ALJDEC

98F-98021-CEA · Board of Chiropractic Examiners · 1997-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 1997

APPEARANCES: Appellant Christopher Keezer appeared on his own behalf; the State of Arizona was represented by James M. McGee, Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Appellant Christopher Keezer, D.C., brought this action to challenge the Arizona State Board of Chiropractic Examiners’ (Board) denial of his application for licensure. The Board denied the license because Appellant failed to disclose on his application a 1980 felony conviction for burglary in California. The parties presented evidence and testimony at the administrative hearing, but this tribunal reopened the record for the State to submit further evidence regarding whether Appellant requested a license by reciprocity or by examination. The additional evidence was received on January 16, 1998. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that Appellant be granted a probationary license. FINDINGS OF FACT 1. Appellant has been a licensed, practicing chiropractor in California for approximately 5 years. On July 31, 1996, he submitted an application to the Board for licensure in Arizona. (Exhibit 1.) Question 18a of the application asks the following: Have you ever been convicted of, or pled guilty to, or pled nolo contendere to a misdemeanor or felony, even if later the records of that conviction were sealed or expunged or the conviction itself was set aside or forgiven; or have you ever entered into a stipulation or settlement agreement in lieu of such proceedings? You are not required to disclose adjudications that took place in juvenile courts.

Appellant checked the box next to Question 18a indicating “No.” 2. As part of the application process, all applicants must submit fingerprints for a criminal history check. Appellant submitted his fingerprint card along with the application on July 31, 1996. (Exhibit 2.) A check of Appellant’s fingerprints revealed a felony conviction. 3. In July 1980, Appellant was convicted in California of one count of felony burglary. Appellant pled nolo contendere to the charge and was sentenced to 4 months of probation and a $75 fine. (Exhibit 3.) 4. Board staff wrote to Appellant and asked him for an explanation of his failure to disclose the conviction. Appellant responded by stating that the incident took place when he was 18 years old and he and a friend attempted to steal some plants from a greenhouse. He said that he spent one night in jail, was fined $50 or $75, and got one year of probation. He tried to obtain court records but could not because the court did not retain records after 10 years. He also stated that he did not think it was a felony and was not sure that he was an adult at the time. (Exhibit 4.) 5. The Board denied Appellant’s application because he failed to disclose the conviction. As grounds, the Board cited A.R.S. § 32- 924(B)(1), attempting to be licensed through fraud or deceit. (Exhibit 7.) 6. The record shows that, after the conviction, Appellant served in the United States Marine Corps for 5½ years and received an honorable discharge. He has had no other criminal incidents. Appellant has held a license to practice chiropractic in California for about 5 years and testified that he has had no complaints filed against him. Appellant also testified that he did not intend to deceive the Board. He pointed out the fact that the conviction occurred a long time ago and that he submitted the fingerprint card, which clearly would lead to the discovery of the conviction, along with the application. Appellant also submitted several letters of character reference. (Exhibits A-D.) 7. Appellant testified that he is seeking Arizona licensure because his wife is from Arizona and he may want to relocate his family to Arizona in the future. CONCLUSIONS OF LAW 1. The Board has discretion to deny a license application, under A.R.S. § 32-921(C)(2), if within two years before the application the applicant has committed any of the proscribed conduct in A.R.S. § 32- 924(B). A.R.S. § 32-924(A) also authorizes the Board to refuse to issue a license to an applicant for any of the grounds listed in subsection B of the statute. 2. A.R.S. § 41-1065 allows an applicant whose application has been denied to challenge the denial by requesting a hearing. Pursuant to A.R.S. § 41-1065, Appellant has the burden of proof. Appellant has not met the burden and has not shown that the Board’s denial was improper or illegal. However, Appellant has raised enough mitigating factors that the Board should consider granting Appellant a probationary license. 3. The evidence shows that Appellant has been convicted of a felony, but that this conviction occurred more than two years prior to Appellant’s application. Therefore, Appellant’s 1980 conviction cannot be used as a ground for denial, because A.R.S. § 32-921(C)(2) only allows the Board to use conduct within the two years prior to the application. 4. The evidence supports a conclusion that the Board had grounds to deny the application under A.R.S. §§ 32-924(B)(1) and (5), deception in obtaining a license and unprofessional conduct. 5. The record shows that Appellant was 19 years old when the burglary took place -- Appellant was born in December 1960 and the incident took place in May 1980. Thus, Appellant should have known that he was an adult and that he was convicted as an adult. However, the record also shows that, because of the small fine and extremely short term of probation, Appellant could reasonably have been mistaken that the conviction was a misdemeanor. He then would have been faced with the determination of whether the “misdemeanor” involved “moral turpitude," a difficult question even for legal experts. Still, he should have been cautious and disclosed the conviction. It is ironic that, had he disclosed the conviction, he would have been able to take the exam. Thus, the crux of this case is not Appellant’s conviction, but his failure to disclose it. 5. The record contains some mitigating evidence. Appellant testified credibly about his clean record since the incident, including his honorable discharge from the service and his chiropractic practice in California. Also, this ALJ does not believe that Appellant willfully neglected to disclose the information. Appellant has a point: he freely submitted his fingerprints. His explanation that he thought the conviction was too old and that it was an “oversight” on his part, while not persuasive because he should have known better, bears some weight as mitigation. 6. Considering the mitigating circumstances, it is this ALJ’s recommendation that the Board allow Appellant to take the exam and, if successful, grant Appellant a license with the condition that his license be on probationary status and remain so until he has practiced within the borders of Arizona without complaint for two years. The Board is authorized to prescribe terms of probation under A.R.S. § 32-924(A)(4).

RECOMMENDED ORDER Based on the factual findings and conclusions above, IT IS RECOMMENDED that the Arizona State Board of Chiropractic Examiners grant Christopher H. Keezer, D.C. a probationary license, as long as he meets the other criteria for licensure. It is recommended that the terms of probation be as described above along with any other terms that the Board deems necessary.

Done this 17th day of February 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of February 1998, to:

Ms. Patrice Pritzl, Executive Director Board of Chiropractic Examiners 5060 N. 19th Ave., Suite 416 Phoenix, AZ 85015

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826