Indiana Alcohol and Tobacco Commission v. Lebamoff Enterprises, Inc. ( 2015 )


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  •                                                                      Mar 19 2015, 9:42 am
    
    
    
    
    ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Gregory F. Zoeller                                         Matthew Price
    Attorney General of Indiana                                Karl L. Mulvaney
                                                               Margaret M. Christensen
    Kristin Garn                                               Bingham Greenebaum Doll, LLP
    Deputy Attorney General                                    Indianapolis, Indiana
    Indianapolis, Indiana
    
    
    ATTORNEYS FOR AMICUS CURIAE
    BIG RED LIQUORS INC.
    John B. Herriman
    Michael P. Maxwell, Jr.
    Clark Quinn Moses Scott & Grahn, LLP
    Indianapolis, Indiana
    
    
    
                                                IN THE
        COURT OF APPEALS OF INDIANA
    
    Indiana Alcohol and Tobacco                               March 19, 2015
    Commission,                                               Court of Appeals Case No.
                                                              49A02-1408-MI-529
    Appellant-Respondent,
                                                              Appeal from the Marion Superior
            v.                                                Court
                                                              The Honorable Robert R. Altice, Jr.,
                                                              Judge
    Lebamoff Enterprises, Inc.,
                                                              Trial Court Cause No. 49D11-1202-
    Appellee-Petitioner                                       MI-8272
    
    
    
    
    Bradford, Judge.
    
    
    
    Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                    Page 1 of 28
                                               Case Summary
    [1]   Title 7.1 of the Indiana Code sets forth statutory restrictions relating to the sale
    
          of alcoholic beverages within the State of Indiana. Title 7.1 differentiates
    
          between the available permits for the sale of liquor, beer, and wine. With
    
          respect to the sale of wine, Title 7.1 further differentiates between various types
    
          of available permits. The General Assembly has crafted different rules and
    
          regulations for each of the available permits. These rules and regulations allow
    
          the permit holder to complete certain actions and restrict the permit holder from
    
          completing certain actions. The General Assembly has stated that the
    
          classifications and differentiations made in Title 7.1 are real and are
    
          substantially related to the accomplishment of the purposes of this title. As
    
          such, one can reasonably presume that the level of care undertaken by the
    
          General Assembly in differentiating between the rules and regulations that
    
          apply to the different types of permits indicates that the General Assembly
    
          intended for the rules and regulations relating to each individual type of permit
    
          to be read alone, and not for any differences between the rules and regulations
    
          relating to the different types of permits to be harmonized with each other upon
    
          review.
    
    
    [2]   In the instant matter, Appellant-Respondent the Indiana Alcohol and Tobacco
    
          Commission (the “ATC”) determined that Appellee-Petitioner Lebamoff
    
          Enterprises, Inc. (“Lebamoff”), which holds a liquor dealer’s permit, had
    
          violated the applicable rules and regulations relating to the home delivery of
    
          wine. Lebamoff sought judicial review of the ATC’s interpretation in the trial
    
          Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015    Page 2 of 28
          court which, upon review, held in favor of Lebamoff. The ATC appealed.
    
          Concluding that the ATC’s interpretation of the applicable rules and regulations
    
          was reasonable and did not amount to an improper exercise of the ATC’s
    
          rulemaking function, we reinstate and affirm the ATC’s final order.
    
    
    
                                 Facts and Procedural History
    [3]   Our decision in the parties’ prior appeal of the matter to this court provides the
    
          following:
    
                  Lebamoff is an Indiana corporation that operates liquor stores in
                  northern Indiana and holds a liquor dealer[’s] permit, the scope of
                  which is detailed at Indiana Code section 7.1-3-10-7. Beginning in
                  2008, the [ATC] issued six citations to Lebamoff alleging violations of
                  its permit, stemming from Lebamoff’s use of common carriers to
                  transport product to customers for sales generated through fulfillment
                  companies.[1]
                  Lebamoff appealed the citations. Following a hearing in November
                  2011, [an Administrative Law Judge (“ALJ”)] issued findings of fact
                  and conclusions of law on January 18, 2012, concluding that Lebamoff
                  had violated the statute by using common carriers. The ALJ
                  recommended that Lebamoff be fined one thousand dollars for each
                  violation and that Lebamoff’s permit be suspended for sixty days, with
                  the suspension to be deferred for one year on the condition that all
                  fines were paid and Lebamoff did not accrue any further violations
                  during the deferral period. The ATC approved the recommendations
                  and issued its final order on February 7, 2012.
    
    
    
    
                  1
                    On at least one occasion, the wine at issue was signed for and taken into possession by the
          nineteen-year-old daughter of the intended recipient. Neither the intended recipient nor his nineteen-
          year-old daughter were ever asked to provide identification or to show proof that they were of legal
          age before purchasing or accepting possession of the wine in question.
    
          Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                  Page 3 of 28
          Lebamoff Enterprises, Inc. v. Ind. Alcohol & Tobacco Comm’n, 
    987 N.E.2d 525
    , 526-
    
          27 (Ind. Ct. App. 2013).
    
    
    [4]   On February 29, 2012, Lebamoff filed a petition for judicial review of the
    
          ATC’s final order. In its petition for judicial review, Lebamoff argued that the
    
          ATC’s interpretation of Indiana Code section 7.1-3-10-7 was unreasonable. On
    
          March 28, 2012, the ATC filed a response to Lebamoff’s petition in which the
    
          ATC argued that the issues raised by Lebamoff were barred by the doctrines of
    
          res judicata, collateral estoppel, and judicial estoppel.
    
    
    [5]   On April 10, 2012, the ATC filed a request for the trial court to dismiss the case
    
          for failure to file the administrative record. The trial court granted the ATC’s
    
          motion on September 20, 2012. Lebamoff appealed, and, on April 26, 2013, we
    
          concluded that although Lebamoff did not meet the requirements for filing an
    
          agency record that are set forth in the Administrative Orders and Procedures
    
          Act (“AOPA”), the materials submitted with the petition were sufficient for
    
          judicial review of the legal question at issue. Id. at 531. We then remanded the
    
          matter to the trial court for further proceedings. Id.
    
