ALJDEC

99F-020-CEA · Board of Chiropractic Examiners · 1998-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 1998, and November 25, 1998. APPEARANCES: D. Jay Ryan appeared representing Herb Schillerstrom, D.C., Applicant. Terrie Zenoff, Assistant Attorney General, appeared representing the Arizona State Board of Chiropractic Examiners (“Board”).

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether the Board is justified in denying Applicant a license to practice chiropractic in the State of Arizona. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. This matter arises out of the Board’s denial of Applicant’s application for licensure to practice chiropractic in the State of Arizona. The Board grounded its July 20, 1998, written determination in findings that Applicant failed to demonstrate he is: [A] person of good character and reputation and that [he is] physically and mentally able to practice chiropractic skillfully and safely, as required.

(Board’s Exhibit 14). 2. Applicant, Herb Schillerstrom, D.C., was previously licensed (License No. 3847) to practice chiropractic in this State in 1983. 3. In April 1990, the Board filed a complaint against Applicant charging him with twenty-eight instances of unprofessional conduct of a character likely to deceive or defraud the public or tending to discredit the profession. Essentially, the Board charged that Applicant submitted false bills to insurance companies for treatments he did not actually render. 4. During this period, Applicant was embroiled in an extremely costly and contentious dissolution and custody action between he and his wife that began in 1988 or so. Unrefuted evidence presented during the hearing in this matter establishes that the litigation lasted more than four years and that Applicant succeeded in obtaining custody of his children, after undergoing several independent psychiatric examinations. The record also establishes that most of Applicant’s present financial and professional woes surfaced during the period of the litigation with his now ex-wife. Indeed, the unrefuted evidence supports an inference that Applicant’s ex-wife and her attorney had a part in provoking investigations of Applicant by the Board and the Internal Revenue Service (“I.R.S.”). The IRS closed its file concerning Applicant in August 1990. 5. In mid-1990, a grand jury indicted Applicant on twelve counts of fraud arising out of the same conduct on which the Board grounded its compliant against Applicant. On July 3, 1990, local authorities secured a warrant for Applicant’s arrest on the indictment. Applicant voluntarily complied with the sheriff’s office request to appear at that office. While there, Applicant was fingerprinted and photographed. At the same time, Applicant’s attorney obtained a court order releasing Applicant on his own recognizance. 6. In November 1990, while criminal charges were pending, Applicant submitted an application for renewal of his chiropractic license. The application asked: “Have you ever been arrested, charged or convicted of a misdemeanor involving moral turpitude or of a felony?” Applicant responded “[n]o” to the question. 7. In April 1991, Applicant pled guilty to attempted insurance fraud, a class 6, open-ended felony. 8. In May 1991, Applicant appeared for sentencing before the Superior Court of Arizona, Maricopa County. The court placed Applicant on probation, refraining from revoking his chiropractic license. The judgment specifies that Applicant’s offense would be treated as a felony but could, in the court’s discretion, be designated a misdemeanor upon the successful completion of probation. 9. Shortly thereafter, the Board amended its compliant to charge that Applicant attempted to renew his license through fraud or deceit and that he had been convicted of a felony or a misdemeanor involving moral turpitude. 10. In October 1991, the Board conducted a hearing to entertain and address its charges against Applicant. Applicant admitted the false billing allegations. Applicant denied, however, falsifying his renewal application, contending that when he filed the application he did not realize two manifestations of the prior criminal proceedings: that he was “arrested”; and that he was charged with either “a felony or a misdemeanor involving moral turpitude.” In mitigation, Applicant noted that, during the time of the false billings, he was going through a difficult divorce and was training a new office assistant. 11. The Board found that Applicant submitted false bills, that he was “arrested” on July 3, 1990, and that he filed a false renewal application. The Board concluded that Applicant, in submitting false bills, engaged in unprofessional conduct of a character likely to deceive or defraud the public or tending to discredit the profession, and that he had a record of conviction of a felony or of a misdemeanor involving moral turpitude. The Board also concluded that Applicant employed fraud and deceit in securing a license. As a result, the Board revoked Applicant’s chiropractic license. Applicant exercised his right to a judicial appeal. 12. On appeal, the superior court found that the license revocation violated substantive due process. Schillerstrom v. State of Arizona, Cause No. CV 92-01208. The Board subsequently appealed. In reversing the superior court’s determination, the court of appeals stated: With respect to the specifics of whether the evidence supported the Board's finding, Schillerstrom says that the Board erred in concluding he had been deceitful on his license-renewal application because, at the time he filed it, he had not been convicted; and he did not realize that the events of July 3, 1990, when he went to the sheriffs office and was fingerprinted and photographed, constituted an arrest. Although Schillerstrom testified before the Board that he did not know he had been charged, there was undisputed testimony that, prior to filing the application, he had mailed to the Board's executive director a copy of a newspaper article reporting his indictment. The Board was well within its discretion in finding that Schillerstrom did know he had been charged with a felony when he filed the application. Conspicuously absent on appeal is any argument that Schillerstrom did not realize when he filed the application for renewal of his license that he had been charged with a crime.

