ALJDEC

01A-0102084-NUR · State Board of Nursing · 2001-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2001. APPEARANCES: Appellant Gildardo Martinez was represented by Ray Kimble, Esq. The Board of Nursing was represented by Seth Hargraves, Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Appellant Gildardo Martinez (hereinafter Appellant) appeals the Arizona Board of Nursing’s (hereinafter the Board) denial of his application for a license to become a certified nursing assistant. Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. Appellant applied to the Board to obtain a certified nursing assistant’s license. Investigation revealed that Appellant had a criminal history and, accordingly, the Board sought to investigate the history before issuing a license to Appellant. 2. The investigation was initiated by Vicki Johansen, a paralegal working for the Board whose duties include conducting criminal background investigations. Ms. Johansen first provided a letter to Appellant on April 4, 2001, requesting that Appellant complete an enclosed questionnaire regarding his criminal background check. The questionnaire asked Appellant to identify any felonies or misdemeanors that he might have received. 3. Appellant responded to the questionnaire in writing, indicating that he had been convicted of the crime of public sexual indecency, a misdemeanor, some five or six years earlier. Appellant further explained that the Glendale Police had arrested him during this incident, that he was behind a fence, and that he had “an emergency to urinate.” 4. Appellant subsequently provided documentation of the conviction to the Board. The documentation reveled that Respondent had pled “no contest” to the charge of public sexual indecency, a violation of A.R.S. §13-1402(A), in Glendale City Court on April, 9, 1997. The Board obtained a copy of the police report that led to the conviction. The report indicated that on April 8, 1997, a Glendale Police Officer had observed Appellant exposing himself to patrons of an adult book store. The report stated that the officer observed Appellant “look around several times and when it appeared that Book Cellar patrons walked to the eastern most area of the parking lot, Martinez would drop his pants and face the patron who was either walking or sitting nearby in his direction.” The officer further stated that he could see Appellant’s exposed thighs and buttocks” while facing the patrons and that the officer observed him “do this several times.” The officer also noted that the report stated that when asked what he was doing, Appellant indicated that he was just “standing back there because he had been walking by.” 5. Appellant’s statement to the Board that he had been caught by the officer while urinating is inconsistent with his statement to the arresting officer at the time of the incident in 1997. 6. The Board’s investigation into Appellant’s background also disclosed that in November, 2000, Appellant had applied for and obtained work at the Glencourt Nursing Home as a nursing assistant. In applying for the position, Appellant was required to fill out an application. The application asked Appellant whether he had ever been convicted of a felony or non-traffic misdemeanor. Appellant responded “no.” The application further states that ”[a] conviction may not necessarily disqualify an applicant from employment.” Nevertheless, Appellant failed to disclose the 1997 misdemeanor conviction to Glencourt. 7. As a result of the information revealed in the investigation, Appellant was asked to participate in an evaluation by a licensed psychologist. This Appellant did. Appellant reiterated to the psychologist that he was only urinating during the 1997 incident, not exposing himself. As a result of the evaluation, Appellant was asked to undergo a polygraph examination with respect to the question of his conduct during the 1997 incident. Appellant failed to participate in the polygraph, indicating he had no money to do so. 8. At the hearing in this matter, Susan Barber, RN, testified. Barber has a bachelor’s degree in nursing as well as a master’s degree in nursing and has been in nursing for 25 years. She joined the Board as an investigator in 1987 and was appointed an associate director in 1992. Since 1995, Barber has been conducting certified nursing assistant investigations. 9. Barber testified that one who holds the position of certified nursing assistant is closely associated with helping persons with the activities of daily living, including such things as toileting, bathing, dressing, feeding, and transferring patient from sitting to standing or to a wheel chair. Barber noted that these patients are very vulnerable. In these settings, certified nursing assistants are often in contact with patients in an unsupervised capacity. Barber also testified that it is critical that certified nursing assistants be able to truthfully and accurately report information regarding patients and that the inability or failure to do so could result in serious health consequences—including injury or death—to a patient. Barber stated that in this case, Appellant’s apparent dishonesty as demonstrated by the Glencourt application and the denial of the commission of an act of public sexual indecency, and the failure to follow through with the polygraph examination, were causes of concern for the board. 10. Appellant also testified at the hearing. Appellant contended that he had not engaged in an act of public sexual indecency during the 1997 incident but was merely urinating. This testimony is not found to be credible in light of Appellant’s somewhat inconsistent statement made to the officer at the time of the incident in the report. Appellant did not dispute that he failed to follow through and complete the requested polygraph examination. 11. It is quite obvious that the Board, in fulfilling its statutory duty to protect the public, should rightfully be concerned with Appellant’s fitness to be licensed as a certified nursing assistant in light of the circumstances described in the 1997 Glendale Police report and Appellant’s conviction for public sexual indecency which stemmed from that report. Likewise, the Board should be concerned with Appellant’s failure to disclose the conviction to Glencourt Nursing Home. Each of these instances demonstrate, under the facts of this case, that Appellant has committed an act of unprofessional conduct which merited the denial of the certified nursing assistant’s license in this case. CONCLUSIONS OF LAW 1. In this matter, Appellant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statute § 32-1663(A) provides that the Board may deny a licensing application if the applicant commits an act of “unprofessional conduct.” “Unprofessional conduct“ is defined in A.R.S. § 32-1601(14) as any conduct involving the commission of a misdemeanor of moral turpitude (A.R.S. § 32-1601(14)(b)), any conduct that is or might be harmful or dangerous to the health of a patient or the public (A.R.S. § 32- 1601(14)(d)), or committing an act that deceives, defrauds, or harms the public (A.R.S. § 32-1601(14)(h)). Arizona Revised Statute §32-1601(14)(b) also states that conviction by way of a plea of no contest “is ‘conclusive evidence’ of the commission of a misdemeanor involving moral turpitude.” 3. Here, Petitioner has failed to demonstrate by a preponderance of the evidence that the board’s determination was erroneous either in fact or as a matter of law. The evidence adduced regarding the requirements of the position of certified nursing assistant, coupled with the evidence of dishonesty and the conviction of a crime of moral turpitude, show that Appellant has engaged in acts of unprofessional conduct for which the Board properly denied the application. RECOMMENDED DECISION Based on the foregoing, it is recommended that the Board’s denial of the license application in this matter be affirmed. Done this day, December 26, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of December, 2001, to:

Joey Ridenour, Executive Director State Board of Nursing ATTN: Vicky Driver 1651 East Morten, Suite 210 Phoenix, AZ 85020

By ___________________________ -----------------------

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