    
    [6]   On January 23, 2014, the ATC filed a brief in opposition to Lebamoff’s petition
    
          for judicial review. Lebamoff responded to the ATC’s brief in opposition on
    
          February 7, 2014. On July 8, 2014, the trial court issued an order in which it
    
          found that the ATC’s interpretation of Indiana Code 7.1-3-10-7(c) was incorrect
    
          and that the ATC’s final order amounted to an improper attempt to exercise the
    
          ATC’s rulemaking function. This appeal follows.
    
    
          Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 4 of 28
                                     Discussion and Decision
    [7]   On appeal, the ATC contends that, in reversing its decision, the trial court
    
          erroneously determined that its interpretation of the relevant statutory language
    
          was unreasonable. In support, the ATC argues that the relevant statutory
    
          language—which it claims does not allow for wine sold by Lebamoff to be
    
          delivered to a customer’s residence by a common carrier—is unambiguous and
    
          allows for only one reasonable interpretation. The ATC also contends that the
    
          trial court erroneously determined that its order reflected an improper attempt
    
          to create an agency rule rather than an administrative adjudication.
    
    
    [8]   For its part, Lebamoff contends that the trial court properly determined that the
    
          ATC’s interpretation of the relevant statutory language was unreasonable. In
    
          support, Lebamoff argues that the rules of statutory construction indicate that
    
          Title 7.1 should be read together in a harmonious fashion. Lebamoff further
    
          argues that when Title 7.1 is read together in a harmonious fashion, the only
    
          reasonable interpretation would allow Lebamoff to ship wine to customers via
    
          common carrier. In making this argument, Lebamoff points to certain portions
    
          of Title 7.1 which allow for the shipment of wine via common carrier if certain
    
          requirements are met, and argues for a broad interpretation of the meaning of
    
          the term “permit holder.” Lebamoff also contends that the trial court’s
    
          determination that the ATC’s order reflected an improper attempt to create an
    
          agency rule was proper because the ATC failed to follow the necessary
    
          procedures for completing its rulemaking function.
    
    
    
          Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 5 of 28
                                           I. Standard of Review
    [9]            While the legislature has granted courts the power to review the action
                   of state government agencies taken pursuant to the [AOPA], this
                   power of judicial review is limited. See State Bd. of Registration for Prof’l
                   Eng’rs v. Eberenz, 
    723 N.E.2d 422
    , 430 (Ind. 2000); Indiana Dep’t of
                   Envtl. Management v. Conard, 
    614 N.E.2d 916
    , 919 (Ind. 1993); Indiana
                   Dep’t of Natural Resources v. United Refuse Co., 
    615 N.E.2d 100
    , 103 (Ind.
                   1993). A court may only set aside agency action that is:
                   (1) arbitrary, capricious, an abuse of discretion, or otherwise not in
                   accordance with law;
                   (2) contrary to constitutional right, power, privilege, or immunity;
                   (3) in excess of statutory jurisdiction, authority, or limitations, or short
                   of statutory right;
                   (4) without observance of procedure required by law; or
                   (5) unsupported by substantial evidence.
                   See Ind. Code § 4-21.5-5-14(d).
    
    
           LTV Steel Co. v. Griffin, 
    730 N.E.2d 1251
    , 1257 (Ind. 2000). “The party seeking
    
           judicial review bears the burden to demonstrate that the agency’s action is
    
           invalid.” Pendleton v. McCarty, 
    747 N.E.2d 56
    , 61 (Ind. Ct. App. 2001) (citing
    
           Ind. Code § 4-21-5-5-14(a)).
    
    
    [10]   A review of an administrative agency’s decision at the trial court level “is not
    
           intended to be a trial de novo, but rather the court simply analyzes the record as
    
           a whole to determine whether the administrative findings are supported by
    
           substantial evidence.” Whirlpool Corp. v. Vanderburgh Cnty.-City of Evansville
    
           Human Relations Comm’n, 
    875 N.E.2d 751
    , 759 (Ind. Ct. App. 2007) (citing
    
           Amoco Oil Co. v. Comm’r of Labor, 
    726 N.E.2d 869
    , 872 (Ind. Ct. App. 2000)). A
    
           party may appeal a trial court’s determination of the propriety of the
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015            Page 6 of 28
           administrative agency’s decision pursuant to the rules governing civil appeals.
    
           See Ind. Code § 4-21.5-5-16. “When reviewing an administrative agency’s
    
           decision, appellate courts stand in the same position as the trial court.”
    
           Pendleton, 747 N.E.2d at 61 (citing Amoco, 726 N.E.2d at 872).
    
    
    [11]   An appellate court “may not substitute [its] judgment on factual matters for that
    
           of the agency and are bound by the agency’s findings of fact if [the findings] are
    
           supported by substantial evidence.” Whirlpool, 875 N.E.2d at 759 (citing Ind.
    
           Dep’t of Natural Res., Law Enforcement Div. v. Cobb, 
    832 N.E.2d 585
    , 590 (Ind. Ct.
    
           App. 2005)).
    
                   Furthermore, courts that review administrative determinations, at both
                   the trial and appellate level, review the record in the light most
                   favorable to the administrative proceedings and are prohibited from
                   reweighing the evidence or judging the credibility of witnesses.
                   [Amoco, 726 N.E.2d at 873.] While reviewing courts must accept the
                   agency’s findings of fact if supported by substantial evidence, no such
                   deference need be accorded an agency’s conclusions of law, as the law
                   is the province of the judiciary. Id.
    
