ARKANSAS STATE BOARD OF LICENSURE FOR PROFESSIONAL ENGINEERS AND PROFESSIONAL SURVEYORS APPELLANT
ROBERT ALLAN CALLICOTT APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION
[NO. CV-2014-2542] HONORABLE MORGAN E. WELCH, JUDGE
Rutledge, Att'y Gen., by: Sara Farris, Ass't
Att'y Gen., for appellant.
Schulze, Murphy & Patterson, by: J.G. "Gerry"
Schulze, for appellee.
MICHAEL KINARD, JUDGE
Arkansas State Board of Licensure for Professional Engineers
and Professional Surveyors ("Board") appeals from
an order of the circuit court that reversed the Board's
decision to fine and permanently revoke the surveyor's
license of Robert Allan Callicott. The circuit court ruled
that the Board's findings of ethical violations were not
supported by substantial evidence, that "the offense
alleged was vague, " and that the punishment imposed was
unduly harsh. The Board argues that the circuit court erred
in reversing the Board's decision because the Board's
findings were supported by substantial evidence and the
Board's decision, including its choice of penalty, was
within its authority and not arbitrary or capricious. Mr.
Callicott contests those arguments. He further contends that
he was denied due process by the Board because notice of the
hearing had not been properly sent to him and that, in any
event, the statute and rule on which the Board based its
decision are unconstitutionally vague. For the reasons
explained below, we reverse and remand for the Board to make
specific findings of fact and conclusions of law.
2013, Charles McGowan lodged with the Board a complaint
against Mr. Callicott, a licensed surveyor. McGowan alleged
that he had paid Callicott $1000 ten weeks earlier, in April
2013, to perform a survey. He alleged that the work had not
been performed and that Callicott had not responded to
McGowan's phone calls, letters, and emails. The Board
notified Callicott of the complaint. Callicott responded in
writing, stating that he had started working on the job
immediately upon being hired and had "devoted a great
deal of time and energy to the project"; offering his
explanation for the delay in finishing the work; and
indicating that there had been no time limit set for the
completion of the survey. The Board then further corresponded
with and interviewed McGowan and Callicott.
it was decided that a formal hearing would be held to
determine whether Callicott had violated Arkansas Code
Annotated sections 17-48-101 et seq. (Supp. 2015) or the
rules of the Board. Specifically, the Board charged that
Callicott (1) had engaged in "dishonorable, unethical,
or unprofessional conduct of a character likely to deceive,
defraud, or harm the public, in violation of Arkansas Code
Annotated [section] 17-48-205"; (2) had failed "to
faithfully serve the legitimate interest of his client, in
violation of the preamble of the Rules of Professional
Conduct"; and (3) had failed "to provide
information requested by the Board as a result of a formal or
informal complaint to the Board, in violation of Arkansas
Code Annotated [section] 17-48-205." Notice of the
allegations and the May 13, 2014, scheduled hearing were sent
to Callicott by both certified and regular mail in April
2014. Callicott did not appear at the hearing
before the Board, but McGowan did, and the hearing went
the hearing, the Board entered a written order in June 2014.
The Board found that McGowan engaged Callicott to perform a
survey for $1000, that McGowan gave Callicott a check for
$1000, and that, during the investigation, Callicott
"refused to provide pertinent information requested by
the Board's investigator." Additionally, the Board
"found" that McGowan "asserts" that the
check was cashed and that the work was not completed; the
Board stated that these two asserted "fact[s]" were
not disputed by Callicott. The last remaining
"finding" in the Board's order was that McGowan
"asserts" that Callicott made no attempt to contact
him and did not respond to McGowan's "repeated
attempts" to contact Callicott. The Board then
concluded, without any elaboration, that Callicott's
"conduct . . . constitutes" each of the three
violations alleged in the notice and quoted in the preceding
paragraph of this opinion. The Board imposed a $1000 fine
against Callicott and revoked his surveyor's license.
