[CITE: DNR, D F & W v. Charles G. Ritter, 4 CADDNAR 51 (1987)]
[VOLUME 4, PAGE 51]
Cause #: 87-022D
Caption: DNR, D F & W v.
Charles G. Ritter
Administrative Law Judge: Drew
Attorneys: Lasser; Schaefer, DAG
Date: October 9, 1987
ORDER
The
Notice of Proceeding submitted by the Department of Natural Resources seeking
to revoke the commercial fishing license on Lake Michigan issued to Charles G.
Ritter is hereby denied.
FINDINGS OF FACT
1.
On March 26, 1987, the Claimant, the Department of Natural Resources, filed a
Notice of Proceeding to Revoke License of Charles Ritter issued to Engage in
Commercial Fishing on Lake Michigan.
2.
IC 4-22-1 and IC 14-2, the Fish and Wildlife Act, apply to this proceeding.
3.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
On July 27, 1987 the Respondents, Charles G. Ritter, filed a Motion for Summary
Decision pursuant to 310 IAC 0.5-11.[FOOTNOTE 1]
6.
Respondent holds a commercial fishing license for the Indiana waters on Lake
Michigan.
7.
On November 26, 1987 Respondent submitted his application for an Indiana
Commercial Fishing License for 1987 to the Fish and Wildlife Division. The
application listed respondent's address as 50 Marine Drive, E-8, Michigan City,
Indiana.
8.
At the time Respondent applied for his license, the statutory requirement for
each applicant was that he be a "qualified resident of the state." A
qualified resident was defined in IC 14-2-2-4 as an individual "who has
been continuously a resident of this state for at least two (2) years."[FOOTNOTE 2]
9.
IC 14-2-7-28 provides that it is unlawful for an individual to falsely
represent that he is a resident of Indiana for the purpose of obtaining a
resident license.
10.
Claimant contends that Respondent's license should be revoked because he has
violated IC 14-2 by not being a continuous resident of the state for two (2)
years preceding his application for a commercial fishing license.
11.
Among the factors leading Claimant to believe that Respondent had falsely
misrepresented himself as an Indiana resident are the following: Respondent's
address as listed on his application, 50 Marine Drive, E-8, Michigan City,
Indiana, is actually owned by William E. Senchak.
Respondent is not listed in the Michigan City telephone directory but is listed
in the telephone directory for New Buffalo, Michigan, where he owns commercial
property. On December 12, 1984, Respondent was arrested at the New Buffalo
address. Respondent has not filed an Indiana tax return for the last five
years.
12.
Where residency is a requirement for the enjoyment of a particular privilege
(in this case the privilege of obtaining a commercial fishing license), the
applicant must show that he has a fixed, permanent residence and that he
intends for that place to be his principal residence for at least an indefinite
period of time. Furthermore, should he leave his residence, his intention shall
always be to return.[FOOTNOTE 3]
13.
Respondent's activities in this state demonstrate an intention to establish his
principle residence and domicile in Indiana.
14.
According to the supplemental affidavit submitted by Respondent, Respondent
owns commercial property located at 517 East 4th Street, Michigan City,
Indiana, and resided at that address between November, 1984, and May, 1986. In
May, 1986, Respondent leased his Michigan City property to another entity and
took up temporary residence at commercial property he owns located in New
Buffalo, Michigan. In September, 1986, Respondent entered into an agreement
with William E. Senchak, owner of a
[VOLUME 4, PAGE 52]
residence located at 50 Marine Drive,
E-8, Michigan City, Indiana, in which it was agreed that Respondent could
maintain his residency at that address.[FOOTNOTE
4]
15.
Between November, 1984, and November 1986, Respondent was a registered voter in
LaPorte County, Indiana, has held a valid Indiana
driver's license, was issued a non-resident Michigan real estate license and a
non-resident Michigan fishing license (both of which listed his home address in
Michigan City, Indiana) and has opened several personal bank accounts in
Michigan City.[FOOTNOTE 5]
16.
Respondent has established Indiana as his intended domicile for two years
preceding his application for a commercial fishing license in accordance with
the requirements set forth in IC 14-2.
FOOTNOTES
1. Respondent actually filed a "Motion for Summary Judgment" but his
motion shall be treated as a Motion for Summary Decision based upon the
Department's administrative procedure rules in effect at that time and found in
310 IAC 0.5-11.
2. The "qualified residency" requirement found in IC 14-2-2-4 became
effective April, 1985. Prior to that time, the residency requirement for an
individual obtaining a commercial fishing license was thirty (30) days prior to
the date of application. In 1987 the two year "qualified resident" provisions
were repealed and replaced with a provision requiring a sixty (60) day period
of continuous residency in order to meet statutory requirements.
3. Board of Medical Registration and
Examination v. Turner, 168 N.E. 2d 193 (Ind. 1960), Black's Law Dictionary 435 (5th Ed. 1979).
4. Respondent's various residences during the two year time frame pertinent to
this cause do not diminish his claim that he intended his domicile to be
located in Indiana. A person may have more than one residence or may actually
reside elsewhere, as long as he intends to return to his domicile. Gaddis v. Barnes, 112
N.E. 2d 881 (Ind. App. 1953), Black's Law
Dictionary 435 (5th Ed. 1979).
5. Claimant contends that such facts are merely self-serving and do not prove
Indiana is Respondent's true domicile. On the contrary, Respondent's actions in
obtaining the various licenses indicate an intent on
his part to establish Indiana, and no other state, as his domicile.
Furthermore, Respondent's failure to file an Indiana tax return loses its
significance (for these purposes) in light of the fact that Respondent has not
filed a tax return in any other state.