Hopkins v. Tipton County Health Dept., 80A02-0106-CV-359.
| Decision Date | 04 June 2002 |
| Docket Number | No. 80A02-0106-CV-359.,80A02-0106-CV-359. |
| Parties | Paul HOPKINS, Appellant-Petitioner, v. TIPTON COUNTY HEALTH DEPARTMENT, Appellee-Respondent. |
| Court | Indiana Appellate Court |
David W. Stone IV, Stone Law Office & Legal Research, Anderson, IN, Attorney for Appellant.
Paul Hopkins appeals the trial court's decision affirming the suspension by the Tipton County Board of Health ("County Board") of his license to install septic systems.1 Hopkins raises two issues for our review, one of which we find dispositive: whether the county ordinance under which his license was suspended is preempted by state regulation.2
We reverse.
On May 21, 1984, the Board of Commissioners of Tipton County adopted Tipton County Ordinance 3-41-10 (the "county ordinance"), entitled "AN ORDINANCE REGULATING THE INSTALLATION, CONSTRUCTION, MAINTENANCE AND OPERATION OF PRIVATE SEWAGE DISPOSAL SYSTEMS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF." (App. at 191.) On November 3, 1986, the county ordinance was amended to add the requirement that persons installing private sewage disposal systems be licensed. The amendment provides in pertinent part:
(App. at 206.)
On August 23, 2000, the County Board, after a hearing, suspended Hopkins' license to install septic tanks in Tipton County for a period of one year due to instances involving Hopkins' failure to obtain permits and inspections of his work and septic system installations that were improper or otherwise failed to comply with minimum specifications. Unhappy with the decision, Hopkins filed a petition with the County Board requesting the decision be set aside and also filed a petition for judicial review with the trial court. On November 2, 2000, the County Board held a supplemental evidentiary hearing and issued a decision upholding Hopkins' license suspension. On April 24, 2001, the trial court issued its order affirming the County Board's decision. This appeal ensued.
At the outset, we note that the County Board did not submit an appellee's brief. In such a situation, we do not undertake the burden of developing arguments for the appellee. Applying a less stringent standard of review with respect to showings of reversible error, we may reverse the lower court if the appellant can establish prima facie error. Fisher v. Bd. of Sch. Trustees, 514 N.E.2d 626, 628 (Ind. Ct.App.1986). Prima facie, in this context, is defined as "at first sight, on first appearance, or on the face of it." Johnson County Rural Elec. Membership Corp. v. Burnell, 484 N.E.2d 989, 991 (Ind.Ct.App. 1985). Where an appellant is unable to meet that burden, we will affirm. Blair v. Emmert, 495 N.E.2d 769, 771 (Ind.Ct.App. 1986).
In reviewing a decision of an administrative agency, we are bound by the same standard of review as the trial court. Holmes v. Bd. of Zoning Appeals, 634 N.E.2d 522, 524 (Ind.Ct.App.1994). Because this issue is a pure question of law, our standard of review is de novo. Id. We will reverse only if an error of law is demonstrated. Id. Absent illegality, this court may not substitute its judgment for that of the County Board. Id. Therefore, we must determine whether the County Board's suspension of Hopkins' license violates the law.
The Home Rule Act, Ind.Code § 36-1-3-1 et seq., abrogated the traditional rule that local governments possess only those powers expressly authorized by statute and declared that a local government possesses "all other powers necessary or desirable in the conduct of its affairs." Ind. Code § 36-1-3-4(b)(2); City of Gary v. Indiana Bell Tel. Co., 732 N.E.2d 149, 153 (Ind.2000). The Home Rule Act specifically provides, however, that a local governmental unit does not have the "power to regulate conduct that is regulated by a state agency, except as expressly granted by statute." Ind.Code § 36-1-3-8(7); City of Gary,732 N.E.2d at 153, 158; see also Town of Merrillville v. Merrillville Conservancy Dist., 649 N.E.2d 645, 653 (Ind.Ct.App.1995),
trans. denied (prohibiting Town of Merrillville from regulating conduct that is regulated by the Indiana Department of Environmental Management).
The legislature has delegated to the State Board of Health ("State Board") the authority to adopt reasonable rules on behalf of the State Department of Health to protect or improve the public health in Indiana concerning the disposition of excremental and sewage matter. Ind.Code § 16-19-3-4. Properly adopted administrative rules and regulations have the force and effect of law. Miller Brewing Co. v. Bartholemew County Beverage Co., 674 N.E.2d 193, 205 (Ind.Ct.App.1996), trans. denied. On December 21, 1990, the State Board's regulation, Ind. Admin. Code 410 IAC 6-8.1 (the ), setting forth detailed requirements and standards pertaining to the design, construction, installation, maintenance, and operation of residential sewage disposal systems including permit and inspection requirements, went into effect. Section 30 of the state regulation provides in pertinent part:
Section 36-1-3-8(7) of the Home Rule Act prevents the County Board from regulating conduct that is regulated by the State Department of Health (a state agency). The requirement that the state regulation be administered by the local boards of health indicates the State has chosen to regulate sewage disposal systems to the extent covered by the state regulation on a statewide basis. The State has chosen to regulate the requirements and standards pertaining to the design, construction, installation, maintenance, and operation of residential sewage disposal systems including permit and inspection requirements. Essentially, the State Board makes the rules and the local boards of health enforce the rules. Although the regulation provides local boards with the...
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