FINACT17A-1609019-NUR.pdf
17A-1609019-NUR · State Board of Nursing · 2017-04-17
Doug Ducey Joey Ridenour Governor Executive Director
Arizona State Board of Nursing 4747 North 7th Street, Suite 200 Phoenix. AZ 85014-3655 Phone (602) 771-7800 Fax (602) 771-7884 E-Mail: [email redacted] Home Page: http://www.nursing.state.az.us
TO: Case Management Office of Administrative Hearings
FROM: Trina Smith Legal Assistant Hearing Department
DATE: March 24, 2017
RE: Brett Albert Whiteaker Docket No. 17A-1609019-NUR ______________________________________________________________________________
On March 24, 2017, the Board considered the Administrative Law Judge Decision
(“ALJ Decision”), which recommended that the Board Revoke Registered Nurse License No.
RN168273, issued to Brett Albert Whiteaker.
The Board adopted the Findings of Fact, Conclusions of Law and Recommended
Order in its entirety. ARIZONA STATE BOARD OF NURSING 4747 North 7th Street Ste 200 Phoenix AZ 85014-3655 602-771-7800
IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN168273 FINDINGS OF FACT, ISSUED TO: CONCLUSIONS OF LAW AND ORDER NO. 17A-1609019-NUR BRETT ALBERT WHITEAKER, RESPONDENT.
A hearing was held before Velva Moses-Thompson, Administrative Law Judge (“ALJ”), at
1400 West Washington Suite 101, Phoenix Arizona, on February 3, 2017. Sunita Krishna, Assistant Attorney General, appeared on behalf of the State. Brett Albert Whiteaker (“Respondent”) appeared in person on his own behalf.
On March 13, 2017, the ALJ issued Findings of Fact, Conclusions of Law and
Recommendations. On March 24, 2017, the Arizona State Board of Nursing met to consider the ALJ’s recommendations. Based upon the ALJ’s recommendations and the administrative record in this matter, the Board makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. The Arizona State Board of Nursing, (hereinafter "Board"), has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.RS. §§ 32-1606, 32-1663, 32- 1664, 41-1092.11 (B). The Board also has the authority to impose disciplinary sanctions against the holders of nursing licenses for violations of the Nurse Practice Act, A.RS. §§ 32-1601 to -1669 and
Arizona Administrative Code ("A.AC.") Rules 4-19-101 to -815.
2. Brett Albert Whiteaker holds Board issued registered nurse license number RN168273 in the State of Arizona.
3. On or about July 12, 2016, according to Maricopa County, Arizona, Sheriff's Office Incident Report #IR16-018755, police officers found Mr. Whiteaker trespassing on property not belonging to him in Litchfield Park, Arizona. They searched Mr. Whiteaker and found a glass smoking
pipe containing a white powdery substance. Mr. Whiteaker admitted to police that he had used the pipe
to smoke methamphetamine 4. On or around July 13, 2016, in case #M-0769-CR-20160022, Litchfield Park Municipal Court, Mr. Whiteaker was charged with the misdemeanor of criminal trespassing.
5. On July 27, 2016, Mr. Whiteaker was charged for failing to appear in Court regarding the
July 13, 2016 misdemeanor charge. 6. Mr. Whiteaker failed to report the charge to the Board in 10 days as required by rule and statute. 7. On or about August 16, 2016, according to Maricopa County Sheriff's Office arrest/
booking record T295052 and Case No. CR0020160220001, pursuant to Phoenix Police Report No.
#[number redacted], Mr. Whiteaker was booked into Maricopa County Jail for attempted burglary and trespassing. 8. On or about September 19, 2016, in case #[number redacted] of the Phoenix Municipal Court
in Phoenix, Arizona, Mr. Whiteaker was charged with two misdemeanors for trespassing in a
residential structure and trespassing in a residential yard. 9. Mr. Whiteaker failed to report the charges to the Board in 10 days as required by rule and statute. As of December 12, 2016, the trespassing charges are still pending in Phoenix Municipal Court.
10. On or about September 17, 2016, Mr. Whiteaker suffered a severe mental health crisis,
including abusing a controlled substance, which required his admittance to Maricopa Integrated Health System (MIHS) in Phoenix, Arizona, a mental health facility.
11. The testimony and evidence presented at hearing established that Mr. Whiteaker is a user of methamphetamine and suffered up to three other severe mental health crises. 12. At hearing, Mr. Whiteaker expressed his remorse for his actions. Mr. Whiteaker did not
dispute the facts presented by the Board. However, Mr. Whiteaker expressed that he wanted to
continue working as a registered nurse and is undergoing treatment.
CONCLUSIONS OF LAW
1. This matter lies within the Board's jurisdiction under ARIZ. REV. STAT. § 32- 1606(A)(8). 2. The Board bears the burden of persuasion to establish cause to penalize Mr. Whiteaker's
registered nurse license. ARIZ. REV. STAT. § 41-1092.07(G)(2);
3. The Board's burden is a preponderance of the evidence. ARIZ. ADMIN. CODE § R2- 19-119. 4. 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).
5. The facts, as set forth previously, establish that Mr. Whiteaker committed unprofessional conduct as defined by ARIZ. REV. STAT. section 32-1601(24)(d), (e), (g), (j); A.A C. R4-19-814(17),
(18), (28) and (32); A.A C. R4-19-403(17)(18)(28).
6. Because Mr. Whiteaker has committed unprofessional conduct, the Board has authority to revoke his registered nurse license. ARIZ. REV. STAT. § 32-1663(D); and §32-1664(O).
7. Considering the facts and circumstances of this matter, it is recommended that Mr. Whiteaker's registered nurse license number RN168273 be revoked.
ORDER
In view of the Findings of Fact and Conclusions of Law, the Board issues the following Order: Pursuant to A.R.S. § 32-1664(N), the Board REVOKES registered nurse license number RN168273 issued to Brett Albert Whiteaker.
RIGHT TO PETITION FOR REHEARING OR REVIEW Pursuant to A.R.S. § 41-1092.09, Respondent may file, in writing, a motion for rehearing or review within 30 days after service of this decision with the Arizona State Board of Nursing. The motion for rehearing or review shall be made to the attention of Hearing Department,
Arizona State Board of Nursing, 4747 North 7th Street Ste 200, Phoenix AZ 85014-3655, and must
set forth legally sufficient reasons for granting a rehearing. A.A.C. R4-19-608. For answers to questions regarding a rehearing, contact the Hearing Department at (602) 771-7844. Pursuant to A.R.S. § 41-1092.09(B), if Respondent fails to file a motion for rehearing
or review within 30 days after service of this decision, Respondent shall be prohibited from
seeking judicial review of this decision. This decision is effective upon expiration of the time for filing a request for rehearing or review, or upon denial of such request, whichever is later, as mandated in A.A.C. R4-19-609. ….
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Respondent may apply for reinstatement of the said license pursuant to A.A.C. R4-19-404 after a period of five years. DATED this 24th day of March, 2017.
ARIZONA STATE BOARD OF NURSING SEAL
Joey Ridenour, R.N., M.N., F.A.A.N Executive Director
COPIES mailed this 24th day of March, 2017, by Certified Mail No. [account number redacted] 1168 and First Class Mail to:
Brett Albert Whiteaker 5487 Spruce Court Ogden, UT 84403 COPIES of the foregoing mailed this 24th day of March, 2017, to:
Case Management Office of Administrative Hearings 1400 W Washington Ste 101 Phoenix AZ 85007
Sunita Krishna Assistant Attorney General 1275 W Washington CIV/LES Section Phoenix AZ 85007
By: T. Smith