    
           Id. However, “[a]n interpretation of a statute by an administrative agency
    
           charged with the duty of enforcing the statute is entitled to great weight, unless
    
           this interpretation would be inconsistent with the statute itself.” LTV Steel, 730
    
           N.E.2d at 1257; State Emps. Appeals Comm’n v. Barclay, 
    695 N.E.2d 957
    , 959-60
    
           (Ind. Ct. App. 1998).
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015      Page 7 of 28
                       II. Overview of Relevant Statutory Authority
                         A. General Information Relating to Title 7.1
    [12]   As is stated above, Title 7.1 of the Indiana Code sets forth statutory restrictions
    
           relating to the sale of alcohol within the State of Indiana. Title 7.1 applies to
    
           the commercial manufacturing, bottling, selling, bartering, importing,
    
           transporting, delivering, furnishing, or possessing of alcohol and alcoholic
    
           beverages. Ind. Code § 7.1-1-2-2. The following are the general purposes of
    
           Title 7.1:
    
                   (1) To protect the economic welfare, health, peace, and morals of the
                   people of this state.
                   (2) To regulate and limit the manufacture, sale, possession, and use of
                   alcohol and alcoholic beverages.
                   (3) To regulate the sale, possession, and distribution of tobacco
                   products.
                   (4) To provide for the raising of revenue.
    
    
           Ind. Code § 7.1-1-1-1.
    
    
    [13]   Title 7.1 differentiates between the available permits for the sale of liquor, beer,
    
           and wine. As is stated above, with respect to the sale of wine, 2 Title 7.1 further
    
    
    
    
                   2
                     Wine is defined as “an alcoholic beverage obtained by the fermentation of the natural
           sugar content of fruit, fruit juice, or other agricultural products containing sugar, including
           necessary additions to correct defects due to climatic, saccharine, and seasonal conditions, and
           also the alcoholic fortification of the beverage.” Ind. Code § 7.1-1-3-49. “The term includes
           hard cider, except for alcoholic beverage tax purposes.” Id. “The term does not mean an
           alcoholic beverage that contains twenty-one percent (21%), or more, of absolute alcohol
           reckoned by volume.” Id.
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015             Page 8 of 28
           differentiates between various types of available permits. Title 7.1 creates
    
           different farm winery permits, wine wholesalers’ permits, wine retailers’
    
           permits, wine dealers’ permits, and direct wine sellers’ permits. Each of these
    
           types of permits have different rules and regulations that apply to the specific
    
           type of permit. Indiana Code section 7.1-1-2-1 specifically provides that Title
    
           7.1:
    
                   is an exercise of the police powers of the state. The classifications and
                   differentiations made in this title are real and are actually and
                   substantially related to the accomplishment of the purposes of this title.
                   The provisions of this title shall be liberally construed so as to
                   effectuate the purposes of this title.
    
    
            B. Statutory Language Relating to Permit Held by Lebamoff
    [14]   The ATC may issue a liquor dealer’s permit to a person,3 including a package
    
           liquor store,4 who desires to sell liquor to customers for consumption off the
    
           licensed premises. Ind. Code §§ 7.1-3-10-1, -4.
    
    
    
    
                   3
                      Indiana Code section 7.1-1-3-31 indicates that the term “person” includes: (1) a natural
           individual; (2) a firm; (3) a corporation; (4) a partnership; (5) a limited partnership; (6) a limited
           liability company; (7) an incorporated or unincorporated association; or (8) an other legal entity.
    
    
                   4
                       A package liquor store is “a place or establishment that meets the requirements
           provided in [Indiana Code chapter] 7.1-3-10 [(concerning liquor permits)], and whose exclusive
           business is the retail sale of alcoholic beverages and commodities that are permissible under this
           title for use or consumption only off the licensed premises.” Ind. Code § 7.1-1-3-28. Indiana
           Code section 7.1-3-10-5 provides that a package liquor store’s exclusive business shall be the
           selling of the following commodities only:
                   (1) Liquor in its original package.
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                  Page 9 of 28
                   A liquor dealer may deliver liquor only in permissible containers to a
                   customer’s residence or office in a quantity that does not exceed twelve
                   (12) quarts at any one (1) time. However, a liquor dealer who is
                   licensed under [Indiana Code section] 7.1-3-10-4 may deliver liquor in
                   permissible containers to a customer’s residence, office, or designated
                   location. This delivery may only be performed by the permit holder or an
                   employee who holds an employee permit. The permit holder shall maintain
                   a written record of each delivery for at least one (1) year that shows the
                   customer’s name, location of delivery, and quantity sold.
    
    
           Ind. Code § 7.1-3-10-7(c) (emphasis added).
    
    
              C. Relevant Types of Permits Relating to the Sale of Wine
                                               1. Wine Dealer’s Permit
    
    [15]   The ATC may issue a wine dealer’s permit to a person who desires to sell wine
    
           or flavored malt beverages for consumption off the licensed premises. Ind.
    
           Code § 7.1-3-15-1. However, “[t]he commission may issue a wine dealer’s
    
    
    
    
                   (2) Beer in permissible containers, if the permittee has the proper permit.
                   (3) Wine in its original package.
                   (4) Bar supplies used in the preparation for consumption of alcoholic beverages
                   and in their consumption.
                   (5) Tobacco products.
                   (6) Uncooled and uniced charged water, carbonated soda, ginger ale, mineral
                   water, grenadine, and flavoring extracts.
                   (7) Printed materials.
                   (8) Lottery tickets as provided in [Indiana Code chapter] 4-30-9.
                   (9) Cooled or uncooled nonalcoholic malt beverages.
                   (10) Flavored malt beverage in its original package.
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015           Page 10 of 28
           permit only to the following: (a) A person who is the holder of a beer dealer’s
    
           permit; or, (b) A person who is the holder of a liquor dealer’s permit.” Ind.
    
           Code § 7.1-3-15-2. The holder of a wine dealer’s permit “shall be entitled to sell
    
           wine for consumption off the licensed premises only and not by the drink.”
    
           Ind. Code § 7.1-3-15-3(a).
    
    
    [16]   “A wine dealer shall be entitled to sell wine in permissible containers in a
    
           quantity of not more than three (3) standard cases, as determined under the
    
           rules of the commission, in a single transaction.” Ind. Code § 7.1-3-15-3(b).
    