Schillerstrom uses the fact that he told the Board's executive director about the pending charges as irrefutable proof that he had no intention to deceive when he answered "no" on the application for renewal of his license. The information given the Board's employee was, however, imparted months before the application was filed. It is conceivable that Schillerstrom might have hoped that the information had never reached the members of the Board or that, in view of the answer on the application, the Board might assume the earlier information was stale.

Schillerstrom also argues that the conviction should not have been used against him because in 1992 the superior court designated the offense a misdemeanor and later expunged the conviction. Assuming that we can take judicial notice of the documents which are attached to Schillerstrom's brief to support that assertion, . . ., Schillerstrom, was nonetheless convicted of a misdemeanor involving moral turpitude, a term that generally refers to acts that adversely reflect on one's honesty, integrity, or personal values. . . . As to the expunction, Schillerstrom concedes that at the time of the hearing, he stood convicted of a crime. The subsequent expunction has no effect on actions of the Board which preceded it.

Schillerstrom v. State of Arizona, 180 Ariz. 468, 471-72, 885 P.2d 156 (Ariz. App. 1994). (Citations omitted). 13. During the pendency of the appeals concerning Applicant’s license revocation, as well as thereafter, other events occurred that are relevant, to varying degrees, to the instant inquiry, whether the Board is justified in denying Applicant’s most recent application for a license to practice chiropractic in this State. First, on April 2, 1992, the superior court ordered that Applicant’s conviction for attempted insurance fraud be designated as a misdemeanor. Subsequently, the Honorable Jonathan H. Schwartz ruled, in American Family Mutual Insurance Company v. Schillerstrom, Cause No. CV 97-04815, on May 20, 1998, that Applicant was “entitled to rely on the law’s designation of the offense as a misdemeanor conviction” after the designation. (Applicant’s Exhibit H). Second, although for much of the pendency of the above appeals the Board’s license revocation order was judicially stayed, the Board received information indicating that Applicant continued practicing chiropractic after being notified that the court of appeals ruled against him and that the stay on the Board’s license revocation order was lifted. The Board turned the matter over to the Glendale Police Department, requesting that it conduct an investigation. On or about November 28, 1995, the Glendale Police Department arrested Applicant on charges that he knowingly practiced chiropractic without being properly licensed. On March 29, 1996, the Honorable Barbara M. Jarrett, a superior court judge, entertained a motion from Applicant’s counsel to review the Grand Jury Transcript and other documents that were the predicate for the charge against Applicant and his subsequent arrest. Judge Jarrett found: [T]hat the officer’s testimony before the Grand Jury where he informed them that Mr. Herbert Schillerstrom had received notice because he was present at the hearing on February 21, 1995 has not been substantiated and misleading to the Grand Jury.

