ALJDEC

00A-NOD27-ACC · Department of Public Safety - Adult Care Clearance · 2000-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2000 APPEARANCES: Appellant Maria Pestoni appeared on her own behalf. Assistant Attorney General Lisa Stelly appeared on behalf of the Arizona Department of Public Safety (the “Department”). ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is the Department’s denial, under A.R.S. § 36-411, of Maria Pestoni’s application to work in a residential care institution, home health agency or nursing care institution. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT In October, 1999, Maria Pestoni submitted to the Department an application to work in a residential care institution, home health agency or nursing care institution pursuant to A.R.S. § 36-411. As required by A.R.S. § 36-411(A), Ms. Pestoni submitted with her application a full set of fingerprints. The Department used Ms. Pestoni’s fingerprints to run a state and federal criminal history records check. The federal check came back positive for a number of prior convictions in California. On her application, Ms. Pestoni had denied the existence of any such prior convictions. A.R.S. § 36-411 provides in part that persons who have been convicted of certain criminal offenses are prohibited from providing direct care, home health services or supportive services in residential care institutions, home health agencies or nursing care institutions. The list of applicable criminal offenses is lengthy (23 in all), and includes not only offenses committed in Arizona but also similar offenses committed in other states or jurisdictions. The convictions at issue here (both in California) are for (1) assault on a person with a deadly weapon (October 11, 1979), and (2) possession of phencyclidine for sale (specific date of conviction unknown, but approximately 1984 or 1985). The Department takes the position that Ms. Pestoni’s conviction for assault on a person with a deadly weapon is an offense similar to aggravated assault (a designated offense under A.R.S. § 36-411(D)(19)), and that Ms. Pestoni’s conviction for possession of phencyclidine for sale is an offense similar to “felony offenses involving distribution of marijuana or dangerous drugs” (a designated offense under A.R.S. § 36-411(D)(11)). Ms. Pestoni did not deny the fact of her convictions for the foregoing crimes. By Notice of Denial dated January 11, 2000, the Department notified Ms. Pestoni that her request to provide direct care, home health services or supportive services in a residential care institution, home health agency or nursing care institution had been denied. By letter dated January 18, 2000, Ms. Pestoni requested a hearing. At the hearing, Ms. Pestoni testified briefly in her own behalf. Ms. Pestoni pointed to the fact that her crimes and convictions had taken place many years ago, and that she had paid for those crimes. She urged that failure to consider this context worked an unjust result. Ms. Pestoni further argued that only those persons who in fact abuse or take advantage of the persons for whom they provide care should be subject to preclusion from working in a residential care institution, home health agency or nursing care institution. CONCLUSIONS OF LAW In this proceeding, Ms. Pestoni bears the burden to prove, by a preponderance of the evidence, that the Department improperly denied her application to work in a residential care institution, home health agency or nursing care institution under A.R.S. § 36-411. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence ' 5 (1960). On the facts presented, the Administrative Law Judge concludes that Ms. Pestoni did not sustain the required burden of proof. By its terms, A.R.S. § 36-411 categorically prohibits anyone who has ever been convicted of an enumerated (or similar) offense from providing direct care, home health services or supportive services in a residential care institution, home health agency, or nursing care institution. The statute does not provide the Department with any discretion to grant an application when conviction of a proscribed crime has been established. Two of A.R.S. § 36-411’s enumerated offenses are aggravated assault, A.R.S. § 36-411(D)(19), and “felony offenses involving distribution of marijuana or dangerous drugs,” A.R.S. § 36-411(D)(11). The Administrative Law Judge concludes that Ms. Pestoni’s California convictions for assault on a person with a deadly weapon and for possession of phencyclidine for sale are offenses sufficiently similar to aggravated assault and “felony offenses involving distribution of marijuana or dangerous drugs” so as to fall within the ambit of A.R.S. § 36-411(D). The evidence presented at the hearing by the Department and confirmed by Ms. Pestoni adequately supports the Department’s denial of Ms. Pestoni’s application because Ms. Pestoni had been convicted of offenses similar to two of the enumerated offenses set forth in A.R.S. § 36-411(D). RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Director of the Department deny Ms. Pestoni’s appeal and uphold the Department’s denial of Ms. Pestoni’s application to work in a residential care institution, home health agency or nursing care institution.

Done this day, March ___, 2000.

______________________________________ Daniel G. Martin Administrative Law Judge

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

Department of Public Safety - Adult Care Clearance Col. Dennis A. Garrett, Executive Director 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