                                Cite as 2016 Ark. App. 476

                ARKANSAS COURT OF APPEALS
                                   DIVISIONS I and IV
                                     No. CV-15-1039


ARKANSAS STATE BOARD OF                          Opinion Delivered   October 19, 2016
LICENSURE FOR PROFESSIONAL
ENGINEERS AND PROFESSIONAL                       APPEAL FROM THE PULASKI
SURVEYORS                                        COUNTY CIRCUIT COURT,
                   APPELLANT                     SIXTEENTH DIVISION
                                                 [NO. CV-2014-2542]
V.
                                                 HONORABLE MORGAN E. WELCH,
                                                 JUDGE
ROBERT ALLAN CALLICOTT
                     APPELLEE                    REVERSED AND REMANDED



                            M. MICHAEL KINARD, Judge

       The Arkansas State Board of Licensure for Professional Engineers and Professional

Surveyors (“Board”) appeals from an order of the circuit court that reversed the Board’s

decision to fine and permanently revoke the surveyor’s license of Robert Allan Callicott.

The circuit court ruled that the Board’s findings of ethical violations were not supported by

substantial evidence, that “the offense alleged was vague,” and that the punishment imposed

was unduly harsh. The Board argues that the circuit court erred in reversing the Board’s

decision because the Board’s findings were supported by substantial evidence and the Board’s

decision, including its choice of penalty, was within its authority and not arbitrary or

capricious. Mr. Callicott contests those arguments. He further contends that he was denied

due process by the Board because notice of the hearing had not been properly sent to him

and that, in any event, the statute and rule on which the Board based its decision are
                                  Cite as 2016 Ark. App. 476

unconstitutionally vague. For the reasons explained below, we reverse and remand for the

Board to make specific findings of fact and conclusions of law.

       In June 2013, Charles McGowan lodged with the Board a complaint against Mr.

Callicott, a licensed surveyor. McGowan alleged that he had paid Callicott $1000 ten weeks

earlier, in April 2013, to perform a survey. He alleged that the work had not been

performed and that Callicott had not responded to McGowan’s phone calls, letters, and

emails. The Board notified Callicott of the complaint. Callicott responded in writing,

stating that he had started working on the job immediately upon being hired and had

“devoted a great deal of time and energy to the project”; offering his explanation for the

delay in finishing the work; and indicating that there had been no time limit set for the

completion of the survey. The Board then further corresponded with and interviewed

McGowan and Callicott.

       Eventually, it was decided that a formal hearing would be held to determine whether

Callicott had violated Arkansas Code Annotated sections 17-48-101 et seq. (Supp. 2015) or

the rules of the Board. Specifically, the Board charged that Callicott (1) had engaged in

“dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud,

or harm the public, in violation of Arkansas Code Annotated [section] 17-48-205”; (2) had

failed “to faithfully serve the legitimate interest of his client, in violation of the preamble of

the Rules of Professional Conduct”; and (3) had failed “to provide information requested by

the Board as a result of a formal or informal complaint to the Board, in violation of Arkansas

Code Annotated [section] 17-48-205.” Notice of the allegations and the May 13, 2014,


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scheduled hearing were sent to Callicott by both certified and regular mail in April 2014.1

Callicott did not appear at the hearing before the Board, but McGowan did, and the hearing

went forward.

       After the hearing, the Board entered a written order in June 2014. The Board found

that McGowan engaged Callicott to perform a survey for $1000, that McGowan gave

Callicott a check for $1000, and that, during the investigation, Callicott “refused to provide

pertinent information requested by the Board’s investigator.” Additionally, the Board

“found” that McGowan “asserts” that the check was cashed and that the work was not

completed; the Board stated that these two asserted “fact[s]” were not disputed by Callicott.

