{ "id": 1155476, "name": "H.T. HACKNEY COMPANY v. Charlie DAVIS, Director of the Arkansas Tobacco Control Board, and the Arkansas Tobacco Control Board", "name_abbreviation": "H.T. Hackney Co. v. Davis", "decision_date": "2003-06-26", "docket_number": "03-62", "first_page": "797", "last_page": "809", "citations": [ { "type": "official", "cite": "353 Ark. 797" }, { "type": "parallel", "cite": "120 S.W.3d 79" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 26-5-256", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(5)", "parenthetical": "Pamph. No. 3, Mar. 2003" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 4-75-701", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "345 Ark. 373", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 938987 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0373-01" ] }, { "cite": "328 Ark. 630", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50382 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "633" }, { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0630-01" ] }, { "cite": "312 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935005 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0401-01" ] }, { "cite": "723 S.W.2d 363", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1872640, 1872621 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0185-01", "/ark/291/0186-01" ] }, { "cite": "291 Ark. 186", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872621 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0186-01" ] }, { "cite": "295 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893766 ], "weight": 4, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0223-01" ] }, { "cite": "320 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451311 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0110-01" ] }, { "cite": "326 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023471 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0573-01" ] }, { "cite": "321 Ark. 143", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449561 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0143-01" ] }, { "cite": "326 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023700 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0595-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "page": "(h)" } ], "opinion_index": 0 }, { "cite": "346 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111376 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/346/0371-01" ] }, { "cite": "347 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683423 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0320-01" ] }, { "cite": "270 Ark. 816", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709235 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0816-01" ] }, { "cite": "311 Ark. 125", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896952 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "132" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ark/311/0125-01" ] }, { "cite": "345 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939041 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "259", "parenthetical": "quoting Wright v. Arkansas State Plant Bd., 311 Ark. 125, 132, 842 S.W.2d 42, 46 (1992)" }, { "page": "812", "parenthetical": "quoting Wright v. Arkansas State Plant Bd., 311 Ark. 125, 132, 842 S.W.2d 42, 46 (1992)" } ], "opinion_index": 0, "case_paths": [ "/ark/345/0249-01" ] }, { "cite": "Ark. Code Ann. \u00a7 26-57-257", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(p)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 26-57-223", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 2001, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "351 Ark. 13", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158943 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/351/0013-01" ] }, { "cite": "Ark. Code Ann. \u00a7 25-12-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 26-57-256", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "pin_cites": [ { "page": "(a)(5)" }, { "page": "(a)(5)", "parenthetical": "Pamph. No. 3, Mar. 2003" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 4-75-708", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 7, "pin_cites": [ { "parenthetical": "b" }, { "parenthetical": "b" }, { "parenthetical": "a-b" }, { "page": "(b)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 989, "char_count": 25398, "ocr_confidence": 0.746, "pagerank": { "raw": 9.97885881099704e-08, "percentile": 0.5380221009024079 }, "sha256": "7188a79c1774e61c633fa7ec588098f98b0b0eb90284caaf0e47afe9c43ce6ff", "simhash": "1:b58f41400516146a", "word_count": 4199 }, "last_updated": "2023-07-14T16:12:52.629354+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, J., not participating." ], "parties": [ "H.T. HACKNEY COMPANY v. Charlie DAVIS, Director of the Arkansas Tobacco Control Board, and the Arkansas Tobacco Control Board" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThis is an appeal from an order of the Pulaski County Circuit Court affirming a decision of the Arkansas Tobacco Control Board (Board), fining the appellant, H.T. Hackney Co. (Hackney), $28,000 and suspending its license to distribute tobacco products for six months. Hackney asserts three points on appeal: (1) that the circuit court erred in affirming the Board\u2019s decision which was made in violation of the Board\u2019s statutory authority; (2) that the circuit court erred in failing to reverse the Board\u2019s decision on the basis of agency estoppel; and (3) that the circuit court erred in failing to reverse the Board\u2019s decision in that it was not supported by substantial evidence. We affirm.