                                                   130 Nev., Advance Opinion      27
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                OBTEEN NASSIRI, D.C.; AND                            No. 60490
                EDWARD JOHNSON, D.C.,
                Appellants,
                vs.
                                                                            FILED
                CHIROPRACTIC PHYSICIANS' BOARD                               APR 0 3 2014
                OF NEVADA,
                                                                          TRACE K. LINDEMAN
                Respondent.                                            CLERK\ Off SURREMECOUBT
                                                                       BY
                                                                            CHIEF DERMY CLERK




                           Appeal from a district court order granting in part and
                denying in part a petition for judicial review in a professional licensing
                matter. Eighth Judicial District Court, Clark County; Kathy A.
                Hardcastle, Judge.
                           Affirmed.



                Agwara & Associates and Liborius I. Agwara and George A. Maglares, Las
                Vegas,
                for Appellants.

                Louis A. Ling, Reno,
                for Respondent.




                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

                                                OPINION


                By the Court, CHERRY, J.:
                            Appellants assert that the Chiropractic Physicians' Board of
                Nevada violated their statutory and constitutional rights by applying a
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                lower standard of proof in disciplinary proceedings than due process
                allows. They further argue that applying a different standard of proof in
                chiropractic physician disciplinary proceedings than is applied in medical
                physician disciplinary proceedings violates the Equal Protection Clause of
                the United States Constitution. We hold that, in the absence of a specific
                statutory mandate, agencies generally must utilize, at a minimum, the
                preponderance-of-the-evidence standard in their adjudicative hearings as
                it is the general civil standard of proof Because the preponderance-of-the-
                evidence standard of proof was ostensibly applied and met here, we affirm
                                 FACTS AND PROCEDURAL HISTORY
                            Appellant Dr. Obteen Nassiri owned and operated a Las
                Vegas-based chiropractic practice that specialized in treating patients who
                had been injured in motor vehicle accidents. The practice employed
                appellant Dr. Edward Johnson as a chiropractic physician, who later
                purchased the practice from Dr. Nassiri. At the time, both appellants
                were licensed chiropractic physicians in Nevada.
                            After an insurance company reported that appellants may
                have engaged in unprofessional conduct, respondent Chiropractic
                Physicians' Board of Nevada" filed complaints for disciplinary action
                against appellants, charging them with, among other things, unlawfully
                referring patients to other physicians, unlawful fee splitting, inaccurate
                record-keeping, fraud, and employing unregistered assistants. The Board
                heard testimony from four witnesses and considered numerous exhibits.
                It subsequently found, based on the "substantial, credible, reliable, and


                      'The Board consists of seven members appointed by the Governor
                who are authorized to take disciplinary action against chiropractic
                licensees. MRS 634.020; NRS 634.190.

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                 probative evidence," that appellants had violated multiple provisions of
                 NRS Chapter 634 and NAC Chapter 634. As a result, the Board revoked
                 Dr. Nassiri's license, ordered him to pay 80 percent of the Board's fees and
                 costs and a fine of $5,000 for each of the six violations that he was found to
                 have made, and further mandated that Dr. Nassiri could not own, directly
                 or indirectly, any interest in a chiropractic practice through any person
                 related to him within two degrees of consanguinity or affinity until his
                 license was restored. As for Dr. Johnson, the Board suspended his license
                 for one year with conditions, ordered him to pay 20 percent of the Board's
                 fees and costs and a fine of $1,000 for each of the five provisions that he
                 was found to have violated, and imposed probation with conditions for
                 three years to commence once the suspension was lifted.
                                Appellants petitioned for judicial review in the district court.
                 They asserted, in part, that the Board's order must be set aside because
                 the Board (1) used the wrong standard of proof—substantial evidence—
                 and in so doing violated their constitutional equal protection and due
                 process rights and (2) did not have the authority to prohibit Dr. Nassiri
                 from owning a chiropractic practice. The district court granted in part and
                 denied in part appellants' petition for judicial review. The court's order
                 granted the petition for judicial review on the portion of the Board's order
                 that prohibited Dr. Nassiri from owning any interest in a chiropractic
                 practice through any person related to him within two degrees of
                 consanguinity or affinity until his license is restored. 2 With respect to the
                 remainder of the Board's order, the district court adopted the Board's



