ARBCC v. JAG Enters.
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Cite as 2009 Ark. App. 868
ARKANSAS COURT OF APPEALS
DIVISION II
No.
CA09-92
ARKANSAS RESIDENTIAL BUILDING
CONTRACTORS COMMITTEE OF
THE ARKANSAS CONTRACTORS
LICENSING BOARD,
APPELLANT
Opinion Delivered 16
DECEMBER 2009
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT,
[NO. CV-2007-1126-III]
V.
THE HONORABLE DAVID B.
SWITZER, JUDGE
JAG ENTERPRISES, INC.,
COMMITTEE AFFIRMED; CIRCUIT
COURT REVERSED
APPELLEE
D.P. MARSHALL JR., Judge
This case is about subject matter jurisdiction—the jurisdiction of the Arkansas
Residential Building Contractors Committee of the Arkansas Contractors Licensing
Board and the jurisdiction of the circuit court to review the Committee’s decision.
I.
JAG Enterprises, a general contractor, was constructing a series of duplexes in
Hot Springs. Paul Brewer, who works for the Contractors Licensing Board, began
investigating the project. At first, Brewer thought that the project was commercial and
asked JAG to provide a list of its subcontractors. Brewer wanted this list because if the
project was commercial, then the subcontractors needed licenses. If the project was
Cite as 2009 Ark. App. 868
residential, however, then JAG (not the subcontractors) needed a license. JAG supplied
the list of its subcontractors and Brewer spoke with some of them. The subcontractors
said that JAG had told them that they would not need licenses because of the way JAG
had divided the lots.
The Board’s lawyer contacted JAG’s lawyer and explained the different licensing
requirements for commercial and residential projects. The Board’s lawyer followed up
with a letter stating that JAG needed to decide whether it wanted the project deemed
commercial or residential. JAG’s lawyer replied by letter, stating that JAG had
“decided to declare this a series of residential projects.” To no avail, both Brewer and
the Board’s lawyer then attempted to get more information from JAG.
After determining that the project was residential, the Residential Building
Contractors Committee charged JAG with acting as a residential contractor without
a license. Ark. Code Ann. § 17-25-505 (Repl. 2001). The Committee sent JAG
notice of the hearing, but the notice was returned unclaimed. The Committee
continued the hearing and then sent JAG’s lawyer a letter via certified mail setting a
new hearing date. JAG’s lawyer signed the return receipt showing that he received the
letter. JAG, however, failed to appear at the hearing. The Committee heard
testimony, received other evidence, and ultimately found JAG in violation of the
statute. The Committee imposed a civil penalty of $104,000.00.
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Cite as 2009 Ark. App. 868
JAG then petitioned for judicial review in the Garland County Circuit Court.
The Committee moved to dismiss, arguing that JAG had failed to exhaust its
administrative remedies and, therefore, the circuit court did not have jurisdiction to
consider the case. Taking the offense, JAG moved for judgment on the pleadings,
arguing (among other things) that the Committee did not have subject matter
jurisdiction over JAG. The circuit court agreed with JAG, so it reversed and dismissed
the case. The court declined to address the Committee’s exhaustion argument based
on its ruling that the Committee lacked jurisdiction over JAG to begin with. The
Committee appeals.
II.
The Committee’s final argument, which we must take first, is that the circuit
court lacked jurisdiction to hear JAG’s appeal because JAG failed to exhaust its
administrative remedies. The common-law exhaustion rule is that
no one is entitled to judicial relief for a supposed or threatened injury
until the prescribed statutory administrative remedy has been exhausted.
A basic rule of administrative procedure requires that an agency be given
the opportunity to address a question before a complainant resorts to the
courts. The failure to exhaust administrative remedies is grounds for
dismissal.
Old Republic Surety Co. v. McGhee, 360 Ark. 562, 566, 203 S.W.3d 94, 97–98 (2005)
(internal citations omitted). The rule comes with several exceptions, including where
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Cite as 2009 Ark. App. 868
the administrative process is for some reason inadequate.
Barr v. Arkansas Blue Cross
& Blue Shield, Inc., 297 Ark. 262, 267, 761 S.W.2d 174, 177 (1988).
