{ "id": 8722235, "name": "Ewell THOMAS d/b/a THOMAS TERMITE CONTROL v. COMMITTEE \"A\" ARKANSAS STATE PLANT BOARD", "name_abbreviation": "Thomas v. Committee \"A\" Arkansas State Plant Board", "decision_date": "1973-11-19", "docket_number": "73-145", "first_page": "517", "last_page": "521", "citations": [ { "type": "official", "cite": "255 Ark. 517" }, { "type": "parallel", "cite": "501 S.W.2d 248" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "243 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721810 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/243/0516-01" ] }, { "cite": "243 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722777 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/243/0635-01" ] } ], "analysis": { "cardinality": 471, "char_count": 7847, "ocr_confidence": 0.819, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47050214124452816 }, "sha256": "85abe8b23d68bdf798f46def9753177cc67a8b6de42e0759baf499f7cdb5d88c", "simhash": "1:d24417e402075a82", "word_count": 1307 }, "last_updated": "2023-07-14T17:24:11.540726+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ewell THOMAS d/b/a THOMAS TERMITE CONTROL v. COMMITTEE \u201cA\u201d ARKANSAS STATE PLANT BOARD" ], "opinions": [ { "text": "Carleton Harris, Chief Justice.\nOn September 10, 1970, Committee \u201cA\u201d of the Arkansas State Plant Board conducted a hearing wherein evidence was taken on whether the license of Ewell Thomas, d/b/a Thomas Termite Control, appellant herein, should be revoked. Testimony and numerous written exhibits were presented to the committee, Mr. Thomas not appearing personally, or by counsel, at said hearing. Subsequently, on September 22, 1970, appellant was advised that his license had been revoked. On appeal to the Circuit Court of Pulaski County (Third Division), the order of revocation was affirmed, and from the judgment so entered, appellant brings this appeal. Several allegations for reversal are urged and we proceed to discuss these points.\nIt is first asserted that the matter should have been remanded to the State Plant Board because the license revocation by Committee \u201cA\u201d, \u201cbeing made upon unlawful procedure was in excess of the agency\u2019s statutory authority.\u201d It is first argued under this point that appellant was denied the right to counsel as granted by Ark. Stat. Ann. \u00a7 5-709 (a) (Supp. 1971) because the notice sent to him by the board of the hearing made no mention of this right. We cannot agree with this contention. The statute gives one the right to appear in person or by counsel, but there is no requirement that the notice of hearing contain such information. Appellant, however, is hardly in a position to make such a contention because the record reflects that after receiving the notice from the board, he wrote a letter of reply in which he said, \u201cI am turning all of this mess you sent me to my lawyers and they will decide what to do with it.\u201d He added that if the board decided to revoke his license, he was \u201ctaking this to the United States Supreme Court and my Lawyers will handle this for me.\u201d About two weeks later, appellant wrote another letter advising that his lawyers \u201cwill be asking you and your Inspectors to appear in court to answer several Questions.\u201d Accordingly, it is very evident that Thomas was aware of his right to counsel.\nIt is next averred that the license was revoked by Committee \u201cA\u201d rather than the entire board. The record is not entirely clear ip this regard, but does re-fleet that the decision was reduced to writing with the supporting evidence, and the law, as required by Ark. Stat. Arin. \u00a7 5-710 (b), and rriade.a part of the record of the hearing as required by the Administrative Procedure Act (Act 434 of 1967, Ark. Stat. Ann. \u00a7 5-701 - 714 [Supp. 1971]). Discussion of this allegation is unnecessary since this argument was not raised in the trial court. In fact, appellant\u2019s own pleadings filed in the Pulaski County Circuit Court appear to be contrary to his argument. On November 22, in his motion to set aside revocation of the pest control license held by Thomas, appellant states:\n\u201cThe decision rendered by the Arkansas State Plant Board [our emphasis] to permanently revoke defendant\u2019s pest control license and the entire proceedings thereon was based upon hearsay testimony and evidence and denied defendant his right to confront witnesses against him and to allow said evidence on appeal is only to repeat the violation of defendant\u2019s constitutional rights.