\nThe testimony at the hearing before the Board revealed the following facts. On July 28, 2000, Hackney made a decision to stop offering rebates to Arkansas retailers for the purchase of cigarettes in order to comply with Ark. Code Ann. \u00a7 4-75-708 (b) (Repl. 2001). Almost two months later, on September 22, 2000, Maurice Gilmore, an auditor investigator for the Board, contacted Hackney\u2019s general manager at its Paducah, Kentucky warehouse, Steve Butler, to commence an audit of the company. Two days later, Mr. Butler contacted Mr. Gilmore and admitted to him that Hackney had been paying rebates to Arkansas retailers up until July 28, 2000. At some point later, but prior to the audit, Mr. Gilmore spoke with appellee Charlie Davis, Director of the Board, who told Gilmore that he would make a \u201cpositive recommendation\u201d to the Board regarding a penalty if Hackney completely cooperated during the audit and assisted in preparing cases against Arkansas retailers who accepted the rebates.\nMr. Gilmore completed Hackney\u2019s audit in October 2000 and prepared a report of his investigation which included a worksheet detailing the rebate amounts given to each retailer from December 1999 to July 2000. During the time Hackney was cooperating with the Board\u2019s investigation, Mr. Gilmore \u201cfirmed up the offer [of settlement]\u201d that would be recommended to the Board if Hackney fully cooperated. The settlement offer was that the Board\u2019s staff would recommend a seven-day suspension of Hackney\u2019s license and a $500 fine. Mr. Gilmore testified at the hearing before the Board that he \u201cat all times\u201d told Hackney that it was within the discretion of the Board to make the final decision. Following the testimony of Allen Smith, a Hackney employee, at one of the hearings, Mr. Gilmore told Mr. Butler that there had been some \u201cbad testimony,\u201d and that although the recommendation would still be made to the Board, the Board could \u201cvote up or down on it, vote to reject it or accept it.\u201d\nOn March 16, 2001, Mr. Davis sent a letter of an offer of settlement to Hackney. The offer stated that Hackney was being charged with violating Ark. Code Ann. \u00a7 4-75-708 (b) (Repl. 2001), for offering rebates on cigarette purchases from Arkansas cigarette and tobacco retailers between December 1999 and July-2000. The offer further stated:\nPursuant to Act 1591 of 1999, the range of penalties for the charge as alleged includes fines not to exceed one thousand dollars ($1,000.00) for each violation, and/or the suspension or the revocation of your wholesale/retail permit(s). At the present time, the Director of the Tobacco Control Board has recommended to the Board a fine in the amount of five hundred dollars ($500.00) and a seven day suspension of your wholesale cigarette and tobacco permits. The dates of your permits\u2019 suspensions will be determined by the Director and you will be notified later regarding these dates.\nThe offer then notified Hackney that it had the right to a hearing before the Board on the alleged charges and that if a hearing was held, \u201cthe Tobacco Control Board may dismiss the charge, or increase, or adopt the penalty recommended by the Director.\u201d\nThe offer letter also included a form by which Hackney was to respond to the offer. The letter instructed Hackney to return the form to the Board\u2019s office on or before April 16, 2001, and stated that if Hackney decided to request a hearing, it should check the appropriate box and return the form by the date stated; however, if Hackney wished to \u201caccept the penalty offered,\u201d Hackney should check that appropriate box and return the form by the same date. The letter then provided:\nIn the event that you request a board hearing in this matter by the deadline, you will be notified of the date and time set for the board hearing. Should you choose to waive a hearing, an order will be entered on 04/19/2001, which will be served by regular mail within five (5) working days of that date.\nThe form contained the following choices and language:\nI have received the notification of charge(s) lodged against the permit(s) held by me as contained in the Offer of Settlement. In response to the Offer, I am electing the following option (check one):\n_ I waive my right to a hearing and accept the penalty offered. I have enclosed a check or money order for the amount due.\nNOTE: I understand that an Order will be entered in this matter on 04/19/2001.