                       2 Tbis   portion of the district court's order is not before this court on
                 appeal.

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                  findings of fact and affirmed all of the substantive issues now on appeal,
                  thus denying judicial review. Citing NRS 233B.135(3)(e) and Minton v.
                  Board of Medical Examiners, 110 Nev. 1060, 1078, 881 P.2d 1339, 1352
                  (1994), the district court concluded that the Board's determinations must
                  be supported by substantial evidence because NRS Chapter 634 does not
                  set forth a specific standard of proof. The district court entered judgment
                  against appellants, who thereafter filed a timely notice of appeal.
                                                 DISCUSSION
                  Standard of review
                              On appeal from orders deciding petitions for judicial review,
                  this court reviews the administrative decision in the same manner as the
                  district court. Elizondo v. Hood Mach., Inc., 129 Nev.        „ 312 P.3d
                  479, 482 (2013) (citing City of N. Las Vegas v. Warburton,      127 Nev.        ,
                      262 P.3d 715, 718 (2011)). We review the factual determinations of
                  administrative agencies for clear error "in view of the reliable, probative
                  and substantial evidence on the whole record" or for an "abuse of
                  discretion." NRS 233B.135(3)(e), (f). Thus, factual findings will only be
                  overturned if they are not supported by substantial evidence, which, we
                  have explained, is evidence that a reasonable mind could accept as
                  adequately supporting the agency's conclusions.       Mizondo, 129 Nev. at
                      312 P.3d at 482. "A de novo standard of review is applied when this
                  court addresses a question of law, 'including the administrative
                  construction of statutes.'" Id. (quoting Holiday Ret. Corp. v. State, Div. of
                  Indus. Relations, 128 Nev. „ 274 P.3d 759, 761 (2012)). We will
                  decide purely legal issues without deference to the agency's conclusions of
                  law. Id.



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                  Standard of proof at administrative agency proceedings
                               Appellants argue that the Board improperly used the
                  "substantial evidence" standard set forth in NRS 233B.135 to determine
                  that appellants committed professional misconduct. They assert that this
                  standard is lower than that utilized to discipline medical doctors and that
                  this incongruity is unconstitutional.
                               Appellants' argument displays a simple misunderstanding
                  regarding the concept of standard of proof Foremost, appellants
                  mistakenly use "burden of proof' synonymously with "standard of proof."
                  The two concepts are actually distinct. "Burden of proof' refers broadly to
                  a party's duty to present evidence and argument to prove his or her
                  allegations, whereas "standard of proof' refers to the "degree or level of
                  proof demanded" to prove a specific allegation.       Black's Law Dictionary
                  223, 1535 (9th ed. 2009). A standard of proofs function, as the United
                  States Supreme Court has expressed, "is to 'instruct the factfinder
                  concerning the degree of confidence our society thinks he should have in
                  the correctness of factual conclusions for a particular type of
                  adjudication." Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re
                  Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). In this case,
                  the issue is what standard of proof applies in chiropractor disciplinary
                  adjudications, as all parties agree that the Board carried the initial
                  burden to prove that appellants committed misconduct.
                               Next, appellants appear to confuse "standard of proof' with
                  "standard of review." As noted above, the "substantial evidence" standard
                  set forth in NRS 233B.135 is a standard of review: "Mhe court may
                  remand or affirm the final decision or set it aside in whole or in
                  part .. . because the final decision of the agency is: . . . [c]learly erroneous