           “However, a wine dealer who is licensed under [Indiana Code section] 7.1-3-
    
           10-4 may possess wine and sell it at retail in its original package to a customer
    
           only for consumption off the licensed premises.” Id. Furthermore, “a wine
    
           dealer who is licensed under [Indiana Code section] 7.1-3-10-4 may deliver
    
           wine only in permissible containers to a customer’s residence, office, or
    
           designated location.” Ind. Code § 7.1-3-15-3(c). “This delivery may only be
    
           performed by the permit holder or an employee who holds an employee permit.” Id.
    
           (emphasis added). “The permit holder shall maintain a written record of each
    
           delivery for at least one (1) year that shows the customer’s name, location of
    
           delivery, and quantity sold.” Id.
    
    
                                          2. Direct Wine Seller’s Permits
    
    [17]   “A person located within Indiana or outside Indiana that wants to sell and ship
    
           wine directly to a consumer must be the holder of a direct wine seller’s permit
    
           and comply with this chapter.” Ind. Code § 7.1-3-26-5.
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 11 of 28
            (a) The commission may issue a direct wine seller’s permit to an
            applicant who meets all of the following requirements:
                     (1) The applicant is domiciled and has its principal place
                     of business in the United States.
                     (2) The applicant is engaged in the manufacture of wine.
                     (3) The applicant holds and acts within the scope of
                     authority of an alcoholic beverage license or permit to
                     manufacture wine that is required:
                              (A) in Indiana or the state where the
                              applicant is domiciled; and
                              (B) by the Tax and Trade Bureau of the
                              United States Department of the Treasury.
                     (4) The applicant qualifies with the secretary of state to do
                     business in Indiana and consents to the personal
                     jurisdiction of the commission and the courts of Indiana.
                     (5) The applicant files a surety bond with the commission
                     in accordance with [Indiana Code chapter] 7.1-3-1, or
                     deposits cash in an escrow account with the commission,
                     in the amount required of an applicant for a vintner’s
                     permit under [Indiana Code section] 7.1-3-1-7.
                     (6) The applicant:
                              (A) has not distributed wine through a wine
                              wholesaler in Indiana within the one
                              hundred twenty (120) days immediately
                              preceding the applicant’s application for a
                              direct wine seller’s permit and does not
                              distribute wine through a wine wholesaler
                              in Indiana during the term of the direct
                              wine seller’s permit; or
                              (B) has operated as a farm winery under
                              [Indiana Code chapter] 7.1-3-12.
                     (7) The applicant completes documentation regarding the
                     applicant’s application required by the commission.
            (b) The commission may issue a direct wine seller’s permit to an
            applicant who:
    
    Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015         Page 12 of 28
                             (1) meets the requirements under subsection (a); and
                             (2) holds a permit issued under this title that allows the
                             sale of an alcoholic beverage at retail.
    
    
           Ind. Code § 7.1-3-26-7.
    
    
    [18]   A seller may sell and ship wine directly only to a consumer who meets all of the
    
           following requirements:
    
                   (1) The consumer is at least twenty-one (21) years of age.
                   (2) The consumer has an Indiana address.
                   (3) The consumer intends to use wine purchased under this chapter for
                   personal use only and not for resale or other commercial purposes.
                   (4) Except as provided in subdivision (5), the consumer has provided
                   to the seller in one (1) initial face-to-face transaction at the seller’s
                   place of business … all the following:
                             (A) Name, telephone number, Indiana address, or
                             consumer’s Indiana business address.
                             (B) Proof of age by a state issued driver’s license or state
                             issued identification card showing the consumer to be at
                             least twenty-one (21) years of age.
                             (C) A verified statement, made under penalties for
                             perjury, that the consumer satisfies the requirements of
                             subdivisions (1) through (3).
                   (5) If:
                             (A) before April 1, 2006, the consumer has engaged in a
                             transaction with a seller in which the seller sold wine to
                             the consumer and, after April 1, 2006, but before
                             December 31, 2006, the consumer provides the seller with
                             a verified statement, made under penalties for perjury,
                             that the consumer is at least twenty-one (21) years of age;
                             and
                             (B) the seller provides the name and Indiana address of
                             the consumer to the commission before January 15, 2007;
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015            Page 13 of 28
                   the seller may sell directly to the consumer in accordance with this
                   chapter.
    
    
           Ind. Code § 7.1-3-26-6(a).
    
    
    [19]   Accordingly, a direct wine seller’s permit allows a seller to sell and ship wine to
    
           a consumer by receiving and filling orders that the consumer transmits by
    
           electronic or other means if all of the following conditions are satisfied before
    
           the sale or by the times set forth as follows:
    
                   (1) The consumer provides the direct wine seller with the following:
                            (A) The verification required by section 6(4) of this
                            chapter in an initial face-to-face transaction.
                            (B) Notwithstanding clause (A), if the consumer provided
                            the information specified in section 6(5)(A) of this chapter
                            after April 1, 2006, but before December 31, 2006, and
                            the seller provides the name and Indiana address of the
                            consumer under section 6(5)(B) of this chapter to the
                            commission before January 15, 2007, the consumer is not
                            required to comply with section 6(4) of this chapter.
                   (2) The direct wine seller meets the following requirements:
                            (A) Maintains for two (2) years all records of wine sales
                            made under this chapter. If the records are requested by
                            the commission, a direct wine seller shall:
                                     (i) make the records available to the
                                     commission during the direct wine seller’s
                                     regular business hours; or
                                     (ii) at the direction of the commission,
                                     deliver copies to the commission.
                            (B) Stamps, prints, or labels on the outside of the shipping
                            container the following: “CONTAINS WINE.
                            SIGNATURE OF PERSON AGE 21 OR OLDER
                            REQUIRED FOR DELIVERY.”.
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015        Page 14 of 28
                            (C) Causes the wine to be delivered by the holder of a
                            valid carrier’s alcoholic beverage permit under [Indiana
                            code chapter] 7.1-3-18.
                            (D) Directs the carrier to verify that the individual
                            personally receiving the wine shipment is at least twenty-
                            one (21) years of age.
                            (E) Does not ship to any consumer more than two
                            hundred sixteen (216) liters of wine in any calendar year.
                            (F) Remits to the department of state revenue monthly all
                            Indiana excise, sales, and use taxes on the shipments
                            made into Indiana by the direct wine seller during the
                            previous month.
                            (G) Ships to a consumer in Indiana only wine
                            manufactured, produced, or bottled by the applicant.
    
