ALJDEC decisions subject to certification as final

07A-062706A-MRT · Medical Radiologic Technology Board of Examiners · 2007-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2007. APPEARANCES: The Arizona Medical Radiologic Technology Board of Examiners was represented by Assistant Attorney General Mary DeLaat Williams. Gilberto Escalante was represented by Alec Hanus, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The Arizona Medical Radiologic Technology Board of Examiners (“Board”) is the authority for regulating and controlling the practice of medical radiologic technology in the State of Arizona. 2. Gilberto Escalante (“Respondent”) is the holder of Certificate No. CRT- 10055 issued by the Board. 3. The Board issued a Complaint and Notice of Hearing involving Respondent’s certificate. The matter was referred to the Office of Administrative Hearings, an independent agency, for formal hearing. 4. At the scheduled hearing, counsel for the Board announced that the allegation that Respondent violated the provisions of A.R.S. § 32- 2801(17)(m) was withdrawn. Counsel for Respondent announced that Respondent stipulated to the Factual Allegations and remaining Alleged Violations set forth in the Complaint and Notice of Hearing, which read as follows:

FACTUAL ALLEGATIONS

3. On September 9, 1998 board staff received from Respondent a CRT license application on which Respondent marked “no” to the question, “Have you ever been convicted of a crime?”[1] Respondent’s application was approved and on September 11, 1998 Respondent was issued temporary license number CRT- 0533T. On January 15, 1999 that temporary license was converted to permanent license number CRT-8649. After Respondent misplaced his license certificate in October 2001, he was issued the new license number CRT-10055 which is valid through August 31, 2008. 4. On June 27, 2006 Respondent contacted Board staff by phone to advise he had recently been re-indicted on drug-related charges in Pima County, Arizona Superior Court. Respondent stated that charges of possession of marijuana and possession of drug paraphernalia were originally filed in August 2004 following his arrest by the Tucson Police Department. 5. During the June 27, 2006 phone conversation with Board staff, Respondent admitted previous personal use of marijuana and stated his last use was sometime between six months and two years prior. 6. Board staff obtained a copy of Tucson Police Department report number [number redacted] which confirms that on July 7, 2004 Respondent was arrested and charged with possession of marijuana, possession of drug paraphernalia and possession of a deadly weapon during the commission of a crime. 7. Board staff obtained a copy of the original indictment in case number CR2004-2912 before the Pima County Superior Court. That document, filed on May 20, 2005, indicates Respondent was indicted along with thirty-nine (39) other individuals in relation to a large-scale international operation of narcotics importing, distribution and sale. Respondent was indicted on charges of conspiracy to commit unlawful possession and/or transportation of marijuana, possession of marijuana for sale and money laundering. Court staff were able to confirm that the charges had been dropped at some point and a re-indictment was issued, but were unable to confirm the dates of those actions. 8. Pima County Superior Court documents confirm that on September 11, 2006 Respondent pleaded guilty to one count of illegally conducting an enterprise, a class 3 felony, and was remanded to the custody of the Arizona Department of Corrections for two and one half years. 9. Subsequent to Respondent’s initial report of his indictment, Board staff conducted a search of publicly available court records and discovered Respondent had one previous misdemeanor conviction in the Douglas, Arizona Justice Court under case number CR-952351 for interfering with judicial proceedings. Court staff confirmed that the records in the case had been purged but that Respondent had pleaded guilty to the charge on March 7, 2006 [sic].[2]

ALLEGED VIOLATIONS

10. The Board has jurisdiction over this matter pursuant to A.R.S. § 32-2801, et seq. 11. The conduct and circumstances in the Findings of Fact above, constitute grounds for disciplinary action according to A.R.S. § 32-2821(A)(2) (conviction in a court of competent jurisdiction of a crime involving moral turpitude); and A.R.S. § 32-2821(A)(7) (unethical professional conduct) via A.R.S. § 32-2801(b) (use of controlled substances, narcotic drugs or dangerous drugs); A.R.S. § 32-2801(17)(c) (using drugs for other than accepted therapeutic purposes); A.R.S. § 32-2801(17)(f) (procuring or attempting to procure to procure a certificate or license by fraud or misrepresentation; A.R.S. § 32-3208(A) (a health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional’s regulatory board in writing within ten working days after the charge is filed); and A.R.S. § 32-3208(D) (a health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional’s regulatory board may impose a civil penalty of not more than one thousand dollars in addition to other disciplinary action it takes).

5. Respondent did not disclose his 1996 conviction for interference with judicial proceedings in his initial application for certification. Respondent signed a sworn verification at the end of the initial application that the information was “true, complete and correct to the best of my knowledge.” He also acknowledged in the verification that “should any part of the information herein provided prove to be false, it shall be just cause for the revocation of any Certificate issued by the [Board].” 6. Respondent presented documentary evidence of support from family, friends and professionals. That evidence was considered in mitigation. 7. The following were considered as matters in aggravation: Respondent’s failure to disclose his 1996 conviction in his initial application for certification, his use of marijuana while certified, and his felony conviction for criminal activity that occurred while certified.

CONCLUSIONS OF LAW

1. The Administrative Law Judge adopts the stipulated statutory violations set forth in the above Findings. 2. Pursuant to A.R.S. § 32-2821(A)(2) and (7), disciplinary action may be imposed on Respondent’s certificate. The Administrative Law Judge concludes that the revocation of Respondent’s certificate is necessary to protect the public health, safety and welfare. 3. Pursuant to A.R.S. § 32-2821(C), Respondent may apply for restoration of his certification two years from the date of the revocation of his current certificate. Respondent would then have the burden of proving his qualifications and rehabilitation necessary for certification.

RECOMMENDED ORDER

Respondent’s Certificate No. CRT-1005 shall be revoked on the effective date of the Order entered in this matter.

Done this day, July 25, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Shanna Farish, Executive Director Medical Radiologic Technology Board of Examiners 4814 S. 40th St. Phoenix, Arizona 85040-2940

By ___________________________

----------------------- [1] The Board issues certificates not licenses. [2] According to Exhibit 2, the date of the conviction is March 7, 1996, which was prior to his initial application for certification.

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