ALJDEC decisions subject to certification as final

10A-1002090-NUR · State Board of Nursing · 2011-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2010, at 8:00 a.m. APPEARANCES: Applicant Phillip Darwin Carter appeared on his own behalf; the Arizona Board of Nursing appeared through Elizabeth Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona State Board of Nursing (“the Board”) is the authority for certifying and regulating certified nursing assistants in Arizona. On or about January 6, 2010, Phillip Darwin Carter submitted an application for certification as a certified nursing assistant by exam or endorsement (“CNA application”) to the Board. On the application, Mr. Carter disclosed that he had not yet taken the written or manual skills exam. The Board assigned Mr. Carter’s CNA application to Senior Investigator Bonnie Richter for investigation. Ms. Richter used Mr. Carter’s social security number and fingerprints to run a search on local and federal criminal databases and learned that Mr. Carter had been convicted of a number of misdemeanor crimes. Ms. Richter subsequently obtained police and court records to verify Mr. Carter’s history of criminal convictions, as follows: 3.1. On December 7, 1992, Mr. Carter pled guilty to disorderly conduct and interference with judicial proceedings in a domestic violence case in Mesa, Arizona Municipal Court Case No. 9244479 and was sentenced to pay a fine of $508.00 and to unsupervised probation: 3.2 On June 9, 1994, Mr. Carter pled guilty to assault resulting in physical injury in Mesa Municipal Court Case No. 9420643 and was sentenced to unsupervised probation; 3.3 On May 18, 1995, Mr. Carter pled guilty to trespass in the third degree in Mesa Municipal Court Case No. 96133652; 3.4 On May 7, 1996, Mr. Carter pled guilty to assault resulting in physical injury in Mesa Municipal Court Case No. 9615695 and was sentenced to pay a fine of $330.00 and to unsupervised probation; and 3.5 On May 20, 1997, Mr. Carter pled guilty to interference with judicial process in West Mesa Justice Court Case No. 0715CR9701233A. Ms. Richter also discovered that Mr. Carter had been arrested, but not convicted, in Maryland for shoplifting (1980), in Florida for shoplifting, burglary and battery (1982, 1983, and 1984), and in Phoenix for damage to property (1993). On March 16, 2010, Ms. Richter sent Mr. Carter a letter with a blank investigative questionnaire enclosed. Ms. Richter in the letter requested that Mr. Carter fill out an investigative questionnaire for each arrest or conviction and provide copies of “police and/or court documents, [and] certificates of completion of court ordered requirements” within four weeks of the date of the letter. In March 2010, Mr. Carter submitted letters to the Board that provided the following narrative accounts of his convictions and arrests: 6.1 On December 2, 1992, Mr. Carter committed disorderly conduct/interfering with judicial proceedings when he had an argument with Janet E., the mother of his two daughters, and they were in the process of relocating and under a lot of stress and he showed her a gun, which resulted in an argument; 6.2 On October 12, 1993, Mr. Carter committed theft involving domestic violence when he had an argument with Janet E. about his name not being on his daughters’ birth certificates and took $100.00 out of Janet E.’s cigarette pack; 6.3 On June 5, 1994, Mr. Carter committed assault when he punched his mother’s husband after the husband attempted to prevent him from leaving his belongings at the husband’s house; 6.4 On March 21, 1995, Mr. Carter committed aggravated criminal damage when he was out of work and out the night before drinking, before going to sleep on church grounds; 6.5 On April 2, 1996, Mr. Carter committed domestic violence/assault against Carlene H., his girlfriend, when he discovered drug paraphernalia in their house after she had told him that she was clean and sober; 6.6 On May 19, 1996, Mr. Carter committed interfering with judicial proceedings when he violated an order of protection by going to Carlene H.’s house, where he found heroin that she had hidden; and 6.7 On June 30, 2008, Mr. Carter was charged with assault after he argued with Carlene H.C., whom he had married after she had a stroke, about her smoking in bed while he was caring for her; 6.8 On May 25, 1983, Mr. Carter was arrested for being an accessory after the fact after he witnessed a robbery at a Red Lobster in Orlando, Florida; and 6.9 On January 26, 1984, Mr. Carter was arrested for battery after he got drunk and passed out in a lounge chair by a motel pool. Mr. Carter provided police reports for the events that occurred in Florida. However, he did not provide any police reports, court records, or statements from the police agency or court that no documents were available for the events in Arizona. Mr. Carter also submitted to the Board a copy of a packet that he had submitted to the Arizona Board of Fingerprinting, containing letters of reference from six people, including his mother and his wife. Ms. Richter prepared a report to the Board of her investigation, including her August 6, 2010 interview of Mr. Carter, which she summarized as follows: Carter went over all of his offenses, beginning in 1980, when he states he was seventeen. He admits that he had a significant history of misdemeanor offenses as well as “a couple of felony arrests, but no felony convictions”. Carter states that he was a heavy drinker for years and that he has a family history of alcoholism. He indicates that he stopped drinking between 1995 and 1996, and this has ceased to be a problem for him in his daily life. Carter does not have a sobriety date and he does not consider that he was ever an alcoholic. Carter states he does not drink any longer nor has he used drugs. Carter attended Narcotics Anonymous with his wife in the 1990’s because he was the spouse of a narcotics abuser. He has not obtained treatment for alcohol abuse, although he states he had an evaluation in 1994 as a requirement by the court after his assault charge. Carter states that he has been his wife’s caregiver for a number of years since she had her strokes and subsequent medical issues and he is now working as her caregiver through ABIL (A Bridge to Independent Living).

