{ "id": 683423, "name": "ARKANSAS CONTRACTORS LICENSING BOARD v. PEGASUS RENOVATION COMPANY", "name_abbreviation": "Arkansas Contractors Licensing Board v. Pegasus Renovation Co.", "decision_date": "2001-12-20", "docket_number": "01-708", "first_page": "320", "last_page": "333", "citations": [ { "type": "official", "cite": "347 Ark. 320" }, { "type": "parallel", "cite": "64 S.W.3d 241" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "964 S.W.2d 199", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 377627, 377623 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0182-01", "/ark/332/0148-01" ] }, { "cite": "332 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377623 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0148-01" ] }, { "cite": "344 Ark. 711", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 210153 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/344/0711-01" ] }, { "cite": "311 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896952 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0125-01" ] }, { "cite": "308 Ark. 221", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904368 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0221-01" ] }, { "cite": "271 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756268 ], "weight": 4, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/271/0351-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1996, "pin_cites": [ { "page": "(h)" }, { "page": "(h)" } ], "opinion_index": 0 }, { "cite": "262 Ark. 840", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675821 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "847" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ark/262/0840-01" ] }, { "cite": "343 Ark. 307", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226562 ], "weight": 2, "year": 2001, "pin_cites": [ { "parenthetical": "citing Northwest Sav. & Loan Ass'n v. Fayetteville Sav. & Loan Ass'n, 262 Ark. 840, 847, 562 S.W.2d 40, 52 (1978)" }, { "parenthetical": "citing Northwest Sav. & Loan Ass'n v. Fayetteville Sav. & Loan Ass'n, 262 Ark. 840, 847, 562 S.W.2d 40, 52 (1978)" } ], "opinion_index": 0, "case_paths": [ "/ark/343/0307-01" ] }, { "cite": "331 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604774 ], "weight": 3, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0144-01" ] }, { "cite": "976 S.W.2d 941", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1655438 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0606-01" ] }, { "cite": "334 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655490 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0614-01" ] }, { "cite": "346 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111376 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0371-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "310 Ark. 772", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898943 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0772-01" ] }, { "cite": "325 Ark. 291", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369230 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0291-01" ] }, { "cite": "332 Ark. 67", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377535 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0067-01" ] }, { "cite": "337 Ark. 339", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240921 ], "weight": 5, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0339-01" ] }, { "cite": "338 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243546 ], "weight": 6, "year": 1999, "pin_cites": [ { "page": "357" }, { "page": "362", "parenthetical": "citations omitted" }, { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ark/338/0354-01" ] }, { "cite": "Ark. Code Ann. \u00a7 17-25-305", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 17-25-308", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 9, "year": 1995, "opinion_index": 0 }, { "cite": "311 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896952 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/311/0125-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(h)(5) and (6)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 943, "char_count": 25266, "ocr_confidence": 0.769, "pagerank": { "raw": 3.6819254093572573e-07, "percentile": 0.8914334387834967 }, "sha256": "535dee14953c3c58f59dc0157c7337f2e2de9108b85d779145ea099c45642409", "simhash": "1:c3cd458ae70f6674", "word_count": 4011 }, "last_updated": "2023-07-14T19:00:47.549724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs.", "Imber, J., not participating." ], "parties": [ "ARKANSAS CONTRACTORS LICENSING BOARD v. PEGASUS RENOVATION COMPANY" ], "opinions": [ { "text": "J IM HANNAH, Justice.