ALJDEC

00A-NOD18-ACC · Department of Public Safety - Adult Care Clearance · 2000-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2000 at 9:00 a.m. APPEARANCES: Appellant Tim J. Hortman appeared on his own behalf; the Arizona Department of Public Safety (“DPS”) appeared through its attorney, Lisa Stelly, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Appellant appeals DPS’ denial of his application to work with vulnerable adults in a residential care institution, home health agency, or nursing care institution under A.R.S. § 36-411 because, eight years before submitting the application, Appellant had been convicted of misdemeanor shoplifting, which DPS considers to be theft. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT On October 14, 1999, Appellant submitted to DPS an application to work with vulnerable adults in a residential care institution, home health agency, or nursing care institution under A.R.S. § 36-411. On the application, Appellant indicated that he had never been convicted of any of 23 enumerated specific criminal offenses in Arizona or any similar offenses in another jurisdiction. The enumerated offenses included theft but not shoplifting. With the application, Appellant submitted his fingerprints. DPS submitted Appellant’s fingerprints to the central state repository and obtained a summary of Appellant’s criminal history, which showed he had been convicted of misdemeanor shoplifting in Phoenix Municipal Court on October 16, 1989 and June 19, 1991. On December 1, 1999, DPS issued a notice of denial to Appellant because of the two arrests and subsequent convictions of shoplifting, which offense DPS considered to “relate[] to the offense category of theft.” On December 12, 1999, Appellant requested a hearing of DPS’ denial, alleging as follows: I have been working hard since my last offence [sic] to better my life, for the welfare of my family and myself [and] my children. I have recently graduated from Long Medical Institute, second in my class and have been working as a Respiratory Therapist for five years. I am proud to say, that having been in heath [sic] care for almost ten years, all of my employers would consider me for rehire.

My current supervisor, Joy Black, has offered to attend the hearing to speak on my behalf. We believe the company as well as the patients benefits from my employment.

