MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Nov 09 2016, 6:07 am
regarded as precedent or cited before any                            CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Douglas K. Briody                                       Gregory F. Zoeller
Law Office of Doug Briody                               Attorney General of Indiana
Evansville, Indiana
                                                        Kyle Hunter
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

L.M. Zeller, Individually, and                          November 9, 2016
D/B/A Zeller Elevator                                   Court of Appeals Case No.
Company, LEO Mark Zeller,                               65A05-1512-CP-2331
Louis M. Zeller III, Andrew M.                          Appeal from the Posey Circuit
Boeglin, and Matthew Boeglin,                           Court
Appellants-Petitioners,                                 The Honorable James M.
                                                        Redwine, Judge
        v.                                              Trial Court Cause No.
                                                        65C01-0811-CP-303
Indiana Fire Prevention and
Building Safety Commission,
Appellee-Respondent.



Robb, Judge.


Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 1 of 22
                               Case Summary and Issues
[1]   L.M. Zeller, individually (“Zeller”) and doing business as Zeller Elevator

      Company (“ZECO”), and ZECO employees Leo Mark Zeller, Louis M. Zeller

      III, Andrew M. Boeglin, and Matthew Boeglin (collectively, the “Applicants”)

      appeal a trial court’s order denying their petition for judicial review and

      affirming the action of the Indiana Fire Prevention and Building Safety

      Commission (“Commission”) declining to renew their elevator contractor

      and/or elevator mechanic licenses for failure to satisfy the continuing education

      (“CE”) requirement. The Applicants raise several issues for our review which

      we consolidate and restate as two: 1) whether the Commission’s decision not to

      renew the licenses was arbitrary or capricious, and 2) whether the ALJ

      conducted a proper review of the agency action. Concluding the Commission’s

      action was not invalid for any reason and the ALJ’s review was proper, we

      affirm.



                            Facts and Procedural History
[2]   Zeller, an elevator contractor and mechanic, has owned and operated ZECO

      since 1967. Leo Mark Zeller, Louis M. Zeller III, Andrew M. Boeglin, and

      Matthew Boeglin are elevator mechanics employed by ZECO.


[3]   In 2002, the Indiana legislature enacted a statutory scheme that for the first time

      required both elevator contractors and elevator mechanics to be licensed as of

      May 1, 2003. See Ind. Code §§ 22-15-5-6 through -16. The Indiana Department


      Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 2 of 22
      of Homeland Security (“Department”), through its Division of Fire and

      Building Safety (“Division”), has the duty to administer the licensing program.

      Ind. Code § 10-19-7-2(6). The Commission is the ultimate authority over the

      Division. The licensing statute had a grandfathering provision which allowed

      contractors and mechanics with sufficient work experience to obtain an initial

      license without examination if the applicants applied for the license on or before

      May 1, 2003. Ind. Code § 22-15-5-7(c) (as to contractors), § 22-15-5-12(b)(4) (as

      to mechanics). The initial license expires on December 31 of the second year

      after issue; renewal licenses are valid for two years. Ind. Code § 22-15-5-9(b),

      (c); Ind. Code § 22-15-5-12(e), (f). In order to renew a license, applicants must

      submit proof of completion of the CE required by the statute, among other

      things. Ind. Code § 22-15-5-8(b)(2); Ind. Code § 22-15-5-12(d)(2). The CE

      requirement is “at least eight (8) hours of instruction that must be attended and

      completed within one (1) year before a license renewal.” Ind. Code § 22-15-5-

      15(c). For a course to satisfy this CE requirement, “the continuing education

      provider, instructor and the curriculum must have been approved by the

      [D]epartment.” Ind. Code § 22-15-5-15(d).


[4]   The Applicants received their initial licenses in 2003 pursuant to the

      grandfathering provisions of the licensing statute (good from the date of issue

      until December 31, 2005). In 2005, the Applicants attended a course at Ivy

      Tech that had been approved by the Department for CE credit. The Division

      approved the renewal of their licenses without incident for a two-year period

      ending December 31, 2007. In late 2007, ZECO reached out to the Division,


      Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 3 of 22
seeking information about whether Ivy Tech would be providing CE again.

