ALJDEC decisions subject to certification as final
17A-1609019-NUR · State Board of Nursing · 2017-03-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF REGISTERED NURSE LICENSE NO. RN168273
ISSUED TO:
BRETT ALBERT WHITEAKER,
Respondent
No. 17A-1609019-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 3, 2017
APPEARANCES: Brett Albert Whiteaker appeared on behalf of himself. Assistant Attorney General Sunita Krishna appeared on behalf of the Arizona Board of Nursing.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
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.R.S. §§ 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.R.S. §§ 32-1601 to -1669 and Arizona Administrative Code (“A.A.C.”) 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 earlier that day.
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 methamphetamine1 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
This matter lies within the Board’s jurisdiction under Ariz. Rev. Stat. § 32-1606(A)(8).
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);
The Board’s burden is a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
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).
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).
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).
Considering the facts and circumstances of this matter, it is recommended
that Mr. Whiteaker’s registered nurse license number RN168273 be revoked.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Brett Albert Whiteaker’s registered nurse license number RN168273.
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 13, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing