Ark. State Bd. of Embalmers & Funeral Dir. v. Richardson
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-1347
Opinion Delivered
ARKANSAS STATE BOARD OF
EMBALMERS & FUNERAL
DIRECTORS
APPELLANT
V.
KENYA RICHARDSON, DERRICK
GUNN, ADRIANNE LOVE, and GUNN
FUNERAL HOME
APPELLEES
JUNE 3, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[NO. CV2008-4594]
HONORABLE ALICE S. GRAY,
JUDGE
CIRCUIT COURT REVERSED;
AGENCY AFFIRMED
LARRY D. VAUGHT, Chief Judge
This is an appeal from a circuit court’s order reversing a decision of the Arkansas State
Board of Embalmers and Funeral Directors (“Board”). The Board contends that substantial
evidence exists to support its decision to sanction appellees Derrick Gunn, Kenya Richardson,
Adrianne Love, and Gunn Funeral Home. We agree and affirm the Board’s decision and
reverse the circuit court.
The procedural history of this case is as follows. Here, the Board—an agency of the
State of Arkansas with the statutory charge of regulating the funeral service
profession—charged Gunn, Richardson, and Love with violating the funeral-directorlicensing laws. Ark. Code Ann. § 17-29-101 (Repl. 2001). The Board is authorized to
suspend or revoke licenses of funeral directors and embalmers by Arkansas Code Annotated
section 17-29-311 (Repl. 2001), and revoke establishment licenses for violations of the
licensing law by section 17-29-307 (Repl. 2001). The Board is further authorized to impose
a civil penalty not to exceed $10,000 on persons who violate the statute and rules. Ark. Code
Ann. § 17-29-403 (Repl. 2001). Based on its regulatory power, the Board charged that
Richardson, a licensed funeral director, had not performed her requisite funeral-directing
duties and that Gunn, a licensed embalmer, had violated Board Rule II (1) by acting as a
funeral director. The rule provides:
Every funeral conducted within the State of Arkansas must be under the
personal supervision and direction and charge of a funeral director who holds
a valid license from this Board. To conduct a funeral shall require the direct
personal supervision of a licensed funeral director until final disposition is
completed.
On April 15, 2008, a hearing was held before the Board regarding the alleged impermissible
activities of appellees. The Board concluded that all persons charged had violated various
provisions of the funeral-director-licensing laws and regulations and imposed the following
sanctions: the professional licenses of Richardson and Gunn were suspended for one year; a
civil penalty of $1000 was imposed on Gunn; a civil penalty of $1500 was imposed on
Richardson; Love was held accountable for the actions of her employees (Richardson and
Gunn) and ordered to pay a $1500 penalty; and the establishment license issued to the funeral
home was placed on a two-year probation with an accompanying $500 civil penalty.
Immediately following the Board’s decision, a petition for judicial review was timely
filed in circuit court. The circuit court granted a stay of the administrative order pending
judicial review. The circuit court ultimately reversed the decision of the Board on the basis
that its decision was not supported by substantial evidence. It is from that decision that the
Board now appeals.
2
The standard of review in this area of the law is well developed. Our review is directed
not toward the circuit court, but toward the decision of the agency. That is so because
administrative agencies are better equipped by specialization, insight through experience, and
more flexible procedures than courts, to determine and analyze legal issues affecting their
agencies. McQuay v. Ark. State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999). As
such, our review of administrative decisions is limited in scope. Such decisions will be upheld
if they are supported by substantial evidence and are not arbitrary, capricious, or characterized
by an abuse of discretion. In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
These standards are consistent with the provisions of the Administrative Procedure Act.
Ark. Code Ann. §§ 25-15-201–25-15-214 (1996). According to the Act, it is not the role of
the circuit courts or the appellate courts to conduct a de novo review of the record; rather,
review is limited to ascertaining whether there is substantial evidence to support the agency’s
decision or whether the agency’s decision runs afoul of one of the other criteria set out in
section 25-15-212(h). Ark. Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998).
We review the entire record in making this determination. Id. We also note that in reviewing
the record, the evidence is given its strongest probative force in favor of the agency’s ruling.
Ark. Health Servs. Agency v. Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998). The
Administrative Procedure Act states:
(g) The review shall be conducted by the court without a jury and shall be confined
to the record, except that in cases of alleged irregularities in procedure before the
agency, not shown in the record, testimony may be taken before the court. The court
shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further
proceedings. It may reverse or modify the decision if the substantial rights of the
3
petitioner have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are:
(1)
(2)
(3)
(4)
(5)
(6)
In violation of constitutional or statutory provisions;
In excess of the agency’s statutory authority;
Made upon unlawful procedure;
Affected by other error or law;
Not supported by substantial evidence of record; or
Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212.