\nAppellant Arkansas Contractors Licensing Board (the Board) appeals the Saline County Circuit Court\u2019s decision to reverse the Board\u2019s decision to revoke Appellee Pegasus Renovation Company\u2019s (Pegasus) contractors license for a violation of Ark. Code Ann. \u00a7 17-25-308 (Repl. 1995), allowing revocation of a contractor\u2019s license for, among other things, \u201cmisconduct in the conduct of the contractor\u2019s business.\u201d Both parties agree that the facts are undisputed in this case.\nDuring the mid-to-late Spring of 2000, Pegasus, a painting and drywall subcontractor, backed out of two projects, the Petit Jean Electric Cooperative project and the Farm Bureau Child Care Facility project, on which it was the lowest bidder, and breached a third contract already signed with general contractor Flynco, Inc. for the Carlton Bates Office/Warehouse expansion project. The three general contractors who relied on Pegasus\u2019s bids filed complaints with the Board. Flynco, Inc., the general contractor with whom Pegasus signed the contract, also filed suit against Pegasus for breach of contract.\nAfter Flynco, Inc.\u2019s complaint was filed, the Board issued an initial Notice of Hearing on June 21, 2000, regarding the Petit Jean Electric Cooperative project. An Amended Notice of Hearing and Notice of Continuance of Hearing was mailed to Pegasus on July 14, 2000, with the additional notice of the other two complaints on the Farm Bureau and Carlton Bates projects. The notices indicated that Pegasus was being cited for violating Ark. Code Ann. \u00a7 17-25-308 for \u201cmisconduct in the conduct of the contractor\u2019s business.\u201d\nThe hearing was held before the Board on August 11, 2000. The Board presented its evidence first, questioning Victor Smith of V.R. Smith and Sons, Inc., the general contractor hired to perform the Petit Jean Electric Cooperative project. Smith testified that his company took bids from various subcontractors for painting and sheet rock work, with Pegasus entering the lowest bid. Smith used that bid in making his company\u2019s contract for the project, and prior to signing the final contract with Petit Jean Electric Cooperative, Smith confirmed Pegasus\u2019s bid with Pegasus\u2019s estimator. However, when Smith sent Pegasus the final contract to sign, Pegasus declined the job by letter and indicated that it would not take any calls from Smith regarding the matter. Smith hired the next lowest bidder, who entered a bid approximately $12,000 higher than Pegasus\u2019s bid. Pegasus\u2019s attorney did not cross-examine Smith.\nThe Board\u2019s second witness was Bill Mullinax, an investigator with the Board. Mullinax testified that after sending Smith\u2019s complaint to Pegasus, the Board received a response letter from Pegasus indicating that Pegasus had never signed a contract with Smith, and that the next lowest bidder\u2019s $12,000 bid was \u201ca false statement.\u201d Mullinax also indicated that the second complaint came from Alessi Keyes Construction, the general contractor on the Farm Bureau project. Again, the evidence indicated that Pegasus submitted a bid and failed to follow through on signing the contract with the general contractor who relied on that bid for its final bid to Farm Bureau. Finally, Mullinax testified that a third complaint was filed by Flynco, Inc., regarding Pegasus\u2019s breach of contract on the Carlton Bates project.\nFinally, the Board\u2019s attorney called J.Wl Henderson, Pegasus\u2019s owner. Questioning verified that Henderson had sent the letters to the general contractors and that Henderson reneged on his low bid offers and on the contract with Flynco, Inc. Pegasus\u2019s attorney, Larry Hartsfield, did not cross-examine Henderson to develop any further information about Pegasus\u2019s failure to honor its bids and contract, nor did he call any other witnesses. However, at the close of evidence, Hartsfield argued to the Board that Ark. Code Ann. \u00a7 17-25-308 is unconstitutionally vague because the word \u201cmisconduct\u201d does not have a legally recognized meaning, thus leaving the statute without a basis on which to judge the term. Hartsfield also argued that regarding the VR. Smith and Alessi Keyes jobs, there was no legal basis to find misconduct if a bidder withdraws a bid prior to signing the final contract. Furthermore, Hartsfield argued that the term \u201cgross\u201d in the statute modifies, among other words, the word \u201cmisconduct\u201d to raise the standard of proof.\nAfter deliberations regarding whether failure to honor a bid rose to the level of misconduct and whether, en masse, these actions by Pegasus reached the level of misconduct, the Board voted three-to-one to revoke Pegasus\u2019s contracting license for violation of the statute. In a decision entered on August 11, 2000, the Board found that Pegasus \u201cfailed and refused, without good cause, to perform the work on said projects.