The last remaining “finding” in the Board’s order was that McGowan “asserts” that Callicott

made no attempt to contact him and did not respond to McGowan’s “repeated attempts” to

contact Callicott. The Board then concluded, without any elaboration, that Callicott’s

“conduct . . . constitutes” each of the three violations alleged in the notice and quoted in the

preceding paragraph of this opinion. The Board imposed a $1000 fine against Callicott and

revoked his surveyor’s license.

       In July 2014, Callicott filed his petition seeking judicial review by the circuit court.

See Ark. Code Ann. § 25-15-212 (Repl. 2014). Soon thereafter, the circuit court entered an

order staying enforcement of the Board’s decision. In September 2015, the circuit court

reversed and set aside the order of the Board. The court held that the Board’s findings of



       1
       The record indicates that the certified mail was returned to the Board, marked
“unclaimed.” The notice sent by regular mail was not returned.

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ethical violations were not supported by substantial evidence, that the offenses alleged were

vague, that there was no direct violation of any rule, and that the punishment was unduly

harsh. The Board has appealed the circuit court’s order to this court.

       We cannot, at this time, decide the substantive issues in this case. Rather, the case

must first be remanded for the Board to make specific findings of fact and conclusions of law.

       Review of administrative agency decisions, by both the circuit court and the appellate

court, is limited in scope. Ark. Code Ann. § 25-15-212(g)–(h); Arkansas State Highway &

Transportation Department v. RAM Outdoor Advertising, 2015 Ark. App. 713, 479 S.W.3d 51.

The standard of review to be used by both courts in determining the sufficiency of the

evidence is whether there is substantial evidence to support the agency’s findings. RAM

Outdoor Advertising, supra. The appellate court’s review is directed not toward the circuit court

but toward the decision of the agency. Id. When reviewing such decisions, we uphold them

if they are supported by substantial evidence and are not arbitrary, capricious, or characterized

by an abuse of discretion. Id. The party challenging the administrative agency’s findings has

the burden of proving an absence of substantial evidence. Id.

       In cases decided by courts of record, trial courts are not ordinarily required to state

specific findings of fact and conclusions of law. Rather, the appellate court will presume, in

the absence of a showing to the contrary, that the trial court acted properly and made the

findings of fact necessary to support its judgment. American States Insurance Co. v. Williams,

2010 Ark. App. 840; Jocon, Inc. v. Hoover, 61 Ark. App. 10, 964 S.W.2d 213 (1998); Ingram

v. Century 21 Caldwell Realty, 52 Ark. App. 101, 915 S.W.2d 308 (1996); see First National


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Bank v. Higginbotham Funeral Service, Inc., 36 Ark. App. 65, 818 S.W.2d 583 (1991) (Cracraft,

C.J., dissenting).

       The same is not true for administrative agencies, however. The Administrative

Procedure Act requires that an administrative adjudication be accompanied by specific findings

of fact and conclusions of law.2 Arkansas Code Annotated section 25-15-210 (Repl. 2014)

provides in part the following:

       (b)(1) In every case of adjudication, a final decision or order shall be in writing or
       stated in the record.

           (2) A final decision shall include findings of fact and conclusions of law, separately
       stated. Findings of fact, if set forth in statutory language, shall be accompanied by a
       concise and explicit statement of the underlying facts supporting the findings.

The Board must translate testimony and other evidence into findings of fact and then explain

how those factual findings support the action taken by the Board. Barnes v. Arkansas

Department of Finance & Administration, 2010 Ark. App. 436. These requirements have long

been seen as important in assuring more careful administrative consideration and in facilitating

judicial review. Voltage Vehicles v. Arkansas Motor Vehicle Commission, 2012 Ark. 386, 424

S.W.3d 281; First State Building & Loan Association v. Arkansas Savings & Loan Board, 257 Ark.

599, 518 S.W.2d 507 (1975). Whether sufficient findings of fact have been made is a

threshold question in an appeal from an administrative board. Gore Engineering Associates, Inc.

v. Arkansas Contractors Licensing Board, 2011 Ark. App. 640.