In our review of the record, we note the following evidence supporting the agency’s
decision. Carenda Brown testified that her terminally ill mother wanted her funeral
arrangements to be handled by Derrick Gunn. On October 3, 2007, Brown met with Gunn
about the impending funeral. However, at the time Gunn was only licensed as an embalmer.
During the meeting, Brown inquired if she could begin paying—in advance—for her
mother’s funeral to help alleviate the financial burden the service would place on her family.
At the meeting, Gunn recommended that she apply for insurance through a pre-paid, funeralservice company. On Gunn’s recommendation, Brown signed a pre-paid, funeral-service
contract.
When her mother died, on Friday, October 12, Carenda called Gunn. She notified
him of her mother’s death and inquired what she should do next. Gunn asked her to come
to the funeral home to make specific arrangements. On the following Monday, Brown met
with Kenya Richardson (the funeral director) and selected a casket, discussed flowers, and
signed a funeral-arrangement agreement. Brown subsequently learned that her pre-paid
funeral-service insurance was not in effect at the time of her mother’s death. She was
informed by Gunn that she needed to pay $795 to Elmlawn Cemetery because the cemetery
4
company had to have the money “up-front” before it would begin to dig the grave. Gunn
also agreed that Brown could make monthly payments of $206 to the funeral home until her
mother’s funeral was paid in full. At this time, Brown tendered cash to Gunn as partial
payment for the funeral.
However, on the morning of the funeral, Brown was informed that her mother would
not actually be buried that day. Brown began to enlist the help of other family members to
help pay for the funeral-home fees and also learned that Gunn had made arrangements for the
burial to take place in a cemetery other than the one she had originally selected. On April 2,
2008, Gunn signed a letter addressed to Brown stating the she owed $1700 to the funeral
home.
At the hearing, Gunn testified that his conversations and negotiations with Brown had
nothing to do with acting as a funeral director (a job for which he was not licensed) and that
all he did was go over the pre-paid plan with her. Gunn also argued that the rule forbidding
him to act as funeral director applies to only the funeral service. The Board rejected this
overly narrow view and interpreted its own rule as covering conduct from the time of death
until the final disposition as well as the actual funeral service at the church.
Kenya Richardson echoed Gunn’s position relating to his lack of substantial work on
the funeral service. Richardson claimed there was no evidence that Gunn executed contracts
for the funeral home or its services.1 Contrary to Richardson’s version of events, Brown
1
Richardson also argued that there was no evidence that she aided or abetted an
unlicensed person to practice funeral directing; however, this argument is a non-starter,
because the statute does not have an intent or mens rea component.
5
testified that the only contact she had with Richardson was to select a casket. The rest of
Brown’s dealings in preparation for her mother’s funeral were with Gunn. Furthermore, the
evidence of the pre-paid funeral-service contract shows that Gunn did execute a contract with
a benefit “in the form of funeral services.”
Finally, Brown testified that when the actual burial finally took place, over a week after
her mother’s death, Richardson was not present at the burial. Richardson responded to the
charge by noting by written statement that “Gunn Funeral Homes’ staff did witness the burial
and final disposition of Mrs. Bass.” The Board found that because a “licensed funeral director
from the Gunn Funeral Home did not stay at the cemetery until Mrs. Bass’s Grave was
closed” both “[Richardson] and [Love] are responsible for there not being a licensed funeral
director at the cemetery in violation of Board Rule II(1) when they left the cemetery before
the final disposition had been completed.”
The members of the Board, as judges of the credibility of the witnesses, were free to
credit the testimony of Brown over the testimony of Gunn and Richardson on these issues.
Bank of Yellville v. First Am. Sav. & Loan Ass’n, 276 Ark. 292, 634 S.W.2d 122 (1982).
Furthermore, based on Brown’s testimony alone, there was more than substantial evidence
to support the charges against Gunn, Richardson, and Love. The fact that the record may
contain evidence to support a contrary finding is of no import when we are charged with
reviewing a Board’s decision for substantial evidence. White Co. Guar. S&L v. Frms. & Mchts.
Bk., 262 Ark. 893, 562 S.W.2d 582 (1978).
In this case, the circuit court improperly substituted its judgment for that of the Board.
The fact that the trial court may have reached a different conclusion on the evidence is
6
irrelevant so long as the record supports the Board’s conclusion. Ark. Bd. Reg. F. Prof’l
Geologist v. Ackley, 64 Ark. App. 325, 984 S.W.2d 67 (1998). Because there is substantial
evidence to support the conclusion that Gunn, Richardson, and Love violated rules of the
administrative agency governing their profession, we affirm the decision of the Board.
K INARD and B ROWN, JJ., agree.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
