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Daniel S. Fuchs v. State of Idaho

February 28, 2012

DANIEL S. FUCHS, PETITIONER-APPELLANT,
v.
STATE OF IDAHO, DEPARTMENT OF IDAHO STATE POLICE, BUREAU OF ALCOHOL BEVERAGE CONTROL, RESPONDENT-RESPONDENT ON APPEAL. DANIEL S. FUCHS, PLAINTIFF-APPELLANT,
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.

The opinion of the court was delivered by: Burdick, Chief Justice

2012 Opinion No. 31

Stephen W. Kenyon, Clerk

District court ruling there is no property right in multiple listings on priority list for liquor licenses affirmed.

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 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 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. ยง ...


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