The opinion
Cite as 2020 Ark. 58
Digitally signed by Susan P.
Williams SUPREME COURT OF ARKANSAS
Reason: I attest to the No. CV-19-361
accuracy and integrity of this
document Opinion Delivered: February 6, 2020
Date: 2020-12-14 13:18:43
STEVE’S AUTO CENTER OF
CONWAY, INC., AND STEVEN APPEAL FROM THE PULASKI
GAFNER COUNTY CIRCUIT COURT
APPELLANTS [NO. 60CV-16-5123]
V. HONORABLE CHRISTOPHER
CHARLES PIAZZA, JUDGE
ARKANSAS STATE POLICE;
DIRECTOR WILLIAM J. BRYANT, AFFIRMED.
INDIVIDUALLY; AND CAPT.
ALEX FINGER, INDIVIDUALLY
APPELLEES
ROBIN F. WYNNE, Associate Justice
Appellants Steve’s Auto Center of Conway, Inc., and Steven Gafner appeal from the
Pulaski County Circuit Court’s order granting the Arkansas State Police (ASP) summary
judgment based on sovereign immunity. On appeal, appellants argue that the ASP policy
prohibiting individuals with felony convictions from placement on the ASP Towing Rotation
List is illegal, and therefore sovereign immunity does not bar their suit. We affirm.
ASP is required by law to “establish, maintain, and enforce a towing rotation list to assist
in clearing highways of motor vehicles” involved in accidents or abandoned on state highways.
Ark. Code Ann. § 12-8-106(a)(1)(B) (Supp. 2019). In 2004, ASP promulgated the Arkansas
State Police Rules and Regulations for Towing Rotation List (“Rules”) in accordance with the
Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 et seq. (Repl. 2014 & Supp.
2019). Pursuant to these Rules, each ASP Troop must maintain a Towing Rotation List of
approved towing providers who may be contacted to tow a vehicle when the driver or owner
of a disabled vehicle has no preference, is absent or incapacitated, or has been arrested. Rule
2.10 provides:
Towing operators that respond to ASP calls shall not have a felony conviction;
or a theft-related Misdemeanor within the last (3) three years. Prior convictions
will be considered on a case-by-case basis. The Troop Commander shall have
complete discretion when weighing the desire of the towing company to be
placed on the list against public confidence in ASP’s tow list.
130-00-009 Ark. Code R. 2.10 (Matthew & Bender 2004). In 2016, ASP began interpreting
this Rule to bar operators with any felony conviction, not just convictions within the past three
years, from placement on the Towing Rotation List.
Steve’s Auto Center is a corporation licensed by the Arkansas Towing and Recovery
Board to operate as a towing service in the state. Steven Gafner is an employee of Steve’s Auto
Center. In 1995, Gafner was convicted of two felonies: stalking and terroristic threatening.
Sometime around 2004, Steve’s Auto Center was placed on the Towing Rotation List for
Faulkner County. In 2016, ASP suspended Steve’s Auto Center from the Towing Rotation
List for violating several Rules, including Rule 2.10. Steve’s Auto Center appealed its
suspension. Following an appeal hearing, ASP placed Steve’s Auto Center back on the list but
did not reinstate Gafner due to his felony convictions.
Appellants filed suit for injunctive and declaratory relief against ASP, ASP Director
William Bryant in his individual capacity, and Troop Commander Alex Finger in his individual
capacity, alleging violations of article 2, section 2 of the Arkansas Constitution and Ark. Code
Ann. § 17-1-103. After the defendants moved to dismiss the complaint, appellants filed an
amended complaint. The defendants then moved to dismiss the amended complaint, arguing in
part that sovereign immunity barred the suit. The circuit court dismissed the claims against
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Bryant and Finger. Following discovery, the circuit court granted ASP’s subsequent motion for
summary judgment on the grounds of sovereign immunity. This appeal followed.
