4-0901-6880-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA BOARD OF CHIROPRACTIC EXAMINERS
In the Matter of FINDINGS OF FACT,
Steven W. Engen, DC, CONCLUSIONS AND
License No. 1505 RECOMMENDATION
The above-entitled matter came on for hearing before Administrative Law
Judge Peter C. Erickson at 1:30 p.m. on September 4, 1992, at the Office of
Administrative Hearings in Minneapolis, Minnesota. The record on this matter
closed on September 30, 1992, the date of receipt of the transcript of the
hearing.
Robert T. Holley, Special Assistant Attorney General, 500 Capitol Office
Building, 525 Park Street, St. Paul, Minnesota 55103, appeared on behalf of the
Minnesota Board of Chiropractic Examiners. Steven W. Engen, 1526 Washington
Street, Box 5, Blair, Nebraska 68008, appeared pro se.
Notice is hereby given that, pursuant to Minn. Stat. 14-61, the final
decision of the Board shall not be made until this Report has been made
available to the parties to the proceeding for at least ten days, and an
opportunity has been afforded to each party adversely affected to file
exceptions and present argument to the Board. Exceptions to this Report, if
any, shall be filed with the Board at Suite 20, 2700 University Avenue West,
St. Paul, Minnesota 55414. Pursuant to Minn. Stat. 214.10, subd. 2, a board
member who was consulted during the course of an investigation may participate
at the hearing, but may not vote on any matter pertaining to the case.
STATEMENT OF ISSUE
The issue to be determined in this proceeding is whether grounds exist
pursuant to Minn. Stat. 214.101, subd. 1, to suspend or make the Licensee's
license to practice chiropractic probationary.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. On July 27, 1992, the Minnesota Board of Chiropractic Examiners
received an Order from District Court Judge David E. Christensen directing it
to proceed pursuant to Minn. Stat. 214-101 to determine if Dr. Steven
Engen's license to practice should be suspended or placed on probation.
Subsequently, a Notice of and Order for Hearing was issued by the Board on
August 24, 1992 scheduling a hearing for September 4, 1992. The Notice of and
order for Hearing specifically recited that the hearing was being held
pursuant to Minn. Stat. 214.101 and resulted from a District Court
determination that the Licensee was found to be in arrears in the amount of
$2,730.00 in court-ordered child support.
2. Steven W. Engen currently holds a license to practice chiropractic
in the State of Minnesota; License No. 1505 which expires on December 31.
1992. At the present time, Dr. Engen is not practicing chiropractic in the
State of Minnesota, but has moved to the State of Nebraska with the intent to
practice there.
3. On December 9, 1992, the Honorable David E. Christensen conducted a
telephone conference call hearing to consider a Motion filed by the Petitioner
in the case of Pamela R. Mailander, f/k/a Pamela R. Engen, Petitioner v.
Steven W. Enoen. Respondent, for the appointment of a receiver to collect and
pay child support. On March 25, 1992, Judge Christensen issued an Order which
contains, inter alia, the following provisions:
1. That Leland Bush is appointed as Receiver effective May 1, 1992
unless Respondent, prior to April 15, 1992, agrees in writing to
make all future required child support payments and further to pay
an additional $100 per month towards arrearages.
2. That in the event Respondent is unwilling to pay the child support
as previously ordered and as provided herein, Respondent may elect
prior to April 15, 1992 to have the receivership limited to a
partial receivership. Such partial receivership is conditioned upon
Respondent and all employees authorized to write checks on the
business account agreeing to the following:
a. That all receipts from the business shall be deposited into a
business account. That Respondent and/or his employees shall
not write any checks on said account for furniture, fixtures,
equipment, vehicles, owner's draw, and legal and accounting
unless such checks are cosigned by the Receiver, and in no
event shall any check be written for more than $500, excluding
malpractice insurance, unless such check is cosigned by the
Receiver.
b. That no checks in excess of nine (9) percent of the amounts
shown on Exhibit No. 3 attached hereto shall be written in any
one month unless cosigned by the Receiver.