2014, Callicott filed his petition seeking judicial review by
the circuit court. See Ark. Code Ann. §
25-15-212 (Repl. 2014). Soon thereafter, the circuit court
entered an order staying enforcement of the Board's
decision. In September 2015, the circuit court reversed and
set aside the order of the Board. The court held that the
Board's findings of ethical violations were not supported
by substantial evidence, that the offenses alleged were
vague, that there was no direct violation of any rule, and
that the punishment was unduly harsh. The Board has appealed
the circuit court's order to this court.
cannot, at this time, decide the substantive issues in this
case. Rather, the case must first be remanded for the Board
to make specific findings of fact and conclusions of law.
of administrative agency decisions, by both the circuit court
and the appellate court, is limited in scope. Ark. Code Ann.
§ 25-15-212(g)-(h); Arkansas State Highway &
Transportation Department v. RAM Outdoor Advertising,
2015 Ark.App. 713, 479 S.W.3d 51. The standard of review to
be used by both courts in determining the sufficiency of the
evidence is whether there is substantial evidence to support
the agency's findings. RAM Outdoor Advertising,
supra. The appellate court's review is directed
not toward the circuit court but toward the decision of the
agency. Id. When reviewing such decisions, we uphold
them if they are supported by substantial evidence and are
not arbitrary, capricious, or characterized by an abuse of
discretion. Id. The party challenging the
administrative agency's findings has the burden of
proving an absence of substantial evidence. Id.
cases decided by courts of record, trial courts are not
ordinarily required to state specific findings of fact and
conclusions of law. Rather, the appellate court will presume,
in the absence of a showing to the contrary, that the trial
court acted properly and made the findings of fact necessary
to support its judgment. American States Insurance Co. v.
Williams, 2010 Ark.App. 840; Jocon, Inc. v.
Hoover, 61 Ark.App. 10, 964 S.W.2d 213 (1998);
Ingram v. Century 21 Caldwell Realty, 52 Ark.App.
101, 915 S.W.2d 308 (1996); see First National Bank v.
Higginbotham Funeral Service, Inc., 36 Ark.App.
65, 818 S.W.2d 583 (1991) (Cracraft, C.J., dissenting).
same is not true for administrative agencies, however. The
Administrative Procedure Act requires that an administrative
adjudication be accompanied by specific findings of fact and
conclusions of law. Arkansas Code Annotated section 25-15-210
(Repl. 2014) provides in part the following:
(b)(1) In every case of adjudication, a final decision or
order shall be in writing or stated in the record.
(2) A final decision shall include findings of fact and
conclusions of law, separately stated. Findings of fact, if
set forth in statutory language, shall be accompanied by a
concise and explicit statement of the underlying facts
supporting the findings.
Board must translate testimony and other evidence into
findings of fact and then explain how those factual findings
support the action taken by the Board. Barnes v.
Arkansas Department of Finance &
Administration, 2010 Ark.App. 436. These requirements
have long been seen as important in assuring more careful
administrative consideration and in facilitating judicial
review. Voltage Vehicles v. Arkansas Motor Vehicle
Commission, 2012 Ark. 386, 424 S.W.3d 281; First
State Building & Loan Association v. Arkansas Savings
& Loan Board, 257 Ark. 599, 518 S.W.2d 507 (1975).
Whether sufficient findings of fact have been made is a
threshold question in an appeal from an administrative board.
Gore Engineering Associates, Inc. v. Arkansas
Contractors Licensing Board, 2011 Ark.App. 640.
satisfactory specific finding of fact is
a simple, straightforward statement of what happened. A
statement of what the Board finds has happened; not a
statement that a witness, or witnesses, testified thus and
so. It is stated in sufficient relevant detail to make
it mentally graphic, i.e., it enables the reader to picture
in his mind's eye what happened. And when the reader is a
reviewing court the statement must contain all the specific
facts relevant to the contested issue or issues so that the
court may determine whether the Board has resolved those
issues in conformity with the law.
Wright v. American Transportation, 18 Ark.App. 18,
21, 709 S.W.2d 107, 109 (1986) (emphasis added) (quoting
Whispering Pines Home for Senior Citizens v.