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                 in view of the reliable, probative, and substantial evidence on the whole
                 record." NRS 233B.135(3)(e). Under that statute, a reviewing court,
                 whether the district court or this court, must inquire whether the agency's
                 factual determinations are reasonably supported by evidence of sufficient
                 quality and quantity. Id.; see Elizondo, 129 Nev. at , 312 P.3d at 482.
                 Although administrative proceedings typically need not strictly follow the
                 rules of evidence, see NRS 233B.123(1) (allowing the admittance of
                 evidence during administrative proceedings "except where precluded by
                 statute, if it is of a type commonly relied upon by reasonable and prudent
                 persons in the conduct of their affairs"), the fact-finder is charged with
                 making a decision based only on evidence of a type and amount that will
                 ensure a fair and impartial hearing.     See NRS 233B.125; State, Dep't of
                 Motor Vehicles & Pub. Safety v. Evans, 114 Nev. 41, 44-45, 952 P.2d 958,
                 961 (1998); Garson v. Steamboat Canal Co., 43 Nev. 298, 308-09, 185 P.
                 801, 804 (1919). The substantial evidence standard of review thus refers
                 to the quality and quantity of the evidence necessary to support factual
                 determinations. It contemplates deference to those determinations on
                 review, asking only whether the facts found by the administrative fact-
                 finder are reasonably supported by sufficient, worthy evidence in the
                 record.   See U.S. Steel Mining Co. v. Dir., Office of Workers' Comp.
                 Programs, 187 F.3d 384, 389 (4th Cir. 1999) (explaining that, under
                 analogous federal Administrative Procedure Act provisions, an agency
                 fact-finder has a "duty to qualify evidence as reliable, probative, and
                 substantial before relying upon it to grant or deny a claim," so to avoid a
                 decision based on speculation and conjecture (internal quotations
                 omitted)); 3 Charles H. Koch, Jr., Administrative Law and Practice §
                 9:24[1] (3d ed. 2010) (explaining that "substantial evidence" language

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                most often conveys a reasonableness standard of review, leaving the
                decision-making power with the agency). We do not reweigh the fact-
                finder's conclusions as to the persuasiveness of its factual determinations.
                NRS 233B.135(3) ("The [reviewing] court shall not substitute its judgment
                for that of the agency as to the weight of evidence on a question of fact.").
                Not only does the language of NRS 233B.135 indicate its application to
                courts' secondary review and not to the determinations of administrative
                agencies, but here there is also no lower tribunal to which the Board
                would give deference. Thus, NRS 233B.135's standard of review does not
                set forth a standard of proof that administrative agencies apply in their
                adjudicative hearings.
                            Appellants' confusion is understandable given that both
                standards refer to conclusions concerning the evidence and the district
                court also confused NRS 233B.135's standard of review with a standard of
                proof The district court's order states that NRS 233B.135 governs the
                Board's proceedings in the absence of a statutorily mandated standard of
                proof in the Board's governing statutes. This court has also contributed to
                the confusion. See Gilman v. State Bd. of Veterinary Med. Exam'rs, 120
                Nev. 263, 274, 89 P.3d 1000, 1008 (2004) ("When a higher standard of
                proof is set forth in a statute involving license revocation proceedings, that
                statute supersedes the substantial evidence standard of review set forth at
                NRS 233B.135(3)(e)."); Minton v. Bd. of Med. Exam'rs, 110 Nev. 1060,
                1078, 881 P.2d 1339, 1352 (1994) (construing the statute providing the
                standard of proof in medical license revocation proceedings "to supersede"
                the standard in NRS 233B.135(3)(e)).
                            We take this opportunity to clarify that NRS 233B.135 sets
                out a standard of judicial review, not a standard of proof. Agency

