ALJDEC decisions subject to certification as final

13A-1204091-NUR · State Board of Nursing · 2013-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 20, 2013. The record was kept open for the filing of the court reporter’s transcript. The record was closed on December 6, 2013. APPEARANCES: Acquilla McCullough appeared personally. The Arizona 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 licensing and regulating the practice of nursing in Arizona. 2. Acquilla McCullough (“Applicant”) appealed the Board’s denial of her application for practical nurse licensure. The Board forwarded the appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 3. On April 19, 2012, Applicant filed an application for practical nurse licensure by examination (“Application”). 4. Paragraph 20 of the Application asks 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?” Applicant answered “Yes” to the question. Paragraph 20 of the Application required an applicant answering “Yes” to provide the following additional information: If yes, provide a written explanation of the details of each conviction and sentence. Return the written explanation, a copy of the police report and court documents for each conviction, indicating type of conviction, conviction date and sentence including the date of absolute discharge of the sentence for each felony conviction with your application.

5. Applicant submitted the following documentation as a result of her affirmative answer to the question asked in Paragraph 20 of her Application: (i) Applicant’s written explanation of her conviction; (ii) A letter dated December 23, 2009, from the City of San Diego Police Department Records Division; (iii) A letter dated January 12, 2012, from the Office of Primary Public Defender of the County of San Diego regarding San Diego Superior Court Case No. SCD195098; (iv) Criminal Minutes of the Superior Court of California, County of San Diego, dated April 13, 2006, in Case No. SCD195098; (v) Felony Minutes of the Superior Court of California, County of San Diego, dated January 11, 2012, in Case No. SCD195098; and (vi) An Order Granting Petition for Relief dated January 11, 2012, in Case No. SCD195098. 6. Applicant’s written explanation did not indicate what crime she had been charged and convicted of committing. 7. The Order Granting Petition for Relief in Case No. SCD195098 indicates that Applicant’s conviction had been set aside and the charge dismissed. However, the Order Granting Petition for Relief also contained the following order: “The defendant is ordered to disclose this conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.” 8. As a result of Applicant’s answer to the question in Paragraph 20, the Board initiated an investigation. Linda Monas, a senior investigator for the Board, conducted the investigation. As part of her investigation, Ms. Monas subpoenaed court and police records. 9. Ms. Monas’ investigation revealed that Applicant was convicted of giving false information to a police officer on or about June 21, 1995. Applicant was placed on probation for the offense. 10. As part of a Board investigation, applicants are requested to complete an arrest charge citation for each of their criminal incidents. However, Applicant did not complete a questionnaire for this conviction. 11. Also in June 1995, Applicant was charged with petty theft and use of physical force, battery. Applicant subsequently pled no contest to the charges. On April 30, 2013, Ms. Monas interviewed Applicant about those charges. 12. On October 26, 2005, Applicant walked into the waiting room of an emergency room and hit her uncle in the head multiple times with a crowbar. The uncle sustained a fractured jaw and several lacerations to the head as a result of Applicant’s attack. Three of the lacerations required staples. 13. On or about November 22, 2005, in the Superior Court of California, County of San Diego, Case No. SCD195098, Applicant was charged with the crimes of Assault with a Deadly Weapon/Force Likely to Cause Great Bodily Injury, Battery with Serious Injury, and Burglary, all felonies, resulting from the October 26, 2005, incident. On April 13, 2006, Applicant was convicted, pursuant to a guilty plea, of Assault with a Deadly Weapon, a felony, and Inflicting Great Bodily Harm, a felony, resulting from the October 26, 2005, incident. On January 11, 2012, the Court set aside those charges. 14. As part of the Board’s investigation, Ms. Monas also obtained Applicant’s employment records. 15. On or about January 9, 2000, Applicant applied for employment with Age Advantage in La Mesa, California as a caregiver. On her employment application, Applicant answered “No” to the following question: “Have you ever been convicted of an offense other than a minor traffic offense (exclude convictions which were sealed, expunged or statutorily eradicated)[?]” Applicant failed to discloses her June 21, 1995 conviction of Giving False Information to a Peace Officer, a misdemeanor, and her July 1995 convictions for Petty Theft and Unlawfully Using Force and Violence. 16. On or about August 19, 2008, Applicant applied for employment as a CNA unit secretary with Oakbend Medical Center in Richmond, Texas. On her application, Applicant answered “No” to the following question: “Have you ever been convicted of any misdemeanor or felony offense other than a minor traffic violation within the last ten years?” Applicant failed to disclose her criminal history. 17. On or about August 4, 2009, Applicant applied for employment with Lura Turner Homes, Inc. of Phoenix, Arizona. On her “Employee/Applicant Declaration” submitted to the Arizona Department of Economic Security, Division of Developmental Disabilities, Applicant answered “No” to the following question: Have you been CONVICTED of, found by a COURT to have COMMITTED, or have you COMMITTED any of the following offenses in this state or similar offenses in another state . . . 19. A theft related offense . . . 20. A violence related offense. . . .