       2
       The same requirement applies to decisions of agencies that are not covered by the
Administrative Procedure Act. See, e.g., Ark. Code Ann. § 11-9-704(b)(5) (Repl. 2012)
(Arkansas Workers’ Compensation Commission).

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        A satisfactory specific finding of fact is

        a simple, straightforward statement of what happened. A statement of what the Board
        finds has happened; not a statement that a witness, or witnesses, testified thus and so. It is
        stated in sufficient relevant detail to make it mentally graphic, i.e., it enables the reader
        to picture in his mind’s eye what happened. And when the reader is a reviewing court
        the statement must contain all the specific facts relevant to the contested issue or issues
        so that the court may determine whether the Board has resolved those issues in
        conformity with the law.

Wright v. American Transportation, 18 Ark. App. 18, 21, 709 S.W.2d 107, 109 (1986) (emphasis

added) (quoting Whispering Pines Home for Senior Citizens v. Nicalek, 333 N.E.2d 324 (Ind. Ct.

App. 1975)); see also Barnes, supra (recitation of witness testimony is not a satisfactory finding

of fact). A conclusory statement that does not detail or analyze the facts on which it is based

is not sufficient. Maez v. Director, 2009 Ark. App. 661. Neither the circuit court nor this

court may supply findings by weighing the evidence; that function lies with the administrative

agency. See Arkansas Savings & Loan Association Board v. Central Arkansas Savings & Loan

Association, 256 Ark. 846, 510 S.W.2d 872 (1974); Arkansas State Board of Chiropractic

Examiners v. Currie, 2013 Ark. App. 612.3 When an administrative agency fails to make

findings on issues of fact, the courts do not decide the questions in the first instance; instead,

the cause is remanded to the agency so that findings can be made. Gore Engineering Associates,

Inc., supra.



        3
        We are aware that the circuit court is allowed to take new evidence and, presumably,
to make findings thereon in the limited instance of “alleged irregularities in procedure before
the agency not shown in the record.” See Ark. Code Ann. § 25-15-212(g). However, that
is not what happened here; that statutory exception does not apply to the particular
deficiencies in the Board’s findings and conclusions that are detailed in the following
paragraph of our opinion and that form the basis for our decision in this case.

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       Here, the Board’s findings and conclusions are insufficient to allow a reviewing court

to determine whether several issues were resolved in conformity with the law. Other than

the findings that McGowan and Callicott agreed that Callicott would perform a survey for

McGowan in exchange for $1000 and that the $1000 had been paid to Callicott, the order

contains no clear and specific findings.       The Board’s statements reciting McGowan’s

“assert[ions]” clearly are not findings of fact regarding the subject matter of those assertions.

See Barnes, supra; Wright, supra. Although the Board stated that Callicott did not dispute

McGowan’s assertions that the check had been cashed and that the survey had not been

completed, the Board did not explain whether those assertions were admitted and the Board

found the evidence credible, or whether the Board believed that Callicott’s failure to appear

at the hearing somehow required the Board to accept McGowan’s assertions. See Peters v.

Doyle, 2009 Ark. App. 722 (“finding” that leaves an ambiguity regarding the factual basis

therefor or regarding agency’s understanding of the law is insufficient). In any event, the

Board made no comment at all regarding the truth or falsity of McGowan’s “assert[ions]” that

Callicott had failed to contact McGowan and failed to respond to McGowan’s claimed

attempts to contact Callicott. Nor did the Board make any findings regarding the nature or

number of any such attempts by McGowan to contact Callicott. Additionally, the Board’s

decision is silent as to whether Callicott started the project or did any significant work on it

and whether there was any agreement or understanding between landowner and surveyor

regarding any time limitations within which the work was to be completed. Nor does the

Board’s order contain any findings to support its very conclusory statement, which essentially


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tracks the general language of Arkansas Code Annotated section 17-48-205(a)(1)(E) (Supp.

