ALJDEC decisions subject to certification as final

13A-1207118-NUR · State Board of Nursing · 2014-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2013, with the record held open until December 16, 2013. APPEARANCES: Denis John Calderon appeared on his own behalf. The Arizona State Board of Nursing was represented by Assistant Attorney General Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona State Board of Nursing (the Board) has the authority to regulate and control the practice of nursing in the State of Arizona pursuant to A.R.S. §§ 32-1606, 32-1663, and 32-1664. The Board also has the authority to determine whether applicants qualify for certification or licensure under the Nurse Practice Act, A.R.S. §§ 32- 1601 through 32-1667. 2. On or about June 14, 2012, Denis John Calderon (Applicant) submitted an application to the Board for certification by exam as a Certified Nursing Assistant (CNA). With her application, Applicant submitted her fingerprints. 3. The Board assigned Senior Investigator Ron Lester to investigate Applicant’s application. Using Applicant’s fingerprints, Mr. Lester obtained documents relating to Applicant’s criminal history. Hearing Evidence Applicant’s Criminal History Illegal Entry and Trespass (October 12, 1997) 4. At approximately 2:15 a.m. on October 12, 1997, Officer Jon Hale of the Pima County Sheriff’s Department observed Applicant sitting in a parked vehicle in Tucson Mountain Park. 5. Applicant was parked next to a sign outlining the park rules including that the park was closed from 10:00 p.m. to 7:00 a.m. Officer Hale determined Applicant was intoxicated. 6. Applicant was cited for trespass and drinking in a county park. 7. On or about May 28, 1998, Applicant pled guilty and was convicted of illegal entry and trespass, a misdemeanor. Driving Under the Influence (February 1, 1998) 8. At approximately 9:30 p.m. on February 1, 1998, Officer R. Ballesteros of the Arizona Highway Patrol observed a vehicle in the right lane driving on the white line on the right side and cross onto the shoulder with its right side tires twice. 9. After initiating a traffic stop, Officer Ballesteros noted a half full quart of Miller beer on the passenger’s seat with a full beer inside a paper bag. 10. Officer Ballesteros requested Applicant’s driver’s license, registration, and proof of insurance. Applicant refused to provide his driver’s license. Applicant was warned that Officer Ballesteros would have to place Applicant under arrest if he failed to provide his driver’s license. Applicant told Officer Ballesteros to arrest him and take him to jail. 11. Once at the Pima County jail, Applicant agreed to submit to some field sobriety tests. Applicant failed the field sobriety tests. 12. Once in the Pima County jail, Applicant was advised of his Miranda Rights, which Applicant elected to invoke. Officer Ballesteros read Applicant the Admin Per Se/Implied Consent Affidavit. Applicant refused to speak to Officer Ballesteros and requested to speak to his attorney. 13. Applicant’s attorney advised Applicant to take the breath test or his driver’s license would be suspended for 12 months. Applicant still refused to take the breath test. 14. Applicant was charged with driving under the influence, failure to provide driver’s license, failure to comply with a police officer, and open container. 15. On or about April 20, 1998, Applicant pled guilty and was convicted of driving under the influence, a misdemeanor. Driving Under the Influence (June 29, 2002) 16. At approximately 5:12 a.m. on June 29, 2002, Officer D. Mattus of the Arizona Highway Patrol ran a records check on the license plate of a vehicle he observed on the interstate. Upon determining the license plate was suspended under the mandatory insurance law, Officer Mattus initiated a traffic stop. 17. During the traffic stop, Officer Mattus detected a strong odor of an alcoholic beverage emanating from the passenger compartment. Officer Mattus also detected the odor of vomit and observed fresh vomit on the passenger’s side seat and floorboard. 18. When asked to follow Officer Mattus back to his vehicle, Applicant had trouble walking in a straight line and was weaving as he walked. Once standing at the vehicle, Applicant was swaying. Applicant’s eyes were very red and watery. 19. Officer Mattus administered field sobriety tests, which Applicant failed. 20. Applicant was arrested for driving under the influence. 21. Once at the Pima County jail, a breath test was administered, which indicated Applicant had a blood alcohol content of 0.226. 22. On or about June 22, 2004, Applicant pled guilty and was convicted of extreme driving under the influence, with a blood alcohol content of 0.22, a misdemeanor. Driving Under the Influence (September 14, 2010) 23. At approximately 7:05 p.m. on September 14, 2010, Officer Matthew Gilbert of the Pima County Sheriff’s Department observed Applicant make a wide left-hand turn. 24. After initiating a traffic stop, Officer Gilbert detected the moderate odor of intoxicants emitting from Applicant. Officer Gilbert also observed Applicant had red, watery, bloodshot eyes and slow, mumbled speech. Applicant acknowledged he had drank a quart of beer approximately one hour earlier. 25. Officer Gilbert and Deputy Gardner administered field sobriety tests, which Applicant failed. A preliminary breath test indicated a positive presence for blood alcohol concentration. 26. Applicant was arrested for driving under the influence to the slightest degree. A subsequent blood draw indicated Applicant had a blood alcohol content of 0.114. 27. On or about January 4, 2011, the charges were dismissed without prejudice. The Board’s Investigation 28. On or about October 9, 2012, Board staff mailed Applicant a questionnaire with instructions to provide a written explanation and specific court and police records regarding each of his arrests, citations, or charges by November 8, 2012. 29. On or about November 5, 2012, Applicant responded to the Board’s request, but did not include a written statement for each of his arrests, citations, or charges. 30. On or about April 17, 2013, Applicant was notified by Board staff that he needed to provide a written statement for each of his arrests, citations, or charges, felony or misdemeanors, whether the incidents ultimately resulted in convictions or not. 31. Applicant did not submit written explanations to the Board. 32. On or about June 5, 2013, during an interview with Board staff, Applicant admitted the following: a. Applicant was drinking in the park on or about October 12, 1997; b. Applicant was drinking prior to driving on September 14, 2010, but he did not feel he was too intoxicated to drive; c. Applicant had a problem with alcohol in 2002 when he would drink every day to get drunk because he was lonely. 33. At its meeting in July 2013, the Board considered Applicant’s application and the investigative report. Based upon the findings of fact and statute/rule violations identified in the investigative report, the Board voted unanimously to deny the application, with ten members voting in favor of the denial. 34. On August 25, 2013, the Board issued an Order of Denial, denying Applicant’s application under A.R.S. §§ 32-1646 and 32-1663 because he had committed unprofessional conduct as defined by A.R.S. § 32- 1601(18)(d) (2009) and A.R.S. § 32-1601(18)(j) (2009), specifically A.A.C. R4-19-814(14) and (23) (2009).[1] 35. Applicant requested a hearing on the Board’s denial of his application for CNA certification. The Board referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 36. A hearing was held on November 15, 2013. Applicant testified on his own behalf. The Board presented the testimony of Michelle Morton and submitted fourteen exhibits. Other Evidence 37. Applicant testified that he had been a recovering alcoholic for eleven years and had taken great measures to overcome it. 38. Applicant stated he had attended Alcoholics Anonymous periodically over the years and occasionally speaks to his sponsor. Applicant indicated he knew the twelve steps and was working on steps eight and nine, making amends. 39. Applicant testified he was uncertain when he last drank and acknowledged he drank at weddings and ballgames, but Applicant asserted he no longer abused alcohol. 40. Applicant stated he was not expecting the Board to go so far back in his history and that he had changed a lot since those times. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B). Applicant bears the burden of proof to establish by a preponderance of the evidence that he is qualified to be a CNA in Arizona and that, therefore, the Board erred in denying his application. 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Former A.R.S. § 32-1601(18) (2009) applied to Applicant’s application for CNA certification. That statute defines “unprofessional conduct” in relevant part as: (d) Any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public. . . . . (j) Violating this chapter or a rule that is adopted by the [B]oard pursuant to this chapter.

