ALJDEC

00A-NOD20-ACC · Department of Public Safety - Adult Care Clearance · 2000-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2000 APPEARANCES: Appellant appeared on her own behalf and the Arizona Department of Public Safety was represented by Assistant Attorney General, Lisa Stelly. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT

1. Appellant seeks registration to work in a residential care institution, home health agency or nursing home. On November 17, 1999, Department denied Appellant’s requested registration under the authority of A.R.S. § 36-411, citing as the basis for the denial that Appellant had been convicted of a crime which prohibits her from receiving the requested registration. Based on Department’s denial of the requested registration, Appellant filed for the instant appeal.

2. It was undisputed that Appellant was convicted of the crime of criminal damage related to domestic violence in one of the courts located in Tucson, Arizona. The applicable case no. is TUS9507130732. Although the record was not clear referable to the date of conviction, it would appear that the conviction occurred on either September 2, 1995 or January 9, 1996. The arrest occurred on January 13, 1995.

3. The incident surrounding the criminal conviction apparently involved an argument between Appellant and her live-in boyfriend, wherein Appellant ultimately threw a brick through the boyfriend’s motor vehicle windshield. The criminal conviction was deemed to be a misdemeanor for which Appellant was sent to classes on domestic violence and paid fines totaling approximately $200.00.

4. Notwithstanding the fact of the above-described criminal conviction for criminal damage related to domestic violence, Appellant contends that she should be granted the requested registration.

5. It is very important to note that the above-described criminal offense was a singular incident, does not reveal a pattern of criminal behavior, and that the offense occurred over five (5) years ago.

6. Appellant has been employed as a certified nurse’s assistant for approximately thirteen (13) years and in this capacity has worked at several nursing homes. She further indicated that she has been employed in the nursing home field for approximately seventeen (17) years. Her current employer is SuCasa Nursing Home (“SuCasa”). She has been employed at SuCasa since September 1999.

7. Appellant has obviously made a career out of working in the nursing home field as a certified nurse’s assistant and there is no evidence that she has failed to perform in said capacity in anything other than an appropriate manner over the course of her career. In this regard, Appellant submitted a letter from the Director of SuCasa.

8. The above-described letter from the Director of SuCasa was entered into evidence. A review of the salient points in said testimonial letter reveals that Appellant has been an outstanding and well respected certified nurse’s assistant, who has provided competent, reliable, caring and loving services in the course of her employment.

9. The facts and circumstances presented herein support a finding that Appellant is an industrious, responsible, and mature individual who, but for an extremely harsh and unforgiving law, should be allowed to work and earn a living in her chosen profession of providing nursing type care in a residential care institution, home health agency or nursing home. Her record of performance as a certified nurse’s assistant for the past thirteen (13) years should have been enough to establish her entitlement to receive the requested registration. Nevertheless, in light of the fact that the law provides Department with absolutely no discretion in those situations wherein an individual is convicted of a proscribed crime, this Tribunal must reluctantly hold that the prior action of Department, in denying the requested registration, should be affirmed.

CONCLUSIONS OF LAW

1. A.R.S. § 36-411A provides, in pertinent part, in regard to employment in residential care institutions, nursing care institutions or home health agencies, that “employees…who provide direct care, home health services or supportive services…shall submit a full set of fingerprints to the department of public safety for a state and federal criminal history records check…”

2. A.R.S. § 36-411D (20) provides, in pertinent part, “an employee shall submit a notarized form…that indicates whether the person has ever been convicted of or is awaiting trial on…domestic violence.” A.R.S. § 36- 411F provides, in pertinent part, “a residential care institution, nursing care institution or home health agency shall not allow any 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.”

3. A.R.S. § 13-904 (E) provides that a person may be denied a license or certification by reason of a prior conviction if said conviction “has a reasonable relationship to the function of the employment or occupation” for which the certification is requested. A.R.S. § 36-411 was enacted by the Arizona Legislature subsequent to the date of enactment of A.R.S. § 13- 904 (E). By virtue of the language in A.R.S. § 36-411D (20) wherein the criminal offense of domestic violence is listed as a proscribed crime, it is determined that the Arizona Legislature has decided that domestic violence has a reasonable relationship to the work of a health care worker employed in a residential care institution, home health agency or nursing home.

4. The totality of the evidence of record adequately supported the previous action of Department in denying Appellant registration as a health care worker in a residential care institution, home health agency or nursing home due to the fact that Appellant was convicted of one of the proscribed criminal offenses set forth in A.R.S. § 36-411 (D). This statute does not provide Department with any discretion to issue the requested registration due to conviction of a proscribed crime. Therefore, notwithstanding this Tribunal’s finding that Appellant has shown herself to be trustworthy, responsible and highly qualified to work as a health care worker in a residential care institution, home health agency or nursing home, Department’s denial of Appellant’s application for registration is not found to be arbitrary or contrary to the applicable law.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the denial of Appellant’s application for registration as a health care worker in a residential institution, home health agency or nursing home must, under the current and applicable law, be affirmed. Done this day, February 17, 2000

______________________________________ Mark A. Silver 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 ___________________________

-----------------------

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