IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 37652
DANIEL S. FUCHS, )
)
Petitioner-Appellant, )
)
v. )
)
STATE OF IDAHO, DEPARTMENT OF )
IDAHO STATE POLICE, BUREAU OF )
ALCOHOL BEVERAGE CONTROL, ) Boise, December 2011 Term
)
Respondent-Respondent on Appeal. ) 2012 Opinion No. 31
-------------------------------------------------------- )
DANIEL S. FUCHS, ) Filed: February 28, 2012
)
Plaintiff-Appellant, ) Stephen W. Kenyon, Clerk
)
v. )
)
STATE OF IDAHO, DEPARTMENT OF )
IDAHO STATE POLICE, BUREAU OF )
ALCOHOL BEVERAGE CONTROL, )
)
Defendant-Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
District court ruling there is no property right in multiple listings on priority list
for liquor licenses affirmed.
Brian N. Donesley, Boise, argued for appellant.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
Cheryl Anne Emmons Meade, Deputy Attorney General argued.
_______________________________
BURDICK, Chief Justice
This case arises out of the district court’s dismissal for failure to exhaust administrative
remedies of Daniel S. Fuchs’s (Fuchs) petition for judicial review and complaint for declaratory
and injunctive relief. Fuchs is challenging the Alcohol Beverage Control’s (ABC) removal of
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his name from liquor license priority waiting lists. He argues that the agency actions constitute
an informal rule that was not promulgated in accordance with the Idaho Administrative
Procedure Act (Idaho APA). In response, ABC argues that Fuchs’ failed to exhaust
administrative remedies before bringing his action before the district court, and that the removal
was done in accordance with IDAPA 11.05.01.013.04, a properly promulgated rule. Although
we now hold that the district court erred in finding that Fuchs had to exhaust administrative
remedies, we affirm the decision of the district court on other grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
ABC, a division of the Idaho State Police (ISP), maintains a priority waiting list of liquor
license applicants for cities that do not have any available incorporated city liquor licenses.
IDAPA 11.05.01.013.01. Between June 3, 1994, and February 13, 1995, Fuchs applied for and
was placed on the city priority lists in: Twin Falls (9 times); Sun Valley (3 times); Ketchum (3
times); Hailey (3 times); Bellevue (twice); and Idaho Falls (twice).
In 2006, ABC began the process of promulgating new administrative rules related to,
among other things, the priority lists for liquor licenses. The pertinent addition in the draft rule
would allow an applicant to place their name only once on each incorporated city priority list.
As part of the rule making process, ABC sought input from various groups and made revisions to
the draft rules accordingly. On October, 4, 2006, a Public Notice of Intent to Propose or
Promulgate New or Changed Agency Rules was published. After receiving public input, the
proposed rules reached the legislature, and were passed by the Idaho Senate Judiciary and Rules
Committee. The final form of the pertinent rule states, in part, that “[a]n applicant shall hold
only one position at a time on each incorporated city priority list.” IDAPA 11.05.01.013.04.
On July 24, 2009, ABC sent Fuchs a letter informing him that the agency was removing
nearly all of his applications from the priority lists pursuant to IDAPA 11.05.01.013.04, leaving
his name listed only once per city. Enclosed with the letter was a refund check for the full
amount of the application fees for the removed listings.
On August 19, 2009, Fuchs filed a petition for judicial review under I.C. § 67-5270, and
amended that petition the next day. Fuchs claimed that the above referenced letter constituted a
final agency action undertaken against him without due process of law. The amended petition
was followed by a statement of issues for judicial review pursuant to I.R.C.P. Rule 84(d). The
statement asked the district court to review, among other things, whether the agency action was
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lawful or whether it was an unlawful retroactive rulemaking in excess of statutory authority and
in violation of the Idaho APA. In response, ABC argued that Fuchs failed to exhaust
administrative remedies before petitioning for judicial review, and filed a motion for dismissal
on those grounds. Fuchs replied that any attempt at administrative remedy would be
unnecessary, since exhaustion is not required when the agency acted outside of its authority.
Fuchs also filed a complaint seeking declaratory and injunctive relief on grounds similar
to his petition for judicial review. In the complaint, Fuchs alleges that he was entitled to notice
and due process before the agency removed his name from the priority lists. He also claims that
the July 24, 2009 letter he received from ABC was an unlawful order that exceeded the agency’s
authority. This civil complaint was consolidated with the petition for judicial review in a
September 17, 2009 order by the district court.
