ALJDEC

00A-NOD19-ACC · Department of Public Safety - Adult Care Clearance · 2000-02-17

HEARING: February 17, 2000 APPEARANCES: Maureen L. Prince on her own behalf; Assistant Attorney General Lisa Stelly on behalf of the Arizona Department of Public Safety ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. On October 22, 1999, Maureen Prince (“Ms. Prince”) filed with the Arizona Department of Public Safety (“Department) an application for registration (the “Application”) for her to work in a nursing care institution. 2. Mike Timmerman (“Mr. Timmerman”) an Administrative Supervisor for the Department, testified that as part of Ms. Prince’s registration, Ms. Prince was fingerprinted and the fingerprint cards were sent to a division of the Department for a criminal history records search. 3. Mr. Timmerman testified that one of his duties as Administrative Supervisor for the Department is to review applications for registration as an employee within a nursing care institution and forward an applicant’s fingerprints to a division of the Department as set forth above. 4. As a result of the criminal records search, the Department was provided with a criminal history report on Ms. Prince. Mr. Timmerman testified that he learned from Ms. Prince’s criminal history report, that on December 27, 1990, Ms. Prince was found guilty of Attempt to Commit Forgery in Maricopa County Superior Court Case Number CR89-12468. (“Case No. CR89-12468”) 5. In the Application, Ms. Prince certified that she had never been convicted of any of the enumerated criminal offenses in the State of Arizona or of any similar offenses in any other jurisdiction. 6. According to the Department, the above-mentioned criminal conviction of Attempt to Commit Forgery falls within the general classification of the offense of Fraud, one of the proscribed criminal offenses set forth in A.R.S. §36-411, which caused the Department to deny Ms. Prince’s registration. 7. On December 21, 1999, Ms. Prince filed with the Department a request for a hearing on the denial of her application for registration to work in a nursing care institution. 8. During the hearing, Ms. Prince did not dispute that she was convicted of the crime of Attempt to Commit Forgery in Case No. CR89-12468 but contended that the conviction occurred approximately ten years ago and that she has not had any other convictions. Ms. Prince was discharged from probation in Case No. CR89-12468 on October 13, 1992. 9. Other than the above-mentioned criminal conviction, there is no evidence in the record that questions Ms. Prince’ qualifications or credentials to be registered in accordance with A.R.S. §36-411. 10. During the hearing, Ms. Prince presented credible evidence of her good character and qualifications as a certified nursing assistant. 11. Mr. Timmerman testified that the Department has no discretion under A.R.S. §36-411 and must deny registration to Ms. Prince because the above-mentioned conviction constitutes the offense of Fraud, one of the proscribed offenses enumerated in A.R.S. §36-411. 12. Mr. Timmerman’s testimony as to the procedural process and review of the Application, as set forth above, is determined to be credible. 13. During the hearing, the Administrative Law Judge informed the parties that the scope of the hearing was limited to whether the Department acted appropriately under the law in denying Ms. Prince’ registration and not whether A.R.S. §36-411 is a well drafted statute or is a good law to have. CONCLUSIONS OF LAW 1. it is necessary for the Administrative Law Judge to address the issue of whether the Arizona Legislature intended to include the above- mentioned conviction as one of the proscribed offenses listed in A.R.S. §36- 411. 2. A.R.S.§36-411 provides the Department with the authority to require registration on Departmental forms and conduct a criminal history records check of the person seeking registration to work in a nursing care institution. 3. The offense of Attempt to Commit Forgery is a preparatory offense that falls under A.R.S.§13-1001. The Department asserts that a conviction of Forgery subsumes the offense of Attempt to Commit Forgery. Because the Department views the offense of Forgery as being similar to or falling within the classification of the proscribed offense of Fraud as set forth in A.R.S. §36-411, the Department maintains that the offense of Attempt to Commit Forgery is similar to or falls within the general offense classification of Fraud. 4. If it is determined that the offense of Attempt to Commit Forgery is similar to or falls within the classification of the offense of Fraud, one of the proscribed criminal offenses under A.R.S. §36-411, the conviction would preclude a person from being registered to work within a residential care institution, nursing care institution, or home health agencies if that person provides or will provide direct care, home health services or supported services. 5. Although A.R.S., Title 13 lists specific statutory offenses of fraud, such as Credit Card Fraud (A.R.S.§§13-2101-2109), Business and Commercial Fraud (A.R.S.§§13-2201-2208), and Organized Crime Fraud (A.R.S. §§13-2301-2318), there is no codified general offense of Fraud. A.R.S. §13- 2002 specifically addresses the statutory offense of Forgery. A.R.S. §§13- 2001-2007 addresses the offenses of Forgery and Related Offenses, the classifications of which are codified in a separate chapter than the above- mentioned fraud offenses. By separately stating offenses such as Credit Card, Business and Commercial Fraud, Organized Crime; Fraud, Forgery, and Attempt to Commit Forgery, the Arizona Legislature intended them to be considered as distinct offenses. 6. The Department’s position in this matter is untenable. If credence is given to the Department’s position with respect to the offense of Attempt to Commit Forgery, as set forth above, it would elevate a preparatory offense to the actual offense of Forgery and negate any distinction between the two offenses. 7. This Tribunal determines that the Arizona Legislature intended in A.R.S. §36-411 that convictions of certain offenses, some specific in nature and some general in nature, would preclude an individual from being registered to work in a residential care institution, nursing care institution, or home health agency if that person provides direct care, home health services, or supported services to residents of such institutions. If the Arizona Legislature intended the offense of Attempt to Commit Forgery or any preparatory offense to be considered as a proscribed offense under that statute, it could have specifically included such offenses in the list set forth in A.R.S. 36-411. However, the Legislature did not include such offenses in the enumerated offenses. Therefore, it is determined that, as a preparatory offense, the Attempt to Commit Forgery is not similar to or included within the classification of any of the proscribed offenses listed in A.R.S. §36-411. 8. Based on the above, it is determined that Ms. Prince sustained her burden of showing that her registration to work in a nursing care institution should not be denied. 9. The weight of the evidence of record adequately supports reversal of the Department’s denial of Ms. Prince’s application for registration . . . . . . . . . .

RECOMMENDED ORDER Based on the above, the Administrative Law Judge recommends that the Director of the Department reverse the Department’s denial of Ms. Prince’s registration to work in a nursing care institution and grant her such registration. Done this day, March 6, 2000

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

By ___________________________

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