State of Arizona v. H. Schillerstrom, Cause No. CR 95-11558. The matter was remanded to the Grand Jury for another determination of probable cause. On May 1, 1998, the Honorable Silvia R. Arellano dismissed the cause with prejudice. The evidence supports an inference that the Grand Jury never found probable cause, a fairly low standard of proof, to support the charge that Applicant practiced chiropractic while aware that the Board’s license revocation order was effective. The evidence also supports an inference that the Grand Jury had available to it all that the Board possessed concerning the issue, since the Board pressed the Glendale Police Department to conduct the investigation and prosecute the case. While the Board offered some testimony on the issue, during the hearing in this matter, the testimony, on its own, falls short of establishing by a preponderance of the evidence that Applicant had proper notice of the court of appeals’ order, as the Board claims. The fact that the Grand Jury failed to find probable cause, a lower standard of proof than a preponderance of the evidence, to support the charge during the near two and one-half years the matter was investigated is notable. 14. In 1996, Applicant applied to the Board to have his chiropractic license reinstated. The Board denied Applicant reinstatement in light of the on-going investigation by the Grand Jury. 15. Applicant also applied to the Arizona Department of Real Estate for a real estate salesperson’s license. Although Applicant complied with the education requirements for such a license, the Department denied Applicant’s application on June 5, 1996, because of his conviction for attempted insurance fraud. (See Applicant’s Exhibit W). 16. During the Board’s October 1996 meeting, the Board requested that Applicant take and pass Part III of the National Exam (“Exam”). Applicant subsequently took and passed Part III of the Exam. 17. In 1997, the Board requested that Applicant take and pass Part IV of the Exam. Applicant complied with the Board’s request. 18. Applicant was then advised that he should file an Application for Licensure by Examination, given that state law did not specifically provide for the “reinstatement” of a license. On January 28, 1998, Applicant submitted to the Board such an application. In the application, Applicant disclosed the prior revocation of his chiropractic license in Arizona and his conviction for attempted insurance fraud, which he noted as a misdemeanor. 19. Subsequently, Applicant took and passed the Arizona juris prudence exam. 20. The Board considered Applicant’s application for nearly six months. During this period, Applicant testified before the Board on at least three occasions. On May 14, 1998, the Board learned that Applicant had no convictions other than for attempted insurance fraud in 1991, for which the Board revoked his license, and that the matter prosecuted by the City of Glendale was dismissed with prejudice. The preponderance of the evidence establishes that the Board expressed no concern, up to that date, about Applicant’s actual practice of chiropractic “jeopardizing the safety of the public.” (Transcript of May 14, 1998, at 10-11). In other words, the Board never considered Applicant’s treatment of his patients to be a particular concern up to that point. Rather, the preponderance of the evidence establishes that the Board expressed concern only about Applicant’s character and reputation, particularly given his past attempted fraud. Nevertheless, during the early portion of the Board’s May 1998 meeting, the record indicates that, but for information the Board allegedly possessed respecting investigations by other agencies, it would have granted Applicant a license. (See, e.g., id. at 10-12). It is worth noting, however, that the Board failed to present any credible, documentary evidence, during the hearing in this matter, of additional investigations being conducted by other agencies. In any event, later in the Board’s meeting, the Board asked Applicant, after an executive session, “if he would consider going for a psychiatric evaluation.” (Id. at 16). When Applicant asked for what reason, the following exchange occurred: Vice Chairman Rahn: -- is because of the past practice and regardless of what was expunged and what happened, there’s still a question of character, okay.

Applicant: Okay, yes.

Vice Chairman Rahn: That’s – that’s the – probably the underlying issue that we have to look at. I don’t think – like we said, clinical practice parameters I don’t think have ever been an issue. We’ve not had any complaint in that area. The issue is your character, how you operate your business, how you would – how you would entail the public trust. I think the only objective way if we’re listening to what you say that this is a lot of, you know, erroneous information is to have a board-certified psychiatrist tell us what’s your character, how you test, ‘cause we need to have assurances that when we do make a decision, if we do decide to issue you a license that we are protecting the public, not from the clinical practice standpoint, but from what your character, what your moral fiber is, do you operate in an honest and professional manner, and that is our charge. Do you understand what we’re saying now?