2015), that Callicott refused to provide pertinent information requested by the Board’s

investigator; no mention is made regarding what information was requested by the Board or

exactly how Callicott responded. See Ark. Code Ann. § 25-15-210(b)(2) (a finding set forth

in statutory language must be accompanied by explicit statement of underlying facts in

support). Finally, the Board did not explain how it reached the conclusion that Callicott’s

“conduct” violated the general rules and statutes cited by the Board or how it warranted

revocation of his license, the most severe penalty available to the Board. See Nesterenko v.

Arkansas Board of Chiropractic Examiners, 76 Ark. App. 561, 69 S.W.3d 459 (2002).4

       Because the Board’s order fails to detail what it found to have actually happened

regarding several critical issues and fails to state how the facts led to its conclusions, we must

reverse and remand for the Board to make specific findings and conclusions as required by the


       4
         We appreciate the dissenting judges’ concern that our court not unnecessarily elevate
form over substance. However, in this case, their concern is misdirected. Here, it is the
dissenting judges who are placing form over substance. They accept a number of the Board’s
statements as “findings of fact” because they are labeled as such by the Board and despite the
lack of substance within those “findings.” Of course, the label attached to written material
should not control over the actual content thereof. See Cagle Manufacturing & Steel, Inc. v.
Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992) (agency’s labeling a statement “finding of
fact” not controlling; case remanded for findings); Gore Engineering Associates, Inc., supra
(same); see also Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967) (trial court’s labeling
a document “decree” not determinative; status as decree depends on presence of certain
essentials within the document); Hinton v. Bethany Christian Services, 2015 Ark. App. 301, 462
S.W.3d 361 (despite trial court’s label of its order as one for “Permanent Guardianship,”
appellate court treated it as temporary in nature based on content in body of order); Riddick
v. Harris, 2016 Ark. App. 426 (body of argument in brief controls over conclusory statement
in argument heading).



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statute. In order that the appeal not be decided piecemeal, we do not address any of the

remaining issues at this time. Twin Rivers Health & Rehab, LLC v. Arkansas Health Services

Permit Commission, 2012 Ark. 15; Sonic Drive-In v. Wade, 36 Ark. App. 4, 816 S.W.2d 889

(1991).

       Reversed and remanded.

       GLADWIN, C.J., and WHITEAKER and HOOFMAN, JJ., agree.

       HIXSON and BROWN, JJ., dissent.

       KENNETH S. HIXSON, Judge, dissenting. Form over substance can be a good

thing in general. Form over substance even has its place in legal jurisprudence. In fact, form

over substance is sometimes necessary to protect our rights. However, where form over

substance only serves to create more paper, causes unnecessary delays in justice, increases court

dockets, and causes the parties to spend even more money in legal fees, form over substance

should stand aside and allow the reviewing institution the opportunity to decide a case on its

merits. In my opinion, this is such a case.

       Among the purposes of requiring an administrative agency to issue findings of fact and

conclusions of law is to facilitate judicial review and to aid the parties in planning for

rehearings and judicial review. See Voltage Vehicles v. Ark. Motor Vehicle Comm’n, 2012 Ark.

386, 424 S.W.3d 281. A fair reading of the majority opinion implies that the Board herein

completely ignored its responsibilities. That is not the case. Here, the Board issued eight

findings of fact and three conclusions of law, and based on those findings and conclusions, it

issued an order imposing a $1,000 civil penalty and revoked Callicott’s surveyor’s license. To


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show that the Board did not disregard nor neglect its responsibility to issue findings and

conclusions, below is a verbatim excerpt from the Board’s Order:

      On the basis of the testimony, and other evidence presented during the hearing, the
      Board makes the following Findings of Fact, Conclusions of Law, and Order.