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                adjudication should use the standard of proof set out in the agency's
                governing statutes. See Gilman, 120 Nev. at 274, 89 P.3d at 1008; cf. J.D.
                Constr. v. IBEX Inel Grp., 126 Nev. „ 240 P.3d 1033, 1042-43
                (2010) (reasoning that "this court must look to reason and public policy" to
                determine the applicable standard of proof only after analyzing whether
                "[Ole statute. . . clearly state [s] what standard of proof the district court
                should use"). On appeal, the reviewing court should then determine
                whether substantial evidence supports the agency's factual
                determinations. See Gilman, 120 Nev. at 275, 89 P.3d at 1008 (holding
                that this court should review the agency decision to determine whether
                substantial evidence exists to have convinced the agency that violations
                had been shown in accord with the standard of proof set out in the
                statute(s) being enforced). To the extent that the language in Minton and
                Gilman could be read to conflict with our clarification here, we disapprove
                of the language used in the reasoning in those cases.
                            This raises the question of what standard of proof applies in
                an agency's occupational license revocation proceedings in the absence of a
                specific governing statute. This court has held that the "the
                preponderance-of-the-evidence standard is the general civil standard."
                J.D. Constr., 126 Nev. at , 240 P.3d at 1043. The preponderance-of-the-
                evidence standard is the minimum civil standard of proof. See Betsinger v.
                D.R. Horton, Inc., 126 Nev. „ 232 P.3d 433, 435 (2010) ("Generally,
                a preponderance of the evidence is all that is needed to resolve a civil
                matter. . ."). We have held that the preponderance-of-the-evidence
                standard is appropriate to protect the procedural due process rights of
                those confronted with possible revocation of emission-station and inspector
                licenses. Nellis Motors v. State, Dep't of Motor Vehicles,    124 Nev. 1263,

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                1268, 197 P.3d 1061, 1065 (2008). Here, the license at issue can be no less
                deserving of due process than the one at issue in Nellis Motors because, in
                that case, we approved of the use of the minimum civil standard of proof.
                See id. There is no lower standard. 3 Thus, we hold that the Board was
                required to find that the allegations were proven by at least a
                preponderance of the evidence. 4
                             The Board found, by at least a preponderance of the evidence,
                that appellants committed professional misconduct based on the evidence
                presented. See Brown v. State, 107 Nev. 164, 166, 807 P.2d 1379, 1381
                (1991) (stating that a preponderance of the evidence amounts to whether
                the existence of the contested fact is found to be more probable than not).
                There is no evidence in the record showing that the Board used any sort of
                standard lower than a preponderance of the evidence, such as that the
                violations, however unlikely, might have occurred. Although the Board
                refers to the evidence being "substantial, credible, reliable, and probative,"
                these factors speak to the qualification of the evidence, rather than to




                      3 1f
                         there were a lower standard, it would be nonsensical; it would
                allow a tribunal to reach a conclusion even after reasoning that the
                conclusion is more likely to be incorrect than it is to be correct.

                      4Appellants do not argue, and thus we do not address, that a higher
                standard than preponderance of the evidence might apply.

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                 whether the evidence satisfies the standard of proof used to evaluate
                 whether a violation occurred.     See United States Steel Mining Co.,      187
                 F.3d at 389 (clarifying that, "to prove by a preponderance of the evidence
                 each element of a claim before an administrative agency, the claimant
                 must present reliable, probative, and substantial evidence of such
                 sufficient quality and quantity that a reasonable [administrative fact-
                 finder] could conclude that the existence of the facts supporting the claim
                 are more probable than their nonexistence"). Thus, we hold that the
                 Board did not err in finding that appellants committed violations
                 warranting professional discipline.
                               Regarding appellants' argument that due process requires a
                 higher level of review, their argument supposes that the Board used a
                 substantial evidence standard, which we repudiate. We also note that, in
                 light of our conclusion that the Board was convinced by at least a
                 preponderance of the evidence, appellants' equal protection argument is
                 rendered moot because the disciplinary proceedings for medical physicians
                 also use a preponderance-of-the-evidence standard of proof.           See NRS
                 630.346(2).
                               Accordingly, because the Board applied at least the
                 preponderance-of-the-evidence standard and there was no equal protection
                 violation here, we affirm the district court's order denying, in part, judicial
                 review of the Board's order.


                                                    LeAp_              J.
                                          Cherry

                 We concur:


                                             j.
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