ALJDEC decisions subject to certification as final

12A-1201099-NUR · State Board of Nursing · 2013-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2012; the record closed on January 4, 2013 APPEARANCES: Applicant Shari Angelina Camp appeared on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Arizona State Board of Nursing. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT 1. On October 25, 2012, the Arizona State Board of Nursing (the “Board”) issued a Notice of Public Hearing on Denial of Certification/Licensure setting the above-captioned matter for hearing on December 12, 2012, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Applicant Shari Angelina Camp appeared and testified on her own behalf. Robin Daniele testified on behalf of Ms. Camp. Assistant Attorney General Elizabeth Campbell represented the Board. The Board presented the testimony of its senior investigator, Bonnie Richter. 3. On January 5, 2012, Ms. Camp submitted a Registered Nurse/Practical Nurse Licensure by Endorsement (“Application”) to the Board for licensure as a registered nurse. See Exhibit 1. 4. After conducting its investigation, on September 19, 2012, the Board voted unanimously to deny Ms. Camp’s Application for licensure as a registered nurse. Thereafter, Ms. Camp requested a hearing and this matter was referred to the Office of Administrative Hearings, an independent State agency. The Investigation 5. Ms. Camp answered “yes” to the following question on the Application: “Have you ever been convicted, entered a plea of guilty, nolo contendere 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?” See Exhibit 1 at 5. 6. Ms. Richter testified that after receiving Ms. Camp’s Application, she subpoenaed police, court, employment, and mental health records relating to Ms. Camp. Ms. Camp provided the Board with a written statement regarding her response to the above question on the Application. See Exhibit 4. In her response, Ms. Camp stated that she was arrested in January 2009, for theft by shoplifting, a felony, and again in March 2009, for shoplifting, a misdemeanor. Id. Ms. Camp explained that during that time period she suffered from undiagnosed bipolar disorder and had been experiencing “rapid cycling of extreme highs and lows.” Id. 7. Ms. Richter obtained the Columbus (Georgia) Police Department report number 09002570 that states that on January 27, 2009, the police were dispatched to a Goody’s store where Ms. Camp was being detained after she had taken several pieces of jewelry and concealed them in her purse. See Exhibit 2 at 4. Ms. Camp was arrested and charged with Theft by Shoplifting, a felony. Id. The merchandise stolen by Ms. Camp was valued at $545.00. Id. 8. On April 17, 2009, in the Superior Court of Muscogee County, Georgia, Case Number 2009CR351, prosecution was suspended and Ms. Camp received a sentence of three years of probation for an amended charge of Theft by Shoplifting, a misdemeanor, pursuant to the First Offender Act. See Exhibit 3 at 2. Ms. Richter testified that this matter was ultimately dismissed. 9. Ms. Richter obtained the Columbus (Georgia) Police Department report number 09005797 that states that on March 2, 2009, police were dispatched to Golden Beauty Supply where Ms. Camp was detained after shoplifting several pieces of jewelry, placing them in her purse, and attempting to leave the store without paying for the items. See Exhibit 2 at 11. Ms. Camp was arrested and charged with Theft by Shoplifting, a misdemeanor. The total value of the items stolen by Ms. Camp was $40.00. See Exhibit 3 at 8. 10. On October 23, 2009, in the Superior Court of Muscogee County, Georgia, Case Number 09CR1357, Ms. Camp was ordered to attend the New Horizons Behavioral Health Center treatment program. Ms. Richter testified that this matter was ultimately dismissed and Ms. Camp’s probation was terminated on May 20, 2011. 11. During the course of the investigation, Ms. Richter obtained the Chandler Police Department report number 12-02-1330 that states that on February 27, 2012, police were called by the Sally’s Beauty Supply in Chandler, Arizona regarding a shoplifting incident. See Exhibit 5 at 6. Ms. Camp had been observed inside the store concealing a curling iron and eyelash glue in her purse, notwithstanding that she paid for other items, and left the store. Id. Ms. Camp admitted the following to the police officer: She “decided to steal a curling iron,” that “she selected the one she wanted[,] took it out of the box and placed [it] in her purse. . . . She also selected eye lash glue which she also concealed in her purse. After concealing the items she paid for the other two keeping the items concealed in her purse and exited the store . . . she went to the Ulta where she attempted to steal other items.”

