the vehicle to property, long
stolen so as the owner of
the vehicle knew or had reason to know being the vehicle was used in that Nevertheless,
illicit manner. we find that underlying actually
where the offense is,
charged (knowingly fraud or
intentionally selling recording for com-
mercial gain personal gain or financial conspicuously display
that does not
true name and address of manufac- recording)
turer of the and not theft intentionally
(knowingly exerting or unau- person’s
thorized control over another
property deprive per- with intent to use) part
son of its value or or intentionally (knowingly
conversion or ex-
erting unauthorized control over another
person’s property), predicate there is no
for forfeiture. original disposi-
We therefore affirm our
tion.
ROBB, C.J., KIRSCH, J., concur. *2 General, IN,
ney Indianapolis, Attorneys Appellee. for OPINION ROBB, Judge. Chief Summary and Issues Case (“Leba- Enterprises, Lebamoff Inc. moff’), appeals the trial court’s dismissal judicial of its for review. Leba- for moff raises three restated issues our 1) review: whether the trial court erred in dismissing Lebamoff s for failure timely in fash- to file 2) ion; whether, excluding rec- ord, Lebamoff submitted sufficient materi- 3) review; judicial whether als deficiencies the administrative law (“ALJ”) judge’s findings require Concluding that the case be remanded. Lebamoff did fail to original but that the sub- mission contained sufficient material to en- able we reverse and re- mand. History
Facts and Procedural corporation Lebamoff is Indiana operates liquor stores northern Indiana liquor permit, scope and holds a dealer of which is detailed at Indiana Code sec- tion 7.1-3-10-7. Beginning Indiana Alcohol and Tobacco Commission (“ATC”) issued six citations to Lebamoff alleging permit, stemming violations of its from Lebamoff s use of common carriers to transport product to customers for sales generated through companies. fulfillment appealed the citations. Fol- lowing hearing November findings ALJ issued of fact and conclusions 18, 2012, January concluding of law on Price, Matthew M. D. Lan- Shannon by using Lebamoff had violated the statute dreth, Doll, LLP, Bingham Greenbaum In- common carriers. The ALJ recommended IN, dianapolis, Attorneys Appellant. that Lebamoff be fined one thousand dol- Zoeller, Attorney F. lars for each violation and that Lebamoff s Gregory General Indiana, Rogers, Deputy suspended sixty days, Elizabeth Attor- year one suspension original to be deferred for to the court the copy or a certified that all fines were paid on the condition record for review of Lebamoff did not accrue further the agency action....” 4-21.5- during period. 5-13(a). violations deferral The A petitioner can ex *3 approved ATC recommendations and tension of time in which agency to file the 7, February final issued its order record, but that must be made window, thirty within the initial day 29, 2012, February a On Lebamoff filed pro nunc tunc extensions are not allowed. review, for petition appealing the Family Ind. & Soc. Mey Servs. Admin. v. 28, 2012, final On ATC’s order. March er, (Ind.2010). 367, 370-71 answer, 10, its ATC filed and on provides The AOPA further that exten a the ATC filed motion to dismiss for sions of time shall be granted good where May failure to file an record. On shown, cause is “[ijnability that an 17, 2012, Lebamoff and filed received obtain the 29, 2012, responsible record from the certified record. On June agency within the permitted by the trial court held a hearing on the mo- this 20, 2012, good § tion On section is September to dismiss. cause.” 4- Ind.Code 21.5-5-13(b). granted that, the trial court the ATC’s motion The ATC concedes had appeal to dismiss. This followed. time, Addi- Lebamoff for filed an extension of facts will be provided necessary. tional as it, the court would granted have because the agency record was not made available
Discussion and Decision
nearly
to Lebamoff until
three months af
I. Standard of Review
petition
ter Lebamoffs
was filed.
Judicial review of administrative deci
governed by
sions is
the Administrative
However, no extension of time was
(“AOPA”).