Appellant established that he has been rehabilitated since the 1989 misdemeanor shoplifting conviction and is not a recidivist. Appellant also established that he is well qualified by professional training, personal temperament, and character to work with vulnerable adults in a residential care institution, home health agency, or nursing care institution. CONCLUSIONS OF LAW Applicable Law In this administrative proceeding, Appellant bears the burden of proof and must establish that DPS erred in denying his application to work with vulnerable adults in a residential care institution, home health agency, or nursing care institution under applicable statutes by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). By its terms, A.R.S. § 36-411 categorically prohibits anyone who has ever been convicted of an enumerated offense from working with vulnerable adults in a residential care institution, home health agency, or nursing care institution, no matter how remote the conviction, how minor the offense, or how overwhelming the evidence of rehabilitation.[1] Because a license to practice a particular profession is a valuable property right, limitations on the enjoyment of that right imposed by an administrative disciplinary agency must be carefully scrutinized.[2] Statutes authorizing an administrative agency to deny, revoke, or suspend a professional license, being penal in nature, must be strictly construed.[3] “[W]here the language of the statute itself is susceptible to more than one interpretation, the rule of lenity dictates that any doubt should be resolved in favor of the [party the agency seeks to enforce the statute against].”[4] Is A.R.S. § 36-411 ambiguous or susceptible to more than one meaning? Is “theft” the same offense as “shoplifting”? “‘[W]here statutes are in pari materia and the later one does not expressly repeal the former, the two are to be construed so as to give effect to each, if possible.’”[5] In Arizona, “[a] person commits theft if, without lawful authority, the person knowingly . . . [c]ontrols property of another with the intent to deprive the other person of such property . . . [or o]btains property or services of another by means of a material misrepresentation.”[6] “[I]n adopting [the theft statute], the legislature has created a single crime of ‘theft,’ combining or merging the common law crimes of larceny, fraud, embezzlement, obtaining money by false pretenses and other similar offenses. The obvious purpose in enacting this ‘omnibus’ theft statute was to eliminate technical distinctions between various types of stealing and to deal with all forms in a singe statute, thus simplifying prosecution for the unlawful ‘acquisition’ of property belonging to others.”[7] “In our prior criminal code, there existed a proliferation of theft offenses covering almost any kind of taking of almost anything. The present A.R.S. § 13-1802 consolidates the multiple prior theft offenses of embezzlement, conversion, larceny, finding and keeping stolen property, theft by false pretenses, and other similar ‘verbal distinctions’ to produce a single unified offense.”[8] “A person commits shoplifting if, while in an establishment in which merchandise is displayed for sale, such person knowingly obtains such goods of another with the intent to deprive him of such goods . . . .”[9] “[T]he shoplifting statute did not repeal by implication any part of the theft statute.”[10] Shoplifting is not a lesser included offense of theft because “theft can be committed without committing the crime of shoplifting.”[11] “In applying a statute, . . . its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”[12] “Obtain” means “to come into possession of; get or acquire; procure, as through an effort or by a request.”[13] “Control” means “to exercise restraint or direction over; dominate, command.”[14] Although no cases address whether a person who, like Appellant, committed shoplifting under the statute that was in effect in 1989 and 1991 would necessarily also have committed theft,[15] under the terms of the statutes, a person may be guilty of shoplifting under A.R.S. § 13-1805 if he obtains goods, even if he does not leave the store or convert the property, but not guilty of theft because he does not control the property or obtain it by means of a material misrepresentation under A.R.S. § 13-1802. Although theft and shoplifting share several common elements and, under most circumstances, shoplifting also may constitute theft,[16] the two crimes are distinct and not necessarily equivalent. In Arizona, “theft” is not the same thing as “shoplifting.” Did the Legislature mean “Theft and Related Offenses” in A.R.S. § 36- 411.D.12? “In interpreting a statute, we must determine and give effect to the legislative intent behind the statute. . . . To determine the legislative intent, we examine the policy behind the statute and the evil sought to be remedied. . . . We also consider the context of the statute, the language used, the subject matter the historical background, and the effects and consequences of the statute. . . .”[17] “A mandatory statute should as a general rule be literally construed and strictly applied.”[18] “‘[T]he expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed.’”[19] Sixteen of the offenses enumerated in A.R.S. § 36-411 correspond to specific crimes whose prima facie elements the Legislature has codified in a single statute.[20] Three of the offenses enumerated in A.R.S. §36-411.D also are chapter headings in Title 13, as well as a specific crime codified in a single statute.[21] These chapter headings include “Theft,” which chapter includes both specific crimes of theft and shoplifting. A.R.S. § 36-411.D does not enumerate any specific crime that is contained in a chapter whose heading is enumerated. [22] Two of the offenses enumerated in A.R.S. § 36-411.D are included in chapter headings in Title 13, which headings also specifically include “related offenses.”[23] The only two offenses enumerated in A.R.S. § 36-411.D that are neither a chapter title nor a statutory offense are “fraud,” a common-law offense whose nine elements the legislature has not codified as a single criminal offense or category of offenses,[24] and “felony offenses involving distribution of marijuana or dangerous or narcotic drugs,” which, by its terms, unequivocally describes a category of criminal offenses rather than a single offense.[25] The issue of whether the Legislature meant the chapter heading or the offense when it said “theft” in A.R.S. § 36-411.D.12 is a close one. Nonetheless, although the statute would have been more clear if the Legislature had proscribed “theft and related offenses” rather than merely “theft,” the structure of the statute and the close relationship between shoplifting and theft indicates that it is more likely than not that the Legislature intended to proscribe all of the offenses included in Title 13, Chapter 18 when it included “theft” in the statute. Is categorical denial of an application to work in a residential care institution based solely on 8- and 11-year-old misdemeanor shoplifting convictions reasonably related to the legislative goal of protecting vulnerable adults?

An administrative agency may not deny or revoke a license or permit for “a cause not clearly within the statutory authority.”[26] “The law is clear . . . that the legislature may declare what acts or conduct shall constitute grounds as long as it is done with certainty and definiteness and the prohibited conduct bears a reasonable relationship to the objectives of the profession.”[27] A.R.S. § 36-411’s categorical exclusion of anyone who at any time has ever been convicted of an offense, even one that is specifically described, in a residential care institution bears a somewhat tenuous relationship to the apparent legislative objective of protecting vulnerable adults who will be entrusted to the applicant’s care from abuse or financial exploitation. A person who, at the time of the application, had been convicted of a proscribed misdemeanor more than two years earlier or had been convicted of a proscribed felony more than five years earlier could be registered as a child care worker,[28] even though children would seem to be no less vulnerable than residents of nursing homes. The categorical exclusion appears to deprive residential care institutions and their residents of the contributions and care that someone like Appellant is qualified and motivated to provide, without necessarily affording those residents any greater protection than a statute that recognized the possibility of rehabilitation. Nonetheless, a person who has once taken another’s property may pose a greater risk that he may financially exploit vulnerable adults entrusted to his care. Although in its present form A.R.S. § 36-411 may be unnecessarily draconian, which may be why the legislature is in the process of amending it, [29] the statute bears a reasonable relationship to its objective and the undersigned has no choice in this case but to recommend that the Director of DPS enforce it. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department of Public Safety deny Appellant’s appeal and his application to work with vulnerable adults in a residential care institution, home health agency, or nursing care institution. Done this day, March 7, 2000.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Department of Public Safety - Adult Care Clearance Dennis A. Garrett Mail Code 2300 Arizona Department of Public Safety Applicant Team #2/Attn. Mike Timmerman P.O. Box 6638 Phoenix, AZ 85005

