PDF copy: ALJDEC decisions subject to certification as final

19A-1709109-NUR · State Board of Nursing · 2019-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

No. 19A-1709109-NUR IN THE MATTER OF DENIAL OF APPLICATION FOR REISSUANCE OF ADMINISTRATIVE LAW JUDGE REGISTERED NURSE LICENSE NO. DECISION RN105646 BY:

PEARY ALLEN BROWN,

APPLICANT

HEARING: October 29, 2018, at 9:00 a.m. APPEARANCES: Peary Allen Brown (“Applicant”) appeared on his own behalf; the Arizona State Board of Nursing (“the Board”) was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT 1. On September 20, 2017, Applicant submitted a license application for reissuance of his registered nurse (“RN”) License No. RN105646 to the Board.1 2. On July 26, 2018, after an investigation, the Board voted to deny the application2 and subsequently issued an order of denial.3 3. Applicant appealed and requested a hearing on the denial.4 4. Pursuant to A.R.S. § 41-1092.02, the Board referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 5. A hearing was held on October 29, 2018. The Board submitted 22 exhibits and presented the testimony of Senior Investigator Linda Monas. Applicant testified on his own behalf.

See the Board’s Exhibit 3. See the Board’s Exhibit 18. 3 See the Board’s Exhibit 20. See the Board’s Exhibit 21. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 EVENTS LEADING TO APPLICANT’S VOLUNTARY SURRENDER OF HIS LICENSE

6. On November 27, 1998, Applicant filed an application for licensure by

endorsement with the Board based on his RN license in Massachusetts. Applicant

responded “no” to the question on the application, “Have you ever been convicted,

entered a plea of guilty, nolo contendre or no contest, or have you ever been

sentenced, served time in jail or prison, or had probation or sentence deferred in any

misdemeanor or undesignated offense other than a minor traffic violation? Please be

advised that a DUI is not a minor traffic violation.” Applicant also answered “no” to the

question, “have you ever been convicted, entered a plea of guilty, nolo contendre or no

contest, or have you ever been sentenced, served time in jail or prison, or had

probation or sentence deferred in any felony or undesignated offense?”5 Thereafter,

Board issued License No. RN105646 to Applicant.

7. On February 6, 2014, after a hearing before OAH, the Board’s Executive

Director issued Findings of Fact, Conclusions of Law and Order in Case No. 13A- 1104047-NUR. The Board’s findings of specific unprofessional conduct included the following: 7.1 On April 12, 2011, the Board received a complaint that Applicant had been charged with possession of marijuana and drug paraphernalia and harassment of Isaac Martin Thapedi, M.D. in Bullhead City Municipal Court. 7.2 Dr. Thapedi was employed as a neurosurgeon by Western Arizona Regional Medical Center (“WARMC”), where Applicant also worked in 2010. Dr. Thapedi had Applicant removed from his operating room because he found Applicant to be disruptive and argumentative with staff. 7.3 On February 8, 2006, and March 30, 2007, Dr. Thapedi performed surgery on Applicant’s significant other, K.D. 7.4 On March 2, 2010, police executed a search warrant at Applicant’s residence as a result of their investigation of allegations that Applicant sent harassing and intimidating messages to and about Dr. Thapedi. Police found marijuana and a

5 The Board’s Exhibit 7 at 111. pipe. Application admitted that the marijuana and pipe belonged to him. Applicant also admitted that his quest against Dr. Thapedi had become an obsession. 7.5 On or about March 3, 2010, Applicant sent a threatening email regarding

Dr. Thapedi’s treatment of K.D. to a company that manufactures devices that Dr.

Thapedi’s used in his surgical practice. The son of Dr. Thapedi’s significant other,

Therese Rowan, worked at medical device manufacturer.

7.6 On March 5, 2010, Dr. Thapedi and Ms. Rowan obtained an Injunction

Against Workplace Harassment against Applicant that ordered him to have no contact

in person, by telephone, in writing, or by a third party. On March 10, 2010, WARMC

obtained an Injunction against Workplace Harassment against Applicant that ordered

“no contact by Applicant. Both Injunctions were served on Applicant.

7.7 On March 25, 2010, WARMC terminated Applicant’s employment as a

result of his ongoing harassment against Dr. Thapedi.

7.8 In December 2010, Applicant violated the March 10, 2010 Injunctions

Against Workplace Harassment by sending four Christmas cards to WARMC

employees referencing Dr. Thapedi’s practice.

