ALJDEC

01A-9907124-NUR · State Board of Nursing · 2001-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2001. APPEARANCES: The Appellant, Tawny M. McElroy, appeared personally. The Arizona Board of Nursing was represented by Assistant Attorney General Seth T. Hargraves. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACTS

1. This matter came on for hearing the appeal of the Arizona State Board of Nursing’s Order of Denial No. 9907124, which denied nursing assistant certification to Applicant/Appellant Tawny M. McElroy. 2. On or about February 11, 1999, Ms. McElroy submitted an Application for Certified Nursing Assistant by Examination to the Arizona State Board of Nursing (“Board”). Ms. McElroy certified in her application that her answers were true in every respect. 3. On her 1999 application, Ms. McElroy answered “No” to question number 3, which read: “Do you currently have criminal charges pending against you in any criminal action, other than a minor traffic violation, following an arrest, summons, warrant, indictment, information, citation, criminal complaint or criminal accusation?” Ms. McElroy did not disclose to the Board her then pending legal action for her April 26, 1998 arrest for trespassing in Phoenix, Arizona. 4. On or about July 30, 1995, in report number [number redacted], the California Highway Patrol responded to a call of a single vehicle traffic accident with the vehicle on fire and multiple injuries. 5. According to the report, the driver of the vehicle was identified as Dasha Luke. Ms. McElroy was the front seat passenger, and her minor son and another passenger were in the back seats. Ms. Luke admitted she was the driver of the vehicle. 6. On or about August 5, 1995, during follow-up interviews, the occupants of the vehicle told the investigating officers that Ms. McElroy had been angry and arguing with Ms. Luke in the vehicle prior to the accident. During that argument Ms. McElroy grabbed the steering wheel and jerked the car to the right, causing it eventually to run off the road and roll over several times. 7. As a result of the police investigation, the California Highway Patrol determined that Ms. McElroy had caused the accident when she grabbed the steering wheel. On or about August 22, 1999, Ms. McElroy admitted to an investigating officer that the accident would not have happened if she had not turned the wheel. 8. On or about June 18, 1996, in case number FV103873/F0129777, Ms. McElroy was charged with the felony crimes of assault/great bodily injury and child abuse in San Bernardino County Superior Court, California. On or about October 25, 1996, the charges were amended to child endangerment, a felony. On or about November 27, 1996, the charges were dismissed. 9. On or about April 26, 1998, Ms. McElroy was arrested by the Phoenix Police officers for trespassing after refusing to leave the parking lot of a nightclub after closing time. Ms. McElroy and others were asked by the nightclub’s security detail to leave the premises. After she refused that request to leave, Ms. McElroy was approached by police officers working in an off-duty capacity at the nightclub who asked her numerous times to move toward her car and leave the premises or be arrested for trespassing. Ms. McElroy admits that she was highly intoxicated by alcohol consumption during this incident. When Ms. McElroy failed to comply with the officers’ requests to vacate the premises and she became verbally abusive to them, an officer attempted to place her left arm behind her back and advised her that she was under arrest for trespassing. Ms. McElroy resisted and struggled with the arresting officer. 10. On or about September 14, 1998, Ms. McElroy applied for employment at Samaritan Health System as a nursing assistant. 11. On or about December 16, 1998, Lynne Davidson, the Director of Nursing at Samaritan Health System, counseled Ms. McElroy in a telephone conversation for leaving work early on December 15, 1998. Ms. McElroy’s employment probationary period was extended and she agreed to Ms. Davidson’s outlined plan for appearing for work as scheduled in the future. 12. On March 18, 1999, Ms. McElroy received a written warning from her supervisor for being absent from work on February 26, 1999. According to the corrective action report, Ms. McElroy was previously counseled on December 8, 1998, and January 13, 1999. 13. On March 24, 1998, Ms. McElroy got into an altercation with Toya Fikes in the parking lot at Samaritan Health System’s Good Samaritan Care Center. Ms. Fikes was also employed at the care facility in the dietary section and had previously been in a relationship with Ms. McElroy. The incident was reported to facility’s security office and to Director of Nursing Davidson. 14. On or about May 1, 1999, Ms. McElroy and Ms. Fikes got into a physical altercation again in the parking lot of the Good Samaritan Care Center. Ms. McElroy received physical injuries from Ms. Fikes. During the incident, Ms. McElroy removed a 22 caliber handgun from inside her vehicle and pointed it at Ms. Fikes. Ms. Fikes grabbed the weapon out of Ms. McElroy’s hand. 15. On May 3, 1999, Director of Nursing Davidson made the decision to terminate Ms. McElroy’s employment with Samaritan Health System due to the May 1, 1999 physical altercation in the facility’s parking lot and because Ms. McElroy had been previously warned on March 25, 1999 following the first reported incident. 16. On or about May 4, 1999, Director of Nursing Davidson informed Ms. McElroy in writing that her employment at Samaritan Health System’s Good Samaritan Care Center was terminated. Ms. McElroy was warned that after receiving her final pay check she was not permitted to be on the facility’s campus for any reason, with the exception of emergency medical care. 17. On or about May 10, 1999, Ms. McElroy was arrested by Phoenix police officers for criminal damage and an outstanding warrant for failing to appear in court on the April 26, 1998 charge of trespassing. The criminal damage charge involved Ms. McElroy throwing rocks at the vehicle owned by Lanisha Deshon Taylor, with whom she had been in an earlier romantic relationship. Ms. Taylor’s vehicle had been parked on the street in front of Ms. McElroy’s residence. Ms. McElroy broke the tail lights of Ms. Taylor’s vehicle with the rocks she had thrown. 18. On or about June 2, 1999, in case number 8902048, Ms. McElroy plead guilty to the crime of trespassing, a class 3 misdemeanor, in Phoenix Municipal Court in Phoenix, Arizona. Her sentence included a fine. 19. In an interview with Board staff on August 17, 1999, Ms. McElroy stated that she had never been convicted of a crime. She denied that she had ever been arrested or pled guilty to any crime. Ms. McElroy later admitted that she had been arrested for not leaving a nightclub. 20. On or about December 13, 1999, Ms. McElroy submitted a Court and Conviction Questionnaire to the Board. Ms. McElroy disclosed that she had been arrested for a car accident (felony) in Apple Valley, California, and trespassing (misdemeanor) in Phoenix, Arizona. She did not provide any written explanation, she did not furnish her current or previous employment information, and she did not sign or date the questionnaire. 21. On or about April 14, 2000, Board staff sent Ms. McElroy a written request to voluntarily undergo an evaluation for anger management. Ms. McElroy did not respond to that request. 22. On or about November 29, 2000, Ms. McElroy told Board staff that she had voluntarily quit employment at Samaritan Health System and that there were no work issues. She also advised Board staff that she had been arrested on felony charges for the car accident because someone told the investigating police officers that she had been driving the vehicle at the time of the accident. 23. On or about February 16, 2001, Ms. McElroy told Board staff that she would be willing to have an evaluation for anger management. On that date, Board staff sent her a Respondent Questionnaire to complete and return to the Board regarding the physical altercation while employed at Samaritan Health System. Ms. McElroy did not complete and return the questionnaire or obtain the anger management evaluation. 24. On or about March 28, 2001 and March 30, 2001, Board staff left messages for Ms. McElroy to contact Board staff to discuss her application. She did not respond. 25. On April 20, 2001, the Board considered Ms. McElroy’s application for certification. The Board denied her application pursuant to A.R.S. §§ 32- 1646(A)(4) and 32-1663(A), as defined in A.R.S. § 32-1601(14)(a), (d) and (h), and A.A.C. R4-19-814(19).

