dissenting. Today’s decision of the court is unprecedented in the annals of our jurisprudence, for in the process of overturning the ABC Board’s decision to grant a permit, this court boldly makes findings of fact of its own on questions never offered to the Board as grounds for the denial of the permit. Our function on appeal does not entail making findings of fact nor is it proper to overturn a fact-finder’s decision based on arguments never presented to the fact-finder for determination. I am thus compelled to protest this blatant usurpation of the Board’s authority.
In the prevailing opinion, the court overturns the Board’s decision based on the perceived violation of two regulations. The first regulation concerns the authority of the Board to deny a permit when it finds that false statements are made at the hearing. However, appellee did not refer to this regulation at the hearing and never so much as argued to the Board that the permit should be denied because this witness’s testimony was untruthful. Consequently, the Board made no finding as to the truthfulness of the witness’s testimony. Yet this court, on its own initiative, judges the veracity of this witness’s testimony and makes a finding of fact that the testimony was knowingly false and untruthful.
The second regulation provides for disqualification when an officer of the corporation seeking a permit has been convicted of violating any law relating to alcoholic beverages. The prevailing opinion makes a finding of fact, based on some obscure designation of this individual as a “3 yr. trustee,” that this person is an officer of the corporation. It is abundantly clear, however, that the subject of this particular regulation appears for the first time in appellee’s responsive brief in this court. Appellee did not present testimony that this person was an officer of the corporate applicant2 and did not rely on this regulation in its opposition to the permit. Since the issue was not raised, the Board was not called upon to make a finding of fact concerning the application of this regulation. As a matter of fact, since this issue was not fleshed out at the hearing, we have no earthly idea what a “three-year trustee” is, and indeed this person’s status as an officer of the corporate applicant, to which the regulation speaks, is very much a subject of disputed fact because this person is not among those listed as an officer of the corporation on the application for the permit or the accompanying articles of incorporation. Nevertheless, in the face of this conflicting evidence, this court resolves this question of disputed fact, concerning an issue raised for the first time on appeal, and finds that this person is an officer of the corporation. That this court is taking on the role of a fact-finder is tacitly admitted in the prevailing opinion, because hidden in a footnote, it acknowledges that it looked to the record “to determine” that this person was an officer of the corporation.
Two principles of law are controlling here. It has been repeatedly held that we will not set aside an administrative determination upon a ground not presented to the agency because to do so would deprive the agency of the opportunity to consider the matter, make its ruling and state the reasons for its action. Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995). Secondly, reviewing courts may not supply findings by weighing the evidence themselves, because that function is the responsibility of the administrative agency which sees the witnesses as they testify. The Green House, Inc. v. Arkansas Alcoholic Beverage Control, 29 Ark. App. 229, 780 S.W.2d 347 (1989). With these principles in mind and governed by our limited standard of review, it is our task to examine the decision of the Board based on the arguments presented to that body and based on the findings made by the Board in response to those issues placed before it. It is not our function to pass judgment on matters which could have been raised, but were not, or to make findings of fact with respect to issues raised for the first time in this or any appeal from that decision. The circuit court overturned the Board’s decision on grounds not argued before the Board and otherwise substituted its judgment for that of the Board. By affirming that decision, this court falls into the same error, and I dissent.
I am authorized to state that Judges Pittman and Jennings join in this dissent.
Contrary to the assertion in the prevailing opinion, the minutes of the corporation were not introduced into evidence. The minutes are in the record as an accompaniment to the application submitted by appellant for the permit. That portion of the minutes reflecting Mr. Starr’s election as “3 yr. trustee” was never mentioned at the hearing, and the testimony throughout the hearing refers to him only as a member of the Moose Lodge Club.