In the Matter of Kayvon Behnam, D. C., License No. 3644.

• Court: Court of Appeals of Minnesota
• Decided: February 1, 2016
• Docket: A15-721
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-0721

In the Matter of Kayvon Behnam, D. C., License No. 3644

Filed February 1, 2016 Affirmed Peterson, Judge

Minnesota Board of Chiropractic Examiners

Lori Swanson, Attorney General, Jennifer Coates, Jennifer C. Middleton, Assistant Attorney General, St. Paul, Minnesota (for respondent Board of Chiropractic Examiners)

Kayvon Behnam, D.C., Red Wing, Minnesota (pro se appellant)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Chutich,

Judge.

UNPUBLISHED OPINION

PETERSON, Judge

Relator challenges respondent’s decision to suspend his license, arguing that (1) the

record does not support the preliminary suspension of his license, and (2) the final decision

is based on findings that are not supported by the record and includes discipline that is too

severe. We affirm.

FACTS

Relator Kayvon Behnam operated a chiropractic clinic for 17 years. After receiving

a credible complaint, respondent Minnesota Board of Chiropractic Examiners (the Board) issued an order temporarily suspending relator’s license on January 29, 2015. An

administrative-law judge (ALJ) then held a contested case hearing on the matter on

February 27, 2015.

At the hearing, relator admitted that while he was dating his wife before they were

married, he provided chiropractic treatment to her. Relator also admitted that he began

treating a female employee, S.L., in October 2013 and that they engaged in a sexual

relationship beginning in August 2014 that continued until the date of the hearing. Another

female employee, B.B., testified that relator required all employees to receive chiropractic

care from him, that he hired only female employees, and that it was his standard policy to

require all females to disrobe from the waist up and to wear backless gowns during

appointments. The “General Procedures” document that relator provided to his employees

stated that “[i]t is necessary that you be under regular chiropractic care” and “[y]our

personal chiropractic care is therefore complimentary and a job benefit.” An employee

manual encouraged employees and their immediate family members to receive regular and

complimentary chiropractic care from relator.

Before the contested case hearing resumed on the second day, relator stipulated to

entry of judgment and admitted that he “engaged in a sexual relationship with a patient and

. . . violat[ed] Minn. Stat. [§] 148.10, subd. 1(a)(11)[,] e(2) (2014).” Relator stipulated that

the record included “all evidence and testimony admitted at the February 27, 2015

hearing.” Based on the full record, the ALJ issued an order recommending imposition of

discipline.

2 The Board then held a disciplinary hearing on March 24, 2015, at which relator

testified. The Board decided that there were grounds for discipline and unanimously voted

to suspend relator’s license for five years, with all but 18 months stayed, impose a $1,500

fine, and require relator to receive further training.

Relator petitioned pro se for a writ of certiorari. He argues on appeal that, although

he acknowledged violating Minn. Stat. § 148.01 (a)(11), and (e)(2), the Board “improperly

made findings to suggest predatory behavior that was wholly unsubstantiated. The

[Board], in turn, used these findings as a basis for the immediate suspension and as a basis

for a far harsher punishment than similarly situated individuals have received.”

DECISION

This court may reverse or modify an administrative decision if the petitioner’s

substantial rights are prejudiced because the findings, inferences, conclusion, or decisions

are affected by an error of law, unsupported by substantial evidence, or arbitrary or

capricious. Minn. Stat. § 14.69(d)-(f) (2014). “An administrative agency’s decision enjoys

presumptive correctness, and we defer to the agency’s expertise and specialized knowledge

in the field. We will not disturb an agency’s decision as long as the agency’s determination

has adequate support in the record as required by the substantial evidence test.” In re

Minnikka Props., LLC, 834 N.W.2d 572, 577 (Minn. App. 2013) (citations and quotation

omitted). “An ALJ’s decision is not arbitrary and capricious when it credits one opinion

when there are differing opinions on a matter.” Id. at 578.

Relator’s brief generally addresses three issues. Relator argues that (1) his license

should not have been temporarily suspended because he did not demonstrate an imminent

3 risk of harm to others as required by Minn. Stat. § 214.077(a) (2014); (2) the evidence does

not support the Board’s findings; and (3) the discipline imposed by the Board was too

severe compared to other similar cases.

Temporary Suspension

Relator argues that the Board lacked a proper factual basis for temporarily

suspending his license. The Board must suspend a license when it “receives a complaint

regarding a regulated person and has probable cause to believe continued practice by the

regulated person presents an imminent risk of harm.” Minn. Stat. § 214.077(a). Relator

contends that the temporary suspension of his license was improperly based on allegations

made by his estranged spouse, which lacked credibility, and, without those allegations, it

could not be demonstrated that he “present[ed] an imminent risk of harm.”

We reject this claim for three reasons. First, the issue was not raised before the ALJ

or the Board, and we will not address on appeal an issue that was not raised before the

decision-making body below. See McNamara v. Office of Strategic and Long Range

Planning, 628 N.W.2d 620, 627 (Minn. App. 2001) (declining to address an administrative-

law issue on appeal that “was not argued before the ALJ”), review denied (Minn. Aug 22,

2001). Second, the issue of the propriety of relator’s conduct has now been the subject of

a full contested hearing subject to a higher standard of proof than that necessary for a

temporary suspension; it is therefore an improper time to challenge the Board’s initial

decision to temporarily suspend relator’s license. See Kottschade v. City of Rochester, 760

N.W.2d 342, 350 (Minn. App. 2009) (“Generally, when an event makes . . . a decision on

the merits unnecessary, the appeal should be dismissed as moot.”), review denied (Minn.