\u201d The Board found Pegasus guilty of misconduct in the conduct of its business, thus violating Ark. Code Ann. \u00a7 17-25-308. The Board did not rule on Pegasus\u2019s argument that the statute was void for vagueness for use of the term \u201cmisconduct.\u201d\nFollowing this decision, Pegasus filed a Petition for Judicial Review in the Saline County Circuit Court pursuant to the Arkansas Administrative Procedure Act. The Board answered on September 13, 2000, and on October 31, 2000, the circuit court stayed the Board\u2019s revocation of Pegasus\u2019s license until the court made its final decision on the case. Pegasus filed its brief to the court on November 27, 2000, again arguing that Ark. Code Ann. \u00a7 17-25-308 is void for vagueness because of its use of the term \u201cmisconduct.\u201d Pegasus also argued that the statute is an unlawful delegation of legislative power, that the action of the Board was arbitrary and capricious given the facts before it, and that the penalty imposed was too harsh under the circumstances. The Board responded by brief on December 21, 2000, arguing that the statute is not unconstitutional wherein the Board is given the power of the State to act, and that the burden to prove whether the statute is unconstitutional is on Pegasus. The Board argues that the phrase \u201cmisconduct in the conduct of the contractor\u2019s business\u201d is not vague, and cites various other administrative statutes providing for a similar phrase for administrative action. The Board also argued that its action was not arbitrary and capricious, and that the penalty imposed was valid. Pegasus replied on January 17, 2001.\nThe circuit court issued its decision on March 13, 2001, finding that the Board erred in revoking Pegasus\u2019s license. Specifically, the court found that Ark. Code Ann. \u00a7 17-25-305 lists qualifications of an applicant for an \u201coriginal\u201d or \u201crenewal\u201d license, and that the Board did not consider these eight factors in its decision. Furthermore, the court found that the Board did not address issues raised in the general contractors\u2019s complaints regarding Pegasus\u2019s \u201cability and willingness ... to conserve the public health and safety of the citizens\u201d of Arkansas, and that the grounds for revocation of these licenses with respect to misconduct means \u201cmisconduct inimicable to public health \u00e1nd safety issues.\u201d As such, the court found \u201c[t]hat to the extent the Arkansas Contractors Licensing Board revoked the contractors license of Pegasus Renovation Company on grounds not relevant to public health and safety issues was arbitrary and capricious.\u201d The court also specifically noted that it declined to rule on the constitutionality of the statute. The court then remanded the case to the Board for a determination consistent with the opinion. The Board appealed to this court instead on April 4, 2001.\nWe have outlined our standard of review of the decisions of administrative agencies on numerous occasions. In Arkansas State Police Comm\u2019n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456 (1999), we stated:\nThe standard of review in this area of the law is well-developed. The appellate court\u2019s review is directed not toward the circuit court, but toward the decision of the agency. That is so because 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. McQuay v. Arkansas State Bd. of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Bd. v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transp. Dep\u2019t, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).\nThese standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. \u00a7 25-15-201 \u2014 25-15-214 (Repl. 1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether there is substantial evidence to support the agency\u2019s decision or whether the agency\u2019s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas State Racing Comm. v. Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001); Arkansas Bd. of Exam\u2019rs v. Carlson, 334 Ark. 614, 976 S.W.2d 941 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency\u2019s ruling. Arkansas Health Servs. Agency v. Desiderata, 331 Ark. 144, 958 S.W.2d 7 (1998). We have also held that between two fairly conflicting views, even if the reviewing court might have made a different choice, the board\u2019s choice must not be displaced. Jackson v. Arkansas Racing Commission, 343 Ark. 307, 34 S.W.3d 740 (2001) (citing Northwest Sav. & Loan Ass\u2019n v. Fayetteville Sav. & Loan Ass\u2019n, 262 Ark. 840, 847, 562 S.W.2d 40, 52 (1978)).