Id. at 7. Ms. Camp was cited for Theft. Id. at 8. Ms. Camp failed to report this citation to the Board within ten days. 12. On April 6, 2012, in the Chandler Municipal Court, case number 12-C-3754191, prosecution was suspended for seven months to allow Ms. Camp the opportunity to complete a shoplifting diversion program and pay the fees associated with the program. See Exhibit 7 at 6. The case was dismissed following the completion of the diversion program. 13. Ms. Richter also obtained the Maricopa County Sheriff’s Department report number 12-034877 that states that on February 27, 2012, police were called to an Ulta Beauty in Queen Creek, Arizona regarding a shoplifting incident. See Exhibit 8 at 6. Ulta contacted police after a sales associate observed Ms. Camp take a blush off of the shelf and begin to peel the bar code off of it and walk away with it. Id. However, Ms. Camp put the blush back after she realized the sales associate had become suspicious. Id. Ms. Camp was cited for Shoplifting. Id. at 10. Ms. Camp was trespassed from all Ulta locations. Id. at 7. Ms. Camp did not report this citation to the Board within ten days. 14. Ms. Camp submitted to the Board a letter dated March 6, 2012, in further explanation of her arrests and charges. See Exhibit 6. The letter discusses her 2009 arrests and charges and the reasons for her behavior during that period of time, specifically her suffering from “undiagnosed Bipolar I disorder”, and “rapid cycling of extreme highs and lows.” Id. The letter fails to mention either of the February 27, 2012 arrests or charges. Id. 15. On March 27, 2012, in the San Tan Justice Court, case number CR2012-111430, Ms. Camp admitted to the shoplifting offense at Ulta and agreed to complete the Social Accountability Guidance & Education (“SAGE”) counseling diversion program. Ms. Camp completed the SAGE program and the matter was dismissed. See Exhibit 9. 16. On March 26, 2012, Ms. Richter interviewed Ms. Camp. Ms. Camp confirmed the information contained in her letter attached to the Application and admitted to the two incidents of shoplifting in January and February 2009, in Georgia. Ms. Camp was asked if she had any other arrests or offenses on her record and she denied that she had been arrested for anything other than the offenses in Georgia. Ms. Camp failed to disclose the February 27, 2012 shoplifting incidents in Arizona. 17. On July 12, 2012, Ms. Camp was again interviewed by Board staff and following the interview, Ms. Camp submitted a letter to the Board explaining the incidents of February 27, 2012, and again attributing her behavior to “rapid cycling of bipolar mania.” See Exhibit 10. According to Ms. Richter’s Investigative Report, Ms. Camp stated during the July 12, 2012 interview that after her February 27, 2012 arrest, her medications were “adjusted” and that she has been in continued counseling, under a physician’s care, and has “been stable on her new and increased medications doses.” See Exhibit 12 at 5. 18. Since December 29, 2011, Ms. Camp has been seen on an ongoing basis for therapeutic intervention through Partners in Recovery. See Exhibit 11 at 8. Board staff obtained Ms. Camp’s mental health records pursuant to Ms. Camp’s signed release of information. See Exhibit 11 at 6. A Client Progress Note dated March 29, 2012, states that Ms. Camp spoke to her counselor about her concern regarding the release of her records to the Board and requested that her counselor “ . . . omit[] this month from her records.” Id. at 7. The counselor advised that she “. . . thinks it is an error to try to withhold the info about the arrest from the RN board.” Id. Ms. Camp told the counselor that “Desert Vista is withholding some notes and sending her full record with a statement that some notes have been withheld and then the board will ask her to explain the notes that are withheld.” Id. 19. According to the Investigative Report, Ms. Camp has been treated on an ongoing basis for substance abuse issues, as well as mental health issues since December 29, 2011, through various mental health providers in Arizona. See Exhibit 12 at 8 and 9. Ms. Camp has been diagnosed as Seriously Mentally Ill. Id. Ms. Camp’s most recent diagnosis