    
           Ind. Code § 7.1-3-26-9.
    
    
    [20]   A wine shipment purchased under this chapter must be delivered to:
    
                   (1) the consumer, who shall take personal delivery of the shipment at
                   the:
                            (A) consumer’s residence;
                            (B) consumer’s business address;
                            (C) carrier’s business address; or
                            (D) address displayed on the shipping container; or
                   (2) an individual who is at least twenty-one (21) years of age, who shall
                   take personal delivery of the shipment at the:
                            (A) consumer’s residence;
                            (B) consumer’s business address;
                            (C) carrier’s business address; or
                            (D) address designated by the consumer and displayed on
                            the shipping container.
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015        Page 15 of 28
           Ind. Code § 7.1-3-26-13.
    
    
                                C. Carrier’s and Employee’s Permits
                                                  1. Carrier’s Permits
    
    [21]   “The commission may issue a carrier’s alcoholic permit to a person who is a
    
           carrier upon a showing of the reliability and responsibility of the carrier and the
    
           propriety of issuing the permit.” Ind. Code § 7.1-3-18-1. Indiana Code section
    
           7.1-1-3-8 defines a “carrier” as
    
                   (a) A common carrier, whether licensed under the laws of this state or
                   not;
                   (b) A person as a proprietor who operates a transportation facility
                   when regularly or casually operating intrastate state or from another
                   state into this state; or,
                   (c) A person who carries alcoholic beverages for hire or as a free
                   accommodation for a consignor or consignee and who has no permit
                   under this title authorizing him to sell, furnish, give away,
                   manufacture, or rectify alcoholic beverages.
    
    
           (Footnote omitted).
    
    
    [22]   “A carrier’s alcoholic permit shall be required only for, and be applicable to, the
    
           movement, conveyance, importation and transportation of alcohol and
    
           alcoholic beverages on a public highway in this state.” Ind. Code § 7.1-3-18-2.
    
           “A carrier’s alcoholic permit shall not be required when the conveyance,
    
           movement, importation, or transportation is conducted by means of cars or
    
           trains operated by a railroad of any type over fixed rails.” Id. “A carrier shall
    
           be required to apply for and obtain a carrier’s alcoholic permit before he may
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015        Page 16 of 28
           haul, convey, transport, or import alcoholic beverages on a public highway of
    
           this state or crossing a boundary of it.” Ind. Code § 7.1-3-18-3.
    
    
                                                2. Employee’s Permits
    
    [23]   “The commission may issue an employee’s permit to a person who desires to
    
           act as: (1) a clerk in a package liquor store; (2) an employee who serves wine at
    
           a farm winery; or (3) a bartender, waiter, waitress, or manager in a retail
    
           establishment, excepting dining car and boat employees.” Ind. Code § 7.1-3-18-
    
           9(a). “A permit authorized by this section is conditioned upon the compliance
    
           by the holder with reasonable rules relating to the permit which the commission
    
           may prescribe from time to time.” Ind. Code § 7.1-3-18-9(b).
    
                   A person who, for a package liquor store or retail establishment, is:
                            (1) the sole proprietor;
                            (2) a partner, a general partner, or a limited partner in a
                            partnership or limited partnership that owns the business
                            establishment;
                            (3) a member of a limited liability company that owns the
                            business establishment; or
                            (4) a stockholder in a corporation that owns the business
                            establishment;
                   is not required to obtain an employee’s permit in order to perform any
                   of the acts listed in subsection (a).
    
    
           Ind. Code § 7.1-3-18-9(d).
    
    
                  D. Provisions Relating to the Transportation of Wine
    [24]   Indiana Code section 7.1-3-1-17 provides that the “traffic and transportation of
    
           alcohol and alcoholic beverages for sale within this state shall be subject to the
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015        Page 17 of 28
           rules and regulations of the commission.” “Alcohol and alcoholic beverages
    
           shall be transported and delivered only in containers that are lawful under this
    
           title and permissible under the rules and regulations of the commission.” Id.
    
    
    [25]   It is unlawful for an officer, agent, or employee of a common carrier to
    
           recklessly deliver: “(1) an alcoholic beverage to a person other than the person
    
           to whom it is consigned; (2) it without a written order by the consignee; or (3) it
    
           to a person when the alcoholic beverage has been consigned to a fictitious
    
           person or a person under a fictitious name.” Ind. Code § 7.1-5-11-4(a).
    
           Further, it is unlawful for a person to present or tender for transportation to a
    
           carrier or a person acting or assuming to act for a carrier an alcoholic beverage:
    
                   (1) for delivery to a person other than the consignee designated by the
                   person offering the alcoholic beverage for shipment; or
                   (2) for the purpose of effecting a delivery of the alcoholic beverage to a
                   person not permitted to receive it as consignee:
                            (A) under the provisions of this title;
                            (B) under the provisions of a rule of the commission; or
                            (C) because the person is not the bona fide consignee of
                            the shipment.
    
    
           Ind. Code § 7.1-5-11-8(a).
    