Nicalek, 333 N.E.2d 324 (Ind.Ct.App. 1975)); see
also Barnes, supra (recitation of witness
testimony is not a satisfactory finding of fact). A
conclusory statement that does not detail or analyze the
facts on which it is based is not sufficient. Maez v.
Director, 2009 Ark.App. 661. Neither the circuit court
nor this court may supply findings by weighing the evidence;
that function lies with the administrative agency. See
Arkansas Savings & Loan Association Board v. Central
Arkansas Savings & Loan Association, 256
Ark. 846, 510 S.W.2d 872 (1974); Arkansas State Board of
Chiropractic Examiners v. Currie, 2013 Ark.App.
When an administrative agency fails to make findings on
issues of fact, the courts do not decide the questions in the
first instance; instead, the cause is remanded to the agency
so that findings can be made. Gore Engineering
Associates, Inc., supra.
the Board's findings and conclusions are insufficient to
allow a reviewing court to determine whether several issues
were resolved in conformity with the law. Other than the
findings that McGowan and Callicott agreed that Callicott
would perform a survey for McGowan in exchange for $1000 and
that the $1000 had been paid to Callicott, the order contains
no clear and specific findings. The Board's statements
reciting McGowan's "assert[ions]" clearly are
not findings of fact regarding the subject matter of those
assertions. See Barnes, supra;
Wright, supra. Although the Board stated
that Callicott did not dispute McGowan's assertions that
the check had been cashed and that the survey had not been
completed, the Board did not explain whether those assertions
were admitted and the Board found the evidence credible, or
whether the Board believed that Callicott's failure to
appear at the hearing somehow required the Board to accept
McGowan's assertions. See Peters v. Doyle, 2009
Ark.App. 722 ("finding" that leaves an ambiguity
regarding the factual basis therefor or regarding
agency's understanding of the law is insufficient). In
any event, the Board made no comment at all regarding the
truth or falsity of McGowan's "assert[ions]"
that Callicott had failed to contact McGowan and failed to
respond to McGowan's claimed attempts to contact
Callicott. Nor did the Board make any findings regarding the
nature or number of any such attempts by McGowan to contact
Callicott. Additionally, the Board's decision is silent
as to whether Callicott started the project or did any
significant work on it and whether there was any agreement or
understanding between landowner and surveyor regarding any
time limitations within which the work was to be completed.
Nor does the Board's order contain any findings to
support its very conclusory statement, which essentially
tracks the general language of Arkansas Code Annotated
section 17-48-205(a)(1)(E) (Supp. 2015), that Callicott
refused to provide pertinent information requested by the
Board's investigator; no mention is made regarding what
information was requested by the Board or exactly how
Callicott responded. See Ark. Code Ann. §
25-15-210(b)(2) (a finding set forth in statutory language
must be accompanied by explicit statement of underlying facts
in support). Finally, the Board did not explain how it
reached the conclusion that Callicott's
"conduct" violated the general rules and statutes
cited by the Board or how it warranted revocation of his
license, the most severe penalty available to the Board.
See Nesterenko v. Arkansas Board of Chiropractic
Examiners, 76 Ark.App. 561, 69 S.W.3d 459
the Board's order fails to detail what it found to have
actually happened regarding several critical issues and fails
to state how the facts led to its conclusions, we must
reverse and remand for the Board to make specific findings
and conclusions as required by the statute. In order that the
appeal not be decided piecemeal, we do not address any of the
remaining issues at this time. Twin Rivers Health &
Rehab, LLC v. Arkansas Health Services Permit
Commission, 2012 Ark. 15; Sonic Drive-In v.
Wade, 36 Ark.App. 4, 816 S.W.2d 889 (1991).
Gladwin, C.J., and Whiteaker and Hoofman, JJ., agree.
Kenneth S. Hixson, Judge, dissenting.
over substance can be a good thing in general. Form over
substance even has its place in legal jurisprudence. In fact,
form over substance is sometimes necessary to protect our
rights. However, where form over substance only serves to
create more paper, causes unnecessary delays in justice,
increases court dockets, and causes the parties to spend even
more money in legal fees, form over substance should stand