IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

ST. LOUIS METROPOLITAN TOWING,

Appellant,

v.

DIRECTOR OF REVENUE,

Respondent.

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WD77241

OPINION FILED:

September 2, 2014

Appeal from the Circuit Court of Cole County, Missouri

The Honorable Daniel R. Green, Judge

Before Division I: Mark D. Pfeiffer, Presiding Judge, and

Lisa White Hardwick and Karen King Mitchell, Judges

St. Louis Metropolitan Towing (“Metro Towing”) appeals the Judgment of the Circuit 

Court of Cole County, Missouri, affirming the Administrative Hearing Commission‟s (“AHC”) 

dismissal of Metro Towing‟s petition for review regarding the Director of Revenue‟s 

(“Director”) letter notifying Metro Towing that its application for a salvage dealer license had 

already been denied. We affirm.

Factual and Procedural Background

Metro Towing is a partnership owned by William A. Bialczak and Kenneth J. Bialczak 

and operating in St. Louis, Missouri. On December 3, 2010, William and Kenneth Bialczak each 
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pleaded guilty to income tax evasion under 26 U.S.C. § 7201. On January 18, 2013, the Director 

received Metro Towing‟s application for a license as a salvage dealer or dismantler, a body shop 

or rebuilder, and a scrap processor1(“January 18 Application”). William and Kenneth Bialczak 

were listed as the two owners/partners of Metro Towing.

On February 4, 2013, the Director sent Metro Towing a “Notice of Refusal to Issue or 

Renew License” (“February 4 Decision”). The February 4 Decision stated that the Director‟s 

decision to reject Metro Towing‟s January 18 Application was due to Metro Towing‟s failure to 

meet the requirements of section 301.559.32and 12 CSR 10-23.160, which require an applicant 

for licensure as a salvage dealer to be of good moral character. Additionally, the Director 

refused to issue or renew the license because the applicant had “within ten years prior to the date 

of the application, been finally adjudicated and found guilty, or entered a plea of guilty . . . for 

[an] offense, an essential element of which is fraud, dishonesty, or an act of violence; or for any 

offense involving moral turpitude.” § 301.562.2(3). The February 4 Decision notified Metro 

Towing that if it was adversely affected by the decision, it must file an appeal with the AHC 

within thirty days after the decision was mailed.

Metro Towing did not appeal the February 4 Decision to the AHC. Instead, on June 10, 

2013, Metro Towing re-submitted its application (“June 10 Application”) in substantially similar 

form as the January 18 Application.

The Director sent a letter to Metro Towing on June 11, 2013 (“June 11 Letter”), returning 

the June 10 Application and check to Metro Towing and notifying Metro Towing that the 

Director had already received the original January 18 Application to renew, which it had denied 

on February 4, 2013.

 

1 Each business is defined in section 301.010.

2 All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2012 

Cumulative Supplement.
3

On June 12, 2013, Metro Towing filed an administrative review request with the AHC to 

appeal the Department‟s June 11 Letter. On July 29, 2013, the AHC issued its decision 

dismissing Metro Towing‟s request for review, stating:

[Metro Towing] failed to timely appeal the Director‟s February 4 decision; as a 

consequence, the Director‟s determination that its owners lacked the good moral 

character required for licensure by § 301.559.3 and 12 CSR 10-23.160 must stand, 

at least until the prima facie presumption embodied in that decision no longer 

applies. The June 11 letter is not a “decision of the Director” from which [Metro 

Towing] may appeal under § 621.050.

The AHC also concluded that failure to dismiss Metro Towing‟s request for review 

“would create a „whack-a-mole‟ situation, where the Director is required to repeatedly deny 

identical applications until the applicant obtains the desired approval, resulting in an unwarranted 

increase in the Department‟s cost of administering the licensing statute.”3

Metro Towing filed a petition for administrative review on August 16, 2013, in the 

Circuit Court of Cole County. The circuit court issued its findings of fact, conclusions of law, 

and judgment on December 31, 2013, upholding the AHC‟s decision.

Metro Towing appeals.

