FINACT14A-1204037-NUR.pdf

18A-1711005-NUR-RES · State Board of Nursing · 2018-05-22

Doug Ducey Joey Ridenour Governor Executive Director

Arizona State Board of Nursing 1740 West Adams Street, Suite 2000 Phoenix. AZ 85007 Phone (602) 771-7800 Fax (602) 771-7888 E-Mail: [email redacted] Home Page: http://www.azbn.gov

TO: Case Management Office of Administrative Hearings

FROM: Trina Smith Legal Assistant Hearing Department

DATE: May 21, 2018

RE: Ezekiel Tolu Oopuroku Docket No. 14A-1204037-NUR and 18A-1711005-NUR ______________________________________________________________________________

On May 18, 2018, the Board considered the Administrative Law Judge Decision (“ALJ Decision”), which recommended that the Board Revoke Registered Nurse License No. RN162082 issued to Ezekiel Tolu Opuroku.

The Board adopted the Findings of Fact, Conclusions of Law and Recommended Order in its entirety. ARIZONA STATE BOARD OF NURSING 1740 West Adams Street, Suite 2000 Phoenix AZ 85007 602-771-7800

IN THE MATTER OF THE REGISTERED FINDINGS OF FACT, NURSE LICENSE NO. RN162082 CONCLUSIONS OF LAW ISSUED TO: AND ORDER NO. 14A-1204037-NUR and EZEKIEL TOLU OPUROKU, ORDER NO. 18A-1711005-NUR RESPONDENT.

A hearing was held before Tammy L. Eigenheer, Administrative Law Judge (“ALJ”), at 1740

West Adams Street, Lower Level, Phoenix Arizona, on April 19, 2018. Elizabeth Campbell, Assistant Attorney General, appeared on behalf of the State. Ezekiel Tolu Opuroku (“Respondent”) was not present and was not represented by counsel.

On May 9, 2018, the ALJ issued Findings of Fact, Conclusions of Law and Recommendations.

On May 18, 2018, 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

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 Sections 32-1606, 1663, and 1664 of the Arizona Revised Statutes. 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. §§ 32-1601-1667.

2. Ezekiel Tolu Opuroku (Respondent) holds Board-issued Registered Nurse License No. RN162082 in the State of Arizona, which was first issued in February 2010. Respondent was previously licensed as a practical nurse with the Board from 2001 until 2007.

3. On February 28, 2018, the Board issued a Complaint and Notice of Hearing, alleging that cause existed to discipline Respondent’s registered nurse license under A.R.S. § 32-1601(26)(a), (d), (g), (i), and (j);1 A.R.S. § 32-3208(A) and (D);2 and A.A.C. R4-19-403(17), (18), and (20).3 The

Complaint and Notice of Hearing was sent via certified mail to Respondent at his address of record.

4. The Board referred the matter to the Office of Administrative Hearings (the OAH), an independent agency, for an evidentiary hearing. A hearing was held on April 19, 2018. 5. The Board submitted 12 exhibits and presented the testimony of Kathleen Harrington,

Nurse Practice Consultant with the Board.

6. Respondent did not request to appear telephonically at the duly noticed hearing and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes to allow Respondent additional travel time, he did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently,

Respondent did not present any evidence to defend his registered nurse license.

HEARING EVIDENCE 7. On March 20, 2006, Respondent entered into Consent Agreement and Order No. 0401095 based upon conduct and circumstances including a 2004 drug test that was positive for

marijuana (the 2006 Consent Agreement). The 2006 Consent Agreement placed Respondent’s LPN

license on probation and required, among other things, that Respondent participate in treatment. 8. Respondent failed to comply with the treatment provisions of the 2006 Consent Agreement. In addition, Board staff learned that Respondent had failed to disclose a 2005 driving under

the influence incident where Respondent tested positive for alcohol and marijuana.

9. On January 24, 2007, Respondent entered into Consent Agreement and Order No. 06A- 0604128-NUR, which included an initial period of suspension followed by a probationary period (the

2007 Consent Agreement). In May 2007, the Board revoked Respondent’s practical nurse license for failure to comply with the 2007 Consent Agreement. 10. In February 2010, Respondent’s application for licensure as a registered nurse was

granted pursuant to Consent Agreement and Order No. 0905139 (the 2010 Consent Agreement). By the

terms of the 2010 Consent Agreement, the license was revoked, but the revocation was stayed for as long as Respondent was in compliance with the 2010 Consent Agreement. Respondent’s license was placed on probation for 12 months with terms and conditions followed by 12 months of standard

probation. Before the 2010 Consent Agreement terminated, Respondent was required to work as a

registered nurse for a minimum of 24 months working at least 16 hours per week. 11. The 2010 Consent Agreement provided Respondent was to abstain from the use of alcohol and drugs, submit to drug testing, remain enrolled in a drug testing program, and participate in an interview with the Board upon request. Further, Respondent was to have his immediate supervisor

inform the Board, in writing, that the supervisor had received a copy of the 2010 Consent Agreement

and to have his employer submit quarterly employer evaluations. Abstain from the Use of Alcohol and Drugs 12. Just after midnight on June 25, 2010, Phoenix Police responded to the scene of a

collision accident. Respondent, who had run a red light, displayed signs and symptoms of impairment

Respondent’s blood test was positive for marijuana and alcohol at a concentration of 0.237. 13. On August 27, 2010, in Phoenix, Arizona Municipal Court, Case No. [number redacted], Respondent was charges with four counts of driving under the influence (DUI).

