Clancy's Lawn Care & Landscaping, Inc. v. Mississippi State Bd. of Contractors

• Decision Date: 08 December 1997
• Docket Number: No. 96-CC-00921-SCT,96-CC-00921-SCT
• Citation: 707 So.2d 1080
• Parties: CLANCY'S LAWN CARE & LANDSCAPING, INC. v. MISSISSIPPI STATE BOARD OF CONTRACTORS.
• Court: Mississippi Supreme Court

Page 1080

707 So.2d 1080

CLANCY'S LAWN CARE & LANDSCAPING, INC. v. MISSISSIPPI STATE BOARD OF CONTRACTORS.

No. 96-CC-00921-SCT.

Supreme Court of Mississippi.

Dec. 8, 1997.

Publication Ordered Jan. 27, 1998.

William Harvey Barton, Barton & Williams, Pascagoula, for Appellant.

Tommie S. Cardin, Crosthwait Terney, Jackson, for Appellee.

Before SULLIVAN, P.J., and SMITH and MILLS, JJ.

SMITH, Justice, for the Court:

¶1 Originally, this opinion was designated not for publication. A Motion for Reconsideration of Non-Publication was filed by the Appellee and the response was filed by the Appellant. Both parties asked that the opinion in this appeal be published. Finding the motion to be well taken, we withdraw the unpublished opinion and substitute this one therefor.

¶2 Clancy's Lawn Care and Landscaping, Inc. (Clancy's) bid on a contract let by the City of Ocean Springs for maintenance work on land adjacent to U.S. Highway 90. When Clancy's did not get the job it sued, stating that under Miss.Code Ann. § 31-3-15 no such contract could be awarded to a contractor who did not have a current certificate of responsibility, as the company awarded the bid did not. The Mississippi Board of Contractors (Board) entered an order stating that (1) the City of Ocean Springs needed to make a determination under Rule 5 which classification of work covers at least 50% of the total cost of project; (2) if at least 50% of the project constitutes grounds maintenance, then a certificate of responsibility was needed; and (3) if at least 50% of the total cost of the project constitutes mowing and/or litter removal, then a certificate of responsibility was not needed.

¶3 Clancy's appealed the order of the Board to the Jackson County Chancery Court, and the court affirmed the order of the Board. Clancy's now appeals to this Court and alleges (1) that the Board did not have the authority to determine that mowing and/or litter removal did not require the bidder to have a certificate of responsibility and (2) that the Appellee's Rule 5 allowing for a determination of whether the majority of the job in question was "contractor" work was in conflict with the statutes. The Board argues (1) that mowing and litter removal did not meet the statutory definition of "contractor" work under Miss.Code Ann. § 31-3-1, so that the requirement of a certificate of responsibility was not necessary and (2) that Rule 5 was a proper expression of its rule making authority.

FACTS

¶4 On January 18, 1996, the City of Ocean Springs, Mississippi (City) issued a Request for Provisions (RFP) for certain work to be done along U.S. Highway 90 within the City. The RFP set forth specifications and provided that the work was for "US Highway 90 Landscaping Maintenance to Include Grass Maintenance". The scope of the work described by the RFP was to provide pruning, mulching, weeding, fertilizing, insecticide and fungicide treatment, plant replacement, mowing, trimming and litter removal.

¶5 The City published a legal notice of an invitation to bid on proposals for this work and accompanying the legal notice was the same language delineating the scope of work as set forth in the RFP. The City received at least two responses to the RFP, including one proposal from Clancy's in the approximate amount of $102,000 and one proposal from Your Personal Gardener (YPG) in the approximate amount of $57,000. At the time the bids were submitted, Clancy's had a valid certificate of responsibility issued by the Board with the classification of "Grounds Maintenance," and YPG did not have a certificate of responsibility issued by the Board.

¶6 The contract was initially awarded to YPG by the City, based on the Board's previous opinion on January 11, 1995, that no certificate of responsibility was required to do mowing or litter removal. On March 28, 1996, Clancy's filed an injunction lawsuit against the City and YPG. However, the injunction lawsuit was dismissed after all parties agreed to attend the quarterly meeting ¶7 Based on these conclusions, the Board entered an order that under Rule 5 of the Rules and Regulations of the Board (1) the awarding agency must make a determination of which classification of work covers at least 50% of the total cost of the project; (2) if at least 50% of the total cost of the project constitutes ground maintenance, then a certificate of responsibility is needed; and (3) if at least 50% of the total cost of the project constitutes mowing and/or litter removal, then a certificate of responsibility is not needed.

of the Board to seek a clarification of the Board's previous ruling on January 10, 1995 concluding that mowing and litter removal did not require a certificate of responsibility. Clancy's contended that under Miss.Code Ann. § 31-3-15 no such contract could be awarded to a contractor who did not have a current certificate of responsibility. After hearing evidence from both sides, the Board concluded (1) that work under the classification of Grounds Maintenance meets the definition of "contractor" in Miss.Code Ann. § 31-3-1 and therefore requires a certificate of responsibility issued by the Board and (2) that no certificate of responsibility is required to conduct mowing or litter removal, as neither of these activities meets the definition of "contractor".