The Committee urges that this case is much like Romine v. Arkansas Dep’t of
Environmental Quality, 342 Ark. 380, 40 S.W.3d 731 (2000). There, a waste hauler
failed to participate in administrative proceedings about whether the business owed
statutory fees. When ADEQ filed an enforcement action in circuit court, the waste
hauler counterclaimed asserting constitutional defects in the fee statute. The circuit
court dismissed that counterclaim based on the waste hauler’s failure to exhaust its
administrative remedies. 342 Ark. at 381, 40 S.W.3d at 732. The supreme court
affirmed the exhaustion ruling. 342 Ark. at 382–83, 40 S.W.3d at 732–33.
Here, JAG failed to participate in the Committee hearing about whether JAG
needed a residential contractor’s license. And JAG failed to exercise its clear statutory
right to appeal the Committee’s decision to the Contractor’s Licensing Board. Ark.
Code Ann. § 17-25-511 (Repl. 2001). Therefore, the Committee concludes, Romine
and like cases required the circuit court to dismiss JAG’s suit without reaching the
merits.
The Committee is mostly correct. Under Romine, JAG’s failure to exhaust its
administrative remedies barred its challenge on the merits of whether JAG was a
residential building contractor as a matter of fact under the particulars of Ark. Code
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Cite as 2009 Ark. App. 868
Ann. § 17-25-502 (Repl. 2001). This analysis, however, is not the end of the case.
JAG’s primary contention has always been that the Committee lacked subject
matter jurisdiction to take any action in this dispute. This contention does not open
up the case. But it does raise an issue that the circuit court had the authority to
adjudicate. Edwards v. Edwards, 2009 Ark. 580, at 3–4, ___ S.W.3d ___, ___. The
Committee acknowledges that JAG’s appeal to circuit court was timely under the
Administrative Procedure Act. Ark. Code Ann. § 25-15-212 (Repl. 2002). And in
circuit court, JAG could and did challenge the Committee’s subject matter
jurisdiction—a challenge that is always open to any litigant notwithstanding any prior
waiver. Muldoon v. Martin, 103 Ark. App. 64, 65, 286 S.W.3d 201, 202 (2008); see
generally 2 DAVID NEWBERN & JOHN J. WATKINS, ARKANSAS PRACTICE SERIES:
CIVIL PRACTICE AND PROCEDURE § 2:9 (4th ed. 2006). This case therefore boils
down to the disputed jurisdiction over JAG.
III.
In an appeal from an administrative agency, our review “is directed not to the
decision of the circuit court but to the decision of the administrative agency.”
Anderson v. BNSF Railway Co., 375 Ark. 466, 468–69, 291 S.W.3d 586, 589 (2009).
Under the Administrative Procedure Act, we “may reverse or modify the agency’s
decision if the decision: (1) violates the constitution or a statute; (2) exceeds the
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Cite as 2009 Ark. App. 868
agency’s statutory authority; (3) is affected by an error of law; (4) is procedurally
unlawful; (5) is unsupported by substantial evidence in the record; or (6) is arbitrary,
capricious, or is an abuse of discretion.” Anderson, 375 Ark. at 469, 291 S.W.3d at 589.
JAG’s contention is that the Committee lacked authority to investigate JAG’s
licensure issues and impose a penalty. The Committee counters that it had subject
matter jurisdiction over JAG’s activities. The Committee is correct. “The Residential
Building Contractors Committee may conduct hearings regarding alleged violations of
this subchapter or regulations promulgated thereunder . . . .” Ark. Code Ann. § 1725-510 (Repl. 2001). JAG’s alleged violation—operating as a residential contractor
without a license—fits squarely within the Committee’s statutory jurisdiction. Does
the Committee have statutory authority, after an investigation and a hearing, to impose
a penalty on an entity that the Committee concludes has acted as a residential
contractor without a license? Yes. Ark. Code Ann. §§ 17-25-504, 17-25-505, 17-25510 (Repl. 2001). The circuit court therefore erred on the law by concluding
otherwise.
Committee affirmed; circuit court reversed.
VAUGHT, C.J., and GLADWIN, J., agree.
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