                                 FINDINGS OF FACT

             F1. At all times relevant to the complaint, the Respondent was a Professional
      Surveyor licensed by the Board, and the Board has jurisdiction over his conduct.
             F2. Complainant Charles McGowan has an interest in a parcel of land in
      Ouachita County. McGowan desired to have the parcel boundaries marked on the
      ground, according to the survey plat and legal descriptions under which he held title.
             F3. McGowan engaged the Respondent to perform the desired work.
             F4. McGowan met the Respondent on the parcel on April 16, 2013, to
      discuss what work was to be done. During that meeting, McGowan gave the
      Respondent a check for $1,000, the agreed price for the proposed survey work.
             F5. McGowan asserts that the check was cashed on April 19, 2013. The
      Respondent does not dispute this fact.
             F6. McGowan asserts that the agreed work has never been completed. The
      Respondent does not dispute that the agreed work has never been completed.
             F7. McGowan asserts that the Respondent made no attempt to contact him,
      or explain the delay, or make other arrangements, nor did the Respondent respond to
      repeated attempts by McGowan to contact him from April 19, 2013, until the
      complaint was brought before the Board.
             F8. During the course of the investigation, the Respondent refused to
      provide pertinent information about the complaint that was requested by the Board’s
      investigator.

                              CONCLUSIONS OF LAW

             C1. The conduct of the Respondent, as set forth above in the Findings of
      Fact, constitutes one count of engaging in dishonorable, unethical, or unprofessional
      conduct of a character likely to deceive, defraud or harm the public in violation of
      Arkansas Code Annotated § 17-48-205.

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               C2. The conduct of the Respondent, as set forth above in the Findings of
       Fact, constitutes one count of failing to faithfully serve the legitimate interest of his
       client, in violation of the preamble of the Rules of Professional Conduct.
               C3. The conduct of the Respondent, as set forth above in the Findings of
       Fact, constitutes one count of failing to provide information requested by the board
       as a result of a formal or informal complaint to the board, in violation of Arkansas
       Code Annotated § 17-48-205.

                                           ORDER

              O1. The Respondent is ordered to pay a civil penalty of One Thousand
       Dollars ($1,000) for the violations described in Paragraphs C1, C2, and C3 above.
       The total civil penalty must be received by the Board within fifty (50) days of the
       service of this Order.
              O2. For the violations described in Paragraphs C1, C2, and C3 above, the
       Professional Surveyor license of the Respondent is hereby revoked.

(Emphasis added.)

       While these findings and conclusions could have been more detailed and articulate, the

question is whether the findings and conclusions were sufficient to facilitate judicial review

for the circuit court and the court of appeals to determine the basis for the Board’s decision

and whether the Board resolved the issues in conformity with the law. It appears that these

findings of fact and conclusions of law were sufficiently clear:

       ·   for the surveyor to file a meaningful petition for judicial review to the circuit court
           contending that the Board’s decision was unsupported by substantial evidence;
       ·   for the circuit court to find that the Board erred in finding that a violation occurred
           and that the penalty was unduly harsh and reversing the Board’s decision; and
       ·   for the parties to file their appellate briefs, making meaningful arguments to the
           court setting forth their respective positions, with neither party questioning the
           sufficiency of the Board’s findings or conclusions.

Yet for some reason, according to the majority opinion sua sponte, these findings of fact and

conclusions of law “are insufficient to allow [our] court to determine whether the issues were

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resolved in conformity with the law” and “the Board’s order fails to detail what it found to

have actually happened regarding several critical issues and fails to state how the facts led to

its conclusions.” I simply disagree. When read as a whole, the Board determined that the

surveyor was paid, did not complete his contracted job, and did not communicate with his

client. Then, during the Board’s investigation, the surveyor did not provide information

requested by the Board, and as a result, the Board fined the surveyor $1,000 and revoked his

license. In my opinion, when the record on appeal and the order are read together as a

whole, the findings and conclusions are sufficient to allow and facilitate a judicial review.

       There is a cost to form over substance. Could the Board have been more articulate?

Could the Board’s decision have been more detailed? Both are probably answered “yes.”