4 Apr. 29, 2009). Third, relator does not cite any facts that provide grounds for rejecting the

allegations of his estranged wife. The fact that the witness is relator’s estranged wife does

not, by itself, support a determination that she is an unreliable or untruthful witness.

Evidentiary Support for Decision

Relator’s license was suspended for “unprofessional conduct,” in violation of Minn.

Stat. § 148.10, subd. 1(a)(11), (e)(2), which prohibits “engaging in conduct with a patient

that is sexual or may reasonably be interpreted by the patient as sexual, or in any verbal

behavior that is seductive or sexually demeaning to a patient.” Relator argues that the

evidence presented was insufficient to establish a statutory violation.

A decision is supported by substantial evidence when it is supported by (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.

Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464

(Minn. 2002).

The record, which consists of testimony and documentary evidence from the first

day of the contested hearing before the ALJ and relator’s stipulation to conduct that

amounts to a violation of section 148.10, provides substantial evidence to support the

Board’s decision. Relator admitted that he had a sexual relationship with a patient who

later became his wife, engaged in a sexual relationship with S.L. while she was an

employee and patient, and offered free chiropractic care to his employees as a job benefit.

B.B., a former employee, testified that it was office policy for female employees to disrobe

5 from the waist up when receiving chiropractic treatment, and that relator preferred for his

employees to obtain chiropractic care from him. The record also includes an employee

manual that required employees to be under regular chiropractic care. This record provides

substantial evidence to show that relator engaged in sexual conduct or conduct that could

reasonably be interpreted as sexual.

In arguing that the record does not support the Board’s decision, relator asserts facts

that, although supported by his testimony, are contradicted by other witnesses’ testimony

and are not supported by the record as a whole. This court “defer[s] to an agency

decisionmaker’s conclusions regarding conflicts in testimony.” Minnikka Props., 834

N.W.2d at 578. Relator also asserts that the ALJ’s decision is arbitrary and capricious

because the ALJ did not credit his testimony. But when there are differing opinions on a

matter, an ALJ’s decision is not arbitrary and capricious simply because it credits one

opinion. Id.; see Citizens Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs,

713 N.W.2d 817, 832 (Minn. 2006) (defining an agency ruling as arbitrary and capricious

only if the agency “entirely failed to consider an important aspect of the problem . . . [or]

offered an explanation that runs counter to the evidence”).

Severity of Discipline

Relator argues that the discipline imposed was too harsh compared to other

disciplinary cases that involved similar conduct by licensees. Relator’s brief describes the

offenses and sanctions in 23 disciplinary cases decided by the Board, which relator argues

involved more egregious violations by licensees but less severe sanctions than relator

received.

6 “[T]he severity of an administrative sanction must reflect the seriousness of the

violation.” In re Revocation of Family Child Care License of Burke, 666 N.W.2d 724, 728

(Minn. App. 2003). But an appellate court does not issue sanctions, and our review is

limited to whether the sanctions imposed constituted a clear abuse of discretion. Id.; see

Proetz v. Minn. Bd. of Chiropractic Exam’rs, 382 N.W.2d 527, 532-33 (Minn. App. 1986)

(“The assessment of sanctions by a professional board is discretionary”, and “[a]bsent an

abuse of discretion, the Board’s decision will not be disturbed on appeal.”) review denied

(Minn. May 16, 1986)); In re Henry Youth Hockey Ass’n, License No. 02795, 511 N.W.2d

452, 456 (Minn. App. 1994) (“An administrative agency’s assessment of penalties or

sanctions is an exercise of its discretionary power.”), rev’d in part on other grounds, 559

N.W.2d 410 (Minn. 1994).

In considering the severity of sanctions, appellate courts have reversed only when a

license revocation was deemed too severe to reflect the seriousness of a violation. See,

e.g., Burke, 666 N.W.2d at 728 (reversing and remanding for reconsideration of a lesser

sanction when commissioner’s decision revoking child-care license was not supported by

the record and did not reflect consideration of proper statutory or regulatory factors); In re

Haugen, 278 N.W.2d 75, 80 (Minn. 1979) (reversing overly severe sanction of revocation

of real estate brokers’ licenses when the sanctions were “completely uncalled for, based

upon the evidence”); In re Ins. Agents’ Licenses of Kane, 473 N.W.2d 869, 877-78 (Minn.

App. 1991) (reversing revocation of license as overly severe sanction), review denied

(Minn. Sept. 25, 1991).

7 The record supports the suspension of relator’s license. Contrary to relator’s

contention that his conduct included only a single violation, relator’s conduct has been

sexually inappropriate within the meaning of the statute for an extended period and has

involved multiple victims. Given the pervasiveness and duration of relator’s violations,

the Board’s chosen sanction is not an abuse of its discretion. This disposition supports the

public interest in ensuring proper conduct of licensed chiropractors. See Padilla v.

Minnesota State Bd. of Med. Exam’rs, 382 N.W.2d 876, 887 (Minn. App. 1986)

(recognizing “harm to the public if [acts in violation of a medical license] remain

unpunished and the deterrent effect upon others” is unrealized), review denied (Minn. Apr.

24, 1986); see Minn Stat. § 214.001, subds. 1, 2 (2014) (stating that “regulation of certain

occupations” must be for the purpose of serving “the safety and well being of the citizens

of the state”).

Affirmed.