ALJDEC decisions subject to certification as final

13A-1201120-NUR · State Board of Nursing · 2013-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2013; the record closed on August 26, 2013 APPEARANCES: Applicant Dynette Harletta Eddie 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 June 14, 2013, the Arizona State Board of Nursing (the “Board”) issued a Notice of Public Hearing on Denial of Certification setting the above-captioned matter for hearing on July 23, 2013, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Applicant Dynette Harletta Eddie appeared and testified on her own behalf. Assistant Attorney General Elizabeth Campbell represented the Board. The Board presented the testimony of its senior investigator, Bonnie Richter. 3. On January 20, 2012, Ms. Eddie submitted an Application for Certified Nursing Assistant Certification by Endorsement (“Application”) to the Board. See Exhibit 1. 4. After conducting its investigation, on March 25, 2013, the Board voted unanimously to deny Ms. Eddie’s Application for Certified Nursing Assistant Certification. On March 25, 2013, the Board issued an Order of Denial to Ms. Eddie. See Exhibit 13. Thereafter, Ms. Eddie requested a hearing and this matter was referred to the Office of Administrative Hearings, an independent State agency. The Investigation 5. Ms. Eddie answered “yes” to the following question on the Application: “Have you ever A. Been convicted, entered a plea of guilty, nolo contendere or no contest, been sentenced, 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?” See Exhibit 1 at 5. 6. Ms. Richter testified that after receiving Ms. Eddie’s Application, she obtained police and court records relating to Ms. Eddie from Ms. Eddie and through various agencies. Ms. Richter testified that during Ms. Eddie’s April 24, 2012[1] interview, Ms. Eddie gave conflicting accounts of her criminal history. 7. Ms. Richter obtained the Albuquerque, New Mexico Police Department report number DV28906-06 that states that on May 31, 2006, the police responded to a report of a domestic disturbance. When the police questioned Ms. Eddie, she stated that when she arrived home, her husband was intoxicated, she asked him for help with the children, and they began to argue. See Exhibit 2 at 3. When the police attempted to question Ms. Eddie’s husband, he became disorderly and Ms. Eddie walked up to her husband and “slapped him in the back of the head.” Id. Ms. Eddie was arrested for Battery Against a Household Member. Id.

