Collins v. Ark. Bd. of Embalmers & Funeral Dir.
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Cite as 2009 Ark. App. 498
ARKANSAS COURT OF APPEALS
DIVISION I
CA08-1227
No.
Opinion Delivered
June 24, 2009
EFFIE COLLINS
APPELLANT
V.
ARKANSAS BOARD OF EMBALMERS
AND FUNERAL DIRECTORS
APPELLEE
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
SIXTEENTH DIVISION
[NO. CV-08-3787]
HONORABLE ELLEN BRANTLEY,
JUDGE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellant is the owner and funeral director of Collins Chapel Mortuary, Inc. She was
found by the Board of Embalmers and Funeral Directors to have violated several rules
relating to the requirement that the funeral director first taking charge of a dead person must
file the death certificate with the vital records registrar of the Arkansas Department of Health
within ten days of the decedent’s death. As a result, her license was suspended for one year
and she was fined $1,500. The circuit court affirmed the Board. In this appeal, appellant
argues that the Board erred in denying her request for a continuance; that a Board member
erred in refusing to disqualify herself because of allegations of bias; that the Board’s finding
is not supported by substantial evidence; and that the punishment imposed was so severe as
to be arbitrary and capricious.
The Arkansas Supreme Court recently set out the applicable standard of review in
appeals from this Board:
Our review of the decisions of administrative agencies is limited in
scope. Ark. Dep’t of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125
(2005). With respect to issues of fact, the decision on credibility and weight
of the evidence is within the administrative agency’s discretion, and it is the
prerogative of the agency to believe or disbelieve any witness and to decide
what weight to accord that evidence. Id. With respect to legal issues,
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. Austin v. Centerpoint Energy ARKLA, 365
Ark. 138, 226 S.W.3d 814 (2006). The standard of review to be used by both
the circuit court and the appellate court is whether there is substantial evidence
to support the agency’s findings. Bixler, supra. Thus, the review by appellate
courts is directed not to the decision of the circuit court, but rather to the
decision of the administrative agency. Id. The circuit court or appellate court
may reverse the agency decision if it concludes that:
(h) [T]he 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).
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Arkansas Board of Embalmers & Funeral Directors v. Reddick, 366 Ark. 89, 92-93, 233
S.W.3d 639, 642-43 (2006).
We hold that there was no abuse of discretion in denying the motion for a continuance
or the motion to disqualify. The complaint was based on allegations that appellant simply
refused to comply with the law and ignored repeated contacts over a period of one month by
employees of the Vital Records Division of the Arkansas Department of Health. On the day
of the hearing, appellant did not personally appear, and her attorney moved for a continuance.
The only explanation given for appellant’s absence was that “something came up.” Her
attorney candidly admitted at the hearing that he did not know what exactly had prevented
appellant’s appearance. In the absence of even an allegation of a specific reason for
appellant’s absence, much less a sufficiently compelling reason, it cannot be said that it was
an abuse of discretion for the Board to deny her request for a continuance, made in her
absence on the day set for the hearing, when other witnesses were present.
Appellant’s argument challenging the denial of her motion to disqualify is subject to
the same reasoning. That motion simply alleged that appellant and one of the Board
members had a “common personal relationship in the past” that could cause the Board
member to be biased against her. No other facts were specified. Given the record’s complete
lack of any specific allegations or facts regarding the asserted relationship from which the
Board or the reviewing court could determine whether bias was likely, we simply cannot say
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whether or not the Board member erred in declining to recuse. On this record, appellant can
demonstrate neither error nor prejudice. See Reed v. Alcoholic Beverage Control Division,
295 Ark. 9, 746 S.W.2d 368 (1988).
Appellant also challenges the sufficiency of the evidence to support the Board’s
finding that she violated Ark. Code Ann. § 20-18-303 (Repl. 2005). Subsection (a) of that
statute states:
Any person having knowledge of the facts shall furnish such information as he
or she may possess regarding any birth, death, spontaneous fetal death, induced
termination of pregnancy, marriage, divorce, or annulment upon demand of the
State Registrar of Vital Records.
There was evidence that the decedent died on May 9, 2007, and that a death certificate was
signed by a physician and mailed to appellant’s funeral home on May 21. After a customer
complaint that appellant refused to file decedent’s death certificate was made to the Division
of Vital Records on July 17, agents of the Division contacted appellant and made demand for
the death certificate pursuant to Ark. Code Ann. § 20-18-303(a). Appellant said that she
would “look into it.” After repeatedly1 and fruitlessly contacting appellant to obtain the
demanded information and death certificate between July 17 and August 13, 2007, and
despite an offer by the Division to help facilitate the filing, the Division was required to take
the extraordinary step of issuing the death certificate under its own authority.
1
One agent testified that he contacted appellant at least eight times in less than one
month attempting to resolve this matter.
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Appellant argues that this evidence is insufficient because it failed to show that her
failure to provide the demanded information was intentional. We do not agree. Given the
number and frequency of contacts that she received from the Division, we think that the
Board could reasonably infer that appellant’s failure to provide the demanded information
was intentional. Appellant, in fact, admits that the demanded information was not provided,
but asserts that this was merely the result of forgetfulness, employee inefficiency, and her
own failure to properly oversee her employees. We do not think that the Board was required
on this record to find that her failure to provide the demanded information was the result of
such gross negligence and incapacity to perform her duties as she suggests. Furthermore, we
think that such gross negligence and incapacity would provide no excuse for appellant’s
failure to perform, but would instead be a matter at least as serious as a simple refusal to
perform by a competent funeral director.
Finally, appellant argues that the Board’s actions were arbitrary and capricious
because of the severity of the penalty imposed. However, the evidence showed that appellant
was not merely late in this instance, but was instead utterly noncompliant, so much so that
the Department of Vital Records was required to file the death certificate itself. There is a
qualitative difference between tardiness, even chronic tardiness, and contumacious refusal,
and the evidence was sufficient to show that appellant was guilty of such refusal, breaking
several regulations in the process. The legislature permits the Board to revoke licenses for
violations rather than suspend them, and to impose fines in amounts up to $10,000. Ark.
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Code Ann. §§ 17-29-311 and 403. Given that the punishments imposed were moderate with
respect to that which was authorized, and that the evidence supports a finding that appellant
acted knowingly and willfully with respect to the violations rather than merely negligently,
it cannot be said that the Board’s actions were extremely harsh and unreasonable when all
the facts are considered. Baxter v. Dental Examiners Board, 269 Ark. 67, 598 S.W.2d 412
(1980); Arkansas State Board of Cosmetology v. Roberts, 28 Ark. App. 249, 772 S.W.2d 624
(1989).
Affirmed.
M ARSHALL and H ENRY, JJ., agree.
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