ALJDEC decisions subject to certification as final

11A-1012117-NUR · State Board of Nursing · 2012-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 20, 2011. A further hearing was scheduled for February 27, 2012, to afford Applicant the opportunity to respond to the Arizona State Board of Nursing’s exhibits presented on December 20, 2011. APPEARANCES: Robert Allen Eades appeared on December 20, 2011, but he did not appear either in person or telephonically on February 27, 2012. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. 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 State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona. 2. On February 28, 2010, a Board nurse practice consultant, Karen Grady, contacted Robert Allen Eades (“Applicant”) just before his temporary nursing contract in Arizona expired and prior to his application for permanent licensure in Arizona. When Ms. Grady discussed the requirement of a background check of applicants, Applicant denied that he had any criminal history. 3. On or about November 12, 2010, Applicant filed an application for registered nursing licensure by endorsement with the Board. 4. In paragraph 12 of his application, Applicant stated that he was currently licensed as a registered nurse in Illinois and Missouri. 5. In paragraph 22 of his application, Applicant answered “No” to the following question: “Have you ever been convicted, entered a plea of guilty, nolo contendre or no contest, or have you ever been sentenced, served time in jail or prison, or had prosecution deferred or sentence deferred or probation deferred in any felony or undesignated offense?” A “Yes” answer to the question would have required Applicant to file a written explanation for each charge and supporting documentation with the Board. 6. As part of the application process, Applicant submitted his fingerprints so that the Board could investigate whether Applicant had a criminal history. As a result of that investigation, the Board discovered that Applicant had a criminal history. 7. By letter dated February 16, 2011, the Board’s assigned senior investigator, Linda Monas, requested that Applicant complete and return an enclosed “RN/LPN Investigative Questionnaire” and an “Arrest/Citation/Charge Questionnaire.” The questionnaires required Applicant to provide a detailed explanation of each arrest and conviction in his criminal history. 8. On or about March 7, 2011, Applicant submitted his completed questionnaires to the Board. Paragraph VI of the “RN/LPN Investigative Questionnaire” asked if Applicant had any previous arrests or convictions. Applicant answered that question as follows: “Arrests are not convictions. Arrests are not pertinent to my practice. No convictions.” 9. In the “Arrest/Citation/Charge Questionnaire’s” verification, Applicant crossed out the language, “[I have] disclosed each of my arrests, citations, and charges, for felonies and misdemeanors, including incidents that did not ultimately result in convictions,” and wrote the following: “[Y]ou have no right to review false allegations not resulting in conviction, check the constitution, innocent until proven guilty.” 10. By letter dated March 8, 2011, Ms. Monas informed Applicant that he failed to list each arrest and conviction in his questionnaires. Ms. Monas enclosed another set of questionnaires for Applicant to use to detail his criminal history. 11. On or about March 16, 2011, Applicant submitted his second set of questionnaires to the Board. 12. In his second set of questionnaires, Applicant noted that he had lived in Illinois since 1989. At hearing, the Board presented evidence that in 1999 and 2000, Applicant received nine unemployment benefit checks from the Missouri Department of Labor and Industrial Relations, Division of Employment Security, addressed to Applicant at 2425 West Adams, St. Charles, Missouri. 13. By letter dated March 16, 2011, Ms. Monas advised Applicant that his second set of questionnaires was incomplete because he failed to properly complete the questionnaires for each and every arrest, criminal citation, and criminal charge in his criminal history. In addition, Applicant failed to submit to the Board a written explanation of the arrests and charges, as well as police reports, and court records. 14. On March 24, 2011, Applicant responded to Ms. Monas’ March 16, 2011 letter. Applicant indicated that he would provide no additional information to the Board. Applicant wrote that he “will not be involved in a wild goose chase looking for information that you can obtain on your own.” 15. On June 20, 2011, Applicant’s Ohio employer, Advantage RN, sent Ms. Monas a copy of Applicant’s employment application completed on October 25, 2010. In that application, Applicant answered “No” to the following question: “Have you ever been convicted of a felony or misdemeanor involving any violent act, use or possession of a weapon, or act of dishonesty for which the record has not been sealed or expunged?” 16. At the Board’s meeting on July 25, 2011, the Board voted 10 to 0[1] to deny Applicant’s application for licensure. 17. On July 26, 2011, the Board issued Order of Denial No. 1012117 denying Applicant’s application for licensure. 18. Applicant timely requested an appeal of the Board’s denial of his application. 