We have held that in an appeal from a decision granting summary judgment, where the
circuit court makes no substantive interpretations of law but bases its decision on whether the
pleadings state sufficient facts for an exception to sovereign immunity, we apply the abuse-of-
discretion standard of review. Smith v. Daniel, 2014 Ark. 519, at 5, 452 S.W.3d 575, 578; see
also Lenard v. Kelley, 2017 Ark. 186, at 6, 519 S.W.3d 682, 688. We review issues of statutory
interpretation de novo. City of Ft. Smith v. Carter, 372 Ark. 93, 95, 270 S.W.3d 822, 824 (2008).
Whether a party is immune from suit is purely a question of law that we review de novo.
Milligan v. Singer, 2019 Ark. 177, at 3, 574 S.W.3d 653, 655. Here, because the circuit court
interpreted Ark. Code Ann. § 17-1-103 in reaching its decision, our review is de novo.
Summary judgment is appropriate when it is clear there are no genuine issues of material
fact to be litigated and the moving party is entitled to judgment as a matter of law. Smith, 2014
Ark. 519, at 10, 452 S.W.3d at 581. On review, we determine if summary judgment was
appropriate by considering whether the evidence presented by the moving party in support of
the motion leaves a material question of fact unanswered. Id. We view the evidence in a light
most favorable to the nonmoving party, resolving all doubts and inferences against the moving
party. Id.
Appellants’ sole point on appeal is that sovereign immunity does not bar their suit
because ASP is acting illegally. Article 5, section 20 of the Arkansas Constitution provides that
“[t]he State of Arkansas shall never be made defendant in any of her courts.” A suit against the
state is barred by the doctrine of sovereign immunity if judgment for the plaintiff will operate
to control the action of the state or subject it to liability. Ark. Oil & Gas Comm’n v. Hurd, 2018
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Ark. 397, at 8, 564 S.W.3d 248, 253. The doctrine of sovereign immunity extends to state
agencies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, at 3, 425 S.W.3d 731,
733. Sovereign immunity does not bar suits seeking to enjoin state-agency actions that are
illegal, unconstitutional, or ultra vires. Martin v. Haas, 2018 Ark. 283, at 7–8, 556 S.W.3d 509,
514–15.
According to appellants, Rule 2.10 violates Ark. Code Ann. § 17-1-103 (Repl. 2018),
which provides in relevant part:
(a)(1) It is the policy of the State of Arkansas to encourage and contribute
to the rehabilitation of criminal offenders and to assist them in the assumption of
the responsibilities of citizenship.
(2) The public is best protected when offenders are given the opportunity
to secure employment or to engage in a meaningful trade, occupation, or
profession.
(b)(1)(A) Subject to the provisions of subdivision (b)(2) of this section in
determining eligibility under this section, a board, commission, department, or
an agency may take into consideration conviction of certain crimes that have not
been annulled, expunged, or pardoned.
(B) However, such convictions shall not operate as an automatic bar to
registration, certification, or licensing for any trade, profession, or occupation.
....
(c) The board, commission, department, or agency shall state explicitly in
writing the reasons for a decision that prohibits the applicant from practicing the
trade, occupation, or profession if the decision is based, in whole or in part, on
conviction of felony.
....
(f)(1) This section shall apply to any board, commission, department,
agency, or any other body that deals in licensing or regulating a profession, trade,
or occupation in the State of Arkansas.
Appellants contend that Rule 2.10’s blanket exclusion of individuals with felony convictions
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from the ASP Towing Rotation List violates the statutory prohibition on using criminal
convictions as an automatic bar to registration, certification, or licensing for any trade,
profession, or occupation.
We have held, however, that the statute does not give a person a right to a particular
job. Bolden v. Watt, 290 Ark. 343, 347, 719 S.W.2d 428, 430 (1986). ASP argues that Ark.
Code Ann. § 17-1-103 is not applicable to its administration of the Towing Rotation List
because ASP does not regulate the occupation of towing; rather, ASP only regulates who is
placed on a list to tow vehicles under certain limited circumstances. For Ark. Code Ann. § 17-
1-103 to apply, appellants must show that ASP is a “board, commission, department, agency,
or other body that deals in licensing or regulating” the profession, trade, or occupation of
towing. Appellants must also show that ASP’s administration of the Towing Rotation List
constitutes “registration, certification, or licensing” for towing.
The basic rule of statutory construction is to give effect to the intent of the legislature.