Applicant: Yes, sir, I understand.

Vice Chairman Rahn: Okay. I think that’s the underlying feeling from this Board.

(Id. at 16-17) (emphasis added). Despite the Board’s rather unusual request of Applicant, given its somewhat unique context, the preponderance of the evidence convinces this Judge that during the lengthy period the Board considered Applicant’s application, up through the Board’s meeting in May 1998, its expressed concern with granting Applicant a license was his character only. In fact, the record establishes that the Board focused on Applicant’s character from the time he attempted to regain his license in 1996. 23. After the May 1998 meeting, Applicant contacted Dr. Michael E. Brennan, M.D., a board-certified psychiatrist, pursuant to the Board’s direction. Dr. Brennan informed Applicant that he intended to conduct a complete, detailed psychiatric examination. Questioning what such an examination could reveal about his character, Applicant refused to be examined and promptly notified the Board of his decision. The preponderance of the evidence establishes that Applicant was reasonable in his concern about the scope of the examination. Up through that point, the Board never expressed concern about Applicant’s mental or physical ability; rather, the Board expressly stated that his practice of chiropractic and treatment of patients were never in issue. 24. During the Board’s meeting on June 11, 1998, counsel for Applicant pressed the Board to refrain from further delay and make a determination on Applicant’s application for licensure. Alluding to the Board’s concern about Applicant’s character only, not to mention the Board’s surprising request that Applicant undergo a psychiatric evaluation, counsel referred the Board to A.R.S. §32-921(B), noting the distinction in the statue between the requirement that an applicant “be a person of good character and reputation” and the requirement that an applicant “be physically and mentally able to practice chiropractic skillfully and safely.” The preponderance of the evidence reveals that only then, for the first time, did the Board specifically identify and express its concern with Applicant’s mental ability to practice chiropractic. (Transcript of June 11, 1998). This Judge finds the Board’s claim, during the June 1998 meeting, as well as during the hearing in this matter, that Applicant’s mental ability was always an expressed concern that it informed Applicant of to be unsupported by the record and, indeed, to be disingenuous. 25. The Board denied Applicant’s application on July 20, 1998. (Board’s Exhibit 14). The Board cited two grounds for its determination: 1) that Applicant lacks good character; and 2) that Applicant is mentally and physically unable to practice chiropractic skillfully and safely. For each of these grounds, the Board outlined a litany of findings and conclusions upon which it based its determination. 26. Focusing on Applicant’s character, the Board made the following findings: that the Board previously revoked Applicant’s license; that Applicant refuses to accept responsibility for the revocation of his license; that Applicant refuses to acknowledge that he was “arrested” in 1990 and that he was convicted of a felony; that Applicant practiced chiropractic after proper notice that his license was revoked; that Applicant demonstrates a lack of fiscal responsibility, in light of tax liens and judgments against him; the Arizona Department of Real Estate denied Applicant’s application for a license as a real estate salesperson; that Applicant telephoned Board members representing himself as a reporter; and that Applicant misrepresented that investigations being conducted by federal agencies in regard to himself are being conducted in regard to his father, Herbert L. Schillerstrom, Sr. (Id.). During the hearing in this matter, the parties presented evidence on each of the Board’s findings. 27. Applicant did not contest that the Board may consider its prior revocation of Applicant’s license in granting or denying his application. The prior revocation is a proper consideration in rendering a determination on Applicant’s application. 28. The Board also found that Applicant “continue[s] to refuse to accept that the revocation of [his] license was for good cause.” (Id. at 1). The evidentiary record is replete with examples of Applicant challenging his conviction. Many of his challenges, however, go to whether he could reasonably rely on the court order designating the conviction as a misdemeanor. The record also reveals numerous examples of Applicant demonstrating frustration with the Board, the courts, and the circumstances of his conviction and license revocation. Similarly, the record contains statements from Applicant that he recognizes the basis for his conviction and that he does accept responsibility for his conduct. Consequently, the record contains a great deal of inconsistent evidence on whether Applicant accepts responsibility for his conviction. Nevertheless, the weight of the evidence convinces this Judge of Applicant’s acceptance of