¶8 Clancy's appealed the order of the Board to the Jackson County Chancery Court. After review of the record, the chancery court concluded that "the action taken by the Board was supported by substantial evidence, was not arbitrary of (sic) capricious, was within in (sic) the power of the Board to make, and did not violate any statutory or constitutional right of [Clancy's]." The chancery court further found that the Board was bound to follow Rule 5 of its Rules and Regulations and that it was within their authority to conclude that mowing and/or litter removal did not require a certificate of responsibility. Aggrieved by the chancery court's decision, Clancy's appeals to this Court and cites the following issue:

WHETHER THE CHANCERY COURT ERRED IN CONCLUDING THAT THE MISSISSIPPI STATE BOARD OF CONTRACTORS HAD THE AUTHORITY TO DETERMINE THAT MOWING AND/OR LITTER REMOVAL DID NOT REQUIRE A CERTIFICATE OF RESPONSIBILITY.

STANDARD OF REVIEW

¶9 This Court "has generally accorded great deference to an administrative agency's construction of its own rules and regulations and the statutes under which it operates." Mississippi State Tax Comm'n v. Mask, 667 So.2d 1313, 1314 (Miss.1995). See, e.g., Melody Manor Convalescent Ctr. v. Mississippi State Dept. of Health, 546 So.2d 972, 974 (Miss.1989); General Motors Corp. v. Mississippi State Tax Comm'n, 510 So.2d 498, 502 (Miss.1987). Review by the trial court and this Court of orders of a state agency are limited by the arbitrary and capricious standard. Mask, 667 So.2d at 1314-15 (citing Mississippi State Tax Comm'n v. Dyer Inv. Co., Inc., 507 So.2d 1287, 1289 (Miss.1987)). An appeal of an order of an administrative agency "should be to determine whether or not the order of the administrative agency '(1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.' " Id. at 1315 (quoting Mississippi State Tax Comm'n v. Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991)). Furthermore, "[a] rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Sprouse v. Mississippi Employment Sec. Comm'n, 639 So.2d 901, 902 (Miss.1994) (citing United Cement Co. v. Safe Air for the Env't, 558 So.2d 840, 842 (Miss.1990)).

DISCUSSION OF LAW

WHETHER THE CHANCERY COURT ERRED IN CONCLUDING THAT THE MISSISSIPPI STATE BOARD OF CONTRACTORS HAD THE AUTHORITY TO DETERMINE THAT MOWING AND/OR LITTER REMOVAL DID NOT REQUIRE A CERTIFICATE OF RESPONSIBILITY.

¶10 Clancy's alleges that the Board did not have the authority to determine that mowing and/or litter removal did not require a bidder to have a current certificate of responsibility. Clancy's contends that the Board's decision to not require a bidder to possess a certificate of responsibility to bid on a contract involving mowing and/or litter removal is in direct contradiction to a clear reading of Miss.Code Ann. § 31-3-15 (1990). Clancy's further claims that the Board had no basis to exclude mowing and/or litter removal from the purview of the statutes where the definition of "contractor" under Miss.Code Ann. § 31-3-1 is broad enough to cover everything not otherwise excluded by the legislature. Clancy's finally asserts that this Court should overrule the chancery court's decision and find that mowing and/or litter removal public contracts which exceed $50,000 would require a valid certificate of responsibility to be bid upon because the Board's ruling that mowing and/or litter removal contracts are not within their control is arbitrary, capricious and without a logical foundation.

¶11 The Board contends that it acted well within its authority when it concluded that mowing and/or litter removal are not activities which meet the definition of "contractor" as set forth in Miss.Code Ann. § 31-3-1. The Board asserts that it would make "no sense whatsoever that the legislature [would] give the Board the significant responsibility of setting forth requirements for certificates of responsibility and rules and regulations pertaining to all other matters concerning certificates of responsibility, but would deny it the authority to determine whether someone meets the definition of "contractor" under § 31-3-1." The Board further asserts that "[n]othing about the Board's Findings of Fact and Conclusions of Law was unreasonable, arbitrary or capricious, beyond its power to make or violative of any statutory or constitutional right of Clancy's."

¶12 We have consistently held that ...