By ___________________________

----------------------- [1] The statute provides in relevant part:

D. An employee . . . shall submit a notarized form . . . that indicates whether the person has ever been convicted of or is awaiting trial on any of the following criminal offenses in this state or similar offenses in another state or jurisdiction: 1. Abuse of a vulnerable adult as defined in § 13-3623. 2. Sexual abuse. 3. Incest. 4. First or second degree murder. 5. Kidnapping. 6. Arson. 7. Sexual assault.. 8. Sexual exploitation of a minor. 9. Contributing to the delinquency of a minor. 10. Commercial sexual exploitation of a minor. 11. Felony offenses involving distribution of marijuana or dangerous drugs. 12. Theft. 13. Robbery. 14. A dangerous crime against children as defined in § 13-604.01. 15. Child abuse. 16. Sexual conduct with a minor. 17. Molestation of a child. 18. Manslaughter. 19. Aggravated assault. 20. Domestic violence. 21. Fraud and fraudulent schemes. 22. Assault within the last five years from the date of submitting a full set of fingerprints to [DPS]. 23. Possession or use of a dangerous narcotic drug within the last five years from the date of submitting a full set of fingerprints to [DPS]. . . . .

F. [A] residential care institution, nursing care institution or home health agency shall not allow any person or contracted person to continue to provide direct care, home health services or supportive services if the notarized form or the results of that person’s criminal history records check show that the person is awaiting trial on or has been convicted of an offense listed in subsection D of this section or any similar offense.

[Emphasis added.]

[2] See Modi v. West Virginia Board of Medicine, 195 W. Va. 230, 465 S.E.2d 230, 242 (1992).

[3] See Federgo Discount Center v. Department of Professional Regulation, Board of Pharmacy, 452 So. 2d 1063, 1066 (Fla. App. 1984).

[4] See State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (Ct. App. 1983) (citing, inter alia, Johnson v. Johnson, 313 Ariz. 38, 638 P.2d 705 (1981)), approved and adopted, 140 Ariz. 544, 683 P.2d 743 (1984).

[5] Matter of Pima County Juvenile Action No. 108965-02, 172 Ariz. 466, 467, 837 P.2d 1201, 1202 (Ct. App. 1992) (quoting State v. Jaastad, 43 Ariz. 458, 459, 32 P.2d 799, 800 (1934)).

[6] A.R.S. § 13-1802.A.1 and .3 (emphasis added).

[7]State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985).

[8] State v. Winter, 146 Ariz. 461, 464, 706 P.2d 1228, 1231 (Ct. App. 1985).

[9] A.R.S. § 13-1805.A (emphasis added).

[10] State v. Allen, 1 Ariz. App. 161, 163, 400 P.2d 589 (1965).

[11] State v. Robertson, 128 Ariz. 145, 147, 624 P.2d 342, 344 (Ct. App. 1980).

[12] Mid Kansas Federal Savings and Loan Ass’n of Wichita v. Dynamic Development Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991).

[13] Webster’s Encyclopedic Unabridged Dictionary of the English Language at 995 (1989).

[14] Id. at 318.

[15] The Court of Appeals has held that the elements of the two offenses were distinct because the theft statute in effect at the time required asportation, or a “‘carrying away sufficient to supersede the possession of the owner for an appreciable time,’” and the shoplifting statute included no such requirement. See State v. Allen, 1 Ariz. App. 161, 163, 400 P.2d 589, 591 (1965) (quoting Davis v. State, 41 Ariz. 12, 15-16, 15 P.2d 242, 243-44 (1932)). The current theft statute, which was enacted in 1977 and took effect in 1978, does not require asportation, but requires “control” instead of “possession.” See State v. Curiel, 130 Ariz. 176, 183, 634 P.2d 988, 995 (Ct. App. 1981).

