Larry Shannon d/b/a Economy Wrecker Service v. Arkansas Towing and Recovery Board

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-909

November 2, 2005

LARRY SHANNON d/b/a

ECONOMY WRECKER SERVICE AN APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

[NO. CIV02-5670]

v.

HONORABLE CHRISTOPHER PIAZZA

ARKANSAS TOWING AND CIRCUIT JUDGE

RECOVERY BOARD

APPELLEE AFFIRMED

Olly Neal, Judge

Appellant Larry Shannon, who operates Economy Wrecker Service, appeals from a circuit court's affirmance of a fifty-dollar fine and thirty-day suspension imposed on him by the Arkansas Towing and Recovery Board. He argues that the suspension violated his constitutional rights and that the Board acted in an arbitrary and capricious manner. We find no error and affirm.

In late 2001 or early 2002, the Board received two complaints against appellant for overpriced tow charges. In the course of investigating the complaints, the Board discovered that appellant had made the tows while his license was expired. A hearing was held, and the Board's administrative assistant, Cynthia Lauen, testified that appellant had made the tows on September 17, 2001, and October 14, 2001, while his license was not current. Appellant did not deny the charges and asked the Board for "mercy." Upon being asked whether he had been towing without a permit prior to these complaints, he admitted that "the same thing happened about two years ago." The Board voted to impose a fifty-dollar fine and suspendappellant's license for thirty days, despite his plea that the suspension would render him "bankrupt."

On May 29, 2002, appellant petitioned the Pulaski County Circuit Court for review of the administrative ruling. After a hearing, the court upheld the ruling and found that the Board's action was supported by substantial evidence and was not arbitrary or capricious. Appellant now appeals and makes two arguments, which he phrases as follows: 1) A thirty-day suspension violated the constitutional rights of the appellant; 2) The Board acted in an arbitrary and capricious manner.

Our review is governed by the Administrative Procedures Act. The Act provides that a court may reverse an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the agency's statutory authority;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Not supported by substantial evidence of record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark. Code Ann. § 25-15-212(h) (Repl. 2002). On appeal, it is not our role to conduct a de novo review of the circuit court proceeding; rather, our review is directed at the decision of the administrative agency. See Groce v. Director, Ark. Dep't of Human Servs., 82 Ark. App. 447, 117 S.W.3d 618 (2003). We have recognized that administrative agencies are better equipped than courts by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. Arkansas Dep't of Human Servs. v. Schroder, 353 Ark. 885, 122 S.W.3d 10 (2003).

Appellant argues first that the thirty-day suspension was "grossly excessive," thereby violating Article 2, Section 9 of the Arkansas Constitution and the Eighth Amendment to the United States Constitution, both of which prohibit the imposition of excessive fines. The Eighth Amendment's Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense. United States v.Bajakajian, 524 U.S. 321 (1998). In determining whether the Excessive Fines Clause has been violated, the question is whether the forfeiture is grossly disproportional to the gravity of the offense. See id.1

We do not believe that the suspension in this case was excessive. Appellant admitted that he made two tows at a time when he had been unlicensed for several months, and he admitted that the same thing had occurred before. Although appellant argues that his suspension would result in a loss of $20,000 in gross income, there was no support for this assertion adduced at either the administrative or circuit-court level except for counsel's arguments, which are not evidence. Alltel Ark. v. Public Serv. Comm'n, 70 Ark. App. 421, 19 S.W.3d 634 (2000). Moreover, Ark. Code Ann. § 27-50-1204(d) (Repl. 1994) provides that any person who is determined by the Towing and Recovery Board to have committed an act that is in violation of the subchapter or rules promulgated thereunder is subject to civil penalties "not to exceed $500 and/or suspension or revocation of any towing license or permit." The thirty-day suspension is therefore well within the parameters established by the Arkansas legislature, a factor our courts have considered in determining whether a punishment is excessive or cruel and unusual. See generally Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995); Arkansas State Bd. of Cosmetology v. Roberts, 28 Ark. App. 249, 772 S.W.2d 624 (1989). In light of these factors, we cannot say that the punishment imposed on appellant was grossly disproportionate to the gravity of the offense.

Nor do we agree with appellant that the Board's action was arbitrary and capricious. An administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Olsten Health Servs., Inc. v. Arkansas Health Servs.Comm'n, 69 Ark. App. 313, 12 S.W.3d 656 (2000). To have an administrative action set aside on this basis, the party challenging the action must prove that it was a willful and unreasoned action, without consideration, and with disregard of the facts and circumstances of the case. Id.

As previously pointed out, it is undisputed that appellant committed the violation with which he was charged and was sanctioned in a manner permitted by Arkansas law and administrative regulations. Thus, the Board's action was not unreasonable or in disregard of the facts and circumstances of the case. Appellant argues, however, that the Board improperly questioned him regarding the customer complaints that had been lodged against him; that the Board "did not like" the complaints; and that the Board consequently imposed a harsh sentence on him. It is true that, during the hearing, certain Board members inquired into the manner in which appellant made his tows and commented thereon. However, there is no evidence beyond speculation that the Board considered anything other than appellant's unlicensed status in imposing his suspension. The Board's order mentioned nothing about the substance of the consumer complaints and referred only to appellant's lack of licensure as the basis for the suspension. We therefore decline to hold that the Board's decision was arbitrary.2

Affirmed.

Bird, J., agrees.

Pittman, C.J., concurs.

1 Because the excessive-fines provisions of both constitutions are virtually identical, we consider cases construing the United States Constitution's Eighth Amendment to be persuasive in construing Ark. Const. art. 2, § 9. See Delta Sch. of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992).

2 Appellant also asks us to remand the case to the Board with directions to "weigh the factors necessary to determine if the punishment is excessive." It is an appellant's burden to develop his case at the administrative level. See generally Teston v. Arkansas State Bd. of Chiropractic Exam'rs, ___ Ark. ___, ___ S.W.3d ___ (Apr. 7, 2005); Arkansas Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998). Because the agency in this instance made adequate findings on all matters presented to it, we see no need for, nor are we presented with any authority for, requiring this court to remand for development of additional issues.