However, is the existing language used by the Board so insufficient that it prevents a

meaningful judicial review? I think not. Our disposition sends this case back to the Board

for more findings and more conclusions. Once the Board issues a new and improved order,

then the surveyor will have to appeal the case back to the circuit court. Then the circuit

court will re-review the new and improved order. Then, the losing party will again have to

appeal this case back to this court. More money, more time, and a significant waste of judicial

economy. More form over substance.

       I would perform a judicial review and get to the merits of the case. I would affirm the

finding that the surveyor violated the rules pertaining to professionalism to his client and

failure to provide information to the Board. I would also affirm the fine. However, I would




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reverse the revocation of Callicott’s license as arbitrary and capricious, and remand to the

Board to fashion a penalty less than revocation.

       WAYMOND M. BROWN, Judge, dissenting. I strongly disagree with the majority’s

decision to reverse and remand for the Board to make specific findings of fact and conclusions

of law, as the findings and conclusions are sufficiently clear to determine the basis for the

Board’s decision to revoke the surveyor’s license of Callicott.

       The majority correctly states that the Arkansas Administrative Procedure Act (APA)

requires that an administrative adjudication be accompanied by specific findings of fact and

conclusions of law. Ark. Code Ann. § 25-15-210 (Repl. 2014). The APA further states the

following: 2

       (2) A final decision shall include findings of fact and conclusions of law, separately
       stated. Findings of fact, if set forth in statutory language, shall be accompanied by a
       concise and explicit statement of the underlying facts supporting the findings.

       The threshold question in a case brought to court from an administrative agency is

whether the agency has provided concise and explicit findings of fact and conclusions of law,

separately stated in its order. Olsten Health Services, Inc. v. Arkansas Health Services Com’n, 69

Ark. App. 313, 12 S.W.3d 656 (2000).

Here, the Board did just that. The findings of fact and conclusions of law were specifically and

separately stated in the Order as follows:

                                  FINDINGS OF FACT

              F1. At all times relevant to the complaint, the Respondent was a
       Professional Surveyor licensed by Board, and the Board has jurisdiction over his
       conduct.


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       F2. Complainant Charles McGowan has an interest in a parcel of land in
Ouachita County. McGowan desired to have the parcel boundaries marked on the
ground, according to the survey plat and legal description under which he held
title.

       F3. McGowan engaged the Respondent to perform the desired work.

       F4. McGowan met the Respondent on the parcel on April 16, 2013, to
discuss what work was to be done. During that meeting, McGowan gave the
Respondent a check for $1000, the agreed price for the proposed survey work.

     F5. McGowan asserts the check was cashed on April 19, 2013. The
Respondent does not dispute this fact.

     F6. McGowan asserts that the agreed work has never been completed. The
Respondent does not dispute that the agreed work has never been completed.

        F7. McGowan asserts that the Respondent made no attempt to contact
him, or explain the delay, or make other arrangements, nor did the Respondent
respond to repeated attempts by McGowan to contact him, from April 19, 2013
until the complaint was brought before the Board.

      F8. During the course of the investigation, the Respondent refused to
provide pertinent information about the complaint that was requested by the
Board’s investigator.

                      CONCLUSIONS OF LAW

       C1. The conduct of the Respondent, as set forth above in the Findings of
Fact, constitutes one count of engaging in dishonorable, unethical, or
unprofessional conduct of a character likely to deceive, defraud, or harm the
public, in violation of Arkansas Code Annotated § 17-48-205.

        C2. The conduct of the Respondent, as set forth above in the Findings of
Fact, constitutes one count of failing to faithfully serve the legitimate interest of
his client, in violation of the preamble of the Rules of Professional Conduct.

       C3. The conduct of the Respondent, as set forth above in the Findings of
Fact, constitutes one count of failing to provide information requested by the
board as a result of a formal or informal complaint to the board, in violation of
Arkansas Code Annotated § 17-48-205.