Orders and Procedures Act
granted by the court because Lebamoff
§
4-21.5-2-0.1. The standard of
officially requested
never
one. Lebamoff
appellate review for motions to dismiss
contends that while it did not file a motion
depends on whether
the trial court re
time,
for extension of
it followed the spirit
facts,
so,
disputed
solved
and if
whether
by including
of the statute
petition
its
a
there
evidentiary hearing. Wayne
was an
would,
statement
that
it
to comply with
Cnty. Prop. Tax
Ap
Assessment Bd. of
4-21.5-5-13,
Indiana Code section
trans
peals v.
Ancient
United
Order Druids-
mit the
thirty days
record within
No.
Grove
having
after
received notification that the
2006). Where,
as
the trial court
prepared
had
ATC
the record. Lebamoff
paper
ruled on a
we review the
object
notes that the
did not
ATC
to this
motion to dismiss de novo. Id.
proposal in its answer.
argues
Agency
II. Submission of
Record
that
its inclusion of
proposal
within
petition,
rather
than as a separate
The issue here revolves around Le-
motion,
to,
advances
efficiency by ob
thirty days
bamoffs failure
within
viating the need to file
filing
serial extensions of
petition
its
either file the
waiting
time while
for the
agency record or file a
record to be
motion
exten
prepared, and
sion of time in which to file the
therefore
dismissal of
record.
that
“[wjithin
requires
The AOPA
raises form above function.
(30) days
argues
after the
or Lebamoff further
there
ais
within further time allowed
the court or
“clear
intent
for automatic extensions
law,
petitioner
shall
transmit when a
does not even have the
exten-
requesting
argument
s
Reply Brief moff
to file.”
administrative
wasteful,
when
here could be seen
sion
at 5.
Appellant
proposed
timeline was
a submission
inten
legislature’s
disagree
and when
extensions.
automatic
tion was to
cause
granted
have been
would
provides
the statute
language
The clear
delay
preparing
on the ATC’s
based
by the
extension must
that an
view,
However,
larger
a
taking
record.1
for a
in order
or other law
court
re-
simply
is to
more efficient tactic
record more than
to transmit
Doing
an extension.
so
quest
Ind.
petition.
thirty days after
parties
all
as to
legislature
Had
for the court and
4-21.5-5-13.
extensions
automatic
what has been
grant
requested,
intended to
been
what has
*4
delayed
preparing
in
the
has
where
have been set.
and what deadlines
granted,
record,
have transmission
or to
the
including
a
Lebamoffs scheme
Under
based on the date
record be due
filing
than
petition,
in the
rather
proposal
agency, rather
prepared by the
record was
extension,
parties
court and
an
the
petition, it could
filing date of the
than the
through
petition
the entire
and
must read
Ind. Tax Court Rule
have done so. See
an extension
filings to see whether
other
3(E)
(allowing transmission
then look to see
“requested,”
has been
thirty days
after
record within
objected
has
to it
party
whether the other
that the record has been
receives notice
not, then to
way,
in
and if it has
some
Emp. Ret.
see also Ind. Pub.
prepared);
an indefinite ex-
apparently assume that
(Ind.
N.E.2d
377
Bryson,
Fund v.
977
by the court.
“granted”
has been
tension
(“Where
language of the
Ct.App.2012)
require
neither efficient nor fair to
It is
unambiguous, there is
is clear and
statute
through
to sift
parties
the court and other
construe.”),
reh’g,
983
nothing to
aff'd
at
filings
guess
other
and
and
Requiring
172 (Ind.Ct.App.2012).
N.E.2d
substituting for various
they might
how
be
granted
request
a
to
Lebamoff did
requests and motions.
to
leaves it in the court’s hand
extension
within
not file the
cause has been
determine whether
it
an extension of
days, nor did
shown.
acceptable
Failure to do so was an
time.
efficiency,
agree
we
As for
of the case. See Ind.
basis for dismissal
general-
minimizing superfluous motions is
4-21.5-5-13(b).