\n_ I request a hearing in this matter before the Board Members of the Tobacco Control Board.\nNOTE: Notice of the date and time of the hearing will be provided to me after the request for a hearing has been received by your agency.\nOn April 2, 2001, Butler, on Hackney\u2019s behalf, returned the form which was attached to the letter offer of settlement. The form indicated that Hackney waived its right to a hearing and accepted the penalty being offered. It further indicated that a check or money order in the amount due was also enclosed. Hackney submitted a check in the amount of $500.00 made payable to the Arkansas Tobacco Control Board.\nDespite Hackney\u2019s acceptance of the offer of settlement, Maurice Gilmore returned both the offer of settlement and check in payment of the fine to Hackney by a letter dated April 26, 2001, which stated:\nAs per our conversation on April 19, 2001, enclosed is the Offer of Settlement for Case #2001-201 and check in payment of the fine. The Arkansas Tobacco Control Board did not accept the offer and the case will be set for a hearing. You will receive a Notice and Order of Hearing from the Attorney General\u2019s Office shordy setting the time and date of the hearing.\nHackney later received an order stating that the Board had determined that sufficient evidence existed to conduct a hearing regarding whether Hackney was in violation of Ark. Code Ann. \u00a7 4-75-708 (a-b). The order directed Hackney to appear before the Board for a hearing on May 17, 2001.\nThe hearing before the Board actually took place on July 19, 2001. At that time, the Board\u2019s attorney presented testimony from Maurice Gilmore regarding his investigation. He testified that \u201cat all times\u201d he told Hackney that \u201cit was within the discretion of the Board to make the final decision.\u201d On cross-examination, Mr. Gilmore stated that this was the only instance of which he was aware where an offer of settlement had been sent out but was not accepted by the Board.\nHackney then presented its witnesses including Dean Ballinger, Hackney\u2019s Vice-President of Operations; Steve Butler, general manager of Hackney\u2019s Paducah warehouse; and William Sansom, Hackney\u2019s Chairman and CEO. It was their testimony that Hackney was a good company that wished to comply with the law and had discontinued its custom of rebating in Arkansas upon discovering the Board\u2019s intention to actively pursue rebaters. Their testimony further revealed that because it had ceased rebating, the company had lost thirty to thirty-four percent of its market share.\nOn August 29, 2001, the Board issued its Findings of Fact, Conclusions of Law, and Order. The order stated that the Board\u2019s staff had established that Hackney had offered and given rebates to twenty-eight separate establishments, which received a total of $47,883.02. The Board further found that Hackney admitted violating \u00a7 4-75-708 by participating in a rebating program in Arkansas and concluded that Hackney had \u201cviolated Ark. Code Ann. \u00a7 4-75-708 by paying rebates to 28 retail locations.\u201d The Board then ordered:\nPursuant to Ark. Code Ann. \u00a7 26-57-256(a)(5), the Board is authorized to revoke the Respondent\u2019s permit and to fine the Respondent One Thousand Dollars for each and every time that it rebated. Instead, the Board hereby orders that the Wholesale Permit and license of the Respondent be suspended for a period of six (6) months and orders the Respondent to pay a fine of One Thousand Dollars per retail location to which the respondent rebated in the amount of Twenty-eight Thousand Dollars.\nThe Respondent may seek judicial review of the Board\u2019s decision either in the circuit court of the county where he resides or in Pulaski County if filed within thirty (30) days receipt of this Order. No further notice of the Board\u2019s findings will be sent and the Board\u2019s action will become final unless a stay is issued by the circuit court in accordance with the Administrative Procedures Act. AH appeals or reviews must be in accordance with the Administrative Procedures Act, Ark. Code Ann. \u00a7 25-12-201 et seq.\nOn October 2, 2001, Hackney filed its petition for judicial review in the Pulaski County Circuit Court. Hackney alleged that the Board\u2019s order was arbitrary, capricious, and characterized by an abuse of discretion; violated constitutional and statutory provisions; and was not supported by substantial evidence. It further asserted that the doctrine of agency estoppel should apply to the case. Following a hearing held on July 15, 2002, the circuit court issued an order affirming the Board\u2019s decision on September 25, 2002. In its order, the circuit court found that the Board made the necessary findings of fact to support its decision; the Board\u2019s decision was supported by substantial evidence, and was not arbitrary, capricious, or an abuse of discretion; and the Board was not estopped from issuing a punishment for Hackney\u2019s violation in that \u201c(a) the Tobacco Control Board neither intended that its conduct in making an Offer of Settlement be acted on nor did this conduct create a right in petitioner to believe it is so intended and (b) petitioner did not rely on the Offer of Settlement as a final resolution of the matter.