ZECO subsequently learned that Ivy Tech was not offering a course that year,

and, receiving no further information about available courses, the Applicants

submitted their renewal applications and ZECO remitted a check for the

renewal fee for all Applicants. Item 2 on the renewal application, titled “Proof

of Completion of Continuing Education,” required the Applicants to


         [s]ubmit documentation proving completion of at least 8 hours of
         continuing education. This continuing education must have been
         attended and completed within one (1) year before a license
         renewal. At a minimum this documentation shall include: (1)
         the date(s) the continuing education was taken; (2) the name of
         the provider of each course; (3) the name of the instructor for
         each course; the name of the course(s); and proof that you
         attended this course. For this continuing education to be
         accepted, the Department must have approved the continuing
         education provider(s), the instructor(s) and the curriculum(s).


Appellants’ Appendix at 161. On each application, some combination of

“Elevator World,” “Zeller Elevator Co.” and/or “EECO” had been hand-

written in the space immediately following the above statement. See id. at 161,

166, 169, 172, and 175.1 No further information was submitted.




1
  All applications were submitted after December 31, 2007. The Department did not comment on the date
the applications were submitted, and in fact, the Department’s representative indicated the Department does
not have a particular deadline for applications. Id. at 80 (“[I]f they submit everything properly and they have
everything in order, we usually give them their renewals”).

Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016            Page 4 of 22
[5]   By order dated March 3, 2008, the Department denied the renewal applications

      because proof of completion of the required CE was not submitted with the

      application as required by Item 2. See id. at 159, 164, 167, 170, 173 (each

      applicant received an identical order). The Applicants were advised that once

      the documentation was received, renewal of their licenses would be expedited.

      The Applicants were also advised that if they desired administrative review of

      the order, they must file a written petition for review with the Commission

      within eighteen days.


[6]   On March 21, 2008, Zeller sent a letter to the Division advising that “[o]n an

      annual bases [sic] our employees . . . attend the Association of Reciprocal

      Safety Councils, Inc. . . ., this is an approximate 4 hour accredited class. . . .

      We [also] hold weekly one to two hours of training.” Id. at 162. In addition,

      the Applicants sought administrative review of the denial of their applications

      and an administrative law judge (“ALJ”) was appointed to hold a hearing.

      During a prehearing conference, Zeller learned the Department had approved

      in-house training by other elevator companies for CE hours. At Zeller’s

      request, the Department provided to him “examples of training curricula,

      instructor credentials, training topics and number of training hours”

      documentation that had been submitted by other elevator companies and

      approved for CE by the Department. Id. at 176-222. Zeller then provided

      additional documentation to the Department regarding his in-house training

      program, but the documentation did not change the Department’s position

      regarding the license renewals.


      Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 5 of 22
[7]   Zeller represented all Applicants at the hearing. Debra Jackson, the

      Department representative, testified,


              if somebody wants to provide continuing education, they send
              me a copy of their program, the classes, the hours, their
              references, who’s teaching them, the credentials of each
              instructor, an overview of the continuing education. And then I
              do a review on it, see it [sic] if it meets the qualification of the
              eight hours that needs to be attended. And then I usually send
              out . . . a letter of approval.


      Id. at 76. She also testified it is the Department’s position that the statute

      requires CE to be approved before the training is provided. Zeller testified that

      every Monday morning, ZECO has a one- to two-hour session for its employees

      where he covers various technical and safety issues. Jackson indicated that if

      Zeller sent information about a topic to be discussed to the Department in

      advance, including the credentials of the instructor and the reference materials

      to be used, such weekly training sessions could be approved to satisfy the CE

      requirement; however, she noted ZECO submitted no information about

      proposed in-house training in 2007. Zeller agreed that nothing had been

      submitted in advance of the weekly training sessions, but maintained he did not

      know in 2007 that he could do so.


[8]   On August 19, 2008, the ALJ issued the following relevant findings of fact:


              10. The issue in this particular case involves proof of continuing
              education required by IC 22-15-5-15.




      Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 6 of 22
        11. In short, this statute section . . . requires at least 8 hours of
        continuing education (“CE”) where the provider, instructor and
        curriculum have been approved by the [Department].


        ***


        14. The [2007] applications for renewal from the [Applicants]
        did not have any reference to CE approved by the [Department];
        they only referred to in-house education with no curriculum or
        proof of attendance.


        15. Zeller submitted both in May, 2008, and at the hearing
        information about his in-house training plus occasional training
        from manufacturers he and his employees received.


        16. It is possible that some of Zeller’s in-house training could
        meet the requirements for CE, however unless it was properly
        submitted to the [Department] as a course in advance, it cannot
        count.


