ALJDEC decisions subject to certification as final

15A-1410118-NUR · State Board of Nursing · 2019-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2018 APPEARANCES: No one appeared for Respondent; Elizabeth Campbell, Esq. for the Board of Nursing ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. The Arizona State Board of Nursing (“Board”) is the authority for licensing and regulating the practice of nursing in the State of Arizona. 2. Respondent Sarah Jo Ray holds registered nurse license number RN185244 first issued by the Board in April 2014. 3. On October 17, 2018, the Board issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 1:30 p.m. December 5, 2018, at the Office of Administrative Hearings in Phoenix, Arizona. 4. Ms. Ray did not appear at the scheduled hearing time and the matter was convened in her absence at about 1:46 p.m. 5. The Board presented the testimony of its associate director Valerie Smith, RN. 6. On October 14, 2014, the Board received from Oro Valley Hospital a complaint showing that Ms. Ray had tested positive for marijuana in a pre-employment drug screen and that she was found to be not eligible for hire. The sample was collected on October 6, 2014. 7. In March 2008, the Oklahoma Board of Nursing placed Ms. Ray’s Oklahoma LPN license on probation for a positive test for marijuana that occurred in a pre-employment drug screen that occurred on October 18, 2007. 8. Oklahoma required Ms. Ray to submit to periodic bodily fluids testing, to attend counseling, and to file reports with the Oklahoma Board. 9. In January 2009, Oklahoma approved Ms. Ray’s licensure as a registered nurse, and required her to continue bodily fluids testing, counseling, and reporting. 10. Ms. Ray completed the terms of probation for her Oklahoma license in February 2012. 11. The Board requested that Ms. Ray’s license be revoked. CONCLUSIONS OF LAW 1. The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(2). 2. The standard of proof on all issues is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. The preponderance of the evidence shows that Ms. Ray has obtained and used marijuana which is a violation of Ariz. Admin. Code section 4-19-403(18) and unprofessional conduct under Ariz. Rev. Stat. sections 32-1601(26)(d) (conduct that is, or might be, harmful or dangerous to the health of a patient or the public) and (26)(j)(violation of a statute or rule).[1] 5. The Board also alleges that Ms. Ray has violated Ariz. Admin. Code section 4-19-403(17)(engaging in a pattern of using or being under the influence of alcohol or drugs to the extent that judgment may be impaired and nursing practice detrimentally affected). The evidence of record shows that on two occasions Ms. Ray tested positive for marijuana, with those tests being seven years apart. This evidence is insufficient to show a pattern and the Board has not proven this allegation by a preponderance of the evidence. 6. Because Ms. Ray has committed unprofessional conduct, the Board has authority to discipline her registered nurse license. Ariz. Rev. Stat. §§ 32-1663 and 32-1664. 7. Considering the facts and circumstances of this matter, particularly Ms. Ray’s failure to appear at the hearing, it is recommended that Ms. Ray’s registered nurse license number RN185244 be revoked. RECOMMENDED ORDER IT IS ORDERED that Sarah Jo Ray’s registered nurse license number RN185244 is revoked. 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 10, 2019. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing

----------------------- [1] The current versions of the applicable statutes and rules are cited.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826