\u201d\nOn the same date, he filed a motion for a trial by jury, stating:\n\u201cOn September 11, 1970, the State Plant Board [our emphasis] permanently revoked defendant\u2019s pest control license. To deny defendant a jury trial of that decision is to deny defendant of his livelihood without due process of law.\u201d\nIt thus appears that appellant recognized that his license had been revoked by the full board, but, if otherwise, as already pointed out, we still cannot consider the argument since this matter was not raised in the trial court and cannot be raised here on appeal for the first time. Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2d 825.\nIt is also mentioned that only three members of Committee \u201cA\u201d were present at the hearing, rather than the full committee of four. Of course, the three constituted a majority of the committee, but, inasmuch as this argument too was not presented to the trial court and is here raised for the first time, it likewise cannot be considered.\nIt is contended that the court erred in not granting appellant\u2019s motion to exclude hearsay evidence taken at the committee hearing. Gerald King, head of the Commercial Pest Control Section of the Division of the Plant Industry, State Plant Board, and who notified appellant of the hearing, together with Martin Bracy, Inspector for the Board, investigated numerous jobs that had been performed in northeast Arkansas by Mr. Thomas, and offered in evidence various statements from persons who had entered into contracts with Thomas to have their homes treated for pest control, together with some contracts; also appellant\u2019s monthly report form for two months was offered, and evidence presented that numerous jobs performed by Thomas had not been reported to the board as required; some checks and photostats of checks received by Thomas were also placed in evidence. We find no merit in this contention. Ark. Stat. Ann. \u00a7 5-709 (d) of the Administrative Procedure Act provides that, except where irrelevant, immaterial, or unduly repetitious, any oral or documentary evidence, not privileged, may be received if it is of a type \u201ccommonly relied upon by reasonably prudent men in the conduct of their affairs.\u201d The bulk of the evidence certainly appears to be such as would be relied upon by reasonably prudent men in the conduct of their affairs. Let it be remembered that this was a hearing before an administrative committee which is not bound by strict rules of evidence. See Fisher v. Branscum, 243 Ark. 516, 420 S.W. 2d 882.\nIt is next argued that the court erred in failing to grant appellant\u2019s motion for a jury trial. Again, we do not agree. Ark. Stat. Ann. \u00a7 5-713 (g) of the Administrative Procedure Act provides:\n\u201cThe 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.\u201d\nFinally, it is urged that the action taken in revoking the license of Mr. Thomas was too harsh and should be modified. Board records, as shown by the minutes of various meetings, reflect previous violations of the act, and numerous instances were included in the present charge. The statute, Ark. Stat. Ann. \u00a7 77-1807 (Supp. 1971), sets out the grounds for invalidation or non-renewal of a license and the violations charged against appellant are included in this section. We are unable to say that the finding of the board was arbitrary or capricious.\nAffirmed.\nRules and regulations of the Arkansas State Plant Board provide that Committee \u201cA\u201d shall consist of the board member who is head of the Department of Entomology of the University of Arkansas, the board member who represents the Arkansas. Pest Control Association, \u2022 board member* who represents the Arkansas Feed Manufacturers Association and the board member who represents the Arkansas Pesticides Association. This committee hears matters relating to the licensing of pest control operators. Committee \"B\u201d is likewise composed of four members who hear matters pertaining to different classifications.\nThe investigation of Thomas related to statutes and regulations concerning (1) his failure to report work within the time and manner specified and pay inspection fees due and (2) performing work in a classification for which he did not have a license.", "type": "majority", "author": "Carleton Harris, Chief Justice." } ], "attorneys": [ "Warren E. Dupwe, for appellant.", "Jim Guy Tucker, Atty. Gen. by: Milton Lueken, Asst. Atty. Gen., for appelleee." ], "corrections": "", "head_matter": "Ewell THOMAS d/b/a THOMAS TERMITE CONTROL v. COMMITTEE \u201cA\u201d ARKANSAS STATE PLANT BOARD\n73-145\n501 S.W. 2d 248\nOpinion delivered November 19, 1973\nWarren E. Dupwe, for appellant.\nJim Guy Tucker, Atty. Gen. by: Milton Lueken, Asst. Atty. Gen., for appelleee." }, "file_name": "0517-01", "first_page_order": 539, "last_page_order": 543 }