State Bd. of Beauty Culturist Examiners v. Nuzzo

• Decision Date: 26 May 1982
• Docket Number: No. 3-981A242,3-981A242
• Parties: STATE BOARD OF BEAUTY CULTURIST EXAMINERS, and Patsy Nix, Lucille Messick, Dorothy Cotterell, Connie Biggs, Irene Sebree, Robert Kopecky, M.D., Odessa Walker, individually, Appellants (Defendants Below), v. Brenda NUZZO and Holly Beruman, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 311

435 N.E.2d 311

STATE BOARD OF BEAUTY CULTURIST EXAMINERS, and Patsy Nix,

Lucille Messick, Dorothy Cotterell, Connie Biggs, Irene

Sebree, Robert Kopecky, M.D., Odessa Walker, individually, Appellants (Defendants Below), v. Brenda NUZZO and Holly Beruman, Appellees (Plaintiffs Below).

No. 3-981A242.

Court of Appeals of Indiana, Third District.

May 26, 1982.

Linley E. Pearson, Atty. Gen., Gerald A. Coraz, Deputy Atty. Gen., Indianapolis, for appellants.

Terry K. Hiestand, Chesterton, for appellees.

STATON, Judge.

This is an interlocutory appeal by the State Board of Beauty Culturist Examiners and its individual members (the Board) from a denial of its motion for summary judgment in the Jasper Circuit Court.

The Board determined that Brenda Nuzzo and Holly Beruman had failed the examination for a license to practice electrolysis. The Board refused to issue licenses to Beruman and Nuzzo. Later, they made certain objections about the grading and scoring of their examinations to the Board. The Board denied their objections. Twenty-five days after they had received notice from the Board that their objections had been denied, Nuzzo and Beruman brought suit to reverse the determination of the Board, to obtain damages, and to seek injunctive relief.

The issue on appeal is as follows:

Whether judicial review of decisions made by the Board was governed by the Indiana Administrative Adjudication Act, IC 4-22-1-1 et seq., or IC 25-8-1-20 of the Indiana Beauty Culture Law?

We reverse.

The Board argues that judicial review of decisions of the Board is governed by IC 4-22-1-14 of the Indiana Administrative Adjudication Act (IAAA). ¹ The Board further argues that the trial court did not have jurisdiction of the suit because Nuzzo and Beruman had not complied with the jurisdictional prerequisites of IC 4-22-1-14.

Beruman and Nuzzo argue that IC 25-8-1-20 ² of the Indiana Beauty Culture Law contains the procedure to be followed for judicial review of decisions of the Board. They cite IC 4-22-1-24 and argue that, by its very terms, the IAAA does not apply to proceedings for the issuance of licenses; therefore, they conclude IC 25-8-1-20 governs the judicial review of the decision of the Board. We do not agree with this conclusion.

The intent of the IAAA is

"to establish a uniform method of administrative adjudication by all agencies of the state of Indiana, to provide for due notice and an opportunity to be heard and present evidence before such agency and to establish a uniform method of court review of all such administrative adjudication." (Emphasis added.)

IC 4-22-1-1. To accomplish this intent, the IAAA states, "all general or special laws or parts of laws in conflict herewith are hereby specifically repealed." IC 4-22-1-28. Indiana State Personnel Board v. Parkman (1969), 252 Ind. 44, 245 N.E.2d 153, 155.

In 1971 the Indiana Legislature amended IC 25-8-1-31 of the Indiana Beauty Culture Law to state that the provisions of the IAAA (IC 4-22-1-1 et seq.) shall apply to the Board and its actions. ³ West I.A.C. 25-8-1-31. Therefore, if the legislature intended a portion of the Beauty Culture Law to be exempted from the IAAA, the exemption would be specifically set forth.

Nuzzo and Beruman do not rely upon a specific exemption from the IAAA: rather they rely upon the following general language of IC 4-22-1-24:

"The provisions of this act (4-22-1-1-4-22-1-30) shall not apply to the proceedings for the issuance of licenses or permits on application but the proceeding for such license or permit by such proceedings shall be under the provisions of the law relating to the particular agency(;)" (Brackets original.)

They argue that the judicial review of the denial of the issuance of a license is part of the proceedings for the issuance of a license; therefore, the Beauty Culture Law, not the IAAA, governs the judicial review of the decision of the Board. We believe that the following language of our Supreme Court answers this argument:

"There is sound reason why in the initial granting of a permit the law applicable to the particular board should govern, since the standards for the grant differ with each board due to the peculiar character of its subject matter. The conditions for granting a branch bank permit, needless to say, differ from that in granting a physician's license or a building permit. We believe a full reading of the Administrative Adjudication Act reflects the intention that a judicial review under that act shall be applicable following the final hearing of such administrative body, whether the permit or license be granted or denied. A reading of the Act discloses an intention that it apply to all administrative determinations except those specifically excepted."

"Other sections affirmatively show that all administrative proceedings involving the issuance and denial of licenses-except the initial proceedings-are under the Administrative Adjudication Act...

"Although this Act has some ambiguities and is not as clear as we would desire it, we have no choice but to make a construction which we think is most logical and reasonable under the circumstances. We believe that it is the object of the Administrative Adjudication Act to provide for a uniform and orderly method of judicial review... (U)nless there is a very clear and specific exception, we must hold that the Act is applicable."

State v. McCord (1963), 243 Ind. 626, 189 N.E.2d 583, 586.

Therefore, the parts of IC 25-8-1-20 that conflict with IC 4-22-1-14 are repealed. IC 4-22-1-28. The IAAA governs the judicial review of the refusal to issue the license by the Board.

Judgment reversed and remanded for action not inconsistent with this opinion.

HOFFMAN, P. J., and GARRARD, J., concur.

1 IC 4-22-1-14 states as follows:

"Any party or person aggrieved by any order or determination made by any such agency shall be entitled to a judicial review thereof in accordance with the provisions of this act (4-22-1-1-4-22-1-30). Such review may be had by filing with the circuit or superior court of the county in which such person resides, or in any county in which such order or determination is to be carried out or enforced, a verified petition setting out such order, decision or determination so made by said agency, and alleging specifically wherein said order, decision or determination is :

"(1) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; or

"(2) Contrary to constitutional right, power, privilege or immunity; or

"(3) In excess of statutory jurisdiction, authority or limitations, or short of statutory right; or

"(4) Without observance of procedure required by law; or

"(5) Unsupported by substantial evidence.

"Said petition for review shall be filed within fifteen (15) days after receipt of notice that such order, decision or determination...