On March 10, 2010, the district court dismissed without prejudice Fuchs’s petition for
review and his civil action. In the decision, the district court acknowledged the exceptions to
exhaustion, found that none of the exceptions apply to Fuchs, and dismissed for failure to
exhaust administrative remedies. The district court also dismissed the declaratory judgment
claims on the same ground. Fuchs timely appealed to this Court.
II. ISSUES ON APPEAL
1. Whether the district court erred by dismissing Fuchs’s petition for judicial review and his
complaint for declaratory and injunctive relief for failure to exhaust administrative
remedies.
2. Whether Fuchs has a property interest in his place on the priority lists.
3. Whether ABC is entitled to attorney fees and costs below and on appeal under I.C. § 12-
117 and I.A.R. 35(b)(5).
III. STANDARD OF REVIEW
Whether a dismissal for lack of jurisdiction pursuant to I.R.C.P. 12(b) was properly
granted is a question of law over which this Court exercises free review. Owsley v. Idaho Indus.
Comm’n, 141 Idaho 129, 133, 106 P.3d 455, 459 (2005). When reviewing a motion to dismiss,
the court looks only at the pleadings, and all inferences are viewed in favor of the non-moving
party. Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002). “[T]he
question then is whether the non-movant has alleged sufficient facts in support of his claim
which, if true, would entitle him to relief.” Rincover v. State, 128 Idaho 653, 656, 917 P.2d 1293,
1296 (1996). “[E]very reasonable intendment will be made to sustain a complaint against a
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motion to dismiss for failure to state a claim.” Idaho Comm'n on Human Rights v. Campbell, 95
Idaho 215, 217, 506 P.2d 112, 114 (1973). “The issue is not whether the plaintiff will ultimately
prevail, but whether the party is entitled to offer evidence to support the claims.” Young, 137
Idaho at 104, 44 P.3d at 1159 (quoting Orthman v. Idaho Power Co., 127 Idaho 960, 961, 895
P.2d 561, 562 (1995)).
This Court exercises free review over a district court's conclusions of law. Maresh v.
State, Dept. of Health & Welfare ex rel. Caballero, 132 Idaho 221, 224, 970 P.2d 14, 17 (1998).
The constitutionality of a statute or administrative regulation is a question of law over which this
Court exercises free review. Wanner v. State, Dept. of Transp., 150 Idaho 164, 167, 244 P.3d
1250, 1253 (2011); Am. Falls Res. Dist. No. 2 v. Idaho Dep't of Water Res., 143 Idaho 862, 869,
154 P.3d 433, 440 (2007).
IV. ANALYSIS
A. The district court erred by dismissing Fuchs’s petition for judicial review and his
complaint for declaratory and injunctive relief for failure to exhaust administrative
remedies.
Fuchs filed a petition for judicial review and a civil claim in the district court without first
resorting to administrative relief. In response, ABC filed a motion to dismiss for failing to
exhaust administrative remedies. On March 10, 2010, the district court held that Fuchs failed to
exhaust administrative remedies, and must return to the agency to state his initial claims. In so
ruling, the district court held that Fuchs had no vested property right from being on the priority
lists so he was not entitled to notice, and that he did not fit any of the exceptions to exhaustion.
On appeal, Fuchs argues that the district court erred, and that he did not have to exhaust
administrative remedies because he fit an exception to exhaustion. Specifically, he argues that
the interests of justice and the fact that ABC’s July 24, 2009 letter was outside of the agency’s
authority allow him to bypass administrative remedy. He also argues that he could bring the
declaratory action without resorting to administrative remedies first.
1. The district court erred in finding that Fuchs had to exhaust administrative remedy before
filing a petition for judicial review or a complaint for declaratory action.
A party’s right to appeal an administrative decision is governed by statute. Cobbley v.
City of Challis, 143 Idaho 130, 133, 139 P.3d 732, 735 (2006); I.R.C.P. 84(a)(2)(C). Idaho Code
section 67-5270(2) states that: “A person aggrieved by final agency action other than an order in
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a contested case is entitled to judicial review under this chapter if the person complies with the
requirements of sections 67-5271 through 67-5279, Idaho Code.”