19. The Board’s investigation revealed the following criminal history for Applicant. Unlawful Use of a Weapon Case No. 92 GCM 1439 20. On August 23, 1992, a Misdemeanor Complaint was filed in Case No. 92 GCM 1439 in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois charging Applicant with committing the offense of Unlawful Use of a Weapon, specifically a pistol. 21. On December 1, 1992, Applicant pled guilty to the crime of Unlawful Use of a Weapon in Case No. 92 GCM 1439. Applicant was sentenced to one year of supervision and his weapon was forfeited. Unlawful Use of Weapons Case No. 95 ACM 848 22. On July 29, 1995, Applicant was arrested by the police in Alton, Illinois for unlawful possession of a handgun found in his car during a traffic stop. 23. On July 29, 1995, a Misdemeanor Complaint in Case No. 95 ACM 848 was filed in the Circuit Court of the Third Judicial Circuit of Madison County, Illinois charging Applicant with the crime of Unlawful Use of Weapons, based on Applicant’s July 29, 1995 arrest. Applicant was subsequently found guilty of the amended charge of Disorderly Conduct. Possession of Firearm without Requisite Firearm Owner’s I.D. Case No. ACM 1176 24. On October 7, 1995, a Misdemeanor Complaint was filed in the Circuit Court for the Third Judicial Circuit of Madison County, Illinois in Case No. 95 ACM 1176 charging Applicant with the crime of Possession of Firearm without Requisite Firearm Owner’s I.D. The Board’s investigation did not reveal that the charge was ever prosecuted. Obstructing a Peace Officer Case No. 99 CM 100854 25. On September 24, 1999, Applicant was arrested by the Alton Police Department on a charge of Obstructing Justice. 26. On September 24, 1999, a Misdemeanor Complaint was filed in the Circuit Court of the Third Judicial Circuit of Madison County, Illinois in Case No. 99 CM 100854 charging Applicant with the crime of Obstructing a Peace Officer based upon the September 24, 1999 arrest. The Board’s investigation did not reveal that the charge was ever prosecuted. Reckless Driving Citation No. 1078100 27. On September 20, 2000, Illinois State Police issued a Citation No. 1078100 charging Applicant with the crime of Reckless Driving. The Board was unable to determine the disposition of the charge. Driving Under the Influence Case No. 00-DT-000936 28. On October 9, 2000, Applicant was arrested by the Alton Police Department for Driving Under the Influence and Too Fast for Conditions. 29. On March 1, 2001, Applicant was convicted of Driving Under the Influence in Case No. 00-DT-000936. He was placed on one year of court supervision including alcohol treatment based upon the October 9, 2000 arrest. 30. On September 10, 2001, a Petition to Revoke Supervision was filed in Case No. 00-DT-000936 charging Applicant with violating the terms of his court supervision by being non-compliant with the ordered alcohol treatment. The Board’s investigation did not reveal the disposition of the petition. Stealing by Deceit Case No. 00CR127004 31. On November 1, 2000, a Warrant for Arrest was issued for Applicant in Case No. 00CR127004 in the Circuit Court of St. Charles County, Missouri. Applicant was charged with Stealing, a Felony C charge. Bond was set at $5,000.00 cash only. The charge related to unemployment benefits paid to Applicant, who had claimed to be unemployed. 32. On January 3, 2001, the Associate Circuit Court, County of St. Charles, Missouri issued a Commitment Pending Preliminary Hearing or Trial setting bond in the amount of $5,000.00 cash only on the criminal charge of Stealing by Deceit in Case No. 00CR127004. 33. On March 14, 2001, a criminal Information charging Applicant with the crime of Stealing was filed in the Circuit Court of St. Charles County, Missouri in Case No. 00CR127004. 34. On March 14, 2001, Applicant entered a guilty plea to the crime of Stealing by Deceit, a misdemeanor, in Case No. 00CR127004. Applicant was sentenced to two years of supervised probation, and required to pay restitution and to perform community service. Illegal Burning Complaint Incident 2006-021274 35. On or about July 29, 2006, a complaint was filed against Applicant for Illegal Burning reported as Incident 2006-021274 by the police in Alton, Illinois. The Board’s investigation did not reveal the disposition of the complaint Speeding, Operating Uninsured, DUI/Alcohol Charges 36. On or about March 17, 2008, Applicant was arrested by the Illinois State Police on the charges of Speeding, Operating Uninsured, DUI/Alcohol, a misdemeanor. The charges were later dismissed pursuant to a plea agreement in another case. 37. On July 19, 2011, an Order to Expunge and Seal was issued by the Third Judicial Circuit Court of Madison County, Illinois in Case No. GCM 1439 expunging the records for Applicant’s conviction of Unlawful Use of Weapon in 1992. The Court’s order disclosed that Applicant was convicted of Reckless Driving on April 29, 2009. 38. The evidence of record established that despite three requests from Board staff, Applicant failed to fully disclose his criminal history of arrests and misdemeanor convictions. 39. Applicant contended that his criminal history is irrelevant to the issue of whether he should be licensed as a registered nurse. Applicant did not identify any statute or regulation supporting his position. 40. Applicant further contends that the expungement of his criminal conviction for Unlawful Use of Weapon in 1992 prohibits the Board from considering the conviction.

