ALJDEC decisions subject to certification as final

19A-059-INS · Department of Insurance · 2019-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2019 APPEARANCES: Petitioner Maureen Fogarty appeared on behalf of herself. Assistant Attorney General Deian Ousounov appeared on behalf of the Arizona Department of Insurance. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On or about October 28, 1998, Petitioner was convicted for an attempted violation of the Uniform Controlled Substances Act, a class one misdemeanor, in the Superior Court of Washington, King County. See Exhibit and 9. The conviction was based on arrest which occurred on or about April 8, 1998. See Exhibit 9. Petitioner was arrested because she called in a prescription for herself for tranxene. See id. Petitioner misrepresented herself as a person authorized to call in a prescription.[1] Petitioner was sentenced to probation which terminated on October 26, 1999. See id. 2. On or about June 15, 1999, the State of Washington Department of Health Nursing Care Quality Assurance Commission (Washington Board) entered an Ex Parte Order of Summary Action, In the Matter of the License to Practice Registered Nursing of Maureen Fogarty, R.N., Docket No. 99-05-A- 1065RN (Washington Board Order 1999). The Washington Board Order 1999 summarily suspended Fogarty's Registered Nurse License No. 00123259. 3. On or about November 18, 1999, the Washington Board entered a Stipulated Findings of Fact, Conclusions of Law and Agreed Order in Washington Board Order 1999 which indefinitely suspended Petitioner’s license to practice as a registered nurse. 4. On or about March 21, 2003, the Washington Board entered a Findings of Fact, Conclusions of Law and Order on Petition for Reinstatement in Washington Board Order 1999 which granted Fogarty's petition for reinstatement subject to probation. 5. On or about January 29, 2002, the Indiana State Board of Nursing (Indiana Board Order) filed Findings of Fact and Order in State of Indiana v. Maureen A. Fogarty, Cause No. 2001 NB 025 (Indiana Board Order 2002). The Indiana Board Order 2002 indefinitely suspended Fogarty's Registered Nurse License No. 28128594. 6. On or about June 9, 2004, the Indiana Board filed Findings of Fact, Conclusions of Law and Order in Cause No. 2001 NB 025 (Indiana Board Order 2004). The Indiana Board Order 2004 reinstated Fogarty's license as a registered nurse on indefinite probation. On or about October 6, 2006, the Indiana Board filed a Final Order in Cause No. 2001 NB 0025 (Indiana Board Order 20§06). The Indiana Board Order 2006 withdrew the probation on Fogarty's nursing license. 7. On or about September 4, 2013, the Board of Registered Nursing, Department of Consumer Affairs, State of California, filed a Decision and Order, In the Matter of Maureen Anne Fogarty, Case No. 2013-1006 (California Board Order). The California Board Order adopted a Stipulated Surrender of License and Order accepting the voluntary surrender of Fogarty’s Registered Nurse License No. 785041 as an imposition of discipline against her. See Exhibit 10. 8. On or about April 12, 2012, the Kentucky Board of Nursing (Kentucky Board) issued an Agreed Order for Voluntary Surrender, Case # 2012-1109, In Re: Maureen Anne Fogarty (Kentucky Board Order 2012). The Kentucky Board Order 2012 accepted the voluntary surrender of Fogarty's Registered Nurse License No. 1102313. 9. On or about March 19, 2019, the Kentucky Board entered an Agreed Order, Case #2108-RS019, In Re Maureen Anne Fogarty (Kentucky Board Order 2019). The Kentucky Board Order 2019 reinstated Fogarty's nursing license in a probationary status and ordered Ms. Fogarty to pay a civil penalty of $600.00. 10. On or about April 24, 2014, Petitioner filed a registered nurse application with the Arizona State Board of Nursing. See Exhibit 9. 11. On May 14, 2015, the Board issued a notice denying the April 24, 2014 application. See Exhibit 9. Pursuant to the order, Petitioner is not eligible to reapply for licensure as a registered notice for at a minimum, five years from the effective date of the May 14, 2015 order. The Board also revoked any temporary license issued to Petitioner. See id. 12. On or about April 25, 2016, Petitioner was convicted of Solicitation to Commit taking Identity of Another, a class six undesignated felony, in the Superior Court of Arizona, Maricopa County. See Exhibit 5. The conviction was based upon conduct which occurred in March of 2015, when Petitioner caused a letter to be forged by her friend which was purportedly from a medical doctor. See Exhibit 9, pg. 4. Petitioner was subject to random drug screen from the nursing board which tested positive for cocaine. The false letter alleged that the medical doctor used cocaine in a nasal procedure performed the day before the drug test. Ms. Forgarty submitted the false letter to the nursing board. See id. Petitioner was sentenced to two years of supervised probation. On August 15, 2017, the Court terminated Petitioner’s probation and designated the offense a misdemeanor. See Exhibit 6. 13. On or about September 17, 2018, Petitioner field an application to set aside the April 24, 2016 conviction. 