        ***


        21. Because the renewal applications of the [Applicants] did not
        comply with the Indiana statute on CE, the decision of the
        [Department] to deny the renewals should be affirmed.




Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 7 of 22
      Id. at 36-37 (footnote omitted). Zeller filed an exception to the ALJ’s report,

      and the Commission issued a final order on October 10, 2008, affirming,

      without modification, the ALJ’s report.2


[9]   The Applicants then filed a petition for judicial review in the Posey Circuit

      Court. The trial court held a hearing in July 2015 and thereafter issued an order

      denying the Applicants’ petition for judicial review and affirming the

      Commission’s action:


              31. An administrative decision is only arbitrary and capricious,
              and contrary to law and procedure, when it is willful and
              unreasonable, without consideration or in disregard of facts and
              circumstances of the case, or without some basis which could
              lead a reasonable person to the same conclusion. In the instant
              case, it is clear from a review of the transcript of the
              administrative hearing and the ALJ’s order that the ALJ
              considered the facts and circumstances of the case, and
              conducted a hearing, with [Zeller] in attendance. Mr. Zeller
              provided testimony and argument. After the hearing and
              consideration of the case, the ALJ prepared findings of fact and
              issued a decision, which was upheld by the Commission.


              32. Indiana law requires individual elevator contractors and
              elevator mechanics to complete eight hours of CE during the
              final year of the two-year license period, in order to have their
              respective licenses renewed. Ind. Code § 22-15-5-15. For
              training to qualify for CE credit, the “continuing education
              provider, instructor, and the curriculum must have been



      2
        The Commission’s minutes for the meeting at which it considered the Applicants’ objection to the ALJ’s
      findings notes the objection had not been timely filed, but the Commission nonetheless discussed and voted
      on the objections, voting to affirm the ALJ’s decision. Id. at 59.

      Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016         Page 8 of 22
        approved by the department.” A plain reading of the statue [sic]
        through the use of the past tense phrase “have been,” clearly
        requires that the approval for the training should come before it
        can be qualified for CE. A Statute need not encompass any or
        every potential or unlikely occurrence or interpretation by a
        potential licensee; such an expectation is unrealistic and not
        supported by law. The interpretation of the statute by the
        administrative agency need only have some basis which could
        lead a reasonable person to the same conclusion.


        33. [Applicants] presented no evidence they were treated less
        fairly or differently than other elevator contractors/mechanics.
        [Applicants] received exactly the same treatment specified under
        the relevant statutes and AOPA. The only difference between
        the [Applicants] and the other licensed contractors or mechanics
        is the [Applicants] failed to comply with the statutory
        requirements to renew their licenses. The [Applicants] had the
        same statutory language and notice as other elevator contractors,
        who appropriately and successfully submitted their applications
        for continuing education and recertification.


        34. [Applicants] have raised new arguments in their Pre-Hearing
        Brief to assert the administrative hearing was not in accordance
        with the law and procedure. The reason behind exhaustion of
        administrative remedies – judicial economy – is also relevant to
        the requirement that a party raise an issue to an administrative
        agency before seeking judicial review. . . . [Applicants’] failure to
        raise issues at the administrative level constitutes a valid waiver
        under Indiana law.


        35. A review of the Agency record confirms the ALJ’s findings:
        the [Applicants] failed to provide proof of attendance at a
        Department-approved CE course. The record is clear on the
        issue, and [Applicants’] arguments are without merit. As a
        result, the March 3, 2008 denial and the [Commission’s] final
        order upholding the agency’s denial are supported by substantial
Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 9 of 22
               evidence, are deserving of deference, and are not arbitrary or
               capricious. [The Commission’s] actions were in conformity with
               the law.


               36. [Applicants] fail to meet their heavy burden to show they
               were prejudiced by an agency decision that was arbitrary,
               capricious or otherwise contrary to law. This Court does not find
               that the provisions of Indiana Code § 22-15-5-15 are ambiguous
               nor are they, by extension, unconstitutional. Thus, the agency
               action must be affirmed.


       Id. at 14-16 (some citations omitted). The Applicants now appeal.



                                 Discussion and Decision
                                      I. Standard of Review
[10]   When we review an administrative agency’s decision, we stand in the trial

       court’s shoes. Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 991 (Ind.