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) and A.A.C. R2-19-119(B), Applicant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. A.R.S. § 13-904(E) provides that a person may be denied employment or a certificate to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the…certificate is sought.” 4. An agency or board may require an applicant to disclose a prior conviction that has been expunged or vacated.[2] Because the criminal acts forming the basis of a judgment that has been vacated or expunged still occurred, even if certain legal consequences of the judgment have been obviated, the fact of the conviction is a fair area of inquiry. 5. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(d) (Any conduct…that is…or might be harmful or dangerous to…the public) by being convicted of Driving Under the Influence, a misdemeanor, in 2001. That conviction involved a crime that posed a potential for harm to the public. 6. The evidence of record also established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(b) (Committing a…misdemeanor involving moral turpitude) and (h) (Committing an act that deceives, defrauds or harms the public) by being convicted of Stealing by Deceit, a misdemeanor, in 2001. That conviction was a crime of moral turpitude involving Applicant’s acts of deception in receiving unemployment benefits that he was not entitled to receive. 7. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4-19-403(15) (Removing, without authorization, any money, property, or personal possessions, or requesting payment for services not performed from a patient, employer, co-worker, or member of the public) (effective January 31, 2009). The basis for Applicant’s conviction for Stealing by Deceit was his receipt of unemployment benefits by deception. 8. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(17) (A pattern of using or being under the influence of alcohol…to the extent that judgment may be impaired and nursing practice detrimentally affected…) (effective January 31, 2009), because the evidence of record established that Applicant’s alcohol problems evidenced by his arrests for Driving under the Influence, including at least one conviction, could potentially impair his judgment in the work place. 9. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(20) (Engaging in fraud, misrepresentation, or deceit…on an initial…application for a license…) (effective January 31, 2009), by intentionally not fully disclosing his criminal history on his application for licensure and during the Board’s investigation. 10. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(25)(a) (Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664) (effective January 31, 2009), by Applicant’s not fully disclosing his criminal history despite numerous requests from the Board. 11. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(26) (Making a written false or inaccurate statement to the Board or the Board’s designee in the course of an investigation) (effective January 31, 2009), by his failing to fully disclose his criminal history in his application to the Board, and by claiming in documents submitted to the Board that he had lived in Illinois since 1989 when he did not, as evidenced by his 2001 misdemeanor conviction for Stealing by Deceit in Missouri. 12. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j), specifically A.A.C. R4-19-403(27) (Making a false or misleading statement on a nursing or health care related employment or credential application concerning previous employment, employment experience, education or credentials) (effective January 31, 2009), by failing to disclose his criminal history when asked in his employment application at Advantage RN. 13. The evidence of record established that Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(g) (Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter) for his repeated violations of A.A.C. R4-19-403(25) by making false and misleading statements to the Board concerning his criminal history to the Board. RECOMMENDED ORDER Applicant’s appeal in this matter is dismissed. The Board’s Order of Denial No. 1012117 is upheld and affirmed. 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, March 15, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, FAAN, Executive Director State Board of Nursing ----------------------- [1] One board member was absent. [2] See Russell V. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 470 ¶ 27, 974 P.2d 443, 449 (App. 1998).

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