ALJDEC

01A-9903018-NUR · State Board of Nursing · 2001-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, June 12th, 2001; 1:45 p.m. APPEARANCES: The complainant, Arizona State Board of Nursing, failed to appear. The respondent, Ms. Mary E. Quinones, appeared and represented herself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was scheduled and noticed to convene in the Office of Administrative Hearings, Tucson. At the appointed time the respondent, Ms. Mary E. Quinones, appeared. The complainant failed to appear. The administrative law judge waited 15 minutes beyond the time scheduled to convene the hearing before he called the case, in consideration of the possibility that the complainant might have been unexpectedly delayed. The complainant failed to appear. FINDINGS OF FACT 1. The agency record establishes that the complainant, Arizona State Board of Nursing, sent Complaint and Notice of Hearing in this case to the respondent, Ms. Mary E. Quinones, and Assistant Attorney General, Ms. Mona Peugh-Baskin, and the Office of Administrative Hearings, Tucson, on April 13th, 2001. 2. As stated in the notice of hearing, the administrative hearing is purposed “to determine whether disciplinary action is warranted [against the respondent].” The notice continues to state the complainant-Board’s allegations against the respondent. 3. The complainant failed to appear at the hearing. By failing to appear at the administrative hearing, the complainant failed to present any evidence in support of the allegations it made against the respondent in the complaint in this case. The complainant’s failure to present any evidence leaves the allegations contained in the complaint completely unsupported by any facts. CONCLUSIONS OF LAW 1. The Office of Administrative Hearings has jurisdiction over the parties and subject matter. A.R.S. §32-1663.C.; A.R.S. 41-1092, et seq. 2. A.R.S. §32-1664.I requires the respondent to file with the complainant a written answer to the complaint within 30 days after service of the Complaint and Notice of Hearing. There is no written answer in the agency file. 3. Respondent’s failure to file the written answer to the complaint permits the complainant to take disciplinary actions against the respondent without resort to an administrative hearing. A.R.S. §32-1664.I. However, there is no evidence in the agency file or of record in the hearing that the complainant exercised this option prior to the administrative hearing. 4. Once the hearing convened without the complainant having taken disciplinary action against the respondent who failed to file an answer, the burden of proving its allegations by a preponderance of the evidence was placed on the complainant. It had then to appear at the hearing it had scheduled and noticed to convene. A.A.C. R2-19-119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is that of the “preponderance of evidence”). This is especially so in cases such as this where the respondent does appear at the hearing ready to defend against the charges. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that this complaint by the Arizona State Board of Nursing against Ms. Mary E. Quinones, docket number 01A-9903018-NUR, be dismissed. . . . . . . Done this day, June 27th, 2001.

______________________________________ Grant Winston Administrative Law Judge

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

Joey Ridenour, Executive Director State Board of Nursing ATTN: Vicky Driver 1651 West Morten, Suite 150 Phoenix, AZ 85020

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

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488