Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission

KIRSCH, Judge,

dissenting.

I respectfully dissent.

The Administrative Orders and Procedures Act as adopted by our General Assembly is the exclusive means for judicial review of an administrative action. Ind. Code § 4-21.5-5-1. It provides that

Within thirty (30) days after the filing of the petition, or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action.

Ind.Code § 4-21.5-5-13(a) (emphasis added).

In the event that the agency record cannot be filed within the allotted thirty-day time period, the Act provides that “[a]n extension of time in which to file the record shall be granted by the court for good cause shown.” Ind.Code § 4-21.5-5-13(a) (emphasis added). Specifically included within “good cause” sufficient to secure an extension of time is the “[i Inability to obtain the record from the responsible agency within the time permitted by this section is good cause.” Id.

Finally, the Act states that failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal. Id.

The mandates of the Administrative Orders and Procedures Act as adopted by our General Assembly are clear. The Appellant simply failed to follow them. It failed to file the agency record within the time period set forth in the Act, and it failed to seek an extension of that time. That failure was cause for dismissal, and accordingly, I would affirm the trial court’s dismissal.