Ark. Bail Bondsman Licensing Bd. v. Frawley, 02-266.
| Decision Date | 31 October 2002 |
| Docket Number | No. 02-266.,02-266. |
| Citation | 350 Ark. 444,88 S.W.3d 418 |
| Parties | ARKANSAS PROFESSIONAL BAIL BONDSMAN LICENSING BOARD and Arkansas Professional Bail Bond Co. v. Liz FRAWLEY and Razorback Bail Bonds, Inc. |
| Court | Arkansas Supreme Court |
Mark Pryor, Att'y Gen., by: Kim Evans, Ass't Att'y Gen., for appellant.
Wilson & Associates, P.L.L.C., West Memphis, by: Lynne Ravelette and Christopher L. Palmer, for appellees.
This case presents an appeal from an interlocutory order of the Pulaski County Circuit Court granting appellees Liz Frawley and Razorback Bail Bonds, Inc. ("Razorback"), injunctive relief enjoining the appellant Arkansas Professional Bailbondsman Licensing Board ("Licensing Board") from conducting a hearing on August 17, 2001, regarding alleged violations of the Bailbondsman Licensing Law.
The Licensing Board argues that the circuit court was without jurisdiction to enjoin the Licensing Board from proceeding with a statutorily authorized administrative hearing because: (1) the Licensing Board acted within its authority; (2) Frawley and Razorback failed to exhaust their administrative remedies; (3) Amendment 80 of 2001 does not confer the power to enjoin administrative hearings to the circuit court; and (4) the bases for injunction were not established.
We hold that the circuit court was without jurisdiction to enjoin the Licensing Board from conducting the August 17, 2001, hearing. Accordingly, we reverse.
We have jurisdiction of this matter pursuant to Ark. Sup.Ct. R. 1-2(b)(6) (2002) and Ark. R.App. P. — Civ. 2(a)(6) (2002).
The Licensing Board ordered an investigation of Frawley and Razorback, which indicated that Frawley and Razorback may have been in violation of statutes, rules, and regulations governing bailbondsmen. As a result of the investigation, the Licensing Board's staff set a hearing for August 17, 2001, and sent a Notice of Hearing to Frawley and Razorback. The Licensing Board sent Frawley notice of the hearing by certified mail on August 13, 2001. Frawley testified that she received the mailed notice on August 16, 2001, one day before the scheduled hearing.
Frawley further testified that on August 7, 2001, after hearing rumors from her co-workers that the Licensing Board was investigating her for possible violations, she filed an FOIA request to obtain a copy of the file maintained by the Licensing Board. Additionally, within the FOIA request, Frawley requested a continuance so that she could obtain a copy of the file and prepare properly for the hearing. The request for a continuance was denied. On or about August 9, 2001, Frawley received the Licensing Board's file. The file included the Notice of Hearing, which listed the alleged violations of Frawley. The notice stated that if the allegations were true, then the Licensing Board would revoke Frawley's professional bailbondsmen license. The file indicated that nine witnesses would be called in support of the Licensing Board's allegations, and the file included approximately 150 pages of potential evidence and exhibits to be used against Frawley.
On or about August 13, 2001, Frawley again requested a continuance, alleging that it would be impossible for her to properly prepare the matter for hearing by August 17, 2001. The request for continuance was denied. On August 14, 2001, Frawley requested another continuance, specifically citing trial conflicts and stating that attorneys for Frawley could not be present. The request was denied.
On August 15, 2001, Frawley filed a complaint with the Pulaski County Circuit Court, First Division, requesting that the court issue an injunction to prevent the Licensing Board from proceeding with the August 17, 2001, hearing. The circuit court found that a temporary injunction should be granted until a hearing could be held. The Licensing Board requested a hearing on the matter, and on August 17, the circuit court held a hearing and enjoined the Licensing Board from holding its hearing on August 17, based upon a finding of insufficient notice provided to Frawley. In addition, the court directed the Licensing Board to reissue notice to Frawley concerning the hearing on Frawley's alleged violations.
Bail bondsmen and bail bond companies are required to conduct their bail bond businesses in conformity with the statutes governing the profession, Ark. Code Ann. § 17-19-101 et seq. (Repl. 2001), and the rules and regulations promulgated pursuant to Ark.Code Ann. § 17-19-106 (Repl.2001), the Arkansas Professional Bail Bond Company and Professional Bail Bondsman Licensing Act. The Act provides that the Licensing Board has the authority to administer and enforce the provisions of Ark.Code Ann. § 17-19-101 et seq., as well as the rules and regulations promulgated in Ark.Code Ann. § 17-19-106, in order to carry out its duty of licensing and regulating professional bail bondsmen and professional bail bond companies.