7.8 On March 15, 2011, Applicant was charged with possession of marijuana and drug paraphernalia and harassing, threatening, or intimidating in Bullhead City Municipal Court Case No. 11CR233CMI. Applicant did not report the charges to the Board. 7.9 On April 15, 2011, four counts of misdemeanor interfering with judicial proceedings/violation of court order based on the four Christmas cards that Applicant had sent to WARMC employees were added to the charges in Bullhead City Municipal Court Case No. 11CR233CMI. Applicant did not report the additional charges to the Board. 7.10 On August 7, 2012, Applicant voluntarily underwent a psychological/ substance abuse evaluation by Rex Smyly, Psy.D. Respondent disclosed that he was an alcoholic with 25.5 years of abstinence and that he had been using marijuana during that time, including three or four times a week in 2010-2011. Dr. Smyly recommended that Applicant be subject to random urinalysis and suggested that the Board also require Applicant to attend AA meetings. 7.11 On January 25, 2013, Applicant was convicted of possession of marijuana

and drug paraphernalia and four counts of interfering with judicial proceedings in

Bullhead City Municipal Court Case No. 11CR233CMI. Applicant’s convictions were

upheld on appeal.

7.12 After Applicant’s unsuccessful appeal of his convictions in Bullhead City

Municipal Court Case No. 11CR233CMI, he posted criticisms of Dr. Thapedi on

Facebook, stating that “[i]f I didn’t have a family I’d do the Hernandez thing and would

sleep like a baby afterward. Pass it along and save a life.” Aaron Hernandez is a

former New England Patriot football player who at the time was charged with and

subsequently was convicted of murder.

7.13 On March 12, 2013, Dr. Thapedi and Ms. Rowan obtained another

injunction against harassment against Applicant because the March 5, 2010 injunction

had expired.6

8. The Board concluded in Case No. 13A-1104047-NUR that Applicant had

committed unprofessional conduct as defined by former A.R.S. § 32-1601(18)(d), as further defined by A.A.C. R4-19-403(2), R4-19-403(18), and R4-19-403(28), former A.R.S. § 32-1601(18)(h), and A.R.S. § 32-3208(A).7 9. Applicant did not appeal the Board’s order in Case No. 13A-1104047-NUR. Among the requirements of Applicant’s 24-month probation was that, within 30 days, of the March 13, 2014 effective date of the order, he was required to submit the name of a licensed psychologist for Board approval and, within seven days of the Board’s approval, begin undergoing counseling to address anger management difficulties and substance use disorder.8 10. Applicant did not submit the name of a licensed psychologist for the Board’s approval and did not undergo counseling to address anger management difficulties and

See the Board’s Exhibit 1 at 3-6, Finding of Facts Nos. 4-25. See id. at 6-7, Conclusions of Law Nos. 3-7. 8 See id. at 11, Term 5. substance abuse disorder. On October 10, 2014, Applicant signed a Consent for Entry of Voluntary Surrender of his RN license in which he acknowledged that he had not complied with the terms of his probation by undergoing counseling by a licensed

psychologist. Applicant also acknowledged in the Consent for Entry of Voluntary

Surrender that on April 23, 2014, he had admitted to Board staff that he had sent an

email to the Arizona Attorney General’s Office on April 10, 2014, stating that while he

was in Washington D.C. at the Smithsonian and observing the Hope Diamond he heard

“this voice, just as clear, ‘I want to kill again.’”9

APPLICANT’S APPLICATION FOR REISSUANCE OF HIS LICENSE

11. On September 20, 2017, Applicant submitted the application for re-issuance

of his RN license. On the application for re-issuance, Applicant answered “yes” to the

question, “Have you ever been convicted, entered a plea of guilty, nolo contendre or no

contest, or have you ever been sentenced, served time in jail or prison, or had deferred

prosecution or deferred sentence in any felony or undesignated offense?”10 12. Applicant disclosed in the application of for reissuance that in 1987, he had been convicted of felony assault related to his father’s mistress reporting an argument between Applicant and his father about his father’s treatment of Applicant’s mother when she was on her deathbed.11 13. Ms. Monas testified that Applicant disclosed the 1987 felony assault conviction to the Board for the first time on the application for re-issuance of the RN license. 14. Applicant also disclosed on the application for re-issuance of the RN license that on September 14, 2016, he had voluntarily surrendered his Massachusetts license and that the license had not been reinstated.12 Applicant also disclosed that on February 27, 1998, he had received a warning against his Maine license for “improper use of nurse manager’s security code.”13

The Board’s Exhibit 2 at 20 The Board’s Exhibit 3 at 25. See id. at 25, 29-30. See id. at 31. 13 Id. at 34. 15. Ms. Monas testified that the Maine RN license expired on September 16, 2000, and has not been reissued.

