ALJDEC decisions subject to certification as final

16A-1512006-NUR · State Board of Nursing · 2016-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2016, at 1:00 a.m. APPEARANCES: The Arizona State Board of Nursing (“the Board”) was represented by Elizabeth Campbell, Esq., Assistant Attorney General; Cyrus Mumo Mbithi (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 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 licensees have committed unprofessional conduct, thereby furnishing cause for discipline under the Nurse Practice Act, A.R.S. §§ 32-1601 through 32-1667. Respondent holds Board-issued Registered Nurse License No. RN173726. The Board summarily suspended Respondent’s registered nurse license and referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On or about February 9, 2016, the Board issued a Complaint and Notice of Hearing that set a hearing on March 17, 2016, at 1:00 p.m. The Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as defined by A.R.S. §§ 32-1601(22)(b), 32- 1601(22)(d), 32-1601(22)(g), 32-1601(22)(h), 32-1601(22)(j), and 32- 3208(A) and (D). For purposes of A.R.S. § 32-1601(22)(d), the Complaint and Notice of Hearing charged Respondent with having committed unprofessional conduct as further defined by A.A.C. R4-19-403(2) and R4-19- 403(28). The Board sent the Complaint and Notice of Hearing to Respondent at his last known address of record by first-class and certified mail. A hearing was held on March 17, 2016. The Board presented the testimony of Detective Rachel Tidd (“Detective Tidd”) of the Surprise, Arizona Police Department (“SPD”) and the Board’s Senior Investigator Katrina Alberty and submitted two exhibits. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the duly noticed hearing did not conclude for twenty minutes, Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be delayed. Consequently, Respondent did not present any evidence to defend his registered nurse license. Hearing Evidence On August 21, 2015, according to SPD’s Form IV probable Cause Statement for report number [number redacted], SPD received a report that Respondent had engaged in sexual intercourse with his 14-year-old daughter during approximately the previous two weeks. Police conducted a forensic interview with the victim, who corroborated multiple instances of sexual intercourse, including incidents that occurred in Respondent’s home, while Respondent’s other children were at home and his wife was at work. In addition to the home, Respondent also had sexual intercourse with the victim in his vehicle when it was parked in a public parking lot. Respondent also showed the victim pornographic videos, masturbated the victim’s vagina, and performed oral sex on the victim. SPD officers interviewed Respondent. Respondent told police he was sexually aroused by the victim since she was 12 years old. However, he stated that he did not “cross the line” until two weeks earlier. Respondent said that he knew it was wrong. Detective Tidd testified that when she interviewed Respondent, he admitted to performing multiple sexual acts on the victim. SPD officers arrested Respondent for multiple offenses involving sexual misconduct with his 14-year-old daughter. On or about August 25, 2015, in Maricopa County Superior Court Case No. CR2015-139243, a direct complaint was filed charging Respondent with Sexual Conduct with a minor.[1] On or about August 28, 2015, Respondent was indicted on eight counts of Sexual Conduct with a Minor (Class 2 Felonies), three counts of Furnishing Obscene Material to a Minor (Class 4 Felonies), one count of Molestation of a Child (Class 2 Felony), one count of Sexual Abuse (Class 3 Felony), and one count of Attempt to Commit Sexual Conduct with a Minor (Class 3 Felony). Respondent failed to report the felony charges to the Board within ten days, failed to maintain a current address of record with the Board, and failed to return a response to the Board’s investigative questionnaire.[2] Ms. Alberty testified that she attempted to interview Respondent and that he had an opportunity to respond to the Board’s investigation. Ms. Alberty testified that on December 17, 2015, she spoke to Respondent’s wife, who had relocated to Michigan, and learned that Respondent was in the custody of law enforcement, in jail. CONCLUSIONS OF LAW The Board has jurisdiction to consider disciplinary proceedings against Respondent’s registered nurse license.[3] This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). The Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record was reasonable and Respondent is deemed to have received notice of the hearing.[4] The Board bears the burden of proof to establish by a preponderance of the evidence cause to discipline Respondent’s registered nurse license.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] The Board established that during the approximately two weeks before August 21, 2015, Respondent committed numerous felony sexual offenses against his 14-year-old daughter. The Board established that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1601(22)(b), (d), (g), (h), and (j),[7] and as further defined by A.A.C. R4-19-403(2) and (28).[8] The Board also established cause to discipline Respondent’s registered nurse’s license under A.R.S. § 32-3208(A) and (D).[9] Respondent’s numerous acts of unprofessional conduct furnish cause for the Board to discipline his registered nurse license under A.R.S. §§ 32- 1663(D)[10] and 32-1664(N).[11] The Board also has established that the protection of the public health, safety, and welfare required it to summarily suspend Respondent’s license to prevent him from being employed as a registered nurse at the time that it became aware of his unprofessional conduct. RECOMMENDED ORDER In light of Respondent Cyrus Mumo Mbithi’s numerous acts of unprofessional conduct, it is ordered affirming the Board’s order summarily suspending Registered Nurse License No. RN173726. It is further ordered revoking Registered Nurse License No. RN173726 previously issued to Cyrus Mumo Mbithi on the effective date of the final order in this matter. 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, March 23, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See the Board’s Exhibit 1. [2] See the Board’s Exhibit 2. Ms. Alberty testified consistently with her investigative report. [3] See A.R.S. § 32-1664. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] A.R.S. § 32-1601(22) provides in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: . . . . (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) Wilfully 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. [8] A.A.C. R4-19-403 provides in relevant part as follows: For purposes of A.R.S. § 32-1601(22)(d), any conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes one or more of the following: . . . . 2. Intentionally or negligently causing physical or emotional injury; . . . . 28. If a licensee or applicant is charged with a felony or a misdemeanor involving conduct that may affect patient safety, failing to notify the Board in writing, as required under A.R.S. § 32-3208, within 10 days of being charged. [9] A.R.S. § 32-3208 provides in relevant part as follows A. A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed. . . . . D. A health professional who does not comply with the notification requirements of this section commits an act of unprofessional conduct. The health professional's regulatory board may impose a civil penalty of not more than one thousand dollars in addition to other disciplinary action it takes. [10] A.R.S. § 32-1663(D) provides that “[i]f the board finds, after affording an opportunity to request an administrative hearing pursuant to title 41, chapter 6, article 10, that a person who holds a license or certificate issued pursuant to this chapter has committed an act of unprofessional conduct, it may take disciplinary action.” [11] A.R.S. § 32-1664(N) provides that “[i]f the regulated party is found to have committed an act of unprofessional conduct or to have violated this chapter or a rule adopted pursuant to this chapter, the board may take disciplinary action.”

-----------------------

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