§
However,
agree
we do not
ly desirable.
unimpressed
are
note here that we
in
filing
for an extension
this case
delay in
preparing
with the ATC’s
inefficient.
necessarily
would
have been
by a motion to dismiss the
followed
fact,
light
proceedings
In
in
failure to
case for Lebamoffs
could have been
have ensued—which
acknowledges
record. The ATC
that same
for an exten-
avoided if Lebamoff had filed
proposed
a
time-
that Lebamoff included
is true.
opposite
sion—it seems that
in
and both
line for submission
narrowly, we understand Leba-
Viewed
just
petitioners to do
what
part
Wayne
allows
tax court
Lebamoff's
cites to
proposition
Cnty.,
for the
4-
here.
Lebamoff tried to do
create additional work
21.5-5-13(a);
that serial extensions
Wayne Cnty., 847 N.E.2d at
However,
parties.
and cost for the court and
power to
It was not within Lebamoff's
Indiana Tax Court Rule
that case involved
case, which was not
apply that rule to its
3(E),
by
...
which fell under the "allowed
before the tax court.
AOPA,
exception
other law”
within the
even without a timely
that Lebamoff would have
forward
record be
parties
filing
ing
way perhaps
filed. One
an extension for
would be to
been
accept
It
a belated record even where
requested.
if
had been
one
unnecessary
granted.
for the ATC official extension has not been
In
seems harsh and
way,
procedural requirement
appeals,
use a
our own court of
briefs and rec
only
play
came into
ords are
late
accepted
when the deadline
sometimes
even
delay
preparing
extension,
express grant
because of the ATC’s
without an
be
While,
above,
outlined
the record.
filing
cause the
of briefs and records is not
plays
filing
of a
jurisdictional, unlike the
of a
filing
notice
larger
role in the
context and
valuable
appeal. Additionally,
“Indiana law
statute,
moreover is
strongly prefers disposition of cases on
hardly being
delay
was
harmed
ATC
their merits.”
Coslett Weddle Bros.
where the
itself
the record
ATC
Co., Inc.,
Constr.
delay.
of that
We believe 2003).
was
cause
in appeals
As with records filed
file an exten
the onus was on Lebamoff to
supreme
our
our
court has held that
sion, but the actions of the ATC here are
of the record in an administrative
sup
to lend
begin
of the sort that would
jurisdictional.
review case is not
Wayne
to concerns that the AOPA could in
port
Cnty.,
Servs., (Ind.Ct.App. 735 may proceed whether a trial court with a 2009), trans. denied. agency case where the record was not Sufficiency Original Submission III. filed, timely but the submitted materials the fact that dismissal was contained sufficient facts on which a deter- Despite Meyer, to time mination possible due to Lebamoff s failure could made.2 927 N.E.2d ly file the record or an extension 367. Indiana Code section 4-21.5- 5-13(a) time, novo, our review is de and dismiss overview of docu- mandatory. types was not See Reedus v. Ind. ment that should be included in the al Dev., 481, agency record that the files with Dep’t of Workforce (concluding reviewing including “any that in the (Ind.Ct.App.2009) 487 drafting legislature AOPA the intend material” described in that article for the “empower, require, type ed to but not a trial of action at issue. Indiana Code sec- appeal” peti specif- to when a tion 4-21.5-3-33 details some of the court dismiss strictly ic comply tioner failed to documents of which the 4-21.5-5-13) (empha generally, section should consist. While submit- Indiana Code original). may ting only If extensions of time selected documents is insufficient sis if within the with the requested comply requirements not be not window, AOPA, in the thirty-day pro acknowledged past initial and nunc we have allowed, than providing extensions are not but dis less all listed tunc required may where a documents nonetheless be sufficient missal is not review, depending on the timely par- fails to file the record or an for extension, likely Meyer, ticular case at hand. See then there must be some— cases). (citing in which a case can move N.E.2d at 371 ways limited — evenly split participate did not in the on the outcome of this issue. 2. Justice Sullivan decision, remaining justices and the four were argues issue was a The ATC that Lebamoffs Meyer, appealed In the valu- revolving around question submission was insufficient without case, In that property. ation of some points nothing but to error in its answer. agency admitted required record that would be for review. participating justices Two of the deter- The transcripts ATC mentions ALJ that, light agency’s mined admis- hearing copies police excise cita sion, the submitted documents were suffi- tions, but does not indicate how these doc without the full cient for review even uments would have aided review The other two agency record. Id. at 372. a question of law. We disagreed, arguing participating justices practice timely best is to file the entire required judi- record is that an regardless of the nature of review, holding cial and that otherwise However, here, the case. the record sim over whether would lead to future contests ply necessary was not and the “complete enough” a submitted record is submitted materials are sufficient to per Further, for review. Id. at 374. the dis- mit review of the case on the merits. Fail agreeing justices partic- noted that ure to file the record is “cause for case, case, ular if the court dismissed dismissal” under Indiana Code section 4- the case would nonetheless be reviewed 21.5-5-13, but cause for dismissal does not county a Medicare office and thus that the dismissed, mean that the case must be petitioner would “receive all the further where, especially the record was to which the says consideration Court she reason, not for a ruling. For that is entitled.” Id. It is not clear to what we reverse and remand the case for reso extent that fact influenced the decision of lution on the merits. disagreeing justices, they and whether differently would have held had their deci- *6 sion been the end of the line for that Findings IV. ALJ’s of Fact
petitioner.