THE BOARD’S INVESTIGATION

16. In January 2018, Applicant submitted a completed reinstatement

questionnaire in connection with his application for re-issuance of his RN license. Ms.

Monas explained that before it reissues a nursing license, the Board wants to know that

the applicant has engaged in rehabilitation.

17. In response to the request on the reinstatement questionnaire to “[b]riefly

describe what actions you have taken since the surrender/revocation of your

license/certificate that would ensure the board that these circumstances would not

occur again,” Applicant stated “[t]he mission parameters of the case were completed

when surgeon was terminated & left the state. Spiritual counseling 6 hrs/wk to change

attitude.”14

18. Applicant also disclosed on the reinstatement questionnaire that he had engaged in illegal activities to obtain drugs, explaining that “obtaining marijuana from known dealers was common if prescription card timed out.”15 Ms. Monas testified that Applicant did not have a medical marijuana card in Arizona. If Applicant was referring to a card from another state, he did not provide a copy of the card to the Board. 19. On May 17, 2018, Applicant also submitted an arrest/charge/citation questionnaire, which disclosed the following convictions and sentences: 19.1 A 1970 or 1970 misdemeanor conviction for operating a motor vehicle under the influence of intoxicants, for which Applicant was sentenced to 60 days, loss of driving privileges, a driver’s education class, and a fine.16 19.2 An August 1983 assault that was dismissed in Hancock County, Maine court.17

The Board’s Exhibit 4 at 49. Id. at 52. See id. at 99, 101. 17 See the Board’s Exhibit 5 at 90-91. 19.3 The 1987 felony assault conviction, to which he pled guilty and was sentenced to 6 months’ incarceration.18 Applicant provided the following explanation for the 1987 felony assault conviction:

The incident involving the felony assault charge took place on Cape Cod in Massachusetts in the summer of 1987. I was staying at home and taking care of my mother who was dying of cancer. June Gelinas Scott, whom I say was my father’s mistress at the time, who I felt shouldn’t have been involved with my mother’s care management & created an uncomfortable environment. I just did not want her around my mother, period. I may have forced both my father and her out of the bedroom, but didn’t threaten her with a gun. “Don’t make me use this”. And yes I screamed it. Now I would call it implied threat. I was arrested 6 Aug. 1987 and plead guilty. Record states nolo plea. Not so. I served 6 mos. and was released with no probation or restitution. It was not an aggravating charge.19

19.4 A September 1995 misdemeanor contempt of court citation for violation of

a protective order, for which Appellant was convicted in November 1995 and sentenced

to 14 days’ time served and two years’ probation.20

19.5 A charge in Ellsworth, Maine District Court Case No. CR-2002-00325 for

trafficking in dangerous knives, which was based on an event on July 23, 1999, and

which was dismissed without prejudice on March 23, 2005, for failure to prosecute.21

Ms. Monas testified that by March 2005, Applicant had moved to Arizona.

19.6 A 2005 charge in Ellsworth, Maine District Court Case No. CR-2005-

01131, which Applicant explained in relevant part as follows: This case was about alleged violations in two separate episodes. I was arrested twice for violation of protection orders involving a former girlfriend who wanted to get rid of me, and every trace I left. Contact of any kind was a violation, which the state claimed I did. The record covers a period of nine years before dismissal of both charges in spite of the fact I was acquitted at jury Trial, in the same See id. at 95-96. Id. at 65. See id. at 93-94 21 See id. at 59. court, in 2001. Date of dismissal on record was 7/2008. Since the end results were in my favor, either by trial or time frame dismissal for failure to prosecute, I never pursued the issue of the jury Trial record. Such as, where is the trial documentation? I think as common sense, a period of nine years to hold case on the docket is peculiar. Be that as it may, there was no conviction.22

