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Monday, August 29, 2016

Ind. Decisions - More on "Monarch Beverage owners can sell liquor, judge rules"

Supplementing this ILB post from earlier today, which includes a copy of Judge Welch's ruling [which I've now ORCed], Hayleigh Colombo reports now in the IBJ in a story headed "Emails show state staffers rooting against Monarch's liquor battle." Some quotes:

In her ruling, Judge Heather Welch called electronic communications between the governor's office, ATC and Monarch opponents "disturbing and inappropriate,” saying the “discussions challenge the integrity of the application process and raise questions about the [ATC’s] willingness to serve all citizens of Indiana equally, fairly, and without bias.”

Welch added: "Though political appointees, the Commission is supposed to be an independent agency that grants permits on the basis of merit without any consideration of the applicant's politics. The Commission must not have its judgment questioned by seeking advice on the issuance or denial of permits by having ex parte discussions with staffers of a government office or Remonstrators." [ILB emphasis]

The emails show aides to former Gov. Mitch Daniels and Gov. Mike Pence were regularly in touch with ATC decision-makers regarding various requests from Monarch over the years, sometimes cheering behind closed doors when the company failed. And Monarch’s competitors appeared to have frequent communication with the two entities, calling themselves “the good guys.”

In 2009, a Daniels aide even appeared to direct an ATC commissioner to deny one of Monarch’s requests. The company at the time was seeking permission from the ATC to allow Indiana Wholesale Wine & Liquor Co. to transfer its liquor permit to Monarch's Pendleton Pike warehouse and use its transportation services.

Jessica Norris, policy director for regulatory and administrative affairs under Daniels, wrote in a July 27, 2009, memo circulated in the governor’s office that Monarch was trying to “get into the business of selling and/or distributing spirits.”

“I’ve told Snow this is not something we want to allow, so he will be denying the request unless you have additional concerns,” Norris wrote in the memo. P. Thomas Snow was the chairman of the ATC at the time. * * *

Jim Purucker, who runs the Wine & Spirits Distributors of Indiana, emailed Norris in May 2012 asking to “get on your calendar to talk Monarch issues sometime soon.” The group opposes Monarch's entry into liquor distributing, saying it would have an unfair competitive advantage in the market.

“Absolutely,” Norris replied, and the two set a date to meet the following week.

In other emails, ATC staff came across as frustrated over its dealings with Monarch and Spirited, and annoyed at having to fulfill requests the companies made under the state's public records law that could be used to challenge commission decisions.

“Make it stop!!! Dear God, make it stop!!! Don’t they know that this is an informal hearing where the COMMISSION should be asking for information, not the other way around?” an ATC staffer, Allen Renfro, wrote in April 2014 to ATC Executive Secretary David Rothenberg.

Rothenberg emailed Adam Berry, regulatory policy director and special counsel under Pence, in June 2014 to express his frustration after Spirited sought a continuance of its hearing into whether the ATC would approve its liquor wholesaling permit—the matter that was at issue in the Spirited Court case—because Spirited had yet to receive public records it had requested it believed were relevant to the proceedings.

Rothenberg said Spirited seemed to be making requests for the purpose of “building up a case” against the commission, and said that wasn’t the commission’s job.

“Their requests are indeed [public records] requests, but let’s be honest about their intent—they want to find evidence which shows [the commission’s] conflicting past decisions,” Rothenberg wrote to Berry in June 2014.

Rothenberg wrote to another ATC staff member the next month that his “head was going to explode” after Spirited submitted a motion to disqualify Alex Huskey, then the chairman of the ATC, from hearing its case. Included was an affidavit of a former Indiana State Excise Police officer, who said it was her impression that Huskey “harbored animosity” against Monarch, its CEO Phil Terry and EF Transit.

Rothenberg said they "would have a laugh reading this.”

Monarch’s competitors also didn’t hesitate voicing their glee to ATC staff members at Monarch’s failings at entering the liquor industry.

In a 2012 email between Purucker, who runs Wine & Spirits Distributors of Indiana, and ATC Executive Secretary Davey Neal, Purucker said it was a “good day for the good guys” because Monarch “didn’t do so well.”

Neal responded simply: “You lose some, you lose some."

ALL THOSE QUOTES are in the Welch opinion; my KUDOS to Hayleigh Colombo!!!

Posted by Marcia Oddi on August 29, 2016 02:58 PM
Posted to Ind. Adm. Bd. Decisions | Ind. Trial Ct. Decisions