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       The Board’s order complied with the requirements of the APA. The findings and

conclusions are obvious. What more does the majority need the Board to find? The facts of

the case are simple. Callicott was hired by McGowan to survey a parcel of land. McGowan

paid Callicott $1000 to perform the work. Callicott failed to perform the work and provide

the survey. Callicott did not communicate with McGowan at all over the course of 10 weeks,

until the time that McGowan filed a complaint with the Board. Callicott failed to cooperate

and provide necessary information to the Board throughout the investigation.

       The majority contends that the order contains no clear and specific findings because

of the use of the word “asserts.” How much more clear and specific could the Board have

been? The findings are listed under a bold heading in all capital letters titled 4

       “FINDINGS OF FACT.” It is not a far leap to understand that what the Board listed

under this heading are indeed their findings of fact. The Board’s unfortunate use of the word

“asserts” in three of the eight enumerated findings of fact does not in any way disqualify them

from being facts, as clearly intended by the Board, when it placed them under such a heading.

The same is true for “CONCLUSIONS OF LAW.”

       The majority states that the Board’s order fails to detail what it found to have actually

happened. How is that possible? Even a blind man can see what happened here. Callicott did

not perform the work he was paid to do. The findings of fact make that blatantly obvious. Are

we really going to grind the wheels of justice to a screeching halt because of the majority’s

belief that the Board failed to use magical language in stating their findings of fact? Surely, this

is not the outcome or application envisioned by the APA.


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       Furthermore the requirement that underlying facts supporting findings be concisely and

explicitly stated is primarily for the benefit of reviewing courts. Ark. Sav. & Loan Ass’n Bd.

v. Central Ark. Sav. & Loan Ass’n, 256 Ark. 846, 510 S.W.2d 872, 1974. In Nesterenko v.

Arkansas Bd. of Chiropractic Examiners, this court reversed and remanded for more specific

findings of fact, stating that without more specific findings, we are left to guess how and

which part of the regulation the Board determined that appellant had violated. 76 Ark. App.

561, 69 S.W.3d 459 (2002). That is not the case here. We know the how and which because

it is listed in the Board’s order under the appropriate headings. There is no guess work to be

done. Accordingly, upon 5 determining that the Board’s findings of fact and conclusions of

law are sufficient, I would affirm the Board’s finding that Callicott violated the rules applicable

to professional surveyors.

       A party challenging an administrative action as arbitrary and capricious must prove that

it was willful and unreasonable, without consideration and with a disregard of the facts or

circumstances of the case. Hester v. Ark. Prof’l Bail Bondsman Licensing Bd., 2011 Ark. App.

389, 383 S.W.3d 925. An agency’s decision cannot be arbitrary and capricious when it is

supported by substantial evidence. Olsten, 69 Ark. App. 313, 12 S.W.3d 656.

       The Board, having found that Callicott violated multiple sections of Arkansas Code

Annotated § 17-48-205, revoked his surveyor’s license and fined him $1000. Because the

Board had substantial evidence to support the findings and violations, the penalties that it

imposed on Callicott cannot be arbitrary and capricious. Further, “administrative agencies are

better equipped by specialization, insight through experience, and more flexible procedures


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than courts, to determine and analyze legal issues affecting their agencies.” Williams v. Ark.

State Bd. of Physical Therapy, 353 Ark. 778, 782, 120 S.W.3d 581, 584 (2003). The agency is

better acquainted with the standards of conduct expected of professional surveyors. It is the

agency, not this court, that can fully evaluate and appreciate the seriousness of the violations

by those of the profession. Hence, it is the agency’s prerogative to impose the penalty that it

deems proper. 6

       I would affirm.

       Leslie Rutledge, Att’y Gen., by: Sara Farris, Ass’t Att’y Gen., for appellant.

       Baker, Schulze, Murphy & Patterson, by: J.G. “Gerry” Schulze, for appellee.




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