\u201d Hackney now appeals. Although the appellant has couched its arguments on appeal in terms of error by the circuit court, this court, when reviewing a case under the Administrative Procedures Act, does not review the circuit court\u2019s decision but reviews the decision of the administrative agency. See Cave City Nursing Home, Inc. v. Arkansas Dep\u2019t of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002).\nI. Statutory Authority\nHackney first contends that Ark. Code Ann. \u00a7 26-57-223 (Supp. 2001), originally gave the Director of the Department of Finance and Administration the power to suspend or revoke licenses for violations of the Arkansas Tobacco Products Tax Act (Act 546 of 1977) and that Act 1337 of 1997 amended that statute to endow the Director of the Tobacco Control Board with those powers. Section 26-57-223 provides, in pertinent part:\n(a) All permits and licenses issued under this subchapter may be suspended or revoked by the Director of the Arkansas Tobacco Control Board for any violation of this subchapter or the regulations pertaining thereto.\nArk. Code Ann. \u00a7 26-57-223(a) (Supp. 2001). Hackney further points to Ark. Code Ann. \u00a7 26-57-257 (Supp. 2001), and contends that pursuant to these statutes, Mr. Davis, the Director of the Tobacco Control Board, alone had the authority to sanction Hackney for its violations. Section 26-57-257(p) provides:\n(p) The director shall have other powers, functions, and duties pertaining to the issuance, suspension, and revocation of the permits and licenses enumerated in \u00a7 26-57-219 which previously were granted to the Director of the Department of Finance and Administration, except the authority to regulate manufacturers, and which are specifically delegated to the department by this subchapter.\nArk. Code Ann. \u00a7 26-57-257(p) (Supp. 2001). Hackney submits that it was the General Assembly\u2019s intent that the Director would possess the primary and initial authority to sanction wholesalers, and that the Director \u201cclearly has co-existent authority with the Board to sanction wholesalers by the use of either license suspension or revocation.\u201d\nThe Board responds that Hackney has failed to preserve this issue regarding the Director\u2019s authority for appeal by failing to present it to the Board. As to the merits of Hackney\u2019s claim, the Board asserts that Ark. Code Ann. \u00a7 26-57-256 (Supp. 2001), specifically authorizes the Board to suspend and revoke licenses and to conduct public hearings concerning possible violations. In addition, the Board claims that \u00a7 26-57-256 authorizes it to punish violators.\nWe agree with the Board that Hackney has failed to preserve this argument for appeal. This court has steadfastly maintained that \u201c[i]t is essential to judicial review under the Arkansas Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court.\u201d City of Benton v. Arkansas Soil & Water Conserv. Comm\u2019n, 345 Ark. 249, 259, 45 S.W.3d 805, 812 (2001) (quoting Wright v. Arkansas State Plant Bd., 311 Ark. 125, 132, 842 S.W.2d 42, 46 (1992)). A review of the record in this case reveals that Hackney never asserted during its hearing before the Board that only the Director had the authority to settle such matters and that the matter was improperly before the Board. Accordingly, this issue is not preserved for our review.\nII. Agency Estoppel\nFor its second point, Hackney urges that due to Mr. Davis\u2019s position as director and the fact that he was the senior employee of the agency, Hackney reasonably assumed that he had full authority to act on behalf of the agency and its Board. Hackney claims that the doctrine of agency estoppel should be applied, regardless of the fact that it is not a commonly-applied remedy in Arkansas. Hackney further claims that this case presents all of the elements necessary for the doctrine to be applied.\nThe Board responds that Hackney has misplaced its reliance on the doctrine of agency estoppel. It contends that the offer of setdement clearly stated that the Director was making a \u201crecommendation\u201d to the Board. The Board asserts that it was also clear that the Director never intended for Hackney to rely on his offer and that this was conveyed to the company. The Board concludes that Hackney cannot establish the necessary elements required to estabhsh agency estoppel.