    
                                                    III. Analysis
                                   A. The ATC’s Interpretation of
                                  Indiana Code Section 7.1-3-10-7(c)
    [26]   The ATC contends that the trial court erred in determining that its
    
           interpretation of Indiana Code section 7.1-3-10-7(c) was unreasonable. In
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015        Page 18 of 28
           raising this contention, the ATC argues that the relevant statutory language—
    
           which it claims does not allow for wine sold by Lebamoff to be delivered to a
    
           customer’s residence by a common carrier—is unambiguous and allows for
    
           only one reasonable interpretation. For its part, Lebamoff contends that the
    
           trial court properly determined that the ATC’s interpretation of the relevant
    
           statutory language was unreasonable. In raising this contention, Lebamoff
    
           argues for a broad interpretation of the meaning of the term “permit holder.”
    
           Lebamoff also argues that the rules of statutory construction indicate that when
    
           Title 7.1 is read together in a harmonious fashion, the only reasonable
    
           interpretation would allow Lebamoff to ship wine to a customer’s residence via
    
           common carrier.
    
    
    [27]   Again, review of Title 7.1 of the Indiana Code clearly demonstrates that the
    
           General Assembly has taken great care to differentiate the types of permits
    
           available for individuals, partnerships, or corporations that produce and sell
    
           alcoholic beverages in Indiana. Each specific type of permit has its own rules
    
           and regulations. The fact that some rules and regulations are not commonly
    
           applied to all types of permits is evidence that the General Assembly intended
    
           to craft specific rules and regulations for each type of permit. Moreover, the
    
           language of Title 7.1 makes it clear that the General Assembly knew how to,
    
           and in fact did, specifically provide for delivery of wine via common carrier in
    
           situations where it intended to allow such delivery. See e.g., Ind. Code § 7.1-3-
    
           26-9 (providing that a direct wine seller may ship wine to customers via
    
           common carrier if certain requirements are met).
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 19 of 28
    [28]   With respect to the delivery of wine by the holder of a liquor dealer’s permit,
    
           Indiana Code section 7.1-3-10-7(c) specifically provides that a liquor dealer
    
           licensed under Indiana Code section 7.1-3-10-4 (the statute dealing with
    
           package liquor stores) may deliver liquor in permissible containers to a
    
           customer’s residence, office, or designated location. However, this delivery
    
           “may only be performed by the permit holder or an employee who holds an employee
    
           permit.” Id. (emphasis added). Similarly, Indiana Code section 7.1-3-15-3(c)
    
           provides that a wine dealer who is licensed under Indiana Code section 7.1-3-
    
           10-4 may deliver wine in permissible containers to a customer’s residence,
    
           office, or designated location. Like Indiana Code section 7.1-3-10-7(c), Indiana
    
           Code section 7.1-3-15-3(c) further provides that “[t]his delivery may only be
    
           performed by the permit holder or an employee who holds an employee permit.”
    
           (emphasis added).
    
    
    [29]   In Lebamoff Enterprises, Inc. et al. v. Huskey, 
    666 F.3d 455
    , 457 (7th Cir. 2012), the
    
           United States Court of Appeals for the Seventh Circuit interpreted Indiana
    
           Code section 7.1-3-15-3(c) to “forbid liquor stores to use motor carriers [such as
    
           UPS or FedEx] to deliver wine (also beer and liquor, Ind. Code §§ 7.1-3-5-3(d),
    
           7.1-3-10-7(c) … )[.]” In discussing Indiana Code section 7.1-3-15-3(c), the
    
           Seventh Circuit stated the following:
    
                   Indiana requires drivers employed by liquor retailers to be trained in
                   and tested on Indiana’s alcohol laws and also trained in the
                   recognition of phony IDs. See Ind. Code §§ 7.1-3-1.5-1, -6, -13, 7.1-3-
                   18-9. It is because the state doesn’t require similar training of motor
                   carriers’ drivers that those carriers aren’t permitted to deliver alcoholic
                   beverages to a consumer unless, prior to shipping, the consumer’s age
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015         Page 20 of 28
            is personally verified by an employee of the winery from which the
            consumer is buying. Ind. Code § 7.1-3-26-9(1)(A); Baude v. Heath, [
    538 F.3d 608
    , 612 (7th Cir. 2008)]. Motor carriers are required to obtain
            “carriers’ alcoholic permits” in order to be allowed to transport alcohol
            on public highways in Indiana, but their drivers are not required to
            obtain permits and there is no training requirement either. See Ind.
            Code §§ 7.1-3-18-1 et seq. Allowing motor carriers to deliver wine
            could therefore undermine the state’s efforts to prevent underage
            drinking, the state having decided not unreasonably that requiring
            face-to-face age verification by someone who has passed a state-
            certified training course should reduce the prevalence of that drinking.
    
    
            The fact that Indiana allows direct deliveries by carriers to wine
            consumers, where the seller has previously verified the consumer’s age
            in person, but not other such deliveries, might seem to undermine the
            state’s rationale, since there is no training requirement for employees
            of wineries. But the statute imposes other requirements on the
            wineries designed to assure accurate age verification, see Ind. Code §
            7.1-3-26-9, and it would hardly be feasible for Indiana (and would
            indeed be severely discriminatory) to require that employees of out-of-
            state wineries undergo training in Indiana before being permitted to
            ship to an Indiana consumer.
    
    
            We might have a different case if a motor carrier were asking the state
            to allow it to opt into the same training requirement imposed on
            drivers employed by retailers of wine. That would both weaken the
            attempt to justify the challenged law on the basis of the Twenty-First
            Amendment (which so far as relates to this case merely allows a state
            to take reasonable measures for preventing underage drinking), and
            discriminate without apparent justification against motor carriers. But
            as far as appears, no motor carrier has sought such equal treatment
            with the retailers or been denied it and sued. No motor carrier is a
            party to this case.
    
    
    
    
    Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015      Page 21 of 28
           Lebamoff, 666 F.3d at 458-59. We find the Seventh Circuit’s analysis to be
    
           persuasive and applicable to the instant matter.5
    
    
    [30]   In addition, we are unpersuaded by Lebamoff’s argument that the General
    
           Assembly intended for the language of Indiana Code section 7.1-3-10-7(c) to be
    
           read in a broad enough fashion to include delivery by a common carrier, even if
    
           we assume that the common carrier is acting as an agent of the permit holder.
    