finally
argues that the dearth
This case is somewhat different from
findings
of facts
the ALJ’s
of fact and
Meyer,
question
at issue here—
conclusions of law render
the order so
whether Lebamoffs use of common carri-
deficient that this case should be remand
complies
requirements
ers
with the
of the
ed back to the
ATC address those defi
pure question
statute —is a
of law. To the
ciencies.
Were this a case that
extent that
necessary, they
facts were
resolution,
likely
facts
its
we would
sparse findings
were included
the
Lebamoff,
inclined to
as defi
ALJ,
by
and conclusions of law written
cient
of
findings
fact can render the matter
by
which were submitted
Lebamoff with
court,
by
unreviewable
and the ALJ’s
petition;
example,
findings
findings
severely
here were
limited. See
fact noted that Lebamoff
liquor
held a
Admin.,
Pack v.
Family
Ind.
& Soc. Servs.
permit,
statutory
and the
section under
1227-28 (Ind.Ct.App.2010)
which that
was held. Because the
reh’g,
Conclusion Id. dismissal. did not meet Concluding that Lebamoff of the AOPA with timing requirements The mandates of the Administrative Or- record, but by Procedures Act as
regard adopted ders and peti- Assembly submitted with the Ap- that the materials our General are clear. The review of judicial pellant simply were sufficient for failed to follow them. It tion issue, we reverse of law at file the record within the question failed to Act, resolu- to the trial court for period and remand set forth in the and it on the merits. tion of the issue to seek an extension of that time. failed dismissal, That was cause for failure remanded. Reversed and I accordingly, would affirm the trial court’s dismissal. J., VAIDIK, concurs.
KIRSCH, J., opinion. dissents with
KIRSCH, Judge, dissenting. respectfully
I dissent. Proce-
The Administrative Orders and adopted by our General As-
dures Act as sembly is the exclusive means for NATURAL RESOURCES DEFENSE review of an administrative action. Ind. COUNCIL, Appellant- § 4-21.5-5-1. It Respondent, (30) days after the Within or within further time POET BIOREFINING-NORTH MAN law, the court or
allowed CHESTER, LLC, Biorefining- Poet shall transmit to the court Cloverdale, LLC, Indiana Eth Central or a original copy certified anol, Inc., Department and Indiana record for review of the Management, Appel Environmental agency action. lees-Petitioners, 4-21.5-5-13(a) (emphasis add- ed). Bluffton, LLC, Green Plains *7 In the event Clymers Ethanol, LLC, Ap Anderson thirty- cannot be filed within the allotted pellees-Intervenors. day period, the Act No. 49A02-1205-MI-423. extension time in which to file the “[a]n granted by record shall be the court for Appeals of Indiana. Court good 4-21.5-5- cause shown.” Ind.Code 13(a) added). in- (emphasis Specifically “good cluded within cause” sufficient to Rehearing August Denied an extension of time is the “[i secure Ina-
bility respon- to obtain the record from permitted by
sible within the time cause.” Id.
this section is
Finally, the Act states that failure permitted by
the record within the time subsection, pe- including