19.7 The possession of marijuana and drug paraphernalia and four contempt of court citations for which Applicant was convicted of in March 2010, and sentenced to 40 days in county jail, 3 years’ supervised probation, a $1,500.00 fine, and anger management and substance abuse classes, which was referenced in the Board’s February 6, 2014 order in Case No. 13A-1104047-NUR.23 19.8 Charges for harassment by communication, threatening damage, and failure to appear in Bullhead City in Case No. CR201100233, which were dismissed for failure to prosecute in October 2012.24 20. On June 4, 2018, Applicant submitted a supplement to the arrest/charge/ citation questionnaire, disclosing that on an unknown date a warrant had been issued for his arrest.25 Ms. Monas explained that the supplement was the result of her informing Applicant that she had found an outstanding warrant from Hancock County Court, which had referred her back to the county sheriff’s office.26 OTHER HEARING EVIDENCE 21. The Board submitted a report from the Hancock County Sheriff’s Department that on September 19, 1995, it had received a call from KK, LBK’s brother, stating that he had received a threatening email from Applicant. When officers spoke to LBK, she stated that Applicant had told her than any harassment that she experienced in the last couple of months had come from him.27

Id. at 61. See id. at 97-98. See id. at 70. See the Board’s Exhibit 6 at 104. See the Board’s Exhibit 17 at 252. 27 See the Board’s Exhibit 15 at 177. 22. On March 31, 1998, police interviewed Applicant. He admitted to making harassing calls to LBK’s residence, stating that he made the calls to find out the basis of the order of protection that she had obtained against him.28

23. On July 14, 1999, LBK’s sister received a computer disk containing the

medical records of LBK’s abortion. LBK told officers that Applicant was the only person

besides herself who knew that she had an abortion. LBK stated that Applicant knew

about the abortion because he was a co-worker in the nursing profession and had

loaned her money for the procedure because her family was adamantly opposed to

abortion. On July 23, 1999, police searched Applicant’s vehicle and found LBK’s

original medical records in its glove compartment. When police interviewed the doctor

who had performed the abortion, he stated that he had received a request for the

medical records by mail with a money order for payment of the records and a post

office box that police later determined belonged to Applicant.29

24. On July 23, 1999, police obtained an affidavit supporting probable cause for

an arrest warrant for Applicant for violating LBK’s order of protection by sending emails.

The officer noted that “in a previous interview with [Applicant], I had asked him what

could be done to keep him from sending email messages to [LBK] and he said he did not believe anything short of cutting his hands off would work.”30 25. On January 19, 2001, LBK told police that she and her husband had received an anonymous postcard that she believed Applicant had sent her with a picture of Avalon, Catalina Island, with the message, “The Future.” On May 21, 2001, LBK reported to police that she and her husband had received an anonymous postcard from Arizona of Boot Hill Graveyard, with the message “Here lie Les Moore, 4 shots from a 44 No Les, no moore” that LBK believed was sent by Applicant. Police asked the postal inspector to compare the handwriting with samples of Applicant’s known handwriting. The Postal Service Laboratory confirmed that the handwriting was Applicant’s.31 See the Board’s Exhibit 15 at 201. See the Board’s Exhibit 15 at 183. The Board’s Exhibit 15 at 206. 31 See the Board’s Exhibit 15 at 189. 26. On May 24, 2001, Brenda Smith, RN, another of Applicant’s co-workers, gave police an anonymous postcard of the Boot Hill graveyard addressed to B.J. Smith, RN, at a hospital in Bar Harbor, Maine, with the handwritten message, “Certainly Less

Romantic than ever before, the Recovery Room Remains Constant and Spanish &

Indian eyes every where. No salad Days.” When police contacted Ms. Smith, she

stated that Applicant had been harassing her since she first met him in 1977, and that

she was genuinely afraid for her safety due to the graveyard postcard. Ms. Smith

stated that Applicant’s usual patter was to send a postcard before he showed up and

recounted several incidents during which he had appeared and frightened her,

including once when she was working at a hospital.32

27. On May 1, 2018, Ms. Monas asked Applicant about the medical records that

police found in Applicant’s vehicle’s glove compartment, which had been sent to LBK’s

sister. Applicant referred to being in love with LBK “in my mind” because LBK was “18

years gone.” Applicant stated that the medical records that police reported finding in

his glove compartment were receipts for treatment that he paid for. Applicant then

stated that since he had paid for LBK’s medical procedure, he requested her medical

records to ensure that she had the procedure he paid for. Applicant also stated that the outstanding warrant was for violation of an order of protection that LBK had obtained against him.33 28. The Board submitted a newspaper article from the Bangor, Maine Daily News on August 24, 2001, about Applicant, which stated in relevant part as follows: Police are seeking an Arizona man with connections to Maine who fabricated his obituary this week in what investigators believe is part of the man’s ongoing harassment campaign against private citizens and law enforcement officials.

