ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Thomas W. Blessing Steve Carter
Sonia S. Chen Attorney General of Indiana
Indianapolis, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE
Kathleen G. Lucas
George T. Patton, Jr.
Bryan H. Babb
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S02-0504-CV-137
INDIANA ASSOCIATION OF BEVERAGE
RETAILERS, INC.,
Appellant (Petitioner below),
v.
INDIANA ALCOHOL AND TOBACCO
COMMISSION; THORNTON OIL CORPORATION;
AND MARION COUNTY ALLIANCE OF
NEIGHBORHOOD ASSOCIATIONS,
Appellees (Respondents below).
_________________________________
Appeal from the Marion County Superior Court, No. 49D01-0303-PL-000427
The Honorable Steven H. Frank, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0307-CV-634
_________________________________
October 27, 2005
Boehm, Justice.
The Administrative Orders and Procedures Act sets forth the standing requirements for a
person seeking judicial review of an agency’s action. Because the Indiana Association of Bever-
age Retailers was not a party to the administrative proceedings before the Indiana Alcohol and
Tobacco Commission, the Association did not have standing to seek judicial review of the
agency’s action.
Factual and Procedural Background
Thornton Oil Corporation operates convenience stores that also sell gasoline. In January
2001 Thornton filed an application for a Type 115 beer and wine permit for its Lawrence, Indi-
ana store. After investigation and review, the Marion County Local Board held a hearing on the
application. Two retailers who were members of the Indiana Association of Beverage Retailers
(IABR), appeared at the hearing and opposed the application, arguing “lack of desire or need”
for the permit and also that Thornton was not a “grocery store,” and therefore was not eligible for
a permit under Indiana Code section 7.1-3-5-2(a). The Marion County Alliance of Neighbor-
hood Associations (MCANA) also appeared at the hearing opposing the application. At the con-
clusion of the hearing, the Local Board voted 2-1 to deny Thornton’s application on the ground
that Thornton was not a “grocery store.” The Indiana Alcohol and Tobacco Commission (ATC)
initially adopted the Local Board’s recommendation.
Thornton sought administrative review before the ATC and a Hearing Judge was as-
signed to conduct an “appeal hearing.” IABR and MCANA appeared at the hearing and pre-
sented testimony opposing Thornton’s application. In December 2002 the Hearing Judge entered
findings of fact and conclusions of law, finding that the determination of the Local Board and the
ATC ruling adopting that determination were not based on substantial evidence, and concluding
that Thornton was a “grocery store” and should be issued a permit. The ATC subsequently ap-
proved the Hearing Judge’s findings and conclusions and issued a permit to Thornton.
IABR sought judicial review of ATC’s grant of a permit to Thornton. ATC moved to
dismiss, arguing that IABR lacked standing to seek judicial review of its order. The trial court
granted ATC’s motion, finding that neither IABR nor IABR’s members, as competitors of
2
Thornton, had standing to challenge the grant of an alcohol permit to Thornton. The Court of
Appeals reversed, holding that IABR was a party to the administrative proceedings and was
therefore entitled to seek judicial review. Ind. Ass’n of Beverage Retailers, Inc. v. Ind. Alcohol
& Tobacco Comm’n, 809 N.E.2d 374, 379 (Ind. Ct. App. 2004), reh’g denied, 2004 Ind. App.
LEXIS 1676 (Ind. Ct. App. Aug. 19, 2004). We granted transfer. Ind. Ass’n of Beverage Re-
tailers, Inc. v. Ind. Alcohol & Tobacco Comm’n, 831 N.E.2d 743 (Ind. 2005).
