Tony Quinn v. Arkansas Contractors Licensing Board

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

TONY QUINN

APPELLANT

v.

ARKANSAS CONTRACTORS LICENSING BOARD APPELLEE

April 9, 2003

CA02-733

APPEAL FROM PHILLIPS COUNTY CIRCUIT COURT

[NO. 2001-206]

HONORABLE HARVEY YATES, CIRCUIT JUDGE

AFFIRMED

This is an appeal from a circuit court order affirming a decision of the Arkansas Contractors Licensing Board. The Board voted unanimously that Quinn had undertaken the position of contractor, as defined in Ark. Code Ann. § 17-25-101, concerning the erection of four billboards in the Bentonville, Arkansas area, that Quinn was not licensed by the Contractors Licensing Board, and that Quinn did not have a bond on file with the Board. Quinn's total fine was $9,460.80. Quinn appealed the Board's order to the circuit court. After a hearing, the circuit court affirmed the decision of the Board and held that Quinn had not properly preserved his constitutional arguments. The court also found that even if the constitutional arguments were preserved, they were without merit. Quinn appeals pro se from the circuit court's judgment finding that there was substantial evidence to support the Board's decision, that Quinn's constitutional arguments were not raised before the Board, and that even if the constitutional issues had been raised, they also lacked merit. We affirm.

Tony Quinn was charged with working as a contractor without a license as required by Ark. Code Ann. §§ 17-25-101 - - 17-25-105 (Repl. 2001) and working as a contractor without a surety bond as required by Ark. Code Ann. §§ 17-25-401 - - 17-25-409 (Repl. 2001). The allegations were that Quinn erected four "billboard" type signs in Northwest Arkansas for a total price of $157,680. At an administrative hearing before the Arkansas Contractors Licensing Board, there was evidence presented that Quinn erected the signs, that it took approximately sixteen days to erect the signs, and that he was paid $157,680 for his work. In addition, evidence was introduced that Quinn did not have a contractors license or a surety bond. Quinn did not deny performing the work but objected to the process, stating that he was being denied due process. Quinn further contended that the action against him was not lawful without a "bona fide" affidavit and that he was not required to comply with the laws in question because he was not a corporation.

At the conclusion of the hearing, the Board found Quinn in violation of both the licensing statute and the bond statute and issued civil penalties in the amount of $4,730.40 each for violation of both statutes, for a total penalty amount of $9,460.80. Quinn appealed the decision of the Board to the Circuit Court of Phillips County. A hearing was held in which Quinn appeared pro se and the circuit court affirmed the decision of the Board.

Quinn's sole point on appeal is stated in his brief as follows:

The administrative action taken by the Arkansas Licensing Board to fine Tony Quinn is an obvious revenue scheme that, for want of showing an issue of public safety, public morality, or public morals, violates Tony Quinn's constitutional right to work.

On appeal, we review the decision of the agency, not the circuit court. Brimer v. Arkansas Contractors Licensing Bd., 312 Ark. 401, 849 S.W.2d 948 (1993). We must affirm the decision of the Arkansas Contractors Licensing Board if it is supported by substantial evidence. Id.; Ark. Code Ann.§ 25-15-212(h)(5) (Repl. 1996). The evidence must be given its strongest probative force infavor of the administrative agency, and we will not reverse unless the agency's decision was arbitrary and capricious. Brimer, supra; Ark. Code Ann.§ 25-15-212(h)(6).

Quinn questions only the constitutionality of the Arkansas contractors licensing law on appeal. The Board, however, argues that Quinn's constitutional argument was not raised at the administrative hearing and, therefore, it is not preserved for appeal. The October 2, 2002 order states, "The issue of the constitutionality of the Arkansas Contractors Licensing Board statute was not properly raised by the plaintiff at the administrative hearing, therefore, that issue is not properly before this court." In a similar administrative agency case, Arkansas Contractors Licensing Bd. v. Pegasus Renov. Co., 347 Ark. 320, 64 S.W.3d 241 (2001), the Arkansas Supreme Court held that a constitutional argument was not preserved for review because Pegasus did not get a ruling on it from the board. The court held that it was well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Id.

In Arkansas Health Serv. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998), the supreme court adopted the Hamilton rule. This rule requires even constitutional issues to be raised at the level of the Administrative Law Judge or commission because such issues often require an exhaustive analysis that is best accomplished by an adversary proceeding, which can only be done at the hearing level. Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982); see also Holloway v. Arkansas State Bd. of Architects, 79 Ark. App. 200, 86 S.W.3d 391 (2002). If an agency fails to make adequate findings, the case may be remanded to the agency to correct any defects. Nesterenko v. Arkansas Bd. of Chiropractic Exam'rs, 76 Ark. App. 561, 69 S.W.3d 459 (2002). Although Quinn complained at his hearing that he was denied due process, he failed to adequately raise or argue to the Board the issue he now raises on appeal, and his argument is not preserved for our review.

Although Quinn limits his argument to constitutional issues on appeal, there is clearly substantial evidence to support the findings of the board. To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence. Relevant evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. EnviroClean, Inc. v. Arkansas Pollution Control and Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993). The applicable law, Ark. Code Ann.§ 17-25-101(a) (Repl.1995) defines a "contractor" as:

[A]ny person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who, for a fixed price, commission, fee, or wage, attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, or repair, or has or have constructed, erected, altered, or repaired, under his, their, or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for lease, rent, resale, public access, or similar purpose, except single-family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including, but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more.

The evidence supports the Board's finding that Quinn's activities meet the definition of a contractor. Quinn performed work as a contractor on the projects at issue; the cost of the work to be done, labor, and materials was more than $20,000; Quinn did not have a contractor's license when acting as a contractor; and Quinn did not have a bond on file with the Contractors Licensing Board as required by Ark. Code Ann. § 17-45-404 (Repl. 2001).

The evidence presented included estimate sheets written on "Quinn Signs" letterhead for signs ranging from $34,380 to $42,600, invoices from the concrete company to Tony Quinn for the concrete for each of the four signs, and Quinn's admission that he did in fact construct the signs. Moreover, Quinn had previously been found in violation of the Arkansas contractors licensing law in 1992, and had agreed at that time that he would do no further work in violation of the law. Inview of the evidence presented at trial, there is substantial evidence to support both the Board's and the trial court's decision.

Affirmed.

Stroud, C.J., and Griffen, J., agree.