Air Evac EMS, Inc. v. USAble Mut. Ins. Co., 2017 Ark. 368, at 4, 533 S.W.3d 572, 574. When
the language of a statute is plain and unambiguous, this court determines legislative intent from
the ordinary meaning of the language used. Id. In considering the meaning and effect of a
statute, we construe it just as it reads, giving the words their ordinary and usually accepted
meaning in common language. Potter v. City of Tontitown, 371 Ark. 200, 209, 264 S.W.3d 473,
480 (2007). We construe the statute so that no word is left void, superfluous, or insignificant;
and meaning and effect must be given to every word in the statute if possible. Id. When a statute
is ambiguous, we look to the legislative history of the statute and other factors, such as the
language used and the subject matter involved. Baptist Health v. Murphy, 2010 Ark. 358, at 28,
373 S.W.3d 269, 288.
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We first examine whether ASP is a “board, commission, department, agency, or other
body that deals in licensing or regulating a profession, trade, or occupation” within the meaning
of Ark. Code Ann. § 17-1-103(f)(1). The parties do not dispute that ASP is an agency of the
state. Nor do they dispute that operating a tow truck is a profession, trade, or occupation. ASP
is not involved in licensing towing operators; the Arkansas Towing and Recovery Board issues
such licenses. The remaining question, then, is whether ASP “deals in . . . regulating” the
occupation of towing. The word “deal” has multiple connotations: “To distribute
(something)”: “To transact business with (a person or entity)”; and “To conspire with (a person
or entity).” Black’s Law Dictionary 500 (11th ed. 2019). The first and third meanings are
inapplicable here, but ASP could be considered an entity that transacts business with towing
operators. The word “regulate” is defined as follows: “To control (an activity or process) esp.
through the implementation of rules.” Black’s Law Dictionary 1538 (11th ed. 2019). ASP has
implemented rules—the Rules and Regulations for Towing Rotation List—that control the
activity of towing disabled or abandoned vehicles from state highways when the owner or driver
has no preference, is absent or incapacitated, or has been arrested.
Because there is some ambiguity, we must look to other factors, including the subject
matter involved. Title 17 of the Arkansas Code, “Professions, Occupations, and Businesses,”
includes statutes governing the licensing, registration, and certification of several trades,
professions, and occupations. These statutes typically require payment of a licensing fee and
prohibit persons from engaging in an occupation prior to receiving a license, registration, or
certification. See, e.g., Ark. Code Ann. §§ 17-12-301 et seq. (certification of certified public
accountants); Ark. Code Ann. §§ 17-13-101 et seq. (licensing of agricultural consultants); Ark.
Code Ann. §§ 17-16-101 et seq. (registration of athlete agents); Ark. Code Ann. §§ 17-28-301
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et seq. (licensing of electricians); and Ark. Code Ann. §§ 17-31-301 et seq. (registration of
foresters).
ASP does not issue a license, registration, or certification for the occupation of towing.
ASP does not require payment of a fee to be placed on the Towing Rotation List. Placement
on the Towing Rotation List is optional; a towing operator may engage in the occupation of
towing without being placed on the list. A towing operator who is not on the list may tow
vehicles from ASP sites at the request of a driver or an owner. In short, ASP can neither permit
nor prohibit an individual from practicing the occupation of towing. We conclude that ASP
does not deal in licensing or regulating the occupation of towing within the meaning of § 17-
1-103(f)(1). Because the statute does not apply to ASP, Rule 2.10 does not violate § 17-1-103.
Appellants thus fail to show ASP is acting illegally, and therefore they cannot overcome
sovereign immunity.
Lastly, we briefly address two additional points raised by appellants. First, appellants make
a passing reference to the allegation in their amended complaint that ASP violated their right
to contract under article 2, section 2 of the Arkansas Constitution. Because they do not develop
this argument or cite any supporting authority, we decline to address this point. Appellants also
argue that they are entitled to a declaratory judgment on the validity of Rule 2.10 under Ark.
Code Ann. § 25-15-207. But no declaratory relief is warranted because Ark. Code Ann. § 17-
1-103 is inapplicable to ASP, and therefore Rule 2.10 is not invalid.