       2014). We may set aside an agency decision only if the party seeking judicial

       relief has been prejudiced by an 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.




       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 10 of 22
       Ind. Code § 4-21.5-5-14(d). As in the trial court, “[t]he burden of

       demonstrating the invalidity of agency action is on the party to the judicial

       review proceeding asserting invalidity.” Ind. Code § 4-21.5-5-14(a).


[11]   In conducting our review, we do not reweigh the evidence; rather, we consider

       the record in the light most favorable to the agency decision. Regester v. Ind.

       State Bd. of Nursing, 703 N.E.2d 147, 151 (Ind. 1998). We defer to an

       administrative agency’s findings of fact if they are supported by substantial

       evidence, but review an agency’s conclusions of law de novo. Jay Classroom

       Teachers Ass’n v. Jay School Corp., 55 N.E.3d 813, 816 (Ind. 2016). “Although an

       agency’s interpretation of a statute presents a question of law entitled to de

       novo review, the agency’s interpretation is given great weight.” Id. (citation

       and internal quotation marks omitted). In construing a statute, the court

       presumes that the legislature intended its language to be applied in a logical

       manner consistent with the statute’s underlying policy and goals. Ind. State Bd.

       of Registration for Prof’l Eng’rs and Land Surveyors v. Nord, 600 N.E.2d 124, 128

       (Ind. Ct. App. 1992). Words must be given their plain, ordinary and usual

       meaning, unless a contrary purpose is clearly shown by the statute. Id. If the

       agency’s interpretation of a statute is reasonable, we need not consider any

       other proposed interpretation even if the opposing party has presented an

       equally reasonable interpretation. Id.




       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 11 of 22
                       II. Continuing Education Requirement
[12]   One of the requirements to renew an existing elevator contractor or elevator

       mechanic license is to “satisfy the continuing education requirement and submit

       a proof of completion of training to the [D]epartment.” Ind. Code § 22-15-5-

       15(b). The CE requirement is “at least eight (8) hours of instruction that must

       be attended and completed within one (1) year before a license renewal.” Ind.

       Code § 22-15-5-15(c). For attendance at a CE course to satisfy a licensee’s CE

       requirement, “the continuing education provider, instructor and the curriculum

       must have been approved by the [D]epartment.” Ind. Code § 22-15-5-15(d).


[13]   The Applicants allege the Commission’s decision not to renew their licenses

       was invalid under Indiana Code section 4-21.5-5-14(d) because the licensing

       statute is not clear that in-house training can meet the CE requirement and the

       Department did not give ZECO that information; because the Department

       treated ZECO in a discriminatory fashion with respect to providing information

       about and approving in-house training; and because the Department’s

       interpretation of the CE statute to require pre-approval of courses for CE credit

       is incorrect. Essentially, the Applicants contend the Department did not act

       consistently and fairly in assessing their applications.


[14]   The Applicants’ arguments conflate two separate issues: whether ZECO could

       qualify as a CE provider and Zeller as a CE instructor for purposes of holding

       courses satisfying the CE requirement is a separate consideration from whether

       the Applicants submitted applications showing they met the requirements for


       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 12 of 22
       renewal of their licenses. The agency action being reviewed is the denial of the

       applications, yet the bulk of the Applicants’ argument is directed to the

       Department’s failure to retroactively approve ZECO’s in-house training as

       courses eligible for CE credit.


[15]   By appropriate legislation, the State of Indiana has provided for the licensing of

       those engaged in certain trades, businesses, or professions and has established

       administrative boards for the purpose of granting or revoking such licenses. See

       Ralston v. Ryan, 217 Ind. 482, 484, 29 N.E.2d 202, 203 (1940) (regarding the

       licensing of engineers). Those administrative boards “act as fact-finding bodies

       to ascertain whether applicants conform to a legislative formula by which the

       right to a license is fixed.” State Bd. of Med. Registration and Examination v.

       Scherer, 221 Ind. 92, 96, 46 N.E.2d 602, 603 (1943). Here, the legislature has

       provided for the Department to “issue a license as an elevator contractor [or]

       elevator mechanic . . . to a person who qualifies and complies with the

       provisions of the licensing program.” Ind. Code § 22-15-5-6(c). The “legislative

       formula” for renewing an elevator mechanic’s license is to

               (1) Submit to the [D]epartment an application provided by the
               [D]epartment . . . .


               (2) Submit proof of completion of the continuing education
               required by section [22-15-5-15].