8. Ms. Eddie’s April 4, 2012 written explanation to the Board and her April 24, 2012 verbal statement regarding the incident were inconsistent with the police report documenting the incident. See Exhibit 11 at 2. The charges were dismissed. Id. 9. On January 22, 2007, in the Gallup Magistrate Court, New Mexico, Case Number M-35-MR-[number redacted], Ms. Eddie was charged with three counts of Child Abandonment, misdemeanor offenses, after she left her three children alone in a vehicle. See Exhibit 3. On April 24, 2012, during her interview at the Board offices Ms. Eddie admitted that she had left her children asleep in the car when she paid the gas station cashier and that she had been arrested. See Exhibit 11 at 2-3. The charges were subsequently dismissed. 10. On November 2, 2010, according to the Albuquerque Police Department report number 10-0106392, police were dispatched to a report of a disturbance at a motel where Ms. Eddie was arguing with her cousin. See Exhibit 2 at 10. Ms. Eddie’s cousin informed police that Ms. Eddie had rented a motel room and she had left her son with Ms. Eddie to watch for the evening. Id. When the cousin arrived to pick up her son, Ms. Eddie was in a vehicle arguing with her husband. Id. When Ms. Eddie’s cousin asked her to retrieve her son’s belongings from the motel room, Ms. Eddie yelled at her cousin, “I’m going to kick your ass!” Id. Ms. Eddie began to chase her cousin aggressively, and the cousin called police as she was afraid for her and her son’s safety. Id. Ms. Eddie fled the scene, but was located later by police, however, refused in-person contact with police and would only speak to police via telephone. Id. Ms. Eddie denied to the police that she had assaulted her cousin, and stated that she was of no relation to her. Id. Ms. Eddie was cited and charged with Simple Assault. 11. On February 25, 2011, in the Bernalillo County Metropolitan Court case number DV5451-10, Ms. Eddie pled guilty to Simple Assault/Domestic Violence and was convicted. Ms. Eddie was sentenced to a twelve month deferred sentence, which included substance abuse counseling. 12. On April 14, 2011, according to the Albuquerque Police Department’s statement for the Criminal Complaint filed in the State of New Mexico Metropolitan Court, case number CR75-2011, police reported that they were stationed in a parking lot when they observed a vehicle traveling at a high rate of speed. See Exhibit 2 at 11. The police stopped the vehicle and made contact with the driver, Ms. Eddie. Id. As an officer walked up to the vehicle, he noticed three unrestrained children in the back seat of the vehicle, with birth dates of 4/23/02, 11/18/05, and 4/12/05. Id. Ms. Eddie told the officer that she was on her way to pick her cousin up at a party. Id. The officer detected an odor of alcohol, and further noticed that Ms. Eddie’s speech was slurred and her eyes were bloodshot and watery. Id. Ms. Eddie at first denied consuming alcoholic beverages, but during sobriety tests, admitted to consuming three beers since 10:30 that evening. Id. Ms. Eddie was arrested for three felony counts of Aggravated Driving Under the Influence (DUI) and Child Abuse. 13. On April 29, 2011, in the Second Judicial District Court, County of Bernalillo, case number CR2011-1862, Ms. Eddie was indicted and charged with one amended count of Child Abuse, a felony, and Aggravated Driving While Under the Influence of Alcohol, a felony. See Exhibit 5 at 1-3. Ms. Eddie signed a plea agreement to reduce the felony charge to a misdemeanor and she was allowed to complete a diversion program. 14. On September 29, 2011, in the Second Judicial District Court, County of Bernalillo, case number CR2011-1862, Ms. Eddie was convicted pursuant to a guilty plea of one amended count of DUI (first offense), a misdemeanor, and to one amended count of Abandonment of Child, a misdemeanor. See Exhibit 5 at 6-10. 15. On July 6, 2011, according to the Bernalillo Police Department Report Number [number redacted], police performed a traffic stop after an officer observed a vehicle fail to come to a complete stop at a three-way stop sign at an intersection. See Exhibit 7 at 6-7. The officer spoke with Ms. Eddie, the passenger in the vehicle. Id. at 7. Ms. Eddie was “extremely intoxicated.” Id. The officer observed a bottle of vodka between the passenger seat and door that was about 80% empty, as well as a glass pipe and plastic baggie containing marijuana between the passenger seat and center console. Id. Ms. Eddie was cited for Possession of Marijuana and Open Container. Id. 16. On September 8, 2011, in the Sandoval County (New Mexico) Municipal Court case number 11-1497, Ms. Eddie pled guilty and was convicted of Possession of Marijuana, a misdemeanor and Open Container, a misdemeanor. See Exhibit 8 at 7. 17. On March 14, 2012, Board staff mailed Ms. Eddie a questionnaire with instructions to provide written explanations and court and police records relating to each of her arrests, citations, or charges, within four weeks. See Exhibit 9. 18. On March 22, 2012, Ms. Eddie called Board staff to inquire about the specific documents the Board required in response to its questionnaire. See Exhibit 11 at 5. 19. On March 22, 2012, Board staff sent a second letter with a questionnaire enclosed to Ms. Eddie with instructions to provide written explanations and court and police records relating to each of her arrests, citations, or charges, by April 29, 2012. See Exhibit 9. 20. On April 4, 2012, the Board received Ms. Eddie’s questionnaire. However, Ms. Eddie failed to submit police reports and detailed explanations of her arrests. See Exhibit 11 at 5. 21. On April 24, 2012, Ms. Eddie came to the Board offices to speak with staff about what documents were still needed. Ms. Richter interviewed Ms. Eddie at that time regarding her arrests. Ms. Richter found Ms. Eddie’s versions of events inconsistent with the documentation obtained by the Board. Ms. Eddie was advised to submit complete police reports for each offense and she agreed to do so. Id. 22. On May 14, 2012, the Board sent another letter to Ms. Eddie advising that the Board had not yet received the police reports and her explanations of the offenses, and was given until May 31, 2012, to submit the documentation. Id. 23. Ms. Eddie did not send complete documentation to the Board until November 7, 2012. 24. Ms. Eddie testified that some of the charges against her were dismissed, that she “did not know the person who made the police report,” that she went to jail for her DUI because she was told to plead guilty by her public defender. Ms. Eddie testified that the marijuana and open container belonged to her sister and her sister’s boyfriend. Ms. Eddie acknowledged that she has “made mistakes” but testified that she believes in second chances and that “if she did not care, she would not be here.” 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. Eddie 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.” See also A.R.S. § 32-1646. “In its denial order, the board shall immediately invalidate any temporary license or certificate issued to the applicant.” A.R.S. § 32-1663(B). 6. The Board established, as set forth in the above delineated Findings of Fact, that Ms. Eddie committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(b), (d), (g), (h), and (j) (effective September 30, 2009);[2] A.C.C. R4-19-814(14), (17), (21), (23) (effective January 31, 2009).[3] 7. Because Ms. Eddie has committed acts of unprofessional conduct, the Board has authority to deny her application. A.R.S. § 32- 1663. 8. An applicant whose request for a license is denied may reapply five years after the date of the Order of Denial. A.A.C. R4-19-815. 9. Ms. Eddie has not met the burden of persuasion to show that the Board improperly denied her application or that the Board erred when it determined that she could not reapply for five years. 10. Ms. Eddie’s appeal should be dismissed. ORDER IT IS ORDERED that Dynette Harletta Eddie’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, September 4, 2013.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] There is some discrepancy in the record as to whether Ms. Eddie’s interview at the Board’s offices took place on April 24, 2012, or April 26, 2012. For the sake of consistency, throughout this Decision, the date of the interview will be referred to as April 24, 2012. [2] A.R.S. § 32-1601(18)(b), (d), (g), (h), and (j) (2009) define “unprofessional conduct” to include, respectively, . . . . (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. . . . . (g) Willfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter. (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. [3] This rule further defines “unprofessional conduct” to include: . . . . 14. Repeated use or being under the influence of alcohol, medication, or any other substance to the extent that judgment may be impaired and practice detrimentally affected or while on duty in any work setting. . . . . 17. Obtaining, possessing, using, or selling any narcotic, controlled substance, or illegal drug in violation of any employer policy or any federal or state law. . . . . 21. Threatening, harassing, or exploiting an individual. . . . . 23. Failing to cooperate with the Board during an investigation by: a. Not furnishing in writing a complete explanation of a matter reported under A.R.S. §32-1664; and c. Not completing and returning a Board-issued questionnaire within 30 days.

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