A.A.C. R4-19-814 (2009) applies to Applicant’s CNA application and provides in relevant part as follows: For purposes of A.R.S. § 32-1601(18)(d), a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes a basis for disciplinary action on a certificate includes the following: . . . . 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; . . . . 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.

A.R.S. § 32-1663(A) provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the [B]oard may deny the application.” A guilty plea to a crime establishes that the person committed the acts that constituted the crime. Applicant pled guilty to driving under the influence on February 1, 1998 and June 29, 2002. Therefore, Applicant’s convictions evidenced unprofessional conduct as defined by A.A.C. R4-19-814(14) and former A.R.S. § 32-1601(18)(d) and (j). Applicant acknowledged that he did not cooperate with the Board’s investigation and that he failed to timely provide a completed questionnaire that contained all the information that the Board requested concerning his crimes. Applicant’s failure evidenced unprofessional conduct as defined by A.A.C. R4-19-814(23) and former A.R.S. § 32- 1601(18)(d) and (j). While Applicant testified that he had taken great steps to address his alcoholism, Applicant did not establish he had been in recovery for a sustained period or that he had stopped consuming alcohol. CNAs provide basic, important health services to patients and frequently are the nurses who are in the best position to monitor their patients’ well-being. The Board’s primary purpose is to protect the public health and safety by regulating the practice of nursing in Arizona. See Laws 1982, Ch. 190, §§ and 18; Laws 1992, Ch. 308, § 16. Applicant’s statements of rehabilitation do not overcome the evidence of years of unprofessional conduct that had resulted from his alcohol dependency. Therefore, Applicant did not establish that the Board erred in denying his application for CNA certification under A.R.S. § 32-1663(A) at this time. RECOMMENDED ORDER In light of Applicant Denis John Calderon’s failure to establish by a preponderance of the evidence that he is qualified for CNA certification at this time, it is recommended that the Board dismiss the appeal in Case No. 13A-1207118-NUR and affirm its denial of Applicant’s application for a CNA certificate. 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 6, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] The Order of Denial also included a reference to A.A.C. R4-19-814(29), which the Board acknowledged at hearing was included in error and is not considered in this decision.

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