However, “[a] person is not entitled to judicial review of an agency action until that
person has exhausted all administrative remedies required . . . .” I.C. § 67-5271. “Absent a
statutory exemption, the exhaustion of an administrative remedy is a prerequisite for resort to the
courts.” Dept. of Agric. v. Curry Bean Co., 139 Idaho 789, 792, 86 P.3d 503, 506 (2004). “This
Court has held that generally the exhaustion doctrine implicates subject matter jurisdiction
because a ‘district court does not acquire subject matter jurisdiction until all the administrative
remedies have been exhausted.’” Owsley, 141 Idaho at 135, 106 P.3d at 461 (quoting Fairway
Dev. v. Bannock Cnty., 119 Idaho 121, 125, 804 P.2d 294, 298 (1990)).
Here, Fuchs made no attempt to seek administrative relief before filing in district court,
but he gives several reasons why he fits into an exception from exhaustion.
a. Exceptions to Exhaustion
This Court has previously recognized two exceptions to the exhaustion requirement: “(a)
when the interests of justice so require and (b) when the agency acted outside its authority.”
Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 237, 207 P.3d 963, 968 (2009) (citing Regan v.
Kootenai Cnty., 140 Idaho 721, 725, 100 P.3d 615, 619 (2004)).
Fuchs argues that both exceptions apply. First, that the interests of justice require this
Court to permit him to pursue legal action without exhausting administrative remedies because
there was no available remedy. Secondly, that ABC’s letter was an agency action outside the
scope of the agency’s authority.
Fuchs argues that ABC did not provide any means to administratively appeal the agency
action, which would make exhaustion futile. “While pursuit of statutory administrative remedies
is a condition precedent to judicial review under the APA, failure to exhaust administrative
remedies is not a bar to litigation when there are no remedies to exhaust.” Lochsa Falls, L.L.C.,
147 Idaho at 239–40, 207 P.3d at 970–71 (internal quotation and citation omitted).
ABC counters that if the removal of Fuchs’s name from the priority lists constitutes an
agency action as defined by I.C. § 67-5201(3), then I.C. § 23-933 provides Fuchs with adequate
remedy to obtain an administrative hearing.
Idaho Code section 67-5201(3) states that:
(3) “Agency action” means:
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(a) The whole or part of a rule or order;
(b) The failure to issue a rule or order; or
(c) An agency's performance of, or failure to perform, any duty placed on it by
law.
The July 24, 2009 letter is an agency action under this definition. Idaho Code section 23-933
states in pertinent part that “[p]rocedures for the suspension, revocation, or refusal to grant or
renew licenses issued under this chapter shall be in accordance with the provisions of chapter 52,
title 67, Idaho Code.” Though I.C. § 23-933 does not appear to prescribe a process for dealing
with priority lists specifically, it could be inferred that the process would be similar to the refusal
to grant a license.
There are several problems in ABC’s explanation. As ABC points out in their brief, I.C.
§ 67-5254 mentions that an agency cannot revoke, suspend, modify, annul, withdraw or amend a
license, or refuse to renew a license without process. Absent from that list is the refusal to grant
a license, and by extension, any removal from the priority lists. ABC argues that “this provision
was intentionally left out in this code provision’s amendment since there appears to be no rights
of due process for an applicant of a license, liquor or otherwise.” ABC argues earlier in its brief
that “the final authority in granting a liquor license is vested in the director of Idaho State
Police.”
The tension in ABC’s argument, coupled with the lack of enumerated administrative
remedies in the letter or the rule, leads to the conclusion that no administrative remedy exists for
Fuchs. ABC suggests this may be as designed, but that does not change the fact that seeking
administrative relief would be futile for Fuchs.
Since there is no administrative remedy available to exhaust, we find that the district
court properly has jurisdiction over the petition for judicial review under I.C. § 67-5270 and over
the declaratory action under I.C. § 10-201.
B. Fuchs does not have a property interest in his place on the priority lists.
The analysis of Fuchs’s claims properly begins with a determination of whether Fuchs
has a property interest in his place on the priority lists. In its opinion, the district court concluded
that Fuchs does not have a “sufficient property interest in his position on the lists in question to
raise a constitutional question, or a question of notice.” As support, the district court cited this
Court’s ruling in Crazy Horse, Inc. v. Pearce. 98 Idaho 762, 572 P.2d 865 (1977). “[T]he
selling of intoxicating liquor is a proper subject for control and regulation under the police
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power. It is likewise universally accepted that no one has an inherent or constitutional right to
engage in a business of selling or dealing in intoxicating liquors.” Id. at 765, 572 P.3d at 868.
To determine whether a property interest exists, this Court has adopted the language from
the United States Supreme Court’s holding in Board of Regents v. Roth. 408 U.S. 564 (1972).