CONCLUSIONS OF LAW

1. Pursuant to the provisions of A.R.S. § 41-1092.07(G), Ms. McElroy has the burden of proving, by a preponderance of the evidence, that the Board’s denial of her application for certification should be overturned. 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). 2. Pursuant to the provisions of A.R.S. § 32-1663(A), the Board has the authority to deny an application for nursing assistant certification by an applicant who has committed an act of unprofessional conduct. 3. The evidence of record is adequate to establish that Appellant committed acts of unprofessional conduct, as described in the foregoing Findings of Facts, by “(c)ommitting fraud or deceit in …attempting to obtain…a certificate issued pursuant to this chapter.” A.R.S. § 32-1601(14)(a). 4. Appellant’s conduct described in the foregoing Findings of Facts constitutes unprofessional conduct as defined in A.R.S. § 32-1601(14)(d), being “conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” 5. Appellant’s conduct described in the foregoing Findings of Facts constitutes unprofessional conduct as defined in A.R.S. § 32-1601(14)(h), being “ an act that deceives or harms the public.” 6. Appellant failed to prove by a preponderance of the evidence that the Board abused its discretion by denying her application for nursing assistant certification because of her acts of unprofessional conduct as authorized by A.R.S. § 32-1663(A). 7. Pursuant to A.R.S. § 32-1663(A), the Board “may issue a conditional license to an applicant for licensure who commits an act of unprofessional conduct.” Appellant failed to establish any mitigating factors which would warrant the Board’s exercise of that permissive authority. On the contrary, the evidence of record establishes that the Board offered Appellant an opportunity at rehabilitation by requesting that she obtain an anger management evaluation prior to the Board’s action on her application. Appellant did not establish any justifiable reason for not taking the anger management classes, which are deemed appropriate given the history of Appellant’s anger issues. 8. Appellant’s appeal in this matter should be dismissed. 9. Appellant’s above-described acts of unprofessional conduct constitutes sufficient cause pursuant to A.R.S. § 32-1663(A), as defined in A.R.S. § 32-1601(14)(a), (d) and (h), to deny Appellant’s application for nursing assistant certification in order to protect the public health, safety and welfare. The denial of Appellant’s application for certification is not necessarily a life-long denial. Appellant may someday be able to establish her eligibility to become certified by the Board.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Appellant’s appeal in this matter be dismissed. It is further recommended that the prior denial of the Appellant’s application for nursing assistant certification be upheld and affirmed

Done this day, July 24, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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