ALJDEC decisions subject to certification as final

05-200511-OBA · Arizona State Board of Optometry · 2005-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2005. APPEARANCES: Applicant Peter A. Suchsland, O.D., appeared personally and was represented by his attorney, J. Arthur Eaves, Esq. The Arizona State Board of Optometry was represented by Assistant Attorney General Dawn Walton Lee. 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 FACT

1. The Arizona State Board of Optometry (“Board”) is the authority for licensing and regulating the practice of optometry in the State of Arizona. 2. Applicant Peter A. Suchsland, O.D., appealed the Board’s January 21, 2005 denial of his application for regular licensure because he failed to disclose an arrest and conviction on his application as mandated by A.R.S. § 32-1722(5), A.A.C. R4-21-201(15) and A.A.C. R4-21-201(18). 3. On October 27, 2004, Dr. Suchsland filed an application to practice the profession of optometry in the State of Arizona. 4. Question 22 of the Board’s application for licensure asks, “Have you ever been convicted of, pled no contest to or entered into diversion in lieu of prosecution for any criminal offense in any jurisdiction of the United States or foreign country?” Dr. Suchsland answered “No” to Question 22. 5. Dr. Suchsland signed a sworn statement at the end of his application which states the following: [B]eing first duly sworn, upon oath, deposes and says that he is the person referred to in the foregoing application;…that the applicant has read this application and knows the contents thereof; and that the statements and matters contained therein are true to the best of the applicant’s knowledge, information and belief. I am aware that a materially false statement in the application constitutes grounds for withdrawing or revoking my license to practice Optometry in Arizona.

6. As part of the application process, Dr. Suchsland was required, among other things, to submit copies of his fingerprints to the Board for a criminal background check. 7. Dr. Suchsland’s fingerprints were submitted by the Board to the Federal Bureau of Investigation (“FBI”) for a criminal background check. FBI records revealed that Dr. Suchsland had been arrested on June 5, 1982 in Decatur, Georgia on the charges of Driving Under the Influence, a misdemeanor, and Failure to Maintain Lane, a misdemeanor. Those records further revealed that Dr. Suchsland had entered pleas of nolo contendre on June 18, 1982 and that he had been assessed a fine of $250.00 and received 12 months probation. 8. By letter dated November 15, 2004, the Board’s then-Licensing Administrator, Margaret Whelan[1], sent a letter to Dr. Suchsland advising him of the results of the FBI investigation revealing the Decatur, Georgia offenses and she requested that he submit a detailed explanation to the Board, which Dr. Suchsland did do. 9. After receiving the Board’s denial of his application, Dr. Suchsland appealed the Board’s decision on February 17, 2005. 10. When Dr. Suchsland applied for licensure in California[2] and New Jersey[3], he disclosed his 1982 DUI conviction to questions regarding his criminal history. 11. Dr. Suchsland’s testimony that he did not fully understand Question 22 of his Arizona application is found to be credible. It is determined that Dr. Suchsland did not intentionally risk his application for licensure in Arizona by not disclosing an almost 23-year-old misdemeanor conviction. 12. The Board has a legitimate concern that applicants for licensure accurately and thoroughly answer the application’s questions. Dr. Suchsland’s failure to disclose his 1982 is found not to be a material omission under the facts of this case.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the subject matter in this appeal. 2. Pursuant to A.R.S. § 41-1092.07(G)(1), Dr. Suchsland has the burden of establishing his eligibility for licensure to practice optometry in the State of Arizona. The standard of proof is a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Dr. Suchsland has sustained his burden of proof in this appeal.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Dr. Suchsland’s application for licensure to practice the profession of optometry in the State of Arizona be granted.

Done this day, May 16, 2005.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Margaret Whelan, Executive Director Arizona State Board of Optometry 1400 West Washington, Ste. 230 Phoenix, Arizona 85007

By ___________________________ ----------------------- [1] Ms. Whelan has since become the Board’s Executive Director. [2] Dr. Suchsland was licensed in California but that license has lapsed. [3] Dr. Suchsland is currently licensed in New Jersey.

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