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Huntsville Hous. Auth. v. State Licensing Board for General Contractors

Alabama Court of Civil Appeals

September 5, 2014

Huntsville Housing Authority
v.
State of Alabama Licensing Board for General Contractors et al

Appeal from Montgomery Circuit Court. (CV-13-900575).

THOMPSON, Presiding Judge. Pittman, Thomas, and Donaldson, JJ., concur. Moore, J., concurs in part and dissents in part, with writing.

OPINION

Page 147

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of June 6, 2014, is withdrawn, and the following is substituted therefor.

This appeal arises from the denial of an application by the Huntsville Housing Authority (" HHA" ) to the State of Alabama Licensing Board for General Contractors (" the Board" ) for a general contractor's license.

On April 3, 2013, HHA filed in the Montgomery Circuit Court (" the circuit court" ) a one-count complaint against the Board seeking to appeal the Board's decision to deny its licensure application, citing § 34-8-27, Ala. Code 1975. Section 34-8-27, which is part of the chapter of the Code addressing licensure of general contractors,§ 34-8-1 et seq., Ala. Code 1975, provides:

" Any party aggrieved by any decision of the ... Board, either in denying an application for license as a general contractor or in revoking a license, may appeal to the Circuit Court of Montgomery County by filing a bond with the clerk of the court, conditioned to pay all costs of the appeal. Upon notice of the appeal being served upon the ... Board, an issue shall be made up by the court between the appellant and the ... Board, in which the appellant shall allege in what respect the action of the ... Board was erroneous and prejudicial to him or her; whereupon the court shall hear the evidence and, without regard to the decision of the ... Board, shall render such decision as the court is of the opinion the ... Board should have rendered in the first instance."

On the same day that HHA filed its complaint, HHA also filed a cost bond with the circuit court.

In its complaint, HHA alleged and asserted, in part:

" 5. On or about July 11, 2012, HHA submitted a written application (the 'application') to the Board for a general contractor's license.
" 6. On or about July 16, 2012, HHA received a memorandum from the Board (the 'memorandum') .... with regard to the [general contractor's] examination:
" ....

Page 148

" 7. The memorandum ... requested that HHA complete some additional forms and provide some additional information. HHA completed the required forms and provided the requested information to the Board within a reasonable time after receiving the memorandum.
" 8. In reasonable reliance on the memorandum, HHA paid the required fees for its employee and qualified party, Connie McLaurin ('McLaurin') to register for and take the examination. The Board accepted the fees and allowed McLaurin to complete at least part of the examination.
" 9. On January 9, 2013, after McLaurin had already taken part of the examination, Kristi Whynott with the Board contacted McLaurin via telephone, and left a voice message stating that the Executive Secretary of the Board, Joseph Rodgers ('Rodgers'), was denying the application 'based on the definition of general contractor because [HHA] [is] a non-profit organization.'
" 10. On February 13, 2013, HHA sent a letter to Rodgers requesting an opportunity to be heard at the February 20, 2013, Board meeting concerning the denial of the application.
" 11. At the Board meeting on February 20, 2013, (the 'hearing'), the undersigned [counsel for HHA] appeared before the Board on behalf of HHA to appeal the denial of the application. The undersigned presented facts and legal argument showing that the application was due to be granted, and answered questions posed by the Board members.
" 12. At the hearing, the only argument advanced by the Board members and/or Rodgers in opposition to the granting of the application was that HHA is a public entity, and public entities should not compete with private entities.
" ....
" 14. At the conclusion of the hearing, the Board instructed [counsel for HHA] that it would consider HHA's appeal of the denial of the application, and inform HHA and/or [counsel for HHA] when it reached a decision concerning the same.
" 15. On or around March 5, 2013, an assistant for [counsel for HHA] contacted the Board to inquire as to whether a decision had been reached concerning HHA's appeal. Rodgers returned her call and stated, over the telephone, that the Board had denied HHA's application, and that the Board would send HHA something in writing outlining the Board's reasoning for the denial.
" 16. On March 25, 2013, because neither HHA nor [counsel for HHA] had received anything in writing from the Board, [counsel for HHA] sent a letter to Rodgers requesting written notice confirming the Board's decision in regard to HHA's application and outlining the reasons for said decision. A true and correct copy of the letter is attached hereto as Exhibit 'A.'
" 17. To date, neither HHA nor [counsel for HHA] has received anything in writing from the Board concerning HHA's appeal of the denial of its application for a general contractor's license."

In its complaint filed in the circuit court, HHA asserted that its licensure application met the requirements of all applicable statutes, rules, and regulations, and, therefore, it maintained, it was entitled to a general contractor's license. HHA maintained:

" The Board has not provided HHA with anything in writing outlining the reasons for denying the [a]pplication. Nevertheless, assuming that the Board's reason for denying the [a]pplication was that

Page 149

HHA is a public entity, HHA states that the Board's decision was erroneous and prejudicial to HHA because there is no prohibition against public entities holding [a] general contractor's license in the Alabama Code or the Alabama Administrative Code."

HHA requested that the circuit court hear evidence and, without regard to the decision of the Board, render a judgment or decision as the Board should have rendered in the first instance, citing § 34-8-27.

On May 6, 2013, the Board filed a motion to dismiss HHA's complaint for, among other reasons, lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1), Ala. R. Civ. P. In its motion to dismiss, the Board did not reference the Alabama Administrative Procedure Act (" AAPA" ), § 41-22-1 et seq., Ala. Code 1975; instead, the Board asserted, among other things, that the complaint should be dismissed because the Board is entitled to sovereign immunity. Several days later, on May 8, 2013, HHA filed an amended complaint seeking to add as additional defendants the five members of the Board, solely in their official capacities, and Joseph Rodgers, the Board's executive secretary, solely in his official capacity.[1]

Thereafter, all the defendants moved to dismiss, asserting, among other things, that HHA's action should be dismissed for lack of subject-matter jurisdiction because, they maintained, HHA had failed to exhaust its administrative remedies and/or had failed to comply with the appeal provisions of the AAPA.[2] HHA responded by asserting, among other things, that § 34-8-27, and not the AAPA, provided the statutory basis for appeal of the Board's denial of its licensure application. We note that § 41-22-20, Ala. Code 1975, a part of the AAPA, provides for the appeal of a final decision of an administrative agency in a contested case; that statute provides, in part:

" (a) A person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under th[e AAPA]. ...
" (b) All proceedings for review may be instituted by filing of notice of appeal or review and a cost bond with the agency to cover the reasonable costs of preparing the transcript of the proceeding under review, unless waived by the agency or the court on a showing of substantial hardship. A petition shall be filed either in the Circuit Court of Montgomery County or in the circuit court of the county in which the agency maintains its headquarters ....
" ....
(d) The notice of appeal or review shall be filed within 30 days after the receipt of the notice of or other service of the final decision of the agency upon the petitioner or, if a rehearing is requested under Section 41-22-17, [Ala. Code 1975,] within 30 days after the receipt of the notice of or other service of the decision of the agency thereon. ... This section shall ...

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