\nWe hold that this point also is not preserved for our review. During Hackney\u2019s counsel\u2019s closing argument before the Board, counsel cited to this court\u2019s decision in Foote\u2019s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), for the proposition that when a director of an agency takes action on behalf of the agency, the agency should abide by that action and honor it. Counsel further argued that the case said \u201cagency deliberation should be governed by fairness,\u201d and that:\nthat\u2019s all we\u2019re asking for today. We\u2019re asking for fairness. They were made an offer by this agency, they accepted the offer, they relied on the offer, they have put their business in jeopardy by providing this witness, testifying as retailers. They turned over reams and reams of stuff voluntarily and they tried to make it as easy on this agency as they can and be as cooperative as they can, and we would just ask you to take that all into consideration when you make the decision. Thank you.\nTo the extent it can be said that Hackney raised the issue of agency estoppel in its hearing before the Board, and we have doubts that it did, the issue was not ruled on by the Board, nor did Hackney attempt to obtain a ruling. This court has held that in order to obtain appellate review of an issue, the appellant must obtain a ruling on the argument from the agency. See Arkansas Contractors Licensing Bd. v. Pegasus Renovation Co., 347 Ark. 320, 64 S.W.3d 241 (2001); Arkansas State Racing Comm\u2019n v. Wayne Ward, Inc., 346 Ark. 371, 57 S.W.3d 198 (2001). Because Hackney failed to obtain any ruling on this argument, either orally at the hearing before the Board, or included within the Board\u2019s order, we are precluded from reviewing it.\nIII. Substantial Evidence\nFor its final point, Hackney argues that the Board\u2019s rejection of the offer of settlement and its imposition of sanctions on Hackney were arbitrary and capricious actions and constituted an abuse of discretion. Hackney further contends that these actions were contrary to the established policy and procedure of the Board. Hackney also asserts that in addition to the lack of a statute or regulation on which the Board could have relied, there was no evidence justifying a fine of $28,000 or a six-month suspension. There is nothing in the record, according to Hackney, to support the wide disparity between the sanctions offered by Davis and those imposed by the Board. Instead, it claims, the record demonstrates that the Board\u2019s action was arbitrary, totally unprecedented, and without any rational basis.\nThe Board replies that the record reflects Hackney\u2019s admission that it unlawfully paid rebates to twenty-eight Arkansas retail estabhshments from December 1999 to July 2000. The Board points to evidence presented at the hearing that Hackney dispersed at least 147 monthly rebate checks totaling $47,883.02. The Board concludes that while Hackney may not like the penalty imposed by the Board, the Board\u2019s decision was based upon sufficient evidence and was neither arbitrary nor capricious.\nWe agree with the Board. Ark. Code Ann. \u00a7 25-15-212(h) (Repl. 2002), provides that this court may reverse or modify an administrative agency\u2019s decision if the substantial rights of the appellant 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.\nThis court has often repeated its standard of review for administrative decisions:\nAdministrative decisions should be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Arkansas State Highway & Transp. Dep\u2019t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996); Wacaser v. Insurance Comm\u2019r, 321 Ark. 143, 900 S.W.2d 191 (1995). To set an agency decision aside as arbitrary and capricious, an appellant must demonstrate that the decision was made without consideration and with a disregard of the facts. ABC Home Health of Ark., Inc. v. Arkansas Health Servs. Comm\u2019n, 326 Ark. 573, 932 S.W.2d 331 (1996). We review the entire record to establish whether the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wacaser, 321 Ark. 143, 900 S.W.2d 191; Arkansas Appraiser Licensing & Cert. Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995). An administrative agency, like a jury, is free to believe or disbelieve any witness and, on review, the evidence is given its strongest probative force to support the administrative ruling. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., Inc., 295 Ark. 223, 748 S.W.2d 129 (1988); Arkansas Health Planning & Dev. Agency v. Hot Spring County Mem\u2019l Hosp., 291 Ark. 186, 723 S.W.2d 363 (1987). A court may not reverse a decision of an agency if there is substantial evidence to support that decision. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129. The appellant has the burden of proving an absence of substantial evidence. Brimer v. Arkansas Contractors Licensing Bd., 312 Ark. 401, 849 S.W.2d 948 (1993). Arkansas Health Planning & Dev. Agency, 291 Ark. 186, 723 S.W.2d 363.\nMid-South Road Builders, Inc. v. Arkansas Contractors Licensing Bd., 328 Ark. 630, 633, 946 S.W.2d 649, 651 (1997). We have further held that to establish a lack of substantial evidence, an appellant must demonstrate that the proof before the administrative board was so nearly undisputed that fair-minded persons could not reach its conclusions. See Arkansas State Plant Bd. v. Bullock, 345 Ark. 373, 48 S.W.3d 516 (2001). The question on review is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. See Arkansas State Racing Comm\u2019n v. Wayne Ward, Inc., supra.