2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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HRS § 91-14(g) enumerates the standards of review applicable to an agency appeal and provides: Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable,probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS § 91-14(g). It has been held that"[a]n agency's findings of fact are reviewable under the clearly erroneous standard to determine if the agency decision was clearly erroneous in view of reliable,probative, and substantial evidence on the whole record." Curtis v. Board of Appeals, County ofHawai`i, 90 Hawaii 384, 393, 978 P.2d 822, 831 (1999) (quoting Alvarez v. Liberty House, Inc., 85 Hawaii 275, 277, 942 P.2d 539, 541 (1997); HRS § 91-14(g)(5)). "An agency's findings are not clearly erroneous and will be upheld if supported by reliable, probative and substantial evidence unless the reviewing court is left with a firm and definite conviction that a mistake has been made." Brescia v. North Shore Ohana, 115 Hawaii 477, 491-492, 168 P.3d 929, 9437944 (Hawai`i, 2007) (citing Poe v. Hawai`i Labor Relations Bd., 105 Hawaii 97, 100, 94 P.3d 652, 655 (2004) (additional citations omitted). Where an agency's conclusion of law"presents mixed questions of fact and law, it is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case." Lanai Co., Inc. v. Land Use Com'n, 9