               (3) Pay the nonrefundable and nontransferable license fee
               established under IC 22-12-6-6.



       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 13 of 22
                (4) Affirm under penalty of perjury that all information provided
                to the [D]epartment is true to the best of the applicant’s
                knowledge and belief.


       Ind. Code § 22-15-5-12(d).3 It is undisputed the Applicants did not submit proof

       of completion of the CE required by statute, either with their applications or

       when given the opportunity to supplement their applications thereafter. The

       required “proof” includes information about the date the Department-approved

       CE was taken; the name of the CE course, provider, and instructor; and proof

       of attendance. At best, the Applicants provided the name of providers; their

       documentation does not include dates, names of courses or instructors, or proof

       of attendance at an approved CE. On its face, then, there is nothing arbitrary or

       capricious about the Commission’s decision to deny the applications for license

       renewal, as the Applicants failed to conform to the statutory requirements for

       renewal.


[16]   Essentially, however, the Applicants argue they actually did complete the

       required CE because they attended in-house training that should have been

       retroactively approved by the Department.4 The Applicants note that despite

       contacting the Division regarding approved CE options for the renewal period




       3
        Section 22-15-5-8(b) sets forth the requirements for renewing an elevator contractor’s license, which in
       addition to the requirements for an elevator mechanic’s license, includes demonstrating proof of insurance
       and proof of worker’s compensation coverage.
       4
         Despite alleging in the letter to the Department that they had attended a four-hour “accredited” course
       through the Association of Reciprocal Safety Councils, Inc., the Applicants’ argument focuses solely on
       obtaining CE credit for the in-house training.

       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016          Page 14 of 22
       at issue, they were unable to obtain information about any approved courses.

       They also note that the statute is not clear that in-house training could satisfy

       the CE requirement, as Indiana Code section 22-15-5-15(d) provides:


               The continuing education courses designed to ensure the
               continuing education of an individual holding a license regarding
               new and existing provisions of the rules of the commission may
               include:


               (1) programs sponsored by the commission;


               (2) trade association seminars;


               (3) labor training programs; or


               (4) joint labor management apprenticeship and journeyman
               upgrade training programs.


       Moreover, they note the Division never informed them that in-house training

       could be CE-approved, despite approving other elevator companies’ in-house

       training for CE. Finally, they argue the Department’s interpretation of the

       statute defining the CE requirement is unreasonable because the statute does

       not explicitly state CE must be pre-approved for it to satisfy the requirement.


[17]   With regard to the difficulty the Applicants claim they had in obtaining

       information about available CE, Zeller testified at the hearing before the ALJ

       based upon shorthand notes written by his secretary that she had called the

       Division on possibly two occasions at the end of September 2007 to inquire

       whether Ivy Tech was again providing a CE course. He testified his secretary
       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 15 of 22
also recorded making several phone calls to Ivy Tech in October and November

2007, including one on November 21, 2007, in which Ivy Tech informed her it

would not be providing a CE course, but gave her the names and numbers of

other organizations to call. Rather than contact any of those organizations or

call the Division again for further guidance, Zeller told his secretary on

November 28, 2007, to send a check to the State for the license renewal fees,

followed thereafter by the applications. The Division may not have done all it

could to communicate with current license holders about available CE options, 5

especially given the licensing program was still relatively new, but the Division

itself is not responsible for offering CE programs, only approving them to be

offered by others. The onus to obtain CE rests with the Applicants, and they

certainly did not do all they could, either. They made at most two phone calls

to the Division, seeking information about an Ivy Tech course. They explored

no alternatives beyond Ivy Tech. It is true the statute describing CE courses

does not specifically include in-house training among the types of courses that

may meet the CE requirement. However, the statute is also clear that the list is

not exclusive, as it states such courses “may include” those listed. Ind. Code §

22-15-5-15(d). The Applicants could have inquired of the Division whether

ZECO’s weekly in-house training could count as CE, but instead, once the




5
  Throughout their briefing, the Applicants argue the Department “was under a specific, statutory duty” to
tell them they could provide in-house training, citing Indiana Code section 5-14-3-1. See Appellants’ Reply
Brief at 4. That statute is part of Indiana’s Access to Public Records Act, which allows any person to inspect
and copy the records of any public agency. Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127,
1130 (Ind. Ct. App. 2005), trans. denied. It does not impose on the Department the obligation the Applicants
seek to impose.

Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016         Page 16 of 22
       Applicants ascertained a course similar to the one provided two years prior was

       not going to be provided again, they asked no further questions and simply

       submitted their applications without regard to the plainly stated requirement to

       submit proof of approved CE attendance.


[18]   As to ZECO’s assertion it was treated differently than other elevator companies

       who were approved for in-house CE training, we note that again, this goes to

       the question of whether ZECO could be a CE provider rather than to the

       question of whether the renewal applications should have been denied.

       Regardless, the record contains no evidence of discriminatory treatment. It is

       true other elevator companies’ in-house training was approved for CE credit.

       But there is absolutely no evidence that the Department proactively gave those

       companies information about the option to provide in-house training that it did

       not provide to ZECO, as the Applicants seem to allege. Moreover, those other

       companies submitted the appropriate documentation to have their in-house CE

       approved prior to offering it, and, presumably, their employees then submitted

       the appropriate documentation of their attendance with their renewal

       applications. ZECO did not submit any documentation seeking to have its in-

       house training approved until after the Applicants’ licenses had expired and

       their renewal applications were denied. Therefore, ZECO was not treated

       differently than other elevator companies because it was not in the same

       position as the other companies.


[19]   This leads to the Applicants’ final allegation that the Department’s

       interpretation of the CE statute to require a CE course to be pre-approved is

       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 17 of 22
       “unavailing.” Appellants’ Brief at 19. The CE statute states that in order for an

       individual’s completion of a CE course to satisfy an applicant’s CE

       requirement, “the continuing education provider, instructor and the curriculum

       must have been approved by the [D]epartment.” Ind. Code § 22-15-5-15(d)

       (emphasis added).


[20]   The Applicants analogize their CE requirements with an attorney’s continuing

       legal education requirements, citing the Mandatory Continuing Legal

       Education Guideline that an attorney “may apply for credit of a course either

       before or after the date on which it is offered.” Guidelines to the Ind.

       Admission and Discipline Rule, Section 3(d). The Applicants contend “there is

       no just reason why elevator licensees, like attorneys . . ., may not submit proof

       of their CE training after it occurs and receive approval from the Department at

       that time.” Appellants’ Brief at 20. But there are several reasons why the two

       do not necessarily have to be treated the same. First, the attorney licensing and

       education scheme was created by the Indiana Supreme Court and is overseen

       by a court-created commission, whereas the elevator contractor and mechanic

       licensing and education scheme was created by the Indiana General Assembly

       and is overseen by a legislatively-created agency. Second, the continuing legal

       education rules for attorneys specifically provide in certain cases for approval

       after a course is completed, whereas section 22-15-5-15(d) does not. Third,

       Mandatory Continuing Legal Education Guideline 3(d) states in its entirety that

       an attorney may apply for credit either before or after the course “[e]xcept for

       distance education and in-house courses”; for a law firm’s in-house course to be


       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 18 of 22
       approved for continuing legal education credit, an application for accreditation

       must be received at least thirty (30) days prior to the course. So if the two

       continuing education schemes were to be treated the same as the Applicants

       wish, in-house elevator training would require pre-approval notwithstanding the

       specific language of section 22-15-5-15. And fourth, regardless of the

       appropriate timing of approving a CE course and even if the documentation

       ZECO submitted after the fact would be sufficient for it to be approved as a

       provider and Zeller as an instructor, the Applicants provided no documentation

       at any time proving their attendance at any given training session.


[21]   Turning to the language of the statute specifically applicable to this situation,

       Indiana Code section 22-15-5-15 does not say that for an individual’s

       completion of a course to satisfy the CE requirement the course “must be

       approved” by the Department; rather, it says the course “must have been

       approved.” Because the obligation imposed by the statute is written in the past

       tense, it necessarily means the required Department action—approval of a

       course—is to be taken before the individual’s completion of the course may

       satisfy the CE requirement. Cf. In re P.F., 849 N.E.2d 1220, 1225 (Ind. Ct. App.