\nThe relevant section of the Arkansas Administrative Procedure Act provides:\n(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:\n(1) In violation of constitutional or statutory provisions;\n(2) In excess of the agency\u2019s statutory authority;\n(3) Made upon unlawful procedure;\n(4) Affected by other error or law;\n(5) Not supported by substantial evidence of record; or\n(6) Arbitrary, capricious, or characterized by abuse of discretion.\nArk. Code Ann. \u00a7 25-15-212(h) (Repl. 1996). Administrative action may be viewed as arbitrary and capricious only when it is not supported by any rational basis. Partlow v. Arkansas State Police Comm\u2019n, 271 Ark. 351, 609 S.W.2d 23 (1980).\nOn appeal, the Board argues that the circuit court erred in reversing the Board\u2019s decision to revoke Pegasus\u2019s contractors license. The Board argues that the circuit court erred in finding that it had acted in an arbitrary and capricious manner based on the court\u2019s reading that \u201cmisconduct\u201d had to affect the \u201cphysical\u201d \u201cpublic health and safety\u201d pursuant to Ark. Code Ann. \u00a7 17-25-305(a). Furthermore, the Board argues that even if the circuit court was correct in its interpretation of that statute, there was substantial evidence to support the Board\u2019s decision, and any determination by the circuit court that Pegasus\u2019s actions were not a threat to public health and safety was in error. Finally, the Board notes that it was in the best position to judge whether Pegasus\u2019s actions were \u201cmisconduct.\u201d\nPegasus responds that the circuit court did not err in finding that the Board had acted in an arbitrary and capricious manner, and that the word \u201cmisconduct\u201d cannot withstand constitutional review because it is vague, thus rendering that statutory provision void. Pegasus for the first time on appeal also argues that the Board\u2019s acts were ultra vires, and that this court should adopt an additional standard on review, incorporating this standard. Furthermore, Pegasus argues that the circuit court\u2019s interpretation of Ark. Code Ann. \u00a7 17-25-305 was correct and that there was not substantial evidence in the record to support the Board\u2019s finding. Finally, Pegasus argues that the Board\u2019s decision was not motivated by its interest in protecting the public health and safety, but instead was motivated by its interest in protecting general contractors.\nDespite the fact that both parties cite the standard of review and, presumably, understand that we only review the Board\u2019s decision rather than the circuit court\u2019s decision, both parties direct most of their arguments and brief space to a discussion of what the circuit court decided when reversing the Board\u2019s decision. This is completely incorrect, as our review is to the Board\u2019s decision rather than the circuit court\u2019s decision. See Smith, supra. The posture of this case on appeal is similar to that in Smith. In Smith, the State Police Commission ruled to terminate the employment of an Arkansas State Police Officer for violations of the code of conduct. On appeal to the circuit court from the Commission\u2019s decision, the circuit court reversed the Commission by finding that there was not substantial evidence to support the officer\u2019s termination. The circuit court also placed the officer on six-month suspension and directed that the officer be reinstated after the suspension was over. The Commission appealed to this court, and on review, we only looked to the Commission\u2019s decision to determine whether there was substantial evidence to uphold the Commission\u2019s decision and to decide whether the Commission\u2019s decision was arbitrary and capricious. We did not review the circuit court\u2019s decision or any findings or interpretations made by the circuit court.\nThis is important to note because the circuit court\u2019s decision in this case is based on statutory interpretation not included in or ruled upon in the Commission\u2019s decision. While the board members very briefly discussed the Board\u2019s duty to the public, there was no ruling on whether \u201cmisconduct\u201d was connected to any statutory provision regarding the \u201cpublic health and safety\u201d as discussed by the circuit court. Rather, the Board found the following in its decision:\nFINDINGS OF FACT\n1. The Pegasus Renovation Company is a licensed contractor in the State of Arkansas.\n2. The Pegasus Renovation Company entered bids on at least three separate projects and thereafter failed and refused, without good cause, to perform the work on said projects.\n3. The Pegasus Renovation Company is guilty of misconduct in the conduct of the contractor\u2019s business in violation of Ark. Code Ann. \u00a7 17-25-308.