Standing for Judicial Review of Administrative Decisions
Judicial review is available only to those who have standing, who have exhausted admin-
istrative remedies, who have timely pursued review, and who have met any other requirements
established by law. Peabody Coal Co. v. Ind. Dep’t of Natural Res., 664 N.E.2d 1171, 1172 n.2
(Ind. 1996) (citing Ind. Code § 4-21.5-5-2(b)). IABR sought judicial review of the ATC’s order
pursuant to the Administrative Order and Procedures Act (AOPA), Indiana Code article 4-21.5
(2004). AOPA explicitly enumerates five categories of persons 1 who “have standing to obtain
judicial review of an agency action.” 2 I.C. § 4-21.5-5-3(a). With exceptions not relevant here,
these ultimately require that the person be “aggrieved or adversely affected” or be a subject of
the order or a party to the agency proceedings. IABR claims standing under section 5-3(a)(2) as
“a party to the agency proceedings.” AOPA defines a “party” to administrative proceedings as
“(1) a person to whom the agency action is specifically directed; or (2) a person expressly desig-
nated in the record of the proceeding as a party to the proceeding.” I.C. § 4-21.5-1-10. IABR
was plainly not a “person to whom the agency action [was] specifically directed.” However,
1
A “person” is broadly defined as “an individual, agency, political subdivision, partnership, corporation,
limited liability company, association, or other entity of any character.” I.C. § 4-21.5-1-11.
2
Section 5-3(a) of AOPA provides:
The following have standing to obtain judicial review of an agency action:
(1) A person to whom the agency action is specifically directed.
(2) A person who was a party to the agency proceedings that led to the agency action.
(3) A person eligible for standing under a law applicable to the agency action.
(4) A person otherwise aggrieved or adversely affected by the agency action.
(5) The department of local government finance with respect to judicial review of a
final determination of the Indiana board of tax review in an action in which the de-
partment has intervened under IC 6-1.1-15-5(b).
Under subsection 5-3(b)(2) the (a)(4) exception permits non-parties to seek review as “otherwise ag-
grieved or adversely affected” persons only if they were required to be given notice and were not, or they
were wrongfully denied intervention.
3
IABR contends that because it attended, remonstrated, and offered testimony at the administra-
tive hearings on Thornton’s permit, it was a “party” to those proceedings. We do not agree.
ATC Regulations define a “remonstrator” as “a person who appeared, personally or by
counsel, as a remonstrator against the application at the local board hearing and identified him-
self to the local board, stating his name and address or telephone number to the board at the hear-
ing.” 905 Ind. Alcoholic Beverage Comm’n (I.A.C.) § 1-36-2(a) (2001). IABR did appear be-
fore the Local Board and identified itself and therefore was a “remonstrator” at Thornton’s per-
mit application proceedings. However, as a “remonstrator,” IABR was not a designated “party
to the proceeding.” A remonstrator is entitled to “personal notice of [the ATC] action or written
notice of [the ATC] action by certified mail.” Id. at § 1-36-2(a). A remonstrator is also entitled
to notice of any appeal hearing. Id. at § 1-36-2(f). The Court of Appeals held that these notice
requirements along with IABR’s participation in Thornton’s application proceedings made IABR
a party to those proceedings. Ind. Ass’n of Beverage Retailers, Inc., 809 N.E.2d at 379. We
conclude however, that the regulation contemplates notice to and participation by “remonstra-
tors” who are not “parties.”
The regulations plainly differentiate between “remonstrators,” who are not parties, and
“intervening remonstrators,” who become parties. 3 A remonstrator must become an “intervening
remonstrator” in order to seek administrative review of the initial agency action. A “remonstra-
3
Under some statutory provisions, a remonstrator may achieve “party” status, but none of these apply
here. In Board of Trustees of the Public Employees Retirement Fund v. City of Plymouth, 698 N.E.2d
335 (Ind. Ct. App. 1998), trans. denied, a police officer sought an administrative determination that he
suffered from a Class 2 impairment for purposes of disability pension. At the hearing before the local
board, counsels for the officer and the city safety board presented evidence. Id. at 337-38. The Court of
Appeals held that, through the actions of its safety board, the city was a “party” as that term is defined in
Indiana Code section 4-21.5-1-10(2) and had standing to seek judicial review. Id. at 338-39. IABR ar-
gues that like the City of Plymouth, it presented evidence both at the Local Board hearing and to the ATC
and is thus a “party.” However, in City of Plymouth, the city was acting through its safety board, which
had statutory authority to file a written objection to the local board’s disability determination for a retire-
ment fund member. 698 N.E.2d at 337, 339 (citing I.C. § 36-8-8-13.1(d)). In Indiana Alcoholic Bever-
age Commission v. Edwards, 659 N.E.2d 631 (Ind. Ct. App. 1995) remonstrators were found to have
standing to petition for judicial review, but those were individuals from the neighborhood where an alco-
hol permit would be used and who, by statute, were permitted to obtain signatures of registered voters
who opposed the grant of the permit. Id. at 634 (citing I.C. § 7.1-3-19-13). The remonstrators in Ed-
wards had standing because the statutory permit process specifically provided for their participation in the
proceedings with a party status. Additionally, an alcoholic beverage establishment in their neighborhood
would personally affect them.