(Emphasis in the original). Applicant failed to disclose her criminal history in her “Employee/Applicant Declaration.”[1] Applicant’s employment was terminated when her Fingerprint Clearance Card was denied by the Arizona Department of Public Safety due to her criminal history. 18. On or about October 2009, Applicant applied for employment with ComForcare Senior Services. Applicant answered “No” to the following question: “Have you ever been convicted of a crime?” Applicant failed to disclose her criminal history in her application. 19. On or about June 2010, Applicant applied for employment with Consumer Advocacy Projects, Inc. in Phoenix, Arizona. In her application, Applicant wrote that her “Reason For Leaving” Lura Turner Homes, Inc. was for “more hours.” Applicant failed to disclose that she was terminated from employment with Lura Turner Homes, Inc. due to the denial of her Fingerprint Clearance Card because of her criminal history. 20. When Applicant applied for employment with Consumer Advocacy Projects, Inc., she also completed a “Criminal History Self Disclosure Affidavit” with the Arizona Department of Economic Security.[2] Applicant checked the box for the following statement: “I have been convicted of or I am under pending indictment for the following crime(s) . . . .” Applicant then wrote the following explanation: “assault date 6/04 3yr Probation outcome: applied [sic] with all conditions no violations circumstances: defending my younger brother. . . .” Applicant failed to disclose the actual occurrence date in 2005 and her full and accurate criminal history. 21. On or about May 26, 2010, Applicant applied for employment with Blessing For Seniors in Goodyear, Arizona. In her application, Applicant answered “No” to the following question: “Have you ever been Convicted of a Felony (required)[.]” (Emphasis in the original). Applicant failed to disclose her felony convictions for Assault with a Deadly Weapon and Inflicting Great Bodily Injury. In addition, Applicant failed to disclose any employment after her 2009 employment at Oakbend Medical Center. 22. At the hearing, Applicant admitted to being dishonest in her employment applications, but stated that she did so because she knew that an accurate disclosure would be a hindrance to her being hired. CONCLUSIONS OF LAW 1. The Board has jurisdiction over the appeal in this matter. 2. Pursuant to A.R.S. § 41-1092.07(G)(1), Applicant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 3. The evidence of record established that Applicant’s criminal history constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(b) (effective September 30, 2009),[3] which provides as follows: “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.” 4. Applicant’s deceptive disclosures on her employment applications constitute unprofessional conduct pursuant to A.R.S. § 32-1601(18)(d) (effective September 30, 2009),[4] which provides as follows: “Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” 5. Applicant’s conduct constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(h) (effective September 30, 2009),[5] which provides as follows: “Committing an act that deceives, defrauds or harms the public.” 6. Applicant’s conduct constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4-19-403(2) (effective January 31, 2009).[6] 7. Applicant’s conduct constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4-19-403(15) (effective January 31, 2009).[7] 8. Applicant’s conduct constitutes unprofessional conduct pursuant to A.R.S. § 32-1601(18)(j) (effective September 30, 2009), specifically A.A.C. R4-19-403(25) (effective January 31, 2009).[8] 9. Applicant’s conduct constituting the above statutory and regulatory violations constitutes a violation of A.R.S. § 32-1601(18)(g) (effective September 30, 2009),[9] which provides as follows: “Wilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.” 10. Pursuant to A.R.S. § 32-1663(A), the Board has the authority to deny Applicant’s application for licensure for the above-described acts of unprofessional conduct. The evidence of record supports the Board’s denial of Applicant’s application. RECOMMENDED ORDER Based on the foregoing, it is recommended that Applicant’s appeal be denied and the Board’s denial of Applicant’s application for practical nurse licensure 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 after the date of the certification. Done this day, December 26, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, FAAN, Executive Director State Board of Nursing ----------------------- [1] Paragraph 13 of the Board’s Order of Denial alleging that Applicant failed to disclose her criminal history in her employment application to Lura Turner Homes, Inc. was not supported by the evidence of record. That employment application did not ask Applicant to disclose her criminal history. [2] This application is submitted to ensure that applicants meet the criteria for working in certain types of facilities. [3] Presently A.R.S. § 32-1601(22)(b). [4] Presently A.R.S. § 32-1601(22)(d). [5] Presently A.R.S. § 32-1601(22)(h). [6] A.A.C. R4-19-403(2) (effective January 31, 2009) provides as follows: “Intentionally or negligently causing physical or emotional injury.” [7] A.A.C. R4-19-403(15) (effective January 31, 2009) provides as follows: “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.” [8] A.A.C. R4-19-403(25) (effective January 31, 2009) provides as follows: “Failing to: a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664.” [9] Presently A.R.S. § 32-1601(22)(g).

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