C. That the owner's draw shall be deposited into the Receiver's
account and distributed as set forth in Paragraph 3.
3. That in the event Respondent is unwilling to pay child support as
previously ordered and as provided herein, and has not elected to
participate in a partial receivership, then all receipts from the
business shall be deposited into the Receiver's account. The
Receiver shall have check writing authority to distribute funds of
said Receiver's account and shall ensure that all reasonable and
necessary business expenses of the Respondent are paid. The
Receiver shall further pay to the Respondent as and for his living
expenses the sum of One Thousand One Hundred Fifty-Eight Dollars
Seventy-Five Cents ($1,158.75); shall set aside appropriate amounts
for his Federal and State income taxes, and, to the extent available,
shall pay to the Petitioner the sum of One Thousand Three Hundred
Sixty-five Dollars ($1,365), plus an additional One Hundred Dollars
($100) which shall be applied to arrearages. (Emphasis added.)
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4. That the Receiver shall pay himself from the Receiver's account the
sum of Eighty-Five Dollars ($85-00) per hour, plus reasonable travel
expenses. The Receiver shall keep records of his collections and
disbursements which shall be available for review upon the request
of either party or the Court.
4. Leland Bush assumed the duties of a receiver as directed by the
District Court on May 1, 1992. The "receiver account" shows the following
financial transactions between May I and June 23, 1992:
Deposit Payment Balance
5/08/92 S. Engen $1,000
5/08/92 S. Engen $ 269.47 $ 730.53
5/18/92 S. Engen 1,000 1,730.53
5/18/92 S. Engen 269.47 1,461.06
5/20/92 Lee Bush-Fees 1,283.50 177.56
5/27/92 checks 29.00 148.56
5/29/92 S. Engen 2,000 2,148.56
5/29/92 S. Engen 538.94 1,609.82
6/15/92 S. Engen 80.87 1,528.75
6/15/92 S. Engen 579.38 949.37
6/15/92 S. Engen 5,500 6,449.37
6/15/92 IRS 3,360.00 3,089.37
6/15/92 MN Dept of Rev 933.33 2,156.04
6/23/92 Pamela Mailander 1,365.00 791.04
5. Dr. Engen's monthly child support obligation was $1,365.00. As the
receiver's records show, this monthly obligation was not paid in May but was
paid at the end of June, 1992.
6. On July 22, 1992, the Honorable David E. Christensen, District Court
Judge, issued an Order to the Minnesota State Chiropractic Board informing the
Board that the Court had ordered that judgment be entered against Dr. Engen
for the sum of $2,730.00 for delinquent child support. Judge Christensen
additionally ordered that the Board proceed "according to statute to determine
if Respondent's [Dr. Engen] license to practice should not be suspended or if
he should not be placed on probation." Additionally, Judge Christensen
further informed the Board that "Petitioner has specifically requested that
Respondent be placed on probation as opposed to having his license suspended."
7. On or about September 1, 1992, Dr. Engen filed Motions with Murray
County District Court with respect to his dissolution and the Orders issued by
Judge Christensen. Specifically, Dr. Engen requested that the Court (1) modify
the original decree to reflect a guideline child support obligation pursuant
to Minn. Stat. 518.551; (2) modify the original decree to allow him the tax
deductions for the first and fourth children; (3) permit the modification
requested to be retroactive to January 1, 1991; (4) dismiss all judgments,
levies, or other "restrictive actions" to date arising out of the dissolution;
(5) permit the "relocation" of personal items from Slayton, Minnesota to
Blair, Nebraska; (6) authorize payment from the receiver of monies due to
underpayment of estimated federal income tax liability; (7) authorize payment
from the receiver of monies due to an underpayment of estimated state income
tax liability; (8) modify the original decree to permit more liberal
visitation; (9) modify the original decree to allow a reduction in a trust
account payment by Dr. Engen during months that the children are living with
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him; and (10) reduce the child support judgment against him "to zero during
the complete tenure of the receiver, from May 1, 1992 through August 31, 1992,
as receiver [was] paid full and complete child support in accordance with the
Court's receivership Order for that time period." Dr. Engen's Motions were
scheduled to be heard on September 14, 1992 in the Murray County Courthouse,
Slayton, Minnesota.