in Axis I is 296.61 Bipolar 1 Mixed episode mild, 300.00 Anxiety Not Otherwise Specified (NOS), 305.23 Cannabis Abuse in remission, and 305.03 Alcohol Abuse in remission. Id. at 8. During interviews with Board staff, Ms. Camp admitted that she continues to use alcohol on a regular basis, notwithstanding that such is contraindicated when using psychotropic medications. Id. 20. Ms. Camp testified that she came to Arizona in July 2011, and at that time was stable on medications. Ms. Camp further testified that she resumed therapy in October 2011, and notwithstanding the ongoing therapy and medications, became depressed and unstable. Ms. Camp testified that she has not used alcohol since June 2012, and has not used illegal drugs since 2006. Ms. Camp explained that she was so concerned with her legal issues that she put her licensing process on hold until her legal matters were resolved. Ms. Camp believed that she had a better chance having her license Application granted once all of her pending charges had been dismissed. Ms. Camp stated that from her experiences, she has learned “lessons in honesty, humility and self-control, has made positive changes and is genuinely sorry.” Ms. Camp is currently an in-home caregiver. 21. Robin Daniele is an employment specialist assisting Ms. Camp in her job development process. Ms. Daniele testified that Ms. Camp has been an in-home caregiver for three months and she has not received any negative feedback regarding Ms. Camp. Ms. Daniele testified that she has seen positive changes in Ms. Camp since she returned to a field in which he helps people. Ms. Daniele testified that Ms. Camp has a “beautiful” resume and has been on several interviews. However, potential employers either feel that Ms. Camp is over-qualified for their positions or question why she is not pursuing a nursing position. Ms. Daniele testified that if Ms. Camp is granted a license, there are two positions currently available for Ms. Camp and that her criminal history has been disclosed to those employers. CONCLUSIONS OF LAW 1. The Board is the state agency authorized to regulate and control the licensing of nursing professionals in the State of Arizona. A.R.S. § 32-1601 et seq. and Arizona Administrative Code (“A.A.C.”) R4-19-101 et seq. 2. Ms. Camp bears the burden of proof to establish that the Board improperly denied her Application. A.R.S. § 41-1092.07(G)(1). 3. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 4. 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). 5. Pursuant to A.R.S. § 32-1663(A), “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.” 6. “Unprofessional conduct” is defined in A.R.S. § 32-1601(18) (effective September 30, 2009) and includes the following whether occurring in this state or elsewhere:[1] (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. (b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a court of competent jurisdiction or a plea of no contest is conclusive evidence of the commission. . . . . (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. (e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. . . . . (h) Committing an act that deceives, defrauds or harms the public. . . . . (j) Violating this chapter or a rule that is adopted by the board pursuant to this chapter.

7. A.A.C. R4-19-403 further defines Unprofessional Conduct for purposes of A.R.S. § 32-1601(18)(d) as any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public and includes one or more of the following:

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[;] . . . . 17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location; . . . . 20. Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate; . . . . 25. Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or b. Respond to a subpoena issued by the Board; . . . . 26. Making a written false or inaccurate statement to the Board or the Board's designee in the course of an investigation; . . . . 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. The licensee or applicant shall include the following in the notification: a. Name, address, telephone number, social security number, and license number, if applicable; b. Date of the charge; and c. Nature of the offense[.]