\nCONCLUSIONS OF LAW\nThe Pegasus Renovation Company is guilty of violating Section 17-25-308, \u201cmisconduct in the conduct of the contractor\u2019s business\u201d.\nORDER\n1. The Board voted three to one with one abstention to revoke the license of The Pegasus Renovation Company.\nUnder the standard of review, we review this order and the entire record, giving the evidence its strongest probative force in favor of the agency\u2019s ruling, to ascertain whether there is substantial evidence to support the agency\u2019s decision or whether the agency\u2019s decision runs afoul of one of the other criteria set put in Ark. Code Ann. \u00a7 25-15-212(h). Ward, Inc., supra; Carlson, supra.; Desiderata, supra.\nThis case deals with the revocation of a contractor\u2019s license. Ark. Code Ann. \u00a7 17-25-308, entitled \u201cGrounds for Revocation,\u201d is the statutory provision detailing the requirements for revocation of a contractor\u2019s license. This statute states:\nThe board shall have the power to revoke the certificate of license of any contractor licensed under this chapter who is found guilty of any fraud or deceit in obtaining a Hcense or for aiding or abetting any contractor or person to violate the provisions of this chapter or for gross negligence, incompetence, or misconduct in the conduct of the contractor\u2019s business.\nClearly, this statute lays out the only reasons the Board could revoke a contractor\u2019s license, and here the Board chose the last provision requiring \u201cmisconduct in the conduct of the contractor\u2019s business.\u201d \u201cMisconduct\u201d is not defined in the statutory provisions regarding contractor licensing. It also appears that this court has not defined the term in the context of revocation cases. However, \u201cmisconduct\u201d is defined by Black\u2019s Law Dictionary as \u201ca dereliction of duty; unlawful or improper behavior.\u201d Black\u2019s Law Dictionary 1013 (7th ed. 1999).\nWhile we do not review the circuit court\u2019s decision, for clarity\u2019s sake it should be noted that the circuit court referred to Ark. Code Ann. \u00a7 17-25-305 (Repl. 1995) to create a basis for reversal of the Board\u2019s decision. The circuit court determined that the Board should refer to the terms in this statute to determine whether a license should be revoked under Ark. Code Ann. \u00a7 17-25-308. The statute states in pertinent part:\n(a) The Contractors Licensing Board, in determining the qualifications of any applicant for an original license or any renewal license, shall, among other things, consider the following:\n(1) Experience;\n(2) Ability;\n(3) Character;\n(4) The manner of performance of previous contracts;\n(5) Financial condition;\n(6) Equipment;\n(7) Any other fact tending to show ability and willingness to conserve the public health and safety; and\n(8) Default in complying with the provisions of this chapter or any other law of the state.\nArk. Code Ann. \u00a7 17-25-305(a). The clear language of the statute indicates that these elements should be used by the Board to decide when to issue an original license or renew a license. The statute does not state that they will be used to determine if \u201cmisconduct\u201d has occurred when considering \u201crevocation\u201d of a license. Thus, by the plain language of the statute, it is clear that the circuit court erred in using these elements, particularly section (7), to determine that \u201cmisconduct\u201d is determined by a contractor violating the \u201cpublic health and safety.\u201d This statute and Ark. Code Ann. \u00a7 17-25-308 contain different provisions and requirements for different circumstances and should not be applied interchangeably.\nAs such, our standard of review requires us to only determine whether substantial evidence supports the Board\u2019s decision, and whether the decision is arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra. Substantial evidence is defined as:\n[V]alid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence.\nSmith, 338 Ark. at 362 (citations omitted). Pursuant to this definition, we cannot say that the Board erred in concluding that the conduct about which three general contractors complained amounted to \u201cmisconduct\u201d under the revocation statute. The proof before the Board was undisputed. Pegasus failed to honor three bids, one of which was an actual contract, causing each general contractor to have to turn to another bidder at substantially higher cost. The letters written by Pegasus not only did not give any defendable reason for the failure to follow through on the bids, but failed in any way to attempt to work out an alternative option for resolution, particularly on the actual contract with Flynco, Inc. In fact, Pegasus specifically stated in its letters to these general contractors that its decisions were \u201cnon-negotiable\u201d and that it would \u201caccept no calls\u201d on the matters, thus eliminating any effective mode of communication to resolve the problems. Furthermore, at the hearing, the evidence offered by the Board\u2019s attorney went unchallenged by Pegasus, and Pegasus offered no evidence regarding any defense as to why it could not follow through on the bids or contract. Instead, the evidence only points to Pegasus\u2019s failure to honor its promises and contract or provide any defense for its failure to do so.