On Tuesday, the Bangor Daily news ran an obituary for Peary Brown, 54, a nurse and former scallop fisherman in Maine who was living in Arizona and reported to have died in Los Angeles on July 21. . . . See the Board’s Exhibit 15 at 193-94. 33 See the Board’s Exhibit 17 at 268. But in the weeks that followed his supposed death and as recently as Wednesday, law enforcement officials received e-mails consistent with the scores of e-mails Brown had sent them in the past. . . . Law enforcement officials, upon reading the obituary, suspected it was a ruse.

“I’m confident he’s still alive,” Detective Steve McFarland of the Hancock County Sheriff’s Department said Wednesday. McFarland has followed Brown’s activities since 1995 and said he has been a target of Brown’s sometimes scathing, sometimes obscure, but usually anonymous e-mails.

The e-mails have ranged from a concise one-word commentary to rambling on for several pages, reported Hancock County Assistant District Attorney Pat Larson, whose office has been the recipient of some of Brown’s electronic missives.

Using e-mail remailers that strip away any identifying information, Brown’s e-mails have contained threats, both real and veiled, McFarland said. McFarland has wrapped up his lengthy investigation into Brown’s past activities and forwarded it to the Hancock County District Attorney’s Office for review. Already wanted on a warrant for violating a protection order, Brown could face additional charges and it appears that the case has drawn the interest of federal authorities.

But at least two local law enforcement officials familiar with Brown think he submitted the obituary for reasons that had less to do with eluding police than in continuing to harass people associated with the cases against him. “His motive were probably more to mess with their heads than to avoid arrest,” McFarland said. “This is classic Peary,” said Mount Desert Police Chief John Doyle, who said Brown has an extensive history of stalking people.

“His whole life is stalking,” Doyle said.

A former co-worker has been the target of Brown’s fixation for at least six years, although police report that he has targeted others with his anger. . . .34

Ms. Monas testified that she could not locate any criminal charges against Applicant for

the fake obituary. After she asked Applicant in June 2018, why he posted the obituary,

he responded in an email as follows:

It was a Maine thing, which revolves around understanding the downeast culture which doesn’t answer your question accurately only to add I was somewhat eccentric and in love with LBK and messages inside the obit itself, unrelated to death, was how I told her I still loved her. Nobody else would understand the wording except her. I knew she would read it.”35

Ms. Monas explained that LBK was the woman involved in the abortion incident. 29. Dr. Thapedi sued Applicant civilly in Mohave County Superior Court Case No. CV-2012-00257. The Board submitted the court’s December 13, 2013 minute entry order granting Dr. Thapedi’s motion for summary judgment, finding “overwhelming evidence presented properly by [Dr. Thapedi] in this case that [Applicant] has engaged in a series of acts to harass and threaten [Dr. Thapedi]. [Applicant’s] pleadings provide the motive for [Applicant’s] behavior but do not justify the behavior . . . .”36 On December 16, 2013, Applicant filed a late response to the judge’s minute entry order On December 20, 2013, the court issued another minute entry order, noting Applicant’s “relentless and aggressive harassment of [Dr. Thapedi] based on [Applicant’s] perceived and continuing belief that [Dr. Thapedi] committed medical malpractice against [Applicant’s] significant other. The facts support [Dr. Thapedi’s] position that [Applicant’s] behavior has been beyond the scope of reasonableness, outside of the law, and designed to harass and injure [Dr. Thapedi].”37 On August 1, 2014, after noting that Applicant had “admitted to not stopping the process of going after [Dr.