8. Ms. Camp committed unprofessional conduct as defined in A.R.S. § 32- 1601(18)(a) when she was deceitful in attempting to obtain licensure: i) when she failed to disclose to the Board within ten days of either of the February 27, 2012 shoplifting charges; ii) when she failed to disclose the February 27, 2012 shoplifting charges in the March 6, 2012 letter to the Board; iii) when she failed to disclose at the March 26, 2012 Board interview her February 27, 2012 arrests, despite having been specifically asked if there were any other arrests or offenses on her record; and iv) when she asked her counselor at Partners in Recovery to withhold records. 9. Ms. Camp committed unprofessional conduct as defined in A.R.S. § 32- 1601(16)(b)[2] when she was convicted of a misdemeanor on April 17, 2009. 10. Ms. Camp committed acts of unprofessional conduct as defined in A.R.S. § 32-1601(16)(d) when she shoplifted from the Goody’s store on January 27, 2009, and from the Golden Beauty Supply on March 2, 2009. Ms. Camp committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(d) when she shoplifted from Sally’s Beauty Supply and attempted to shoplift from Ulta Beauty on February 27, 2012. Such conduct is harmful or dangerous to the health of a patient or the public given that registered nurses sometimes care for vulnerable patients with little to no supervision, such as in a home health situation. 11. Unprofessional conduct is defined in A.R.S. § 32-1601(18)(e) to mean “being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public.” The evidence demonstrated that Ms. Camp is Seriously Mentally Ill with diagnoses of Bipolar 1 Mixed episode mild, Anxiety NOS, Cannabis Abuse in remission, and Alcohol Abuse in remission. Ms. Camp stated to Board staff and in her letter to the Board that she “cycles out of control” causing her to shoplift, and she admitted to using alcohol on a regular basis while on psychotropic medications. Therefore, the Administrative Law Judge concludes that at this time, Ms. Camp is mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. 12. Ms. Camp committed unprofessional conduct as defined in A.R.S. § 32- 1601(16)(h) when she shoplifted on the two occasions in 2009, as described in the above Findings of Fact, and A.R.S. § 32- 1601(18)(h) (effective September 30, 2009) when she failed to disclose the two February 27, 2012 shoplifting incidents to the Board on several occasions, was dishonest about the incidents during the March 2012 Board interview, and when she attempted to have her counselor at Partners in Recovery withhold records from the Board. 13. Ms. Camp committed unprofessional conduct as defined in A.R.S. § 32- 1601(18)(j) (effective September 30, 2009) when she was deceitful during her Board interview by failing to disclose the February 27, 2012 shoplifting incidents, by asking her counselor at Partners in Recovery to withhold records, and by virtue of being convicted of a misdemeanor. 14. By failing to notify the Board of her February 27, 2012 misdemeanor charges for shoplifting, Ms. Camp violated A.R.S. § 32-1601(18)(d), A.A.C. R4-9-403(28), and A.R.S. § 32-3208(B) which provides that “[a]n applicant for licensure or certification as a health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after submitting the application must notify the regulatory board in writing within ten working days after the charge is filed.” 15. Ms. Camp committed unprofessional conduct as defined in A.R.S. § 32- 1601(16)(d) and A.R.S. § 32-1601(18)(d) (effective September 30, 2009), and A.A.C. R4-19-403(15) when she shoplifted from Goody’s, Golden Beauty Supply, and Sally’s Beauty Supply. 16. Ms. Camp committed unprofessional conduct as defined in A.A.C. R4- 19-403(17) when she admitted to Board Staff that she continues to use alcohol on a regular basis notwithstanding her use of prescribed psychotropic medications. 17. Ms. Camp committed unprofessional conduct as defined in A.A.C. R4- 19-403(20), (25), and (26) when she failed to disclose to the Board either of the February 27, 2012 shoplifting charges in the March 6, 2012 letter to the Board, or at the March 26, 2012 Board interview, and when she asked her counselor at Partners in Recovery to withhold records from the Board. 18. Ms. Camp committed unprofessional conduct as defined in A.A.C. R4- 19-403(28) because she failed to notify the Board in writing of the February 27, 2012 charges, and therefore, failed to incorporate the requisite information in the written notification, which is also a violation of A.R.S. § 32-3208(B). A.R.S. § 32-3208(B) requires an applicant who has been charged with a misdemeanor involving conduct that may affect patient safety, or a felony, after submitting an application, to notify the Board in writing within ten working days after the charge is filed. 19. Because Ms. Camp has committed acts of unprofessional conduct, the Board has authority to deny her application. A.R.S. § 32-1663. 20. An applicant whose request for a license is denied may reapply five years after the date of the Order of Denial. A.A.C. R4-19-404. 21. Ms. Camp has not met the burden of persuasion to show that her application should be granted or that the Board erred when it determined that she could not reapply for five years. 22. Ms. Camp’s appeal should be dismissed. ORDER IT IS ORDERED that Shari Angelina Camp’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, January 22, 2013.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] Before September 30, 2009, the same statutory language was codified at A.R.S. § 32-1601(16)(d). The former statute applies to unprofessional conduct that was committed prior to September 30, 2009. [2] A.R.S. § 32-1601’s definitions of unprofessional conduct were renumbered effective September 30, 2009. Former A.R.S. § 32-1601(16)(b) and (d) contain the same definitions as A.R.S. § 32-1601(18)(b) and (d) (effective September 30, 2009).

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