The United States Supreme Court has noted that property interests are created . . .
by existing rules, . . . such as state law. Likewise, this Court has indicated that
determination of whether a particular right or privilege is a property interest is a
matter of state law. Further, determining the existence of a liberty or property
interest depends on the construction of the relevant statutes, and the nature of the
interest at stake. Hence, whether a property interest exists can be determined only
by an examination of the particular statute or ordinance in question.
Maresh, 132 Idaho at 226, 970 P.2d at 19 (internal cites and quotations omitted).
As pointed out by the district court, Fuchs had no vested rights in his place on the priority
list. See Crazy Horse, Inc. 98 Idaho at 765, 572 P.2d at 868 (holding that a liquor license is a
privilege and not a right, but also holding that the licensing procedure cannot be administered
arbitrarily.). This Court has consistently held that:
Instead of a protected property right, [a] liquor license is simply the grant or
permission under governmental authority to the licensee to engage in the business
of selling liquor. Such a license is a temporary permit to do that which would
otherwise be unlawful; it is a privilege rather than a natural right and is personal
to the licensee; it is neither a right of property nor a contract, or a contract right.
Alcohol Beverage Control v. Boyd, 148 Idaho 944, 947, 231 P.3d 1041, 1044 (2010) (quoting
BHA Inv., Inc. v. State, 138 Idaho 348, 354–55, 63 P.3d 474, 480–81 (2003)).
Article III, section 26, of the Idaho Constitution provides that “the legislature of the state
of Idaho shall have full power and authority to permit, control and regulate or prohibit the
manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for
beverage purposes.” Only the legislature can create a property interest in a liquor license, and a
search of the statutes provides no hint of such a provision. As an administrative agency in the
executive department, ABC has no authority to create a property interest by virtue of an
administrative rule.
While IDAPA 11.05.01.013.04 may have gone through the legislative review process, it
still cannot create a property right. There can be no property interest in a place on a priority list
without proper legislative action, which does not exist in this instance. Since the July 24, 2009
letter from ABC did not create, enlarge, diminish or destroy a property interest, we find that the
letter is an appropriate application of a remedial agency policy. Additionally, this Court has held
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that “only after a court finds a liberty or property interest will it reach the next step of analysis, in
which it determines what process is due.” Maresh, 132 Idaho at 226, 970 P.2d at 19 (citing
Schevers v. State, 129 Idaho 573, 575, 930 P.2d 603, 605 (1996)). And that “the requirements of
procedural due process apply only to the deprivation of interest encompassed by the Fourteenth
Amendment's protection of liberty and property.” Id. (quoting Roth, 408 U.S. at 569). Therefore,
we decline to go further in addressing Fuchs’s claims on appeal.
C. ABC is not entitled to attorney fees and costs from below and on appeal under I.C. § 12-
117 and I.A.R. 35(b)(5).
ABC argues that it is entitled to attorney fees and costs below and on appeal under I.C. §
12-117 and I.A.R. 35(b)(5), because Fuchs sought appellate review without a reasonable basis in
fact or law. ABC believes that this Court has given well settled direction in this area, and that
Fuchs’s arguments are untenable. Idaho Code section 12-117 states, inter alia, that:
[I]n any administrative proceeding or civil judicial proceeding involving as
adverse parties a state agency or political subdivision and a person, the state
agency or political subdivision or the court, as the case may be, shall award the
prevailing party reasonable attorney's fees, witness fees and other reasonable
expenses, if it finds that the nonprevailing party acted without a reasonable basis
in fact or law.
Here, the issue of whether an applicant on a priority list for a liquor license has a property
interest is one of first impression for this Court. “A party is not entitled to attorney's fees if the
issue is one of first impression in Idaho.” Lane Ranch P’ship v. City of Sun Valley, 145 Idaho 87,
91, 175 P.3d 776, 780 (2007) (citing SE/Z Const., L.L.C. v. Idaho State Univ., 140 Idaho 8, 14,
89 P.3d 848, 854 (2004)). Therefore we deny ABC’s request for attorney fees below and on
appeal.
V. CONCLUSION
We find that Fuchs did not have to exhaust his administrative remedies because none
existed. We also affirm the holding of the district court that Fuchs does not have a property
interest in his place on the priority lists, since the legislature has not created such an interest and
ABC does not have the authority to create such an interest.
We deny ABC’s request for attorney fees below and on appeal because this is an issue of
first impression.
Justices EISMANN, J. JONES, W. JONES and HORTON, CONCUR.
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