ALJDEC decisions subject to certification as final

13A-1112027-NUR · State Board of Nursing · 2013-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2013. The record was kept open until May 3, 2013, for the filing of the court reporter’s transcript of the hearing. APPEARANCES: Mayra Gabriela Pierce appeared personally. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth A. Campbell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona State Board of Nursing (“Board”) is the authority for regulating and controlling the licensing of nursing professionals in the State of Arizona. 2. On December 2, 2011, the Board received an Application for Certified Nursing Assistant (CNA) Certification by Examination (“Application”) submitted by Mayra Gabriela Pierce (“Applicant”). 3. In her Application, Applicant answered “Yes” to paragraph 9i, which asked the following question: Have you ever: A. Been convicted, entered a plea of guilty, [nolo contendere] or no contest, been sentenced or served time in jail for any felony or undesignated offense?

B. Had prosecution deferred or probation deferred in any felony or undesignated offense?

C. Had a felony or undesignated offense pardoned, expunged, dismissed, deferred, reclassified or redesignated?

(Emphasis in the original). 4. The Application further provided the following instruction: If yes, provide ALL of the following for each felony or undesignated offense: • A detailed written explanation of the details of each arrest[,] conviction and sentence. • A copy of the police report for each felony or undesignated offense. • A copy of court documents indicating type of conviction, conviction date, and sentence including the date of absolute discharge.

(Emphasis in the original). 5. With her Application, Applicant provided court documents regarding her 2004 conviction of Theft, a Class 6 undesignated felony, conditions of probation, petition for termination of probation, and discharge from probation in Case No. CR-2004-0776 in the Mohave County Superior Court. 6. On or about January 10, 2012, Board staff mailed Applicant an Arrest/Citation/Charge Questionnaire and requested that Applicant provide a written explanation and specific court and police records regarding each of her arrests, citations and/or charges to Board staff within four weeks. Applicant failed to respond to the inquiry. 7. On or about March 9, 2012, Board staff mailed Applicant another Arrest/Citation/Charge Questionnaire 8. Based upon information obtained during the application process, the Board conducted an investigation that revealed the following criminal history for Applicant: A. On or about December 7, 2001, Applicant was arrested by the Bullhead City Police for Shoplifting, a felony, and Shoplifting Concealment, a misdemeanor, after she attempted to leave a store with a video cassette that she did not purchase concealed in her pants.

B. On or about January 18, 2002, in Bullhead City Justice Court Case No. CR-20011498, Applicant was convicted pursuant to a guilty plea of Shoplifting Concealment, a misdemeanor, committed on December 7, 2001.[1] Applicant failed to complete and return an Arrest/Charge/Citation Questionnaire to the Board for this incident.

C. On or about September 14, 2004, Applicant was convicted of Interfering with Judicial Proceedings, a misdemeanor. Applicant failed to complete and return an Arrest/Charge/Citation Questionnaire to the Board for this incident.

D. From approximately June 18, 2004, through June 21, 2004, Applicant was arrested by the Bullhead City Police and charged with two counts of Burglary in the Second Degree, a felony, and Trafficking in Stolen Property, a felony.

E. On or about November 22, 2004, Applicant was convicted in the Mohave County Superior Court of Theft, a Class 6 undesignated felony, committed from June 18, 2004, through June 21, 2004. On or about April 6, 2006, the offense was designated a Class 6 felony and Applicant’s probation was extended. On April 10, 2008, Applicant was discharged from probation. In the Order of Discharge from Probation, the judge crossed out and initialed the language “and the current offense be designated a Class 1 misdemeanor,” leaving the offense a Class 6 felony. Applicant provided partial court records with her Application but did not provide the Probation Violation Plea Agreement dated February 15, 2005, which indicates that the offense be designated a felony. During her probation, Applicant violated the terms of her probation twice.

F. On or about January 29, 2010, Applicant was charged in the Bullhead City Municipal Court with two counts of Contributing to the Delinquency of a Minor and Mandatory School Attendance, as a result of her minor children having excessive lateness and excused and unexcused absences from school. On April 28, 2010, Appellant was convicted of Failure to Appear, a misdemeanor, resulting from the January 29, 2010 charges.

9. The Board’s assigned investigator, Senior Investigator Lynn Monas, prepared an undated Application Investigation Report concerning Applicant’s Application that was sent to the Board for its review. 10. On January 29, 2013, the Board reviewed the Application Investigation Report concerning Applicant’s Application during its Board meeting and unanimously voted to deny Applicant’s Application. 11. On January 30, 2013, the Board issued an Order of Denial No. 1112027 denying Applicant’s Application. 12. Applicant appealed the Board’s Order of Denial No. 1112027. 13. On March 8, 2013, the Board issued a Notice of Public Hearing on Denial of Certification/Licensure that notified the parties that an evidentiary hearing would be conducted before the Office of Administrative Hearings, an independent agency. 14. At the hearing, Applicant did not deny her criminal history or her failures to submit the Arrest/Citation/Charge Questionnaires and written explanations for her criminal history or to cooperate with the Board’s investigation. She testified that she was no longer the person depicted by her criminal history and that she never wanted to be that person again. Applicant did not present credible evidence of rehabilitation. 15. The evidence of record established that Applicant did not comply with the terms of her criminal probation and that Applicant failed to comply with requests from Board staff during her application process. CONCLUSIONS OF LAW 1. The Board has jurisdiction over Applicant and 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. Applicant’s felony conviction constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(b) (effective September 30, 2009). 4. Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(d) (effective September 30, 2009). Applicant’s failures to comply with the terms of her criminal probation or to cooperate with the Board’s investigation indicate that she cannot be regulated at this time and such behavior constitutes a conduct or practice by Applicant that could potentially be harmful or dangerous to health of the public or a patient. 5. Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4- 19-814(13) (effective January 31, 2009). Applicant’s felony conviction for theft supports this conclusion. 6. Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4- 19-814(23)(a) and (c) (effective January 31, 2009). Applicant failed to cooperate with the Board during its investigation of Applicant when she repeatedly failed to furnish in writing a complete explanation of her criminal history and the documents concerning her criminal history that the Board requested. 7. Applicant committed unprofessional conduct in violation of A.R.S. § 32-1601(18)(g) (effective September 30, 2009). The evidence of record established that Applicant’s unprofessional conduct constituted willful and repeated violations of the statutes and rules cited above. 8. Pursuant to A.R.S. § 32-1646(B),[2] the Board properly denied Applicant’s Application because her felony conviction has not received an absolute discharge five or more years prior to the filing of the Application. 9. Pursuant to A.R.S. § 32-1663(A),[3] the Board may deny an application if an applicant for certification commits unprofessional conduct. The evidence of record supports the Board’s denial of Applicant’s Application due to her acts of unprofessional conduct. RECOMMENDED ORDER It is recommended that the Board’s Order of Denial No. 1112027 denying Applicant’s Application be 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 shall be five (5) days from the date of the certification.

Done this day, May 23, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, FAAN, Executive Director State Board of Nursing ----------------------- [1] At the hearing, Applicant presented evidence that her Application and Order to Set Aside Judgment, Accusation & Penalties in this case was granted by the Bullhead City Justice Court on April 2, 2013. [2] A.R.S. § 32-1646(B) provides as follows: “The board shall . . . not issue a certificate . . .to an applicant who has one or more felony convictions and who has not received an absolute discharge from the sentences for all felony convictions five or more years prior to the date of filing an application pursuant to this chapter. [3] A.R.S. § 32-1663(A) provides as follows: “If an applicant for . . . certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application . . . .”

-----------------------

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