           The parties discuss the meaning of the term “permit holder” at length, with
    
           Lebamoff arguing that the term is equivalent to the term “permittee” and the
    
           ATC arguing for a more narrow construction. Indiana Code chapter 7.1-1-3
    
           provides definitions that shall be applied throughout Title 7.1 unless the context
    
           clearly requires otherwise. Indiana Code section 7.1-1-3-29 defines the term
    
           “permit” as “a written authorization issued by the [ATC] entitling its holder to
    
           manufacture, rectify, distribute, transport, sell, or otherwise deal in alcoholic
    
           beverages, all as provided in this title.” Indiana Code section 7.1-1-3-30 defines
    
           the term “permittee” as:
    
                   (a) A person who is the holder of a valid permit under this title; and
                   (b) Also includes an agent, servant, or employee of, or other person
                   acting on behalf of, a permittee, whenever a permittee is prohibited
    
    
    
    
                   5
                      While we are not bound by the Seventh Circuit’s interpretation of the statute at issue,
           we acknowledge that such interpretation may be considered to be persuasive and careful
           consideration should be given to such decisions. See Graves Trucking, Inc. v. Publ. Serv. Comm’n
           of Ind., 
    490 N.E.2d 365
    , 370 (Ind. Ct. App. 1986).
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015             Page 22 of 28
                   from doing a certain act under this title.
    
    
           Upon reading the above-quoted language, one can reasonably infer that the
    
           General Assembly intended for the term “permittee” to be read in a broader
    
           fashion than the term “permit holder” because the definition for the term
    
           “permittee” explicitly includes not only a permit holder, but also an agent,
    
           servant, employee, or other person acting on behalf of the permit holder.
    
    
    [31]   The express language of Indiana Code section 7.1-3-10-7(c) indicates that the
    
           General Assembly intended that a home delivery of wine under this section was
    
           limited to delivery by the permit holder, i.e., the owner, partner, or manager of
    
           the package liquor store, or an employee of the permit holder, so long as the
    
           employee holds an employee permit. This language does not appear to allow
    
           for delivery of the wine by any other individual who might be acting as an agent
    
           for the permit holder. If the General Assembly had intended for Indiana Code
    
           section 7.1-3-10-7(c) to allow for home delivery by a common carrier, it could
    
           have crafted the language of this section to specifically allow for such delivery
    
           as it did in Indiana Code section 7.1-3-26-9. See Ind. Code § 7.1-3-26-9
    
           (allowing for home delivery of wine by the holder of a direct wine seller’s
    
           permit via common carrier). We therefore conclude that the ATC’s
    
           interpretation of Indiana Code section 7.1-3-10-7(c) was reasonable.6
    
    
    
    
                   6
                     Lebamoff also argues that its use of a common carrier to deliver wine was permitted under
           Indiana Code section 7.1-3-10-7(c) because, under the Uniform Commercial Code (“UCC”), sales contracts
           are presumed to be “shipment contracts” meaning that delivery is complete when the seller places the
           product with the shipper. However, we conclude that the general UCC provisions relating to “shipment
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                   Page 23 of 28
                                      B. Agency Adjudication or
                                    Improper Attempt at Rulemaking
    [32]   It is undisputed that “[a]n administrative agency must follow the procedures
    
           outlined for it and the law which establishes the agency; an administrative
    
           agency can have no more or less power than the statute creating it grants.” Ind.
    
           Air Pollution Control Bd. v. City of Richmond, 
    457 N.E.2d 204
    , 206 (Ind. 1983)
    
           (citing Gordon v. Review Bd. of Ind. Emp’t Sec., 
    426 N.E.2d 1364
     (Ind. Ct. App.
    
           1981)). On appeal, the ATC also contends that the trial court erroneously
    
           determined that its order reflected an improper attempt to create an agency rule
    
           rather than an administrative adjudication. Conversely, Lebamoff contends
    
           that the trial court’s determination that the ATC’s order reflected an improper
    
           attempt to create an agency rule was proper because the ATC failed to follow
    
           the necessary procedures for completing its rulemaking function.
    
    
    [33]   Indiana Code section 4-22-2-3(b) defines a “rule” as “the whole or any part of
    
           an agency statement of general applicability that: (1) has or is designed to have
    
           the effect of law; and (2) implements, interprets, or prescribes: (A) law or policy;
    
           or (B) the organization, procedure, or practice requirements of an agency.”
    
           Indiana Code section 4-22-2-3(c) defines a “rulemaking action” as “the process
    
           of formulating or adopting a rule.” “The term does not include an agency
    
           action.” Ind. Code § 4-22-2-3(c). An agency must follow certain procedures
    
    
    
    
           contracts” do not apply in the instant matter because application of said provisions would not be harmonious
           to the general purposes of Title 7.1 or the specific language adopted by the General Assembly relating to the
           sale, shipment, and delivery of alcohol in Indiana.
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                        Page 24 of 28
    when engaging in a rulemaking action.7 Villegas v. Silverman, 
    832 N.E.2d 598
    ,
    
    608 (Ind. Ct. App. 2005). On the other hand, an administrative adjudication is
    
    “the administrative investigation, hearing, and determination of any agency of
    
    issues or cases applicable to particular parties.” Blinzinger v. Americana
    
    Healthcare Corp., 
    466 N.E.2d 1371
    , 1374 (Ind. Ct. App. 1984) (internal
    
    quotation omitted).
    
            The rulemaking function is distinguished from the adjudicatory
            function in that the former embraces an element of generality,
            operating upon a class of individuals or situations whereas an
            adjudication operates upon a particular individual or circumstance. In
            addition, the exercise of administrative rulemaking power looks to the
            future, whereas an adjudication operates retrospectively upon events
            which occurred in the past. Beacon National Life Insurance Co. v. Texas
            State Board of Insurance (1979) Tex. Civ. App., 
    582 S.W.2d 616
    ;
            Strumsky v. San Diego Employees Retirement Association (1974) 
    11 Cal. 3d 28
    , 
    112 Cal. Rptr. 805
    , 
    520 P.2d 29
    .
    