responsibility for his conviction. This is not to say that Applicant fully agrees with the underlying circumstances that are the basis for the conviction, or that he completely agrees with the result. He need not do so to be a qualified applicant for licensure. The record demonstrates that Applicant undertook to address every concern the Board raised with respect to his character, despite his utter frustration with the Board. While Applicant certainly should have undertaken his efforts with more respect and composure, and by less confrontational means, he did inform the Board that, if allowed to practice chiropractic once again, he would comply with any reasonable request of the Board and he would distance himself from the “business” of chiropractic by having other competent individuals oversee that end of the practice. It is difficult to imagine what more Applicant could do under the circumstances, particularly given the contentious relationship between him and the Board over the past eight years or so, irrespective of the faces of the Board members at any one time. 29. The Board also found that Applicant refuses to acknowledge that he was “arrested” in 1991 and that he was convicted of a felony. Applicant demonstrates the lack of support for these findings in the complete record. Focusing on the “arrest,” this term is a legal term of art with specific meaning. As a result, the legal meaning of “arrest” is, at times, at odds with the lay person’s understanding of the term, which, it is probably fair to say, is more consonant with the state’s physical custody of an individual; that is, being hand-cuffed and jailed. This Judge has little doubt that Applicant’s understanding of “arrest” in July 1990 was that of a lay person. The record demonstrates further that the circumstances surrounding the event are somewhat inconsistent with the state taking physical custody of Applicant at the time. Applicant voluntarily complied with a summons request to appear at offices of local authorities, where he was processed and allowed to return home. He was not hand-cuffed or jailed. And the record fails to confirm that Applicant was read his Miranda rights. In addition, the record lacks evidence showing either that the present Board ever defined what it meant, specifically, by the term, or that Applicant ever defined what he understood by the term. Instead, the parties engaged in a protracted, hyper-technical war of words, without ever defining what either party really meant or understood by the term, “arrest.” Unfortunately, the parties’ dispute concerning the nature of Applicant’s conviction, for a felony or for a misdemeanor involving moral turpitude, is similar. Applicant was originally convicted of an undesignated felony. The conviction was subsequently designated as a misdemeanor, on April 2, 1992. In his application to the Board submitted in 1998, Applicant disclosed that the conviction was a misdemeanor. However, the record subsequent to Applicant submitting his application demonstrates that he was very candid in admitting that the designated misdemeanor was one involving moral turpitude. Thus, ostensibly, whether the conviction is a “misdemeanor” or “felony” is irrelevant, since either a conviction for a felony or for a misdemeanor involving moral turpitude may be a basis for sanctions from the Board. Nevertheless, the preponderance of the evidence shows that the Board pressed Applicant to admit that he was convicted of a felony. The Board’s refusal to accept from Applicant any admission less than one of a conviction for a felony was improper, particularly given Judge Schwartz’s rulings, in American Family Mutual Insurance Company v. Schjillerstrom, Cause No. CV 97-04815, that Applicant was entitled to rely on the law’s designation of the offense as a misdemeanor after the designation. 30. The Board next found that Applicant practiced chiropractic after he was notified that his license was revoked; that is, after Applicant was notified that the court of appeals rejected his appeal concerning the revocation. The Board’s finding lacks support in the evidentiary record as indicated above in Paragraph 13 of these Findings of Fact. 31. Next, the Board found that Applicant demonstrates a lack of fiscal responsibility, in light of tax liens and judgments against him. The preponderance of the evidence establishes that Applicant has significant tax liens, and a couple much lesser judgments, entered against him. The mere existence of tax liens and judgments has, however, little, if any, relation to whether Applicant is a person of good character or whether he is qualified to practice chiropractic. Thus, the bases for the liens and judgments are particularly important. Focusing on the tax liens, the evidence is inconsistent as to the amount of such liens, but in any event the amount is very significant, more than $100,000.00. Nevertheless, the preponderance of the evidence reveals nothing criminal, immoral, or culpable about the liens; indeed, the record indicates that the Board never inquired into the bases for the liens. Applicant’s tax