\nA review of the record in the instant case reveals that there is substantial evidence to support the Board\u2019s finding of a violation and the sanctions it imposed on Hackney. Mr. Gilmore testified at the hearing that Hackney had paid twenty-eight retailers rebates from December 1999 until July 2000. The Board also introduced into evidence, without objection by Hackney, Mr. Gilmore\u2019s investigation report and a packet of materials reflecting the retail establishments that were paid rebates and in what amount. The investigation findings reflect that \u201cHackney paid rebates to 28 different locations during the period [of December 1999 to July 2000].\u201d It further reveals that the \u201ctotal rebate paid from December 1999 to July 2000 was $47,883.02.\u201d Additionally, as the Board correctly points out in its brief, Hackney\u2019s employees admitted to offering and paying rebates to Arkansas retailers up until July 2000 when it stopped the practice on its own accord. Mr. Butler, Hackney\u2019s employee, also testified that Hackney had paid rebates in Arkansas for about three to four years. He admitted that during the time Hackney was giving out rebates, it had received letters from the Board that rebates were illegal, and it knew that rebates were against the law. Finally, Mr. Sansom, Hackney\u2019s Chairman and CEO, testified that Hackney had matched rebates to protect its market share.\nSection 4-75-708 (b) prohibits wholesalers and retailers from giving rebates in price in connection with the sale of cigarettes, with the intent of injuring competitors or destroying or lessening competition:\n(b) It shall be unlawful for any wholesaler or retailer, with intent to injure competitors or destroy or substantially lessen competition, to offer a rebate in price, to give a rebate in price, to offer a concession of any kind, or to give a concession of any kind or nature whatsoever in connection with the sale of cigarettes.\nArk. Code Ann. \u00a7 4-75-708(b) (Repl. 2001). We hold that based on the evidence set out above, there was substantial evidence that Hackney violated \u00a7 4-75-708(b).\nAs for the sanction imposed on Hackney, \u00a7 26-57-256(a)(5) clearly permits the Board to conduct hearings regarding any permit or license in violation of the Unfair Cigarette Sales Act. See Ark. Code Ann. \u00a7 26-57-256(a)(5) (Pamph. No. 3, Mar. 2003). That act is codified at Ark. Code Ann. \u00a7 4-75-701 et seq. and encompasses \u00a7 4-75-708. See Ark. Code Ann. \u00a7\u00a7 4-75-701 and 708 (Repl. 2001). Section 26-57-256(a)(5) permits the Board to suspend a permit or license and levy a civil penalty of up to $1000 for each violation of the Act. See Ark. Code Ann. \u00a7 26-5-256(a)(5) (Pamph. No. 3, Mar. 2003). Because the evidence established that Hackney had paid rebates to at least twenty-eight Arkansas retail establishments, it was not arbitrary or capricious for the Board to find twenty-eight separate violations, resulting in a $28,000 fine, and to order a suspension of six months.\nAffirmed.\nCorbin, J., not participating.\nHackney assisted with the cases against the Arkansas retailers which accepted rebates by sending an employee on two separate occasions to hearings against two of the thirty retailers.\nThe order actually stated that the hearing would be held on May 17, 2000, but that was obviously a typographical error.\nHackney also asserts within its second point on appeal that because it had already admitted to the violations, which became a part of the record, the Board effectively denied Hackney procedural due process and any opportunity to defend itself. However, Hackney also failed to raise this argument before the Board or to obtain a ruling on it. Accordingly, we will not address it.\nWe note that Ark. Code Ann. \u00a7 4-75-708(d) (Repl. 2001), provides that should a wholesaler or retailer violate the provisions of the section, it would be guilty of a misdemeanor and \u201cbe punishable by a fine of not more than five hundred dollars ($500).\u201d Ark. Code Ann. \u00a7 4-75-708(d) (Repl. 2001). However, \u00a7 26-57-256(a)(5) permits the levy of a civil penalty not to exceed $1000 for such a violation. Although not challenged by the appellant, it appears that the Board\u2019s levy of $1000 per violation was correct in that this was a civil penalty and not a criminal prosecution, which, under Ark. Code Ann. \u00a7 26-57-256(c), the Board would not have authority to prosecute.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Charles R. Singleton, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Connie Carroll, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "H.T. HACKNEY COMPANY v. Charlie DAVIS, Director of the Arkansas Tobacco Control Board, and the Arkansas Tobacco Control Board\n03-62\n120 S.W.3d 79\nSupreme Court of Arkansas\nOpinion delivered June 26, 2003\nCharles R. Singleton, for appellant.\nMike Beebe, Att\u2019y Gen., by: Connie Carroll, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0797-01", "first_page_order": 821, "last_page_order": 833 }