ALJDEC decisions subject to certification as final

08A-041808A-MRT · Medical Radiologic Technology Board of Examiners · 2008-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2008 APPEARANCES: No one appeared for Richard W. Torres; Assistant Attorney General Elizabeth Campbell represented the Arizona Medical Radiologic Technology Board of Examiners ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The Arizona Medical Radiologic Technology Board of Examiners (the “Board”) brought a disciplinary action against Richard W. Torres for an alleged violation of A.R.S. § 32-2821. FINDINGS OF FACT Richard W. Torres holds license number CPTR-4136 for the practice of radiologic technology. On April 30, 2008 the Board issued a Complaint and Notice of Hearing in which it alleged that Mr. Torres had tested positive for an illegal drug in a pre-employment urine screen. Exhibit A to that Notice of Hearing was the Board’s Finding of Public Emergency and Order of Summary Suspension summarily suspending Mr. Torres’s license. The Notice of Hearing set the matter for 9:00 a.m. May 16, 2008 at the Office of Administrative Hearings.

Mr. Torres did not appear at the time scheduled for the hearing and after a minute grace period the Administrative Law Judge convened the hearing in Mr. Torres’s absence. The Board presented the testimony of Ms. Sarah Penttinen and had 2 exhibits admitted into evidence. Ms. Penttinen is an investigator with the Board who was involved in the investigation of this matter. Ms. Penttinen provided credible testimony. On April 18, 2008 the Board received a complaint by telephone from Sun Health the corporate owner of Boswell Hospital. Sun Health’s representative informed Ms. Penttinen that Mr. Torres had tested positive for marijuana in a pre-employment drug screen. See Exhibit 1. The Board subpoenaed Mr. Torres’s records related to the positive drug screen. These records, as confirmed by a medical review officer, show that on April 11, 2008 Mr. Torres tested positive for marijuana. See Exhibit 2. The Board has two people named Richard Torres licensed. Ms. Penttinen confirmed that Richard W. Torres holder of license number CPTR-4136 was the person that tested positive for marijuana by use of his social security number. The Board sent the Notice of Hearing to Mr. Torres at his address of record and to an address provided by Sun Health by both regular and certified mail. The certified mailings had not been claimed. The regular mail was not returned to the Board. Ms. Penttinen tried to contact Mr. Torres by telephone at his home, but was unsuccessful. Mr. Torres’s license would allow him to apply radiation to parts, but not all, of the human body. The Board requested that Mr. Torres’s license be revoked.

CONCLUSIONS OF LAW The Board bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2). The burden of proof on all issues is that of a preponderance of evidence. A.A.C. R2-19-119. The Board alleged that Mr. Torres violated A.R.S. § 32-2821(A)(7) (unethical conduct) by violating A.R.S. § 32-2801(17)(b) (use of marijuana) and A.R.S. § 32-2801(17)(m) (conduct that is a danger to the public). A preponderance of the evidence is “[e]vidence 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). The Board has met the burden of persuasion. The preponderance of the evidence shows that Mr. Torres used marijuana, the use of which by a license-holder could constitute a danger to the public. Based on the proven violations of A.R.S. § 32-2821, Mr. Torres’s license number CPTR-4136 should be revoked. ORDER IT IS ORDERED that Mr. Torres’s license number CPTR-4193 is revoked. Done this day, May 16, 2008

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

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

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

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