ALJDEC decisions subject to certification as final

13A-1112053-NUR · State Board of Nursing · 2014-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10, 2014, at 8:00 a.m. APPEARANCES: Applicant Tammy Lynn Stonkey failed to appear; the Arizona State Board of Nursing was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. Tammy Lynn Stonkey (“Applicant”) submitted an application to the Arizona State Board of Nursing (“the Board”) for certification as a Certified Nursing Assistant (“CNA”). 2. The Board issued an Order of Denial of Applicant’s application. Applicant requested a hearing on the denial. 3. The Board referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. 4. On December 5, 2013, the Board issued a Notice of Public Hearing on Denial of Certification. The Board mailed a copy of the Notice to Applicant at the address on her application, which is the only address that Applicant has ever provided to the Board. 5. Applicant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Applicant additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Applicant did not present any evidence to establish her qualifications for certification as a CNA. CONCLUSIONS OF LAW 1. The Notice of Public Hearing on Denial of Certification that the Board mailed to Applicant at the address that she provided on her application was reasonable and she is deemed to have received notice of the hearing.[1] 2. Applicant bears the burden of proof to establish that she meets statutory and regulatory qualifications for a CNA certificate by a preponderance of the evidence.[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] 3. By failing to appear at the hearing or to present any evidence, Applicant did not carry her burden to establish that she is qualified to be certified as a CNA.[4] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order, the Board’s Order of Denial be 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, January 27, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 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] See A.A.C. R2-19-119.

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