CADDNAR

[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.