SUPREME COURT 

OF 

NEVADA 

130 Nev., Advance Opinion 27 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

OBTEEN NASSIRI, D.C.; AND 

EDWARD JOHNSON, D.C., 

Appellants, 

vs. 

CHIROPRACTIC PHYSICIANS' BOARD 

OF NEVADA, 

Respondent. 

No. 60490 

FILED 

APR 0 3 2014 

TRACE K. LINDEMAN 

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-theevidence 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. 2With respect to the 

remainder of the Board's order, the district court adopted the Board's 

2Tbis 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 factfinder 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 factfinder'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-theevidence 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. 3Thus, 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 

31f 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 factfinder] 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 

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We concur: 

 j. 

Hardesty Parraguirre 

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