counsel, Gregory Robinson, testified that the liens relate back, predominantly, to the mid- late 1980’s; that he has represented Applicant for a number of years concerning the liens; and that there is nothing criminal, immoral, about the liens. His testimony was uncontroverted and is found to be credible. Mr. Robinson also noted that the Internal Revenue Service and Arizona Department of Revenue have refrained from engaging in significant collection efforts because of Applicant’s inability to pay the liens. While certainly cause for inquiry, this Judge cannot, and will not, speculate as to the bases for the liens. Consequently, the evidence simply fails to demonstrate, specifically, how the tax liens relate to Applicant’s character and his qualifications to practice as a chiropractor. The record reveals much the same with respect to the judgments, although one fairly nominal judgment does relate to Applicant’s licensure to practice chiropractic. 32. The Board also relied upon the Arizona Department of Real Estate’s denial of Applicant’s 1996 application for a license as a real estate salesperson in denying him a license to practice chiropractic. The basis for the Department’s determination was Applicant’s misdemeanor conviction, a factor the Board here already considered as an independent basis for its licensure determination. No doubt, Applicant’s prior conviction is a relevant and very important factor in determining whether he should regain his license. The problem here with the Board’s consideration of the Department’s determination, however, is that the Board effectively counted the conviction against Applicant twice. Accordingly, to the extent the Department’s license denial determination is a proper consideration in these proceedings, it is a negligible consideration. 33. The Board also denied Applicant’s application on its “strong belief” that Applicant telephoned Board members representing himself as a reporter. The relevant evidence on this point is largely speculative, falling short of justification to deny a license. 34. Finally, the Board found that Applicant misrepresented that investigations being conducted by federal agencies in regard to himself were being conducted in regard to his father, Herbert L. Schillerstrom, Sr. The preponderance of the evidence establishes that Applicant did not intentionally misrepresent anything to the Board about any investigation by any agency. Rather, the record demonstrates that Applicant clarified for the Board, ultimately, that a federal agency conducted an investigation with respect to Mr. Schillerstrom, Sr.’s, social security benefits. 35. Shifting to the issue of Applicant’s mental and physical ability to practice chiropractic skillfully and safely, the Board found that Applicant failed to demonstrate sufficient mental and physical ability because he refused to undergo a complete psychiatric examination. The Board based its request for the examination largely on its findings concerning Applicant’s character. Considering all the findings above, however, this Judge is convinced that Applicant was reasonable to question the Board’s request that he undergo a psychiatric examination. Although Applicant’s conduct at times certainly explains the Board’s concerns and, perhaps, why it paused, and even delayed, making a determination on Applicant’s application, the preponderance of the evidence shows, nevertheless, that Applicant is mentally and physically able to practice chiropractic skillfully and safely. 36. In addition to responding to each of the grounds the Board cited for its licensure denial, Applicant offered evidence in mitigation; that is, additional evidence of his good character since the revocation of his license. Applicant credibly testified that, over the past few years, he endeavored to secure professional licensure in other states to practice chiropractic, as well as to sell real estate, which required additional education. His efforts proved unsuccessful, in light of his conviction and the revocation of his chiropractic license, but the efforts are notable nonetheless. It is also noteworthy that two witnesses, Mr. Robinson and Dennis B. Liggett, attorneys who represent Applicant in other affairs, testified to their long professional relationship with Applicant and to his good character. Each witness admitted, however, that Applicant expresses great frustration when relating his dealings and relationship with the Board.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-921 states the requirements for a person to be eligible for a license to practice chiropractic in the State of Arizona. Subsection A of the provision requires that the applicant submit to the Board a written application. Other subsections to this provision that are particularly relevant to the instant matter, given the Board’s written determination of July 20, 1998, are as follows: B. To be legible for an examination and licensure, the applicant shall: 1. Be a person of good character and reputation. xxx 3. Be physically and mentally able to practice chiropractic skillfully and safely.