    
    Id. at 1375.
    
    
    
    
            7
                These procedures include, among others:
    
            (1) publishing notice of intent to adopt rule (Ind. Code § 4-22-2-23); (2) publishing
            notice of hearing (Ind. Code § 4-22-2-24); (3) conducting public hearing and
            allowing comments (Ind. Code § 4-22-2-26); (4) formally adopting the rule (Ind.
            Code § 4-22-2-29); (5) obtaining approval from the Attorney General (Ind. Code §§
            4-22-2-31, -32); (6) obtaining approval from the Governor (Ind. Code §§ 4-22-2-
            33, -34); and (7) submitting the rule to the Secretary of State for filing (Ind. Code
            § 4-22-2-35).
    
    Villegas, 832 N.E.2d at 608 n.13.
    
    
    Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015                Page 25 of 28
    [34]   Upon review, we conclude that the ATC’s final order aims to retrospectively
    
           determine whether six specific acts that were alleged to have been committed by
    
           Lebamoff amounted to violations of the applicable statutory authority. The
    
           record demonstrates that the ATC conducted an investigation, collected
    
           evidence, and made related findings based off of the information learned during
    
           the investigation. In order to make these findings, the ATC was forced to
    
           interpret the meaning of Indiana Code section 7.1-3-10-7(c), which it did.
    
    
    [35]   Lebamoff relies on this court’s opinion in Miller Brewing Company v. Bartholemew
    
           County Beverage Company, Inc., 
    674 N.E.2d 193
     (Ind. Ct. App. 1996), trans.
    
           denied, in support of its claim that the trial court properly determined that the
    
           ATC’s final order reflected an improper attempt to create an agency rule
    
           without following the applicable rule making procedures. In Miller Brewing
    
           Company, we were faced with the broad question of whether a change in the
    
           price promotion and volume discount allowance reimbursement programs—
    
           which provided significantly higher rates of reimbursement for sales completed
    
           within a distributor’s area of primary responsibility (“APR”)—violated Indiana
    
           law. Specifically, the parties argued as to whether the changes constituted an
    
           unlawful restriction of the sale of beer in violation of 905 IAC 1-28-1 (“Rule
    
           28”). 674 N.E.2d at 197-99. In making their arguments, the parties discussed a
    
           prior decision of the IABC, the predecessor to the ATC, which prescribed a
    
           twelve percent limit on the inter- and intra-APR price discount differentials. Id.
    
           at 202. On appeal, we concluded as follows:
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 26 of 28
                   While the IABC labeled its decision in the [prior IABC decision] an
                   “order”, the decision exhibited all of the significant characteristics of a
                   “rule”. The IABC’s decision interprets Rule 28 to prescribe a twelve
                   percent limit on inter- and intra-APR price discount differentials, and
                   is a statement of general and prospective applicability since, as Miller’s
                   claim of applicability to this case demonstrates, it potentially operates
                   on all individuals coming within the ambit of Rule 28. As an
                   administrative rule in all but name, its validity depended upon
                   conformance with required rulemaking procedures. The IABC’s
                   attempt in [the prior decision] to impose by interpretation a general
                   and prospective rule flies in the face of the requirement that
                   administrative rules be promulgated in conformance with the statutory
                   rulemaking procedures set forth at [Indiana Code section] 4-22-2-3[.]
           Id.
    
    
    [36]   Unlike the prior decision of the IABC that was discussed in Miller Brewing
    
           Company, the ATC’s interpretation of Indiana Code section 7.1-3-10-7(c) did
    
           not operate as a new broad rule going forward, but rather was an interpretation
    
           of what we believe to be unambiguous existing statutory language. As we
    
           stated above, the interpretation was necessary to retrospectively determine
    
           whether the specific alleged violations that were at issue were in fact violations
    
           under the law. For this reason, we find our prior decision in Miller Brewing
    
           Company to be distinguishable from the instant matter.
    
    
    [37]   Further, although Lebamoff argues that the ATC has changed its enforcement
    
           of Indiana Code section 7.1-3-10-7(c) and is attempting to promulgate a rule
    
           that implements a new interpretation of Indiana Code section 7.1-3-10-7(c), the
    
           record is devoid of any evidence that the ATC has actually changed its
    
           enforcement of this section. Lebamoff attempts to support this argument by its
    
           claim that it has been shipping wine to customer’s residence via common
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015         Page 27 of 28
           carrier for approximately thirty years. In issuing its final order, however, the
    
           ATC indicated that while Lebamoff may have been using this method to ship
    
           wine to customer’s residences, the ATC was not aware of Lebamoff’s practice
    
           in this regard until it became aware of the six violations of Indiana Code section
    
           7.1-3-10-7(c) that are at issue in the instant appeal. Because Lebamoff has
    
           failed to provide evidence that the interpretation of Indiana Code section 7.1-3-
    
           10-7(c) represents a change in policy, we conclude that the ATC’s act of
    
           interpreting this statute did not amount to an improper attempt to promulgate
    
           an agency rule.
    
    
    
                                                    Conclusion
    [38]   Applying only the provisions relating to a liquor dealer’s permit, we conclude
    
           that the ATC’s interpretation of the relevant statutory authority was reasonable.
    
           We further conclude that the ATC’s order did not reflect an improper attempt
    
           to create an agency rule, but rather was a proper exercise of the ATC’s
    
           adjudicatory function. As such, we reinstate and affirm the ATC’s final order.
    
    
    [39]   The judgment of the trial court is reversed and the matter remanded to the trial
    
           court with instructions.
    
           Najam, J., and Mathias, J., concur.
    
    
    
    
           Court of Appeals of Indiana | Opinion 49A02-1408-MI-529 | March 19, 2015   Page 28 of 28