ALJDEC decisions subject to certification as final

11A-1012111-NUR-RES · State Board of Nursing · 2012-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 2012 APPEARANCES: Beverly Jean Gomes appeared on her own behalf; Assistant Attorney General Elizabeth Campbell appeared for the State Board of Nursing ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 30, 2012, the Arizona State Board of Nursing (the “Board”) issued a Notice of Public Hearing on Denial of Licensure setting the above-captioned matter for hearing on May 17, 2012 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that the hearing was to address Applicant Beverly Jean Gomes’s appeal of the Board’s decision to deny her application for certification as a nursing assistant. 3. The matter was continued and the hearing was conducted on June 4, 2012. 4. Ms. Gomes appeared and testified on her own behalf. The Board presented the testimony of its investigator, Linda Monas and City of Phoenix Police Officer, John Bradshaw. 5. On December 2, 2010, Ms. Gomes applied to the Board for certification as a certified nursing assistant. 6. Through a letter dated February 16, 2011, the Board informed Ms. Gomes that it had opened an investigation of her application. Ms. Monas was the investigator assigned to the matter. 7. The letter of February 16, 2011, included a questionnaire directing Ms. Gomes to provide information related to her work history and any arrests or convictions. 8. Ms. Gomes returned the questionnaire to the Board on March 9, 2011. On April 18, 2011, Ms. Gomes submitted to the Board additional information related to her criminal history record. 9. Because the information Ms. Gomes provided to the Board was not complete, with a letter dated July 20, 2011, the Board sent Ms. Gomes a second questionnaire. In the letter of July 20, 2011, the Board listed of the portions of the questionnaire for which Ms. Gomes had not provided a complete response and it provided instructions as to the type of information that was required for a complete response. 10. Although Ms. Gomes provided additional information to the Board in response to the second questionnaire, Ms. Monas provided credible testimony that Ms. Gomes had not provided a complete response to that questionnaire because Ms. Gomes had not provided police reports, court documents, or detailed explanations related to several of her arrests. 11. During the course of Ms. Monas’s investigation, Ms. Gomes acknowledged that in 1982 she had used a false name to obtain financial aid to attend school. 12. Ms. Monas determined that in two employment applications, Ms. Gomes had provided false information about her education and she had failed to fully disclose her criminal history. 13. On August 17, 2007, Ms. Gomes was arrested for disorderly conduct, at which time the police officer noted that she had a strong odor of intoxicating liquor about her and bloodshot eyes. Ms. Gomes was subsequently convicted of Obstructing Police, a misdemeanor. 14. Ms. Gomes prepared a report summarizing her investigation, Ms. Gomes’s criminal and employment history, and Ms. Gomes’s responses to the Board’s questionnaires. See Exhibit 13. 15. On November 14, 2011, the Board denied Ms. Gomes’s application. 16. Ms. Gomes requested a hearing and the matter was scheduled to be heard at the Office of Administrative Hearings. While the matter was pending, Ms. Monas learned that on November 11, 2011, Ms. Gomes had been arrested for driving under the influence (“DUI”) and that she had not informed the Board of that arrest. Consequently, on the Board’s Motion, that matter was vacated and remanded to the Board. 17. On November 11, 2011, Ms. Gomes was found asleep at the wheel of her car, which was stopped at a traffic light with the motor running. Ms. Gomes was found to have a blood alcohol level of 0.279. 18. On March 19, 2012, the Board amended its Order denying Ms. Gomes’s application to include as a basis for denial Ms. Gomes’s failure to inform the Board that she had been arrested for DUI. 19. On May 11, 2012, Ms. Gomes pleaded guilty to DUI in violation of A.R.S. § 28-1381(A)(1). 20. Ms. Gomes offered no substantial evidence to rebut the evidence presented by the Board. Ms. Gomes argued however, that her crimes were not serious and that none of those crimes had resulted in any injuries. CONCLUSIONS OF LAW 1. Ms. Gomes bears the burden of persuasion to show that the Board improperly denied her application. A.R.S. § 41-1092.07(G)(1). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 3. 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). 4. The preponderance of the evidence shows that Ms. Gomes has violated A.R.S. § 32-1601(18)(d) by engaging in conduct that might be harmful to a patient or a member of the public, and that she has violated A.R.S. § 32-1601(18)(j) in that she has violated rules adopted by the Board. 5. There is sufficient evidence to show that Ms. Gomes’s use of alcohol is such that her judgment may be impaired and her practice detrimentally affected, which is a violation of A.A.C. R4-19-814(14) and is an act of unprofessional conduct as defined by A.R.S. § 32-1601(18). 6. Ms. Gomes did not provide the Board with a complete response to the Board’s questionnaires, which is a violation of A.A.C. R4-19- 814(23) and is an act of unprofessional conduct as defined by A.R.S. § 32-1601(18). 7. Ms. Gomes made false or misleading statements in nursing assistant or health care related employment applications, which are violations of A.A.C. R4-19-814(26) and are acts of unprofessional conduct as defined by A.R.S. § 32-1601(18). 8. Ms. Gomes did not disclose to the Board that she had been charged with DUI, which is a violation of A.R.S. § 32-3208(B) and A.A.C. R4-19-814(27) and is an act of unprofessional conduct as defined by A.R.S. § 32-1601(18). 9. The Board alleged that Ms. Gomes violated A.A.C. R4-19- 814(13)[1] and A.A.C. R4-19-814(21)[2] but the evidence of record does not support such findings. 10. Because Ms. Gomes has committed acts of unprofessional conduct, the Board has authority to deny her application. See A.R.S. § 32- 1646 and A.R.S. § 32-1663. 11. Because Ms. Gomes did not report to the Board that she had been charged with DUI, the Board also has authority to deny her application under A.R.S. § 32-3208(E). 12. Ms. Gomes presented no substantial evidence showing that the Board should exercise its discretion to grant her application. Consequently, Ms. Gomes has not met the burden of persuasion to show that her application should be granted and Ms. Gomes’s appeal should be dismissed. ORDER IT IS ORDERED that Ms. Beverly Jean Gomes’s appeal is dismissed. 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, June 25, 2012.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] Removing, without authorization, any money, property, or personal possessions, or requesting payment for services not performed from a patient, resident, employer, co-worker, or member of the public.

[2] Threatening, harassing, or exploiting an individual.

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