ALJDEC

00A-9907207-NUR · State Board of Nursing · 2000-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2000 at 1:30 p.m. APPEARANCES: DinaMarie Servetti did not appear; the Arizona Board of Nursing appeared through its attorney, Mona Peugh-Baskin, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The sole issue in this appeal is whether the Arizona Board of Nursing (“the Board”) abused its discretion in denying Ms. Servetti’s Application for Certified Nursing Assistant by Examination. Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made. FINDINGS OF FACT Ms. Servetti filed an Application for Certified Nursing Assistant by Examination. After the Board notified Ms. Servetti of its intent to deny her application, she timely requested an administrative hearing of the denial. On May 3, 2000, the Executive Director of the Board notified Ms. Servetti that, pursuant to her request, a hearing would be held on June 12, 2000 at 1:30 p.m. The notice of denial was mailed to Ms. Servetti via certified mail and first class mail at 2711 E. Grant Road, Tucson, AZ 85716. Ms. Servetti subsequently contacted the Board about the upcoming hearing. The Notice of Hearing summarized the Board’s investigation and reasons for denial of application as follows: e. On the Application for Certified Nursing Assistant by Examination, Ms. Servetti admitted that, in October 1997, she had been convicted of driving while ability impaired, a misdemeanor, in San Miguel County Court, Telluride, Colorado. She had been arrested for this offense in July 1997. f. The Board investigated the circumstances of the conviction and other matters relating to Ms. Servetti’s qualifications to be a Certified Nursing Assistant. It found that, in July 1997, Ms. Servetti had also been arrested for possession of less than one ounce of marijuana and possession of drug paraphernalia and that, in August 1997, she had been arrested for driving under the influence and driving while ability impaired. These other charges were dismissed as part of the plea agreement that resulted in the October 1997 conviction. g. In February 2000, psychologist Bernard Engelhard, Ph.D. evaluated Ms. Servetti for chemical dependency. Based on his evaluation and Ms. Servetti’s responses to questions, Dr. Engelhard opined that there is a high probability that Ms. Servetti has a substance dependence disorder and that she is at high risk for relapsing into a more serious dependency. Although the beginning of the hearing was delayed fifteen minutes to allow Ms. Servetti additional travel time, she neither contacted the Office of Administrative Hearings to request that the hearing be further delayed or continued, appeared, personally or through an authorized representative, nor presented any evidence at the hearing to support her qualifications to be issued a Nursing Assistant Certification. CONCLUSIONS OF LAW In this administrative proceeding, Ms. Servetti bears the burden of proof and must establish by a preponderance of the evidence that the Board erred in denying her Application for Certified Nursing Assistant by Examination.[1] Appellant, by failing to appear at the hearing, failed to sustain her statutory burden of proving that she is qualified to be certified as a nursing assistant. Consequently, the record does not support any finding that the Executive Director of the Board erred in denying her application under A.R.S. §§ 32- 1601(14)(d) and 32-1663(A). RECOMMENDED ORDER In view of the foregoing, and in light of Appellant’s failure to prosecute her appeal, it is recommended the appeal in Case No. 00A-9907207- NUR be dismissed. Done this day, June 12, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of June, 2000, to:

State Board of Nursing Joey Ridenour, Director ATTN: Audrey Rath 1651 West Morten, Suite 150 Phoenix, AZ 85020

By ___________________________

----------------------- [1] See A.A.C. R2-19-119; A.A.C. R9-21-407(B)(5) and (B)(6); see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826