Frawley does not dispute that the Licensing Board has the authority to hold disciplinary hearings to determine whether licensees are in violation of Bailbondsman Licensing Law. Rather, Frawley argues that the Licensing Board acted upon unlawful procedure when it failed to give her ten days' notice of the hearing regarding allegations against her.
Arkansas Code Annotated section 17-19-209(e) (Repl.2001) states, "Not less than ten (10) days in advance, the board shall give notice of the time and place of the hearing, stating the matters to be considered at the hearing." Ark.Code Ann § 17-19-209(e) (Repl.2001). Frawley argues that our holding in Stueart v. Arkansas State Police Commission, 329 Ark. 46, 945 S.W.2d 377 (1997), stands for the proposition that when an agency such as the Licensing Board fails to follow the rules that govern it, the agency's action is unlawful.
In Stueart, a police officer was terminated from the Arkansas State Police after he tested positive for marijuana use during a random drug screening pursuant to the Department's Drug Free Workplace Policy. Stueart, supra. The officer appealed his termination to the Arkansas State Police Commission, which upheld it. Id. The Pulaski County Circuit Court affirmed on appeal. Id. Stueart argued that certain required procedures set forth in the Drug Free Workplace Policy were omitted, prejudicing his substantial rights. Id. We agreed and held that because the Commission ignored its own rules in affirming Stueart's termination, its decision was based upon unlawful procedure, and accordingly, we found reversible error. Id.
We stated:
[W]e are concerned with whether the Commission's decision is based upon unlawful procedure. Regional Care Facilities, Inc., v. Rose Care, 322 Ark. 767, 912 S.W.2d 409 (1995). We have held that a procedure is "unlawful" when an agency fails to follow that which it has prescribed. Id. ... The decision of an administrative agency may be reversed "if the substantial rights of the petitioner have been prejudiced because the administrative findings ... are ... made upon unlawful procedure." Rose Care, 322 Ark. at 771, 912 S.W.2d at 411 (quoting Ark.Code Ann. § 25-15-212(h)(3)).
Our reversal in Stueart was pursuant to Ark.Code Ann. § 25-15-212(h)(3) (Repl.2002), and because that statute is inapplicable to the present case, Stueart is not controlling. Ark.Code Ann. § 25-15-212(h)(3) provides that when a court reviews the decision of an agency:
(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 petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(3) Made upon unlawful procedure ..."
Ark.Code Ann. § 25-15-212(h)(3) (Repl. 2002).
In Stueart, the petitioner sought judicial review subsequent to an agency hearing. In the present case, Frawley sought judicial review prior to an agency hearing. In the present case, there can be no judicial review pursuant to Ark.Code Ann. § 25-15-212(h)(3) because the circuit court enjoined the Licensing Board from conducting the hearing, thereby preventing the agency from making a decision regarding Frawley's request for a continuance. The Licensing Board was not without authority to conduct the August 17, 2001, hearing regarding the alleged violations of Frawley.
The Licensing Board contends that the circuit court abused its discretion in granting the injunction to enjoin the Licensing Board from conducting the hearing when Frawley had not exhausted her administrative remedies. The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed statutory administrative remedy has been exhausted. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998); Delta School of Commerce, Inc. v. Harris, 310 Ark. 611, 839 S.W.2d 203 (1992); Dixie Downs, Inc., v. Arkansas Racing Comm'n, 219 Ark. 356, 242 S.W.2d 132 (1951). 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. See Cummings, supra; Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993); Rehab Hosp. Serv. Corp. v. Delta-Hills Health Sys. Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985).
The prescribed statutory administrative remedy, Ark.Code Ann. § 25-15-212, provides, in pertinent part:
(a) In cases of adjudication, any person ... who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action .... Nothing in this section shall be construed to limit other means of review provided by law.
(b)(1) Proceedings for review shall be...
To continue reading
Request your trial
-
First National Bank of DeWitt v. Cruthis
...of law the equitable jurisdiction which chancery courts held prior to adoption of the Amendment. Ark. Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 453, 88 S.W.3d 418 (2002). In other words, no new or expanded jurisdiction beyond that formerly existing in the chancery and cir......
-
McGhee v. Arkansas State Bd. of Collection
...or threatened injury until the prescribed statutory administrative remedy has been exhausted. Arkansas Prof'l Bail Bondsman Lic. Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002); Cummings, 335 Ark. 216, 980 S.W.2d 550. A basic rule of administrative procedure requires that an agency be gi......
-
Nabholz Const. v. Contractors for Public
...directed to a circuit judge); Arkansas Ins. Dep't v. Baker, 358 Ark. 289, 188 S.W.3d 897 (2004); Arkansas Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002); Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000) (request directed to the Department of Correction)......
-
McGhee v. State Bd. of Collection Agencies
...remedy has been exhausted. Old Republic Sur. Co. v. McGhee, 360 Ark. 562, 203 S.W.3d 94 (2005); Arkansas Profl Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002); Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998). A basic rule of administrat......