       2006) (reviewing a statute regarding school expulsion that requires the

       governing body to hear a student’s appeal unless the school board “has voted”

       not to hear appeals of expulsions and noting that because “has voted” is in the

       past tense, the school board is required to hear a student’s appeal unless it had

       already taken a vote not to hear any such appeals prior to the initiation of that

       individual’s appeal). In addition, to the extent the language of the statute is


       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 19 of 22
       ambiguous, the Department’s representative testified at the ALJ hearing that

       the Department interprets section 22-15-5-15 to mean a course must be

       approved before the training is provided. We recognize an agency has expertise

       in its field and therefore give great weight to an agency’s interpretation of a

       statute it is responsible for enforcing. Andy Mohr West v. Office of Ind. Sec’y of

       State, 54 N.E.3d 349, 352-53 (Ind. 2016). If the agency’s interpretation of a

       statute is reasonable, we end our analysis there. Id. And indeed, the

       Department’s interpretation of the statute here is reasonable.


[22]   In sum, ZECO did not do what was necessary to offer approved CE to its

       employees and the Applicants did not prove they had otherwise attended eight

       hours of approved CE. “An administrative decision is arbitrary and capricious

       only when it is willful and unreasonable, without consideration or in disregard

       of the facts and circumstances of the case, or without some basis which could

       lead a reasonable person to the same conclusion.” Ind. Horse Racing Comm’n v.

       Martin, 990 N.E.2d 498, 503 (Ind. Ct. App. 2013). Because the Applicants

       failed to prove they had met all the requirements for renewal of their licenses,

       and have failed to show the Department or the Commission acted

       unreasonably, in disregard of the facts and circumstances, or without a

       reasonable basis in denying the applications on this ground, they have also

       failed to meet their burden of showing the agency action in this case was

       invalid.




       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 20 of 22
                                          III. ALJ Hearing
[23]   Finally, the Applicants contend the ALJ acted improperly by deferring to the

       Department’s position and not conducting a true de novo review.


               The ALJ is guided in his role by Ind. Code §§ 4-21.5-3-1 through
               4-21.5-3-37 which establish the procedure the ALJ is to follow.
               More particularly, Ind.Code § 4-21.5-3-27 requires the ALJ to
               make findings of fact based on the evidence presented at the
               hearing. This requires the ALJ to independently weigh the
               evidence presented at the hearing and to base recommendations
               exclusively on that record.


       Ind. Dep’t of Nat. Res. v. United Refuse Co. Inc., 615 N.E.2d 100, 104 (Ind. 1993).


[24]   The trial court found this issue waived for failure to raise it to the Commission,

       noting the Applicants raised this new argument for the first time in their pre-

       hearing brief on judicial review. In general, “[a] person may file a petition for

       judicial review . . . only after exhausting all administrative remedies available

       within the agency whose action is being challenged and within any other

       agency authorized to exercise administrative review.” Ind. Code § 4-21.5-5-

       4(a). In United Refuse, our supreme court determined the ALJ did not perform a

       de novo review and remanded the case for a new ALJ hearing conducted under

       the appropriate standard of review. 615 N.E.2d at 104. In a concurring

       opinion, Justice DeBruler noted the objections to the ALJ’s nonfinal order were

       based in part on the review standard employed by the ALJ and the ultimate

       authority had the ability to reject or modify the ALJ’s findings and make its

       own. Id. at 105 (citing Ind. Code § 4-21.5-3-28(g)(2)). That the ultimate

       Court of Appeals of Indiana | Memorandum Decision 65A05-1512-CP-2331 | November 9, 2016   Page 21 of 22
       authority affirmed the ALJ’s findings without modification under those

       circumstances justified setting aside the agency action. Id. Here, the propriety

       of the ALJ’s decision on this particular basis could have been raised for the

       Commission to correct but was not. See App. at 61 (ZECO’s “exception” to the

       ALJ’s order, raising only alleged omissions from certain findings of fact).


[25]   Regardless, we see nothing improper about the ALJ’s role in this case. With

       respect to the ultimate issue before the ALJ—whether the applications met the

       statutory requirements—the ALJ determined from the evidence presented at the

       hearing that the applications did not meet the statutory requirements because

       they failed to include proof of attendance at eight hours of approved CE. This

       is an appropriate review and resolution of the case.



                                               Conclusion
[26]   The Applicants have not established that the Commission’s decision was

       unsupported by substantial evidence or was arbitrary, capricious, or in violation

       of any constitutional, statutory, or legal principles. Accordingly, the trial

       court’s decision affirming the Commission’s order denying the Applicants’

       license renewals was not in error. The judgment of the trial court is affirmed.


[27]   Affirmed.


       Najam, J., and Crone, J., concur.




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