8. On October 5, 1992, Judge Christensen issued an Order denying all of
Dr. Engen's Motions on the grounds that the Motions were untimely filed and
that Dr. Engen failed to appear on September 14, 1992, the scheduled date for
hearing the Motions. Additionally, Judge Christensen awarded judgment against
Dr. Engen in favor of Pamela R. Mailander in the amount of $7,114.26, the
amount of unpaid child support through August 31, 1992.
Based on the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Board of Chiropractic Examiners
have jurisdiction in this matter pursuant to Minn. Stat. 14.50, 518.551,
subd. 12, and 214.101. The Notice of Hearing was proper in all respects.
2. Minn. Stat. 214.101, subd. 1 requires that, "within 30 days of
receipt of the Court Order, (the licensing board shall] provide notice to the
Licensee and hold a hearing." The Court Order directing the Board to conduct
a hearing in this case was received by the Board on July 27, 1992. The
hearing was not held until September 4, 1992. The Judge concludes that the
failure to comply with the 30-day hearing requirement is not a fatal defect to
this proceeding. The general rule of law is that a time limitation imposed on
a state agency by the legislature is normally considered to be only directory
rather than mandatory if the statute does not contain provisions expressing a
remedy for the failure to comply with the time limit requirement. e.g. ,
Heller v. Holner, 269 N.H.2d 31, 33 (Minn. 1978).
3. Minn. Stat. 214.101, subd. I provides that:
If the Board finds that the person is licensed by the
Board and evidence of full payment of arrearages found to
be due by the court is not presented at the hearing, the
Board shall suspend the license unless it determines that
probation is appropriate under subdivision 2. The only
issues to be determined by the Board are whether the
person named in the court order is a licensee, whether
the arrearages have been paid, and whether suspension or
probation is appropriate. The Board may not consider
evidence with respect to the appropriateness of the court
order or the ability of the person to comply with the
order.
Subdivision 2 of the above-referenced statute provides that:
If the Board determines that the suspension of the
license would create an extreme hardship to either the
licensee or to persons whom the licensee serves, the
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Board may, in lieu of suspension, allow the licensee to
continue to practice the occupation on probation.
Probation must be conditioned upon full compliance with
the court order that referred the matter to the Board.
The probation period may not exceed two years, and the
terms of probation must provide for automatic suspension
of the license if the licensee does not provide monthly
proof to the Board of full compliance with the court
order that referred the matter to the Board or a further
court order if the original order is modified by the
court.
4. Steven W. Engen is a licensee, licensed by the Minnesota Board of
Chiropractic Examiners.
5. The outstanding arrearages established in the Court Orders dated
July 22, 1992 and October 5, 1992 have not been paid.
Based upon the foregoing Conclusions, the Administrative Law Judge makes
the following:
RECOMMENDATION
IT IS RESPECTFULLY RECOMMENDED that the Minnesota Board of Chiropractic
Examiners take appropriate disciplinary action against Dr. Engen's license
pursuant to Minn. Stat. 214.101.
Dated this day of October, 1992.
PETER C. ERICKSON
Administrative Law Judge
NOTICE
Pursuant to Minn. Stat. 14.62, subd. 1, the agency is required to serve
its final decision upon each party and the Administrative Law Judge by first
class mail.
Reported: Taped, Transcript Prepared by Karen Toughill, Court Reporter.