Standard of Review

“In an appeal following judicial review of an agency‟s administrative action, [an 

appellate court] reviews the decision of the agency, not the circuit court.” TAP Pharm. Prods., 

Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140, 141 (Mo. banc 2007). Article V, section 18 of 

the Missouri Constitution provides for judicial review of final administrative agency “decisions, 

findings, rules and orders” to determine whether they are authorized by law and “are supported 

 

3 At oral argument, counsel for Metro Towing advocated that we need not worry about the “whack-a-mole” 

repeated application filings (in lieu of complying with the required statutory and regulatory appellate process) 

dilemma because counsel personally had not seen such a dilemma in the past thirty years and we should treat the 

present situation of a rejected licensure applicant bypassing the statutory and regulatory appellate scheme by filing a 

new identical application as a “no harm-no foul” situation. We are not, however, permitted to ignore the law.
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by competent and substantial evidence upon the whole record.” Section 536.140.2 further 

provides that the scope of judicial review extends to a determination of whether the action of the 

agency: is in violation of constitutional provisions; is in excess of the statutory authority of the 

agency; is unsupported by competent and substantial evidence on the record; is otherwise 

unauthorized by law; is made upon unlawful procedure or without a fair trial; is arbitrary, 

capricious, or unreasonable; or involves an abuse of discretion. Questions of law are reviewed 

de novo. § 536.140.3.

Analysis

Metro Towing asserts two points on appeal, both contending that the AHC had no 

statutory authority to refuse its administrative appeal or give preclusive effect to the February 4 

Decision. Because Metro Towing‟s points are sufficiently related, we consider them together.

One of the requirements for licensure as a salvage dealer is that the Director must be 

satisfied that “each of the partners . . . of the applicant, if a partnership . . . , is of good moral 

character.” § 301.221.1. The Director has established guidelines to determine if an applicant for 

registration as a salvage dealer should be denied registration because of lack of good moral 

character:

(1) Except with a showing of evidence to the contrary, the following will be 

considered prima facie evidence on which the registration of a . . . salvage 

dealer . . . will be denied because of lack of good moral character if the 

applicant:

. . . .

(B) Within five (5) years preceding the application, has been convicted in any 

federal or state court of a felony . . . .

12 CSR 10-23.160 (emphasis added). William and Kenneth Bialczak were listed on the 

January 18 Application as the two owners/partners of Metro Towing. Both of them pleaded 

guilty to income tax evasion on December 3, 2010, which was prima facie evidence under the 
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guidelines that they lacked the good moral character for licensure. 12 CSR 10-23.160(1). There 

is no evidence in the record that Metro Towing requested a hearing to rebut that presumption by 

“showing substantial rehabilitation or improvement in character.” 12 CSR 10-23.160(2). In its 

February 4 Decision, the Department cited section 301.559.3 and 12 CSR 10-23.160 as well as 

section 301.562.1 as the bases for rejecting Metro Towing‟s January 18 Application because its 

owners lacked good moral character and had recent felony convictions for tax evasion.

Under section 621.050.1, any person or entity has the right to appeal to the AHC “from 

any finding, order, [or] decision” made by the Director “by the filing of a petition with the 

[AHC] within thirty days after the decision of the [D]irector is placed in the United States mail 

or within thirty days after the decision is delivered, whichever is earlier.” The Director‟s 

decision is required to contain a notice of the right to appeal. § 621.050.1.4 “Failure to comply 

with statutory time for appeal in an administrative proceeding results in a lapse of jurisdiction 

and loss of right of appeal.” Cmty. Fed. Sav. & Loan Ass’n v. Dir. of Revenue, 752 S.W.2d 794, 

799 (Mo. banc 1988) (citing Springfield Park Cent. Hosp. v. Dir. of Revenue, 643 S.W.2d 599 

(Mo. 1983); Randles v. Schaffner, 485 S.W.2d 1 (Mo. 1972); Cardinal Glennon Mem’l Hosp. 

Coffee Shop v. Dir. of Revenue, 624 S.W.2d 115 (Mo. App. W.D. 1981)).

The procedures applicable to an appeal from the Director‟s decision to the AHC are those 

established by chapter 536. § 621.050.2. To be entitled to judicial review of a final agency 

decision, section 536.100 requires the aggrieved party to “exhaust[ ] all administrative remedies 

provided by law.” “The purpose of exhaustion is to prevent premature interference with agency 

 

4 As required by section 621.050.1, the Director included a notice of this right to appeal in the February 4 

Decision:

You are further notified that, if you were adversely affected by this decision, you may file an 

appeal with, and have a hearing before, the Administrative Hearing Commission, PO Box 1557, 

Jefferson City, MO 65102, as provided by Chapter 621, RSMo. Such appeal must be filed with 

the Administrative Hearing Commission within thirty days after the date this decision was mailed.
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processes so that the agency may function efficiently and so that it may have an opportunity to 

correct its own errors, to afford the parties and the courts the benefit of its experience and 

expertise, and to compile a record that is adequate for judicial review.” Parker v. City of Saint 

Joseph, 167 S.W.3d 219, 221 (Mo. App. W.D. 2005) (internal quotation omitted). “Exhaustion 

occurs when every step of the administrative procedure has been completed and the agency 

renders a final decision.” Id. If the agency arrives at a terminal, complete resolution of the case, 

then a decision is final. Id.

