dissenting.
I respectfully dissent. The basic question presented in this appeal is: Upon whom does the burden lie to place the city ordinance in the record?
The majority places that burden upon the City. I believe it rests with the appellant. In this case the appellant requested a renewal of a license to operate a massage business. This request was based upon a city ordinance and was required by a city ordinance. The renewal was denied and at the request of the appellant a hearing was conducted.
The foundation of the hearing was a request for a license renewal by appellant which was based upon a city ordinance. The burden rested upon the appellant to have the ordinance placed in the record. This action was not a hearing to revoke a license which would place the burden upon the City.
Before the trial court, the City, in order to assist the appellant, offered the ordinance in evidence. However the appellant objected and the trial court sustained the objection. Any failure in proof was committed by the appellant, not the City.
Furthermore, I believe that the administrative hearing officer could take judicial notice of the ordinance. That the hearing officer took notice of the evidence is evidenced by her reference to the ordinance in her findings of facts. It is no more necessary for the hearing officer to publicly announce that judicial notice is being taken of the ordinance than a trial judge to announce that he is taking notice of a statute of the State of Indiana when making a ruling or entering a judgment.
The trial court should be affirmed.