ALJDEC

00A-NOD22-ACC · Department of Public Safety - Adult Care Clearance · 2000-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2000. Record remained open for submission of legal memoranda. Record closed on March 10, 2000. APPEARANCES: Margaret Campbell on her own behalf; Mike Timmerman on behalf of the Arizona Department of Public Safety ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On March 20, 1997, Kimberly Campbell (“Ms. Campbell”) filed with the Arizona Department of Public Safety (“Department) an application for registration (the “Application”) for her to work in a residential care institution, nursing care institution, or home health agency. 2. Mike Timmerman (“Mr. Timmerman”) an Administrative Supervisor for the Department, testified that as part of Ms. Campbell’s registration, Ms. Campbell was fingerprinted and the fingerprint cards were sent to a unit 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 residential care institution, nursing care institution, or home health agency and forward an applicant’s fingerprints to a unit of the Department as set forth above. 4. As part of the above-mentioned criminal records search, the Department was provided with a criminal history report on Ms. Campbell. Mr. Timmerman testified that he learned from Ms. Campbell’s criminal history report that on April 3, 1973, Ms. Campbell was arrested for Shoplifting and subsequently convicted of that crime in Phoenix Municipal Court. 5. In the Application, Ms. Campbell 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 Mr. Timmerman, the above-mentioned criminal conviction of Shoplifting falls within the general classification of the offense of Theft, one of the proscribed criminal offenses set forth in A.R.S. §36-411 which caused the Department to deny Ms. Campbell’s registration. 7. During the hearing, Ms. Campbell did not dispute that she was convicted of the crime of Shoplifting but represented that the conviction occurred a long time ago and that she has not had any other convictions. In her legal memorandum, Ms. Campbell contends that the offense of Shoplifting is not Theft. 8. Other than the above-mentioned criminal conviction, there is no evidence in the record that questions Ms. Campbell’s qualifications or credentials to be registered in accordance with A.R.S. §36-411. 9. Ms. Campbell testified that she has been licensed as a registered nurse in the State of Arizona since 1975 . 10. The testimony of Mr. Timmerman and Ms. Campbell, as set forth above, is determined to be credible. 11. 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. Campbell’s registration and not whether A.R.S. §36-411 is a well drafted statute or is overly restrictive. 12. A.R.S. § 36-411(F) 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 (emphasis added).

13. Ms. Campbell argued in her legal memorandum that the provisions of A.R.S. §36-411 do not apply to the instant matter because she has been licensed as a nurse and employed in that capacity prior to the effective date of A.R.S. §36-411 and that such statute cannot to be applied retroactively. 14. Ms. Campbell also maintained that the process of having her judgment of conviction for Shoplifting having been set aside as contemplated in A.R.S. §13-907 in effect nullifies the conviction and that it cannot be used as a conviction for purposes of denying her registration under A.R.S.§36-411. The Department contended that the above-mentioned conviction may be considered by the Department in its review of the Application and may be grounds to deny registration because of the historical fact of the conviction. 15. A.R.S. §13-907 provides, in part, that : every person convicted of a criminal offense may, upon fulfillment of the condition of probation or sentence and discharge by the court, apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate’s successor in office to have the judgment of guilt set aside.…If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction…except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense…as if the judgment of guilt had not been set aside. CONCLUSIONS OF LAW 1. 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 residential care institution, nursing care institution, or home health agency. 2. The Administrative Law Judge determines that the crime of Shoplifting is similar to the offense of Theft, one of the proscribed criminal offenses under A.R.S. §36-411 that precludes a person from being registered to work within a residential care institution, nursing care institution, or home health agency if that person provides or will provide direct care, home health services or supported services. See State v. Allen, 1 Ariz. App.161, 400 P.2d 589 (App. 1965). Therefore, Ms. Campbell’s conviction for Shoplifting falls within the enumerated proscribed offenses enumerated in A.R.S.§36-411. 3. With respect to Ms. Campbell’s argument against retroactive application of the statute, the Administrative Law Judge determines that A.R.S. §36-411 is intended to apply from November 1, 1999 onward to preclude certain individuals from providing direct care, home health services, or supported services in residential care institutions, nursing care institutions, or home health agencies. Although the effect of the statute might bar certain individuals who were engaged in providing the services in those institutions prior to November 1, 1999, the statute is intended to restrict certain individuals from providing such services from that date onward regardless of their prior employment history. Therefore, the statute is not being applied retroactively but prospectively and Ms. Campbell’s argument as to retroactive application of A.R.S. §36-411 fails. 4. The effect to be given the Phoenix Municipal Court Order that granted Ms. Campbell’s Application to Set Aside Judgment, Accusation & Penalties regarding the above-mentioned Shoplifting conviction was briefed by the parties. In Russell v. Royal Maccabees Life Insurance Company, 193 Ariz. 464, 974 P.2d 443 (App. 1998), the Arizona Court of Appeals discussed the provisions of A.R.S. §13-907 and adopted the rationale applied in California cases cited within the opinion that “preclusion from certain types of employment is not the kind of penalty or disability which is eliminated by expungement”. (citation omitted). The Court noted that California courts have consistently upheld denial of a license on the basis of an expunged conviction. Id. at 469. 5. Consideration of the holding in Royal Maccabees in conjunction with the Arizona Supreme Court’s determination in In Re Couser, 122 Ariz. 500, 596 P.2d 26 (1979), where the Arizona Supreme Court has held in a disciplinary action by the State Bar, that the local administrative committee could consider an attorney’s criminal conviction even though the convictions had been expunged, leads this Judge to conclude that expungement of a conviction in the State of Arizona does not erase the conviction for all purposes. 6. The basis for consideration of an expunged conviction for purposes of registration under A.R.S. §36-411 is akin to licensure by a state agency. Therefore, based on a review of the relevant law regarding this issue, it is determined that the effect to be given the above- mentioned Order is that the Shoplifting conviction may be considered by the Department in its review of the Application. 7. Ms. Campbell did not sustain her burden of showing that the Department’s denial of her application for registration to work in a residential care institution, nursing care institution, or home health agency should be reversed. 8. The totality of the evidence of record adequately supports the Department’s denial of Ms. Campbell’s application for registration based upon Ms. Campbell’s conviction of Shoplifting, a crime similar to the proscribed offense of Theft under A.R.S. §36-411. . . . . . . . . .

RECOMMENDED ORDER Based on the above, the Administrative Law Judge recommends that the Director of the Department uphold the Department’s denial of Ms. Campbell’s registration to work in a residential care institution, nursing care institution, or home health agency. Done this day, March 20, 2000

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 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, Arizona 85005

By ___________________________

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