MEMORANDUM
Several issues arose during this proceeding which the Judge feels
compelled to discuss, at least briefly. The first issue is addressed in
Conclusion Number 2 above concerning the appropriate disposition of a Motion
to dismiss by the Licensee when the Board does not follow the statutory
directive to hold a hearing within 30 days. The Judge is not aware of any
reason why the normal rule of law set forth in the conclusion above should not
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be followed in this case. It is obvious that the legislature intended for an
expeditious hearing on petitions filed pursuant to Minn. Stat. 518.551,
subd. 12. However, an "untimely" hearing would not prejudice the Licensee but
rather act to his/her benefit. Consequently, the Judge sees no rationale for
dismissing an action such as this due to a board's failure to meet the 30-day
hearing deadline.
The Board candidly pointed out as the hearing commenced that this was a
case of first impression; that this type of action had not been previously
heard by any other state board or the Office of Administrative Hearings. The
Judge believes that this assertion is true. At the hearing on this matter,
Dr. Engen testified that he had given sufficient money to the receiver to pay
his child support obligation. Dr. Engen further argued that payment of the
obligation was the receiver's responsibility, not his. Additionally, Dr.
Engen testified that since the divorce decree was issued in 1988, there did
exist an arrearage, but only of approximately $299-00, and that no arrearages
were incurred subsequent to May I of 1992. This issue, whether the receiver
(Leland Bush) had an obligation to pay child support from the monies he (Bush)
received before he paid his own fees, was cogently argued by Dr. Engen.
However, the statute (Minn. Stat. 214.101, subd. 1) restricts the
jurisdiction of the Board to only a few issues: whether the person named is a
licensee; whether the arrearage has been paid; and the appropriate remedy.
Dr. Engen's contention that the arrearage (at least any amount over $299.00)
had been paid because the receiver had sufficient funds to pay the child
support obligation might fall within the jurisdictional restrictions. However,
due to the subsequent Court Orders issued by Judge Christensen (see below),
this Judge will not address the issue further.
The Judge received into evidence Dr. Engen's Motions which were scheduled
to be heard on September 14, 1992. Those Motions, as set forth in the
Findings of Fact above, deal, in part, with the arrearage issue which is
critical to this case. Because the October 5, 1992 Court Orders issued by
Judge Christensen were issued subsequent to the close of the record in this
proceeding, the Judge has taken official notice of those Orders. Judge
Christensen determined that an arrearage of over $7,000 existed as of
August 31, 1992 and awarded judgment to Dr. Engen's ex-spouse for that
amount. Because Dr. Engen had a chance to address these issues in district
court (even though he did not appear on the date set for hearing), the Judge
is not going to further address the issue of whether an arrearage exists or
whether the receiver should have paid Dr. Engen's child support obligation.
Subdivision 3 of Minn. Stat. 214.101 states that, "if the Licensee has
a modification petition pending before the Court, the Board may, without a
hearing, defer a revocation of probation and institution of suspension until
receipt of the Court's ruling on the modification order." This language is
very unclear and it would not seem to apply to a situation where a modification
petition was pending but no hearing had previously been held pursuant to a
petition filed under Minn. Stat. 518. 551 , subd. 12. The language refers to
revocation of probation and institution of suspension" as if a hearing had
already been held and probation had been ordered by a board. However, it is
quite likely that an arrearage could be incurred while a modification petition
is pending and there had not already been a petition, hearing and decision to
take action against the license. This scenario is not addressed by the statute
but would seem to be the most likely situation when a decision to defer a
hearing would be appropriate.
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I
Lastly, the Board argued at the hearing that it had authority to assess
Dr. Engen all costs of the proceeding pursuant to Minn. Stat. 148.10,
subd. 3(c). However, the Judge points out that the referenced statute permits
the assessment of costs of "proceedings resulting in the disciplinary action",
arising from a violation of grounds set forth in Minn. Stat. 148.10. The
Judge doubts that an action brought pursuant to Minn. Stat. 518.551,
subd. 12 is a "disciplinary" proceeding within the meaning of Minn. Stat.
148.10, subd. 3(c).
P.C.E.
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