\nIn Smith, supra, the court also outlined our rule regarding the determination of whether an administrative action is arbitrary and capricious. The court stated:\nAdministrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow, supra. To have an administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Partlow, supra. We have stated that the requirement that administrative action not be arbitrary and capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary and capricious simply because the reviewing court would act differently. McQuay, supra. Finally, we have held that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).\nSmith, 338 Ark. at 363. As noted, if we find that the Board\u2019s decision is supported by substantial evidence, then the decision cannot be arbitrary and capricious. Furthermore, the Board\u2019s decision is supported by a rational basis in that the Board is bound to regulate the profession, protecting not only the public at large, but even the general contractors who rely on these subcontractors for bids. A subcontractor who does not follow through, without a defendable reason, with the bids it makes can cause a domino effect of substantial proportion, perhaps jeopardizing immediate and future projects for that subcontractor itself, the general contractor, other subcontractors relying on the work from a project, and the customer. Clearly, despite Pegasus\u2019s argument that the Board was only protecting the general contractor, many people rely on one subcontractor\u2019s representation that it will follow through on its bids and contracts. This is a rational basis for the Board to revoke a license.\nThe Saline County Circuit Court\u2019s decision is reversed. The Arkansas Contractor Licensing Board\u2019s decision is affirmed.\nGlaze, J., concurs.\nImber, J., not participating.\nAt the hearing before the Board, in briefs to the circuit court, and on appeal here, Pegasus attempts to argue that this statute is unconstitutional because it is vague, thus voiding the revocation statute. However, this argument is not preserved for review because Pegasus did not get a ruling on it from the Board, and, while it does not matter for our review, the circuit court specifically declined to rule on the issue of the constitutionality of the statute as well. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); Wilson v. Neal, 332 Ark. 148, 964 S.W.2d 199 (1998). Accordingly, we must reject this argument without reaching the merits.", "type": "majority", "author": "J IM HANNAH, Justice." }, { "text": "T OM GLAZE, Justice,\nconcurring. I join in the result reached by the majority because there is unquestionably substantial evidence to support the decision rendered by the Arkansas Contractors Licensing Board. However, I am unclear what standard of review the majority is using to reach its decision in affirming the Board.\nObviously, if the Board based its decision on substantial evidence (which we opine it did), the Board\u2019s decision could not be arbitrary, capricious, or an abuse of discretion. E.g., see the Arkansas Administrative Procedure Act, Ark. Code Ann. \u00a7 25-15-212(h)(5) and (6); see also Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). If the issue on review was whether the Board\u2019s action was arbitrary, capricious, or an abuse of discretion (not substantial evidence), the review of the Board\u2019s ruling becomes a closer question. Then the question is whether the Board\u2019s action need only be supported on any rational basis. Someday the court needs to address these two different standards and decide which one applies when reviewing administrative agency decisions.", "type": "concurrence", "author": "T OM GLAZE, Justice," } ], "attorneys": [ "Gregory L. Crow, for appellant.", "Hartsfield, Almand & Grisham, P.L.L.C., by: Larry J. Hartsfield, for appellee." ], "corrections": "", "head_matter": "ARKANSAS CONTRACTORS LICENSING BOARD v. PEGASUS RENOVATION COMPANY\n01-708\n64 S.W.3d 241\nSupreme Court of Arkansas\nOpinion delivered December 20, 2001\nGregory L. Crow, for appellant.\nHartsfield, Almand & Grisham, P.L.L.C., by: Larry J. Hartsfield, for appellee." }, "file_name": "0320-01", "first_page_order": 350, "last_page_order": 363 }