## Facts

- Elizabeth Frawley was a licensed bail bondsman employed by J & J Bonding, Inc.
- In December 1997, Frawley went to a county jail to handle a bond matter and brought along her friend, Dixie Hinerman.
- Hinerman was not a paid employee of Frawley or J & J, but she regularly helped Frawley with bond work by answering Frawley’s cell phone and taking information from callers seeking bond services.
- While Frawley was inside the jail, Hinerman stayed outside with Frawley’s cell phone.
- During that time, Hinerman handed out several of Frawley’s business cards outside the jail and asked recipients to take the cards inside and give them to inmates.
- When Frawley learned that Hinerman had passed out the cards, Frawley told Hinerman not to do it again.
- The Arkansas Professional Bail Bondsman Licensing Board notified Frawley and J & J that Frawley was charged with violating Ark. Code Ann. § 17-19-105(2), which barred bail-bond solicitation “in or about” a jail or prison by a bail bondsman or anyone acting on the bondsman’s behalf.
- After an administrative hearing, the Board found that Hinerman’s conduct was attributable to Frawley because an agency relationship existed between them.
- The Board suspended Frawley’s license for 90 days and fined J & J $2,500.
- Frawley and J & J sought judicial review in circuit court; the circuit court affirmed the Board’s decision, and Frawley and J & J appealed to the Arkansas Court of Appeals.

## Issues

1. Whether substantial evidence supported the Board’s finding that Dixie Hinerman was acting on behalf of Elizabeth Frawley (as her agent) when Hinerman distributed Frawley’s business cards at or near the county jail.
2. Whether, given that finding, substantial evidence supported the Board’s conclusion that Frawley and J & J violated Ark. Code Ann. § 17-19-105(2) and were subject to the imposed suspension and fine.

## Decision

- The Arkansas Court of Appeals affirmed the circuit court and upheld the Arkansas Professional Bail Bondsman Licensing Board’s order.
- The court reviewed the agency decision directly and asked only whether substantial evidence supported the Board’s findings and result.
- The court held that substantial evidence supported the Board’s determination that Hinerman was acting on Frawley’s behalf when she distributed Frawley’s business cards outside the jail and asked that they be delivered to inmates.
- The court concluded that the Board could reasonably treat Hinerman’s distribution of the cards as solicitation connected to Frawley’s bail-bond business, even if no customer ultimately contacted Frawley because of the card distribution.
- Because Hinerman’s conduct could be attributed to Frawley through agency, the court upheld the Board’s conclusion that Ark. Code Ann. § 17-19-105(2) was violated and left the sanctions in place.

## Legal Principles

- On review of an administrative decision, the appellate court reviews the agency’s decision rather than the circuit court’s reasoning.
- Substantial evidence is valid and persuasive proof that a reasonable mind could accept as adequate to support the agency’s conclusion; the challenger must show the proof was so one-sided that fair-minded persons could not reach the agency’s result.
- The fact that the record could support a different result does not justify reversal if it also supports the result the agency reached.
- The agency (as factfinder) decides what weight to give evidence and may believe or disbelieve witnesses.
- Agency is created when the parties’ conduct shows that one person is willing for another to act for the person and subject to the person’s control, and the other consents; the key elements are authorization and the right to control.
- A formal job relationship or payment is not required for an agency finding if the record supports that the person acted for the principal and was subject to the principal’s control.
- A bail bondsman may be disciplined under Ark. Code Ann. § 17-19-105(2) for solicitation in or about a jail by the bondsman or by someone acting on the bondsman’s behalf, and the agency relationship may be shown by circumstantial evidence, including the bondsman’s ability to direct the helper’s conduct.

## Conclusion

The Arkansas Court of Appeals affirmed the Board’s discipline because the record contained substantial evidence that Hinerman, though unpaid, acted on Frawley’s behalf in connection with Frawley’s bail-bond business and was subject to Frawley’s control, as shown by Hinerman’s role answering bond-related calls and Frawley’s instruction to stop distributing cards at the jail; thus, Hinerman’s card distribution near the jail could be attributed to Frawley and supported the Board’s finding of a violation of Ark. Code Ann. § 17-19-105(2) and the resulting suspension and fine.


Frawley v. Nickolich, 41 S.W.3d 420 (2001)