4
tor” seeking to become an intervening remonstrator, and therefore a “party” is subject to the “ag-
grieved or adversely affected” requirement. A remonstrator who objects to the commission’s
actions must file a request for an appeal hearing within fifteen (15) days. 905 I.A.C. § 1-36-2(b).
“The objections of any remonstrator shall also be accompanied by a petition for intervention stat-
ing facts which demonstrate that the petitioner will be aggrieved or adversely affected by the
commission’s action.” Id. Upon receipt of a remonstrator’s objection and petition for interven-
tion “the commission shall consider whether the remonstrator has proven that he or she will be
personally aggrieved or adversely affected if the application for permit is granted. . . . [An] ‘in-
tervening remonstrator’ means a remonstrator that has been granted permission to intervene by
the commission.” Id. at § 1-36-2(d). “[F]ailure of a remonstrator to file objections and a petition
for intervention within the fifteen (15) day period shall constitute a waiver of any appeal hearing
from the commission’s action.” Id. at § 1-36-2(b). Neither IABR, nor any of its individual
members, sought status as an “intervening remonstrator” in Thornton’s application proceedings.
Not every remonstrator is eligible to become an intervening remonstrator. ATC correctly
contends that a person must show direct injury to become a “party” to an administrative proceed-
ing. In Huffman v. Office of Environment Adjudication, 811 N.E.2d 806 (Ind. 2004), we
pointed out that “AOPA itself identifies who may pursue an administrative proceeding.” Id. at
809. We noted that under section 3-7 of AOPA a person must be “aggrieved or adversely af-
fected” in order to seek administrative review. Id. at 810 (citing I.C. § 4-21.5-3-7(a)(1)(B)). 4 To
seek judicial review a person must exhaust administrative remedies and therefore must have pur-
sued administrative review. I.C. § 4-21.5-5-4. Thus, the standing requirement for judicial re-
view is essentially congruent with the “aggrieved or adversely affected” requirement for admin-
istrative review. Huffman defined this as “harm to a legal interest, be it a pecuniary, property or
personal interest.” Huffman, 811 N.E.2d at 810. Persons who do not meet the standard may re-
monstrate, but are not entitled to push the process to the next level by seeking administrative or
judicial review.
4
Under this section of AOPA a person that seeks administrative review of an agency decision is required
to show:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law.
I.C. § 4-21.5-3-7(a)(1).
5
The ATC regulations reflecting this requirement contemplate an “appeal hearing” at the
request of either the applicant (Thornton) or any remonstrator, 905 I.A.C. § 1-36-2(b), but if a
remonstrator seeks to trigger an appeal hearing, the ATC must first “determine whether the re-
monstrator should be permitted to intervene.” 905 I.A.C. § 1-36-2(d). That determination, track-
ing the AOPA requirement for administrative review, requires a showing that the remonstrator
will be “aggrieved or adversely affected.” Id. at §§ 1-36-2(b), (d). In this case IABR did not ini-
tiate the appeal hearing. Rather, it responded to Thornton’s objections to the ATC’s denial of the
permit, and remained a remonstrator, but not an “intervening remonstrator” at the appeal hearing.
IABR claims that it did not seek status as an intervenor because it did not object to the Local
Board’s recommendation or the ATC’s initial decision. That may be the case, but if IABR de-
sired to achieve the status of an intervenor to preserve its right to either administrative or judicial
review, then it was required to show that it would be “aggrieved or adversely affected” by the
agency action and be designated a “party” to the administrative proceedings. IABR did not at-
tempt to meet these requirements. Therefore, IABR was not “a party to the agency proceedings
that led to the agency actions” and did not have standing to seek judicial review of the agency’s
decision.
Conclusion
The trial court’s grant of ATC’s motion to dismiss is affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
6