Subsection B(4) adds that applicants must obtain a certain score on various parts of a three-part examination. Despite an applicant’s compliance with A.R.S. §32-921, ostensibly, A.R.S. §32-924(A)(5) provides that the Board may refuse to issue a license to an applicant for certain conduct. Subsection B outlines the grounds justifying such action by the Board, which includes the following: 5. Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.

Arizona Administrative Code R4-7-902 clarifies A.R.S. §32-924(B)(5) by describing conduct that is unprofessional or dishonorable. Subsection 2 of the rule states: Knowingly making a false or misleading statement to the Board, its investigators or representatives, a patient, or a 3rd party payor.

CONCLUSIONS OF LAW 1. The Board has jurisdiction over Applicant and the subject matter of this matter, pursuant to A.R.S. §32-900, et seq. 2. Applicant has the burden of demonstrating by a preponderance of the evidence that the Board is unjustified in denying him a license to practice chiropractic in the State of Arizona. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. In presenting his case, Applicant effectively undermines the propriety of the Board’s consideration of the following as grounds to deny his application: that Applicant refuses to accept responsibility for the revocation of his license; that Applicant refuses to acknowledge that he was “arrested” in 1990 and that he was convicted of a felony; that Applicant practiced chiropractic after proper notice that his license was revoked; that Applicant demonstrates a lack of fiscal responsibility, in light of tax liens and several judgments against him; that the Arizona Department of Real Estate denied Applicant’s application for a license as a real estate salesperson; that Applicant telephoned Board members representing himself as a reporter; that Applicant misrepresented that investigations being conducted by federal agencies in regard to himself are being conducted in regard to his father, Herbert L. Schillerstrom, Sr.; and that Applicant failed to demonstrate sufficient mental and physical ability. Thus, Applicant sustains his burden of demonstrating by a preponderance of the evidence that the Board was unjustified in grounding its determination in the myriad of factors above. To the extent several findings above suggest an inconsistency with this conclusion, this Judge concludes that such findings are inconsequential, given the totality of the circumstances of this matter. 4. No doubt, however, Applicant’s prior revocation is a proper basis upon which to deny Applicant licensure. Notwithstanding this conclusion, however, Applicant sustains his burden of demonstrating by a preponderance of the evidence that circumstances exist mitigating against denial of his application. (See Findings of Fact, paragraph 18). Furthermore, Applicant sustains his burden of demonstrating by a preponderance of the evidence that he is, presently, despite his past, a person of good character and reputation, and that he is physically and mentally able to practice chiropractic skillfully and safely.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that it reconsider its denial determination and grant Applicant a license to practice chiropractic. This recommendation does not suggest, however, that the license be granted unconditionally. The Board has reason to be concerned in granting Applicant another license; indeed, the record should cause any person interested in the health, welfare, and safety of the public at least a modicum of concern. However, the legitimate concerns the record reveals in this matter can be addressed by the Board granting Applicant a conditional license. Applicant volunteered to remove himself from the business of chiropractic, which is the basis for the problems that placed him before the Board initially. Other conditions and restrictions are worth contemplation. It is recommended, then, that the Board impose such conditions or restrictions on Applicant’s license that are consistent with what the facts in this matter suggest and

. . . with what the law allows. Done this day, January 25, 1999.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

By _______________________________

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