[16] See State v. Teran, 130 Ariz. 277, 278, 635 P.2d 870, 871 (Ct. App. 1981),

[17] State ex rel. Ross v. Nance, 165 Ariz. 286, 288, 798 P.2d 286, 288 (1990) (citations omitted).

[18] Biaett v. Phoenix Title & Trust Co., 70 Ariz. 164, 168, 217 P.2d 923 (1950).

[19] Piper v. Bear Medical Systems, Inc., 180 Ariz. 170, 176, 883 P.2d 407, 413 (Ct. App. 1994) (quoting Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982)).

[20] See A.R.S. § 13-3623 (abuse of a vulnerable adult and child abuse); A.R.S. § 13-1404 (sexual abuse); A.R.S. § 13-3608 (incest); A.R.S. §§ 13- 1105 and 13-1104 (first and second degree murder); A.R.S. § 13-1304 (kidnapping); A.R.S. § 13-1406 (sexual assault); A.R.S. § 13-3553 (sexual exploitation of a minor); A.R.S. § 13-3613 (contributing to the delinquency of a minor); A.R.S. § 13-604.01 (dangerous crimes against children); A.R.S. § 13-1405 (sexual conduct with a minor); A.R.S. § 13-1410 (child molestation); A.R.S. § 13-1103 (manslaughter); A.R.S. § 13-1204 (aggravated assault); A.R.S. § 13-3601 (domestic violence); A.R.S. §§ 13-2310 and 2311 (fraudulent schemes and artifices and fraudulent schemes and practices).

[21] Compare Title 13, Chapter 17 (“Arson”) with A.R.S. §§ 13-1703, -1704, and -1705 (arson, respectively, of a structure or property, of an occupied structure, and of an occupied jail or prison facility); compare Title 13, Chapter 18 (“Theft”) with A.R.S. § 13-1802 (theft); compare Title 13, Chapter 19 (“Robbery”) with A.R.S. § 13-1902 (robbery).

[22] But compare A.R.S. § 36-411.D.19 (aggravated assault) and A.R.S. § 36- 411.D.22 (assault) with Title 13, Chapter 12 (“Assault and Related Offenses”), A.R.S. § 13-1203 (assault) and A.R.S. § 13-1204 (aggravated assault).

[23] One enumerated individual offense, aggravated assault, is included in a chapter whose heading includes another enumerated individual offense, assault. See Title 13, Chapter 12 (“Assault and Related Offenses”); Title 13, Chapter 13 (“Kidnapping and Related Offenses”).

[24] See State v. Galioto, 126 Ariz. 188, 192, 613 P.2d 852, 856 (Ct. App. 1980), review denied. The legislature has codified in various statutes the prima facie elements of different kinds of criminal fraud. See, e.g., A.R.S. §§ 13-2101 to 13-2108 (credit card fraud); A.R.S. §§ 13-2201 to 13- 2208 (business and commercial fraud); A.R.S. §§ 13-2301 to 13-2317 (organized crime and fraud); A.R.S. § 44-1995 (securities fraud); A.R.S. § 44-1220 (insurance fraud); A.R.S. § 44-1522 (consumer fraud).

[25] See A.R.S. §§ 13-3401 to 13-3406.

[26] See Federgo Discount Center, 452 So. 2d at 1066.

[27] Huls v. Arizona State Board of Osteopathic Examiners in Medicine and Surgery, 26 Ariz. App. 236, 238, 547 P.2d 507 (1976) (emphasis added); see also A.R.S. § 13-904.E (Providing that “[a] person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”).

[28] See A.R.S. § 36-883.02.K and .L (allowing the Department of Health Services to register persons with a criminal record “”if the applicant shows to the director’s satisfaction that the applicant is successfully rehabilitated and is not a recidivist.”); Arizona Administrative Code Rule R9-5-204.C.1 (Providing that an applicant for registration as a child care worker is not a recidivist “[i]f the offense was a felony, 5 years or more have passed between the conviction of the offense and the date the individual submitted a complete application for registration and the individual is not awaiting trial on, has not been convicted of, or has not admitted in open court or as prescribed by a plea agreement, committing any felony within the last 5 years or any misdemeanor within the last 2 years.”).

[29] See SB 1263. This amendment, among other provisions, “allows applicants who have committed certain criminal offenses, such as arson, contributing to the delinquency of a minor, theft, robbery, domestic violence, fraud and fraudulent schemes, five or more years prior to submitting fingerprints to DPS to continue working for a residential care institution, nursing care institution or home health agency.” Arizona State Senate Fact Sheet for SB 1263.

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