dissenting. I dissent because I think that the trial court was correct in finding that the Board’s actions were arbitrary and capricious, and because I do not think it was error for the trial court to hear additional evidence in light of the fact that the appellee pled irregularities in the procedure employed by the Board.
Arkansas Code Annotated § 25-15-212(f) (1987) requires the trial court to remand a case to the Board when additional evidence is necessary. However, the following subsection, § 25-15-212(g), states, “that in cases of alleged irregularities in the procedure before the agency, not shown in the record, testimony may be taken before the court.” (Emphasis supplied.) The appellee did allege irregularities in the procedure; she stated that she did not feel she was given adequate notice of the second hearing. Although I am not prepared to say, as a matter of law, that the notice was untimely, I am concerned that the appellee’s second hearing was held on the twentieth day from receipt of notice. Arkansas Rule of Civil Procedure 12(a) allows a defendant to file an answer within twenty days after service of summons, and this twenty days must pass before a default judgment can be entered against the defendant. Although administrative agencies are not bound by the Rules of Civil Procedure, I believe they do serve as a guideline to ensure fundamental fairness.
Furthermore, the appellee testified about other irregularities which, in my opinion, justified the taking of additional evidence and require affirming the trial court. According to the appellee, she attempted several times to contact the Board by telephone to find out what to do about her license and the hearing. She stated that she was told that the Board would conduct a hearing “with or without” her. She contacted the Board in writing prior to the first hearing and explained that she would be out of town, but the Board did not respond to her letter. The cover letter sent to the appellee with both notices stated that, in order to waive her right to attend and defend herself at the hearing, she was required to send an affidavit to the Board. This was not done, and indicates to me that, under the Board’s own guidelines, the appellee had not waived her right to attend. Lastly, Debra Norton, the Board’s director, testified:
We also send a cover letter to that individual basically telling them they have a right to appear with counsel. They also have a right to waive their right to a hearing, and we try to advise them that way. If they do, then they would need to send an affidavit stating that.
(Emphasis added.) This language can be interpreted to mean that the Board actually tries to discourage the attendance of persons having a right to appear before them. In light of the Board’s actions in this case, it is not an unreasonable construction.
I also think that the Board’s assessment of a fine of $500.00 was arbitrary and capricious. The appellee was almost six months late in renewing her licenses. Although the appellee admitted that it was an oversight not to have renewed by April 23, 1987, the remainder of the time, from April 23 to July 23, cannot be found to be the fault of the appellee. In spite of the fact that the appellee attempted to find out what was required of her, the Board never advised her that she could renew her license immediately and that she did not have to wait on the hearings to do so. Furthermore, Debra Norton admitted that no harm was done by the appellee’s failure to timely renew. In Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 834 (1982), we said that in order to set aside an agency decision on the basis that it is arbitrary and capricious it must be found to have been unreasoned, not supported by any reasonable basis, and made in willful disregard of the facts and circumstances. Clearly, to me, the Board in this case acted in willful disregard.
Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261 (1968), involved the interpretation of a statute by the Federal Maritime Commission. In reversing the Commission’s decision, the United States Supreme Court stated:
The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a “reasonable basis in law.” But the courts are the final authorities on statutory construction, and “are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” “The deference owed to an expert tribunal cannot be allowed to slip into judicial inertia . . . .”
390 U.S. at 272 (citations omitted). While the present case is a case of statutory enforcement and not construction, the same rationale applies. The deference that we generally give to the expertise of administrative agencies, see Livingston v. Arkansas State Medical Board, 288 Ark. 1, 701 S.W.2d 361 (1986), is not a substitute for sound judicial review.
In light of the procedural irregularities in this case and the arbitrary and capricious actions of the Board, I would affirm the trial court’s reduction of the fine to $50.00.