[Emphasis in original.] The Board considered Mr. Carter’s CNA application at its September 22, 2010 meeting and voted unanimously to deny the application based on Ms. Richter’s report. On September 22, 2010, the Board issued an Order of Denial, denying Mr. Carter’s CNA application based on his criminal history under A.R.S. § 32- 1601(18)(d) and (j) (specifically, A.A.C. R4-19-814(21)). Mr. Carter requested a hearing on the Board’s denial, and the Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held January 21, 2011. The Board presented Ms. Richter’s testimony and submitted nine exhibits to establish the facts set forth above. Mr. Carter testified on his own behalf and submitted one exhibit that consisted of the letters of reference that were attached to his application to the Board of Fingerprinting. Mr. Carter testified that he did not fully understand the Board’s requirement for paperwork relating to his arrests and convictions. He testified that he has paid all the fines and attended the counseling sessions that his sentences required. Mr. Carter testified that all of his convictions were related to his past alcohol and drug abuse and that he no longer uses alcohol or drugs because he realized that drug and alcohol use led to an undesirable social circle and lack of money, and was not in his own or his children’s best interests.

Mr. Carter testified that he no longer attends NA or AA meetings because “too many of his old associates” attend such meetings. He testified that he has stuck with counseling with his wife. Ms. Richter pointed out that Mr. Carter’s testimony at the hearing was the first time he admitted to past drug use. Ms. Richter testified that in August 2010, Mr. Carter had told her that he only attended NA meetings as the spouse of a drug addict. CONCLUSIONS OF LAW The Board is the duly constituted authority for licensure and regulation of nurses in Arizona. This matter lies with its jurisdiction.[1] Mr. Carter bears the burden of proof and must establish by a preponderance of the evidence that he is qualified for certification as a certified nursing assistant and that the Board erred in denying his CNA application.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] Although Mr. Carter’s various criminal violations occurred more than a decade ago, Mr. Carter’s repeated crimes demonstrate at best a pattern of poor judgment. The letters of reference that Mr. Carter submitted to the Board of Fingerprinting are hearsay[5] and were submitted to a different agency for a different purpose than the hearing on Mr. Carter’s CNA application to the Board. Although hearsay may be admitted in an administrative hearing,[6] it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters.[7] Reasonable persons would not rely upon Mr. Carter’s letters of reference to decide whether he is rehabilitated and should be allowed to care for the vulnerable patients for whom certified nursing assistants routinely provide care. Reliance is especially unwarranted because the victim of at least some of Mr. Carter’s crimes was a person for whom he occupied a position of trust or was a caregiver. Therefore, Mr. Carter did not establish at the hearing that the Board erred in denying his CNA application under A.R.S. §§ 32-1601(18)(d)[8] and (j)[9] (specifically, A.A.C. R4-19-814(21)[10]) and 32-1663(A).[11] RECOMMENDED ORDER In view of the foregoing, it is recommended the Board dismiss the appeal in Case No. 1002090 and affirm its denial of Mr. Carter’s application for certification as a Certified Nursing Assistant. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, February 2, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] A.R.S. § 32-1606(A)(8) [2] See A.R.S. §§ 32-1601(14)(d); 32-1663(A); 41-1092.07(G)(1); A.A.C. R2- 19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [6] See A.R.S. § 41-1092.07(F)(1). [7] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [8] This statute defines “unprofessional conduct” to include “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” [9] This statute further defines “unprofessional conduct” further to include “[v]iolating a rule that is adopted pursuant to the board pursuant to this chapter.” [10] This administrative regulation further defines “conduct that is or might be dangerous to the health of a patient or the public” under A.R.S. § 32-1601(18)(d) and (j) as “[t]hreatening, harassing, or exploiting an individual.” [11] This statute provides that “[i]f an applicant for licensure or certifications commits an act of unprofessional conduct, the board, after an investigation, may deny the application . . . .”

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