We conclude that Rule 2.10 does not violate Ark. Code Ann. § 17-1-103 because the
statute does not apply to ASP’s administration of the Towing Rotation List. Because appellants
cannot demonstrate that the illegal-act exception applies, sovereign immunity bars their suit.
Affirmed.
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BAKER, J., concurs.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Once again, a department
of the State of Arkansas seeks to shield its activities from judicial review by asserting sovereign
immunity. The complaint filed by Steve’s Auto Center of Conway, Inc., and Steven Gafner
alleged both constitutional and statutory violations by the Arkansas State Police after it removed
the company from the towing list. Twenty-five years ago, Steven Gafner, an employee of
Steve’s Auto was convicted of two felonies. Sixteen years ago, Steve’s Auto Center was placed
on the State Police’s towing rotation list. Twelve years later, Steve Gafner was removed from
the rotation list because of those twenty-plus-year-old felony convictions.
The majority asserts that the State Police’s administrative rule 2.10 is not “regulation”
of the towing industry. This is error. The majority acknowledges that in accordance with
Arkansas Code Annotated section 12-8-106(a)(1)(B), “ASP is required by law to ‘establish,
maintain, and enforce a towing rotation list to assist in clearing highways of motor vehicles’
involved in accidents or abandoned on state highways.” Yet, inexplicably, the majority fails to
see that this statutory duty constitutes regulation of towing vehicles on state highways.
“Regulation” is defined as “[c]ontrol over something by rule or restriction.” Black’s Law
Dictionary 1475 (10th ed. 2014). By the plain wording of the statute, the Arkansas State Police
“controls” the list of towing companies to be called in a particular situation so that these towing
companies may be fairly selected. Importantly, nothing in section 12-8-106 gives the State
Police authority to approve or disapprove the providers who are placed on the list. The most
extreme form of regulation is deciding who can engage in an activity and who cannot.
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Furthermore, the majority’s conclusion that the State Police have not violated section
17-1-103 is based on patently flawed statutory construction. It cites what it describes as the
“relevant” part of Arkansas Code Annotated section. § 17-1-103 (Repl. 2018) but fails to grasp
the significance of the language it quotes. Specifically,
(a)(1) It is the policy of the State of Arkansas to encourage and contribute to
the rehabilitation of criminal offenders and to assist them in the assumption of
the responsibilities of citizenship.
(2) The public is best protected when offenders are given the opportunity to
secure employment or to engage in a meaningful trade, occupation, or
profession.
These subparagraphs tell us that section 17-1-103 is remedial legislation. Accordingly, the
so-called “ambiguity” that bedevils the majority is resolved by the rule that remedial legislation
must be liberally construed to accomplish its purpose. See, e.g., City of Fort Smith v. Wade, 2019
Ark. 222, 578 S.W.3d 276. In this situation, our General Assembly has set the limits on an
agency’s authority to exclude felons from trades or employment. It does not give the State
Police the authority to further restrict individuals with prior felony convictions from trades or
employment. The executive branch has only the authority that is expressly granted by the
constitution or a statute. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. Because our legislature
has set the parameters of this state’s policy regarding restriction of employment for convicted
felons, the State Police has violated the separation of powers by its regulation. Ark. Const. art.
4, §§ 1, 2.
The majority is likewise on the wrong track when it states, “ASP does not issue a license,
registration, or certification for the occupation of towing.” The majority fails to appreciate that
“registration” means “the act of recording or enrolling.” Black’s Law Dictionary 1474 (10th ed.
2014). The relief that appellant is seeking is to be enrolled on the State Police Towing Rotation
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List.
In short, the Arkansas State Police, an agency of the executive branch, violates an act of
the General Assembly through its adoption and execution of its administrative rule 2.10.
Accordingly, this clearly violates the separation of powers. Ark. Const. art. 4, §§ 1, 2. This
constitutional violation is patently unlawful and ultra vires. Sovereign immunity cannot shield
the actions of the State Police. Martin v. Haas, 2018 Ark. 283, 556 S.W.3d 509. We should
therefore reverse and remand this case for further proceedings.
I dissent.
Robert A. Newcomb, for appellant.
Mary Claire McLaurin, Arkansas State Police, for appellee.
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