14. On January 17, 2019, the Court denied Petitioner’s application to set aside the April 24, 2016 conviction due to the nature of the offense, the fact that Petitioner had just completed probation, and Petitioner’s prior conviction for a fraud related offense from Washington in 1998. 15. On or about February 16, 2019, Petitioner filed an application for an Individual Producer License (Application) with a line of authority in accident and health or sickness insurance. See Exhibit 1. 16. Petitioner did not disclose the 1998 misdemeanor conviction. 17. Petitioner did not disclose the 2015 Arizona Board Order, the California Board Order, the 2012 Kentucky Order, and the Indiana Orders from 2002, 2004, and 2006, on the application. 18. Petitioner answered “Yes” to the question which asked, “Have you ever been convicted of a misdemeanor, had a judgment withheld or deferred or are you currently charged with committing a misdemeanor?” 19. Petitioner answered “No” to the question which asked, “Have you ever been named or involved as a party in an administrative proceeding, including FINRA sanction or arbitration proceeding regarding any professional or occupation license or registration? ‘Involved’ also means being named as a party to an administrative or arbitration proceeding, which is related to a professional or occupational license, or registration. ‘Involved’ also means having a license or registration application denied or the act of withdrawing an application to avoid a denial. INCLUDE any business so named because of your actions in your capacity as an owner, partner, officer or director, or member or manager of a Limited Liability Company. You may EXCLUDE terminations due solely to noncompliance with continuing education requirements or failure to pay a renewal fee. If you answer yes, you must attach to this application: a) a written statement identifying the type of license and explaining the circumstances of each incident, b) a copy of the Notice of Hearing or to her document that states the charges and allegations, and c) a copy of the official document, which demonstrates the resolution of the charges or any final judgment.” 20. On or about March 25, 2019, the Department notified Petitioner that her application was denied. 21. On or about April 3, 2019, Petitioner field an appeal regarding the denial. 22. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 23. At hearing, the Department presented the testimony of _________________, and presented exhibits 1 and 3 through 15. Ms. Fogarty testified on her own behalf. 24. Ms. Fogarty asserted that she was not trying to hide anything because her past criminal history and professional license discipline history are public record. Ms. Fogarty testified that her misdemeanor conviction from the state of Washington had been expunged. Ms. Fogarty stated that a judge in Washington told her that she was not required to report the conviction because it had been expunged. Ms. Fogarty stated that she had evidence that her criminal history in Washington had been expunged, but Ms. Fogarty did not bring any written evidence of the expungement to the hearing. Ms. Fogarty argued that no deceit was intended. Ms. Fogarty testified that she is currently being monitored by the nursing board.[2] Ms. Fogarty testified that she did not report her professional license discipline history on the application because the application was for insurance producer’s license. 25. Ms. Fogarty asserted that she is accountable and more safe than most people. Ms. Fogarty testified that she is specifically requested by physicians and is highly respected. CONCLUSIONS OF LAW 1. Ms. Fogarty bears the burden of persuasion. See Arizona Revised Statutes (A.R.S.) § 41-1092.07(G)(1). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative 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. Fogarty provided misleading and incomplete information on the license application, which is a violation of A.R.S. § 20-295(A)(1). 5. The preponderance of the evidence shows that Ms. Fogarty used fraudulent and dishonest practices in the conduct of business in Arizona and elsewhere, which is a violation of A.R.S. § 20-295(A)(8). 6. The preponderance of the evidence shows that the Arizona State Board of Nursing denied Ms. Fogarty’s registered nurse license application, which is a violation of A.R.S. § 20-295(A)(9). 7. The preponderance of the evidence shows that Ms. Fogarty’s license to practice registered nursing was suspended in the Washington and Indiana, which is a violation of A.R.S. § 20-295(A)(9). 8. Consequently, the Department’s Director has discretion to deny Ms. Fogarty’s application based on A.R.S. § 20-295(A). 9. Ms. Fogarty has failed to demonstrate by a preponderance of the evidence that the Department’s decision to deny her application should be overturned. 10. Ms. Fogarty’s appeal should be dismissed. ORDER IT IS ORDERED that Maureen A. Fogarty’s appeal is dismissed. 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 is five days after the date of that certification. Done this day, June 18, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Keith A. Schraad, Director Arizona Department of Insurance

----------------------- [1] See Ms. Fogarty’s testimony at the Hearing Audio 19A-059-INS.DSS (HAUD) at 52:40 – 53:50. [2] See Ms. Fogarty’s closing argument at HAUD 57:15 to 58:23.

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