14. On October 18, 2010, another count for driving with a drug or drug metabolite in the

body was added.

15. On December 7, 2012, Respondent was convicted on two counts of driving under the influence. 16. Respondent did not report the DUI charges to the Board.

17. On March 9, 2014, Respondent submitted a renewal application. On the renewal,

Respondent denied having any drug or alcohol related convictions since his last renewal. Drug Testing Program 18. By the terms of the 2010 Board Order, Respondent was required to enroll in a program

that met the Board’s criteria for random drug testing.

19. On April 16, 2012, Respondent submitted a urine specimen for random drug testing, which was positive for marijuana. Respondent’s urine sample was re-tested on April 18, 2012, and was confirmed positive for marijuana. 20. On June 9, 2014, and October 10, 2014, Respondent submitted urine specimens for

random drug testing that were also positive for marijuana.

21. Respondent failed to submit to drug testing on October 25, 2012; April 8, 2013; November 6, 2013; November 22, 2013; November 13, 2014; September 9, 2015; April 19, 2016; June 13, 2016; October 7, 2016; December 13, 2016; April 6, 2017; May 26, 2017;

May 30, 2017; June 13. 2017; June 21, 2017; and June 27, 2017. Respondent had not submitted to any

drug testing since July 7, 2017. 22. In July 2014, Respondent participated in a relapse/recovery evaluation with Leonard Days, LISAC. Mr. Days’ evaluation report did not reflect that Respondent disclosed the June 2010

driving under the influence incident. Mr. Days’ considered that April 16, 2012, and June 14, 2014 drug

tests that were positive for marijuana use. Mr. Days recommended that, in addition to continued drug testing, Respondent engage in treatment and recovery support.

Employer Acknowledgment 23. From May 2012 until approximately November 2015, Respondent worked as a registered nurse for Haven Health in Arizona.

24. From December 2015 to March 2016, Respondent worked as a registered nurse at

Granite Creek Health and Rehabilitation Center in Prescott, Arizona. 25. From March 2016 until at least late 2017, Respondent worked as a registered nurse at Camelback Post-Acute and Rehab in Phoenix, Arizona.

26. The Board did not received an acknowledgement from either Granite Creek or

Camelback Post-Acute and Rehab that they had received a copy of the 2010 Consent Agreement and would comply with the conditions of probation. Quarterly Employer Evaluations 27. By the terms of the 2010 Consent Agreement, Respondent was required to cause every

employer to submit to the Board, in writing, quarterly employer evaluations.

28. Since July 2013, the Board received only two employer evaluations, one dated January 9, 2014, and one received on December 31, 2014. Board Interview

29. On October 2, 2017, the Board sent Respondent a letter notifying him of an interview

with Board staff set for October 10, 2017. 30. Respondent emailed Board staff on the morning of October 10, 2017, requesting that the interview be rescheduled.

31. On October 10, 2017, Board staff replied to Respondent’s email and requested that

Respondent provide a date that would work with his schedule within the next week. Respondent did not respond to Board staff.

CONCLUSIONS OF LAW 1. The Complaint and Notice of Public 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.

See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).

2. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10). 3. The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse license by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C.

R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

4. “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 § (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact

sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1120 (8th ed. 2004).

5. The Board established by a preponderance of the evidence that Respondent failed to comply with the 2010 Consent Agreement on multiple occasions with respect to multiple requirements. 6. Respondent’s failure to comply with the 2010 Consent Agreement constituted

unprofessional conduct as defined by A.R.S. § 32-1601(26)(a), (d), (g), (i), and (j); A.R.S. § 32-

3208(A) and (D); and A.A.C. R4-19-403(17), (18), and (20). 7. Given Respondent’s long history of failing to comply with consent agreements with the Board, Respondent’s failure to notify the Board when and where he was working, Respondent’s failure

to respond to the Board’s request for an interview, and Respondent’s failure to attend the hearing in this

matter, Respondent has demonstrated that he cannot be regulated at this time. Thus, the Board

established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32- 1663(D)4 and A.R.S. § 32-1664 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 RN162082 issued to Ezekiel Tolu Opuroku. 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.

Service is complete five days after the date that this decision is mailed. A.R.S. § 41-1092.09(C). The motion for rehearing or review shall be made to the attention of Hearing Department, Arizona State Board of Nursing, 1740 West Adams Street, Suite 2000, Phoenix AZ 85007, 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 18th day of May, 2018.

ARIZONA STATE BOARD OF NURSING SEAL

Joey Ridenour, R.N., M.N., F.A.A.N Executive Director

COPIES mailed this 21st day of May, 2018, by First Class Mail and Certified Mail No. [account number redacted] 5678 to:

Ezekiel Tolu Opuroku 43606 W Wallner DR Maricopa, AZ 85138 COPY of the foregoing mailed this 21st day of May, 2018, by First Class Mail to: Joseph A. Velez The Law Office of Joseph A. Velez 7272 E. Indian School R, Suite 111 Scottsdale, AZ 85251 Attorney for Respondent COPIES of the foregoing mailed this 21st day of May, 2018, to: Case Management Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix AZ 85007 Elizabeth Campbell Assistant Attorney General Arizona Attorney General’s Office 2005 North Central Avenue Phoenix, Arizona 85004

By: T. Smith