Metro Towing opted not to exercise its right under section 621.050 to appeal the 

February 4 Decision rejecting Metro Towing‟s application for a salvage dealer‟s license to the 

AHC. Because Metro Towing did not appeal the Director‟s February 4 Decision to the AHC 

within thirty days after the decision was mailed to Metro Towing, the Director‟s decision was 

final for purposes of administrative review and not subject to collateral attack. State ex rel. 

Lohman v. Latimer, 4 S.W.3d 560, 562 (Mo. App. S.D. 1999).

Metro Towing presented no new information in the June 10 Application5for the 

Director‟s consideration, particularly with regard to Metro Towing‟s ownership. By submitting 

the June 10 Application, Metro Towing attempted to bypass the AHC and the procedures 

mandated by the General Assembly for judicial review. Metro Towing had an adequate remedy 

to challenge the Director‟s denial of its application for a salvage dealer license, but it let the time 

for seeking that remedy expire. See Shelton v. Farr, 996 S.W.2d 541, 543 (Mo. App. W.D. 

1999). It cannot revive its action by filing a second substantially identical application. Metro 

Towing‟s failure to appeal the February 4 Decision to the AHC rendered the Director‟s decision 

 

5 At oral argument, counsel for the Director conceded that if Metro Towing were to file a subsequent 

application that did, in fact, provide the Director with relevant new information, the Director may look upon such 

application as a materially different licensure application that may invoke the requirement of a new evaluation of 

such application. Since that factual scenario is not before us, however, we need not and do not address it.
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regarding denial of Metro Towing‟s salvage dealer license application final and not susceptible 

to collateral attack.6

Points I and II are denied.

Conclusion

The decision of the circuit court affirming the decision of the AHC is affirmed.

Mark D. Pfeiffer, Presiding Judge

Lisa White Hardwick and Karen King Mitchell, Judges, concur.

 

6 Metro Towing cites to Jones v. Director of Revenue, 981 S.W.2d 571 (Mo. banc 1998) and Normandy 

School District v. City of Pasadena Hills, 70 S.W.3d 488 (Mo. App. E.D. 2002), in support of its contention that, 

effectively, it is entitled to ignore its statutory and regulatory appeal requirements upon an adverse licensure 

decision from the Director by simply re-submitting the same application to the Director. Neither case aids Metro 

Towing. In Jones, there were administrative actions against two separate entities responsible for the same tax 

assessments—a corporation and a separate individual. Jones, 981 S.W.2d at 573. The corporation did not appeal 

the assessment and the court concluded that the “corporation‟s failure to exhaust its administrative remedies renders 

its assessment final and immune to collateral attack.” Id. at 575. However, the separate individual who received a 

subsequent assessment for the same tax obligation was permitted to appeal because, as one who was merely in 

privity with the corporation, the individual was not precluded from litigating the alleged tax obligation because there 

had not been a previous judgment on the merits. Id. Unlike Jones, Metro Towing is not a party in privity to the 

February 4 Decision—it is the party who received the adverse ruling from the Director. Thus, like the corporate 

entity in Jones, Metro Towing is not permitted to collaterally attack the February 4 Decision by re-filing a 

subsequent application substantially identical to the January 18 Application that had already been denied. The 

Normandy case is also distinguishable. In Normandy, the party receiving an adverse administrative ruling attempted 

to appeal the administrative decision, but skipped a step in the appellate process, leading to a dismissal of its appeal. 

Normandy, 70 S.W.3d at 490. After the dismissal, the appealing party re-submitted its appeal to the appropriate 

administrative review tribunal and the court concluded that res judicata would not operate to bar the administrative 

appeal. Id. Here, conversely, Metro Towing never attempted to appeal from the original adverse ruling of the 

February 4 Decision. Thus, Normandy is inapposite.