The Board’s Exhibit 8 at 1-3. The Board’s Exhibit 17 at 269. 36 The Board’s Exhibit 9 at 120. Thapedi] even after going to jail, losing jobs and having his nursing license status affected,” as well as having shown no remorse for his actions, the court entered an order awarding Dr. Thapedi $75,00.00 in damages.38

30. Ms. Monas testified that “R.N.” is a protected title that cannot be used

unless a person has an active license issued by a state agency. The Board submitted

Applicant’s advertisement, twitter postings, Linked In account, and other electronic

postings that showed that Applicant continued to use the title, “R.N.” after he no longer

possessed an active license in good standing issued by any state.39

31. Ms. Monas testified that she found a novella entitled Chasing the Death

Dragon that Applicant had posted on-line. Applicant used the title, “R.N.” as the

author.40 The Board submitted a copy of Chasing the Death Dragon into evidence.41

Ms. Monas testified that she had not read the entire novella, which she found

disturbing, but that she had read portions. The plot of Chasing the Death Dragon

involved a male protagonist named William Thurman who had formerly been in the

military who stalked and eventually killed an African-American physician named Isaac

Thames who had graduated from Howard University and his significant other after the

physician made a medical mistake. The plot was set in Bullhead City. Ms. Monas testified that Dr. Thapedi was African American and had graduated from Howard University and that Chasing the Death Dragon appeared to parallel Applicant’s conflict with Dr. Thapedi. Midway through the novel, the male protagonist strangled the physician and later goes on to kill the physician’s significant other; both events are described in graphic detail.42 32. Ms. Monas testified that Applicant published Chasing the Death Dragon after she prepared the initial investigative report. Applicant explained in a July 4, 2018 email why he had written the novel, in relevant part as follows:

Id. at 123. Id. at 125-26. See the Board’s Exhibit 10. See id. at 134. See the Board’s Exhibit 22. 42 See id. at 330, 332. My answers have been somewhat vague and short for reliving the case is done when I answer. I consider, or am forced to consider the case closed. It’s a house rule here not to ever mention Thapedi or anything about the case, to avoid the obsession that caused such a disturbance. But you want answers and are entitled to them. William Thurman was a real person who died by an egregious medical mal from Thapedi. He was no relation to me. He was from Chicago. Access of civil suits, from 1986, are noted in most county courts and many are connected through the net. Although the actual file isn’t posted, anybody can get copies of the actual record. Civil suits are a treasure chest of info, from SS#s cell phone numbers, private addresses, bank accounts and other info that one could use for both criminal and investigative work. . . . There are several other cases besides my wifes’ that I still consider felony endangerment cases. Very few know all the details. And there are many details that I no longer mention to anybody.

I wrote the Thurman story as I couldn’t write about my wife’s case. Too painful in long form.43

Ms. Monas interviewed Applicant on May 1, 2018. After Ms. Monas stated that Chasing

the Death Dragon was clearly about Applicant killing Dr. Thapedi, Applicant responded

only, “Did you like it?” When Ms. Monas said that Applicant’s ongoing references to

killing Dr. Thapedi could be concerning to the Board, Applicant had no response,

except for a grin.44

33. During Ms. Monas’ interview, Applicant repeatedly stated that he does not

threaten, he intimidates. When Ms. Monas asked Applicant whether the outcome of

fear would be the same, he grinned and said he did not know.45

34. Ms. Monas communicated with Therese Rowan, Dr. Thapedi’s significant other, between April 18, 2018, and May 7, 2018. Ms. Rowan stated that she fears for her life, particularly with reference to Applicant’s novella, Chasing the Death Dragon.46 The Board’s Exhibit 11. The Board’s Exhibit 17 at 266. See id. at 267. 46 See id. at 266. 35. The Board submitted the Bullhead City Police Department’s March 21, 2011 interview of Applicant. Applicant stated that he was an alcoholic, but used marijuana 3- times per week as a substitute to help him deal with his alcoholism. Applicant stated

that he had intimidated, but had not threatened, a girlfriend in Maine, which led to a

protective order. Applicant admitted that he was obsessed with Dr. Thapedi.47

36. The Board submitted the Docket Record from Ellsworth, Maine District

Court for Applicant.48 Most of the many charges against Appellant were for violations of

protective orders or injunctions against harassment.

37. After the Board voted to deny Applicant’s application for reinstatement,

Applicant sent an email to Ms. Monas, in relevant part as follows:

Not surprised with Quinn’s decision but he needs to get out more and lower his blood pressure, when you see him thank him for the call post hearing as it was comforting to be around guns and badges dripping with honesty, when little but anger was felt elsewhere. Can not tag this feeling of comfort with a reasonable answer. I am glad I pissed him off. . . .49

Ms. Monas testified that Applicant’s email seemed angry. 38. Applicant testified that he started nursing in 1966, while he was in the United States Navy. He went back to school in Boston and became a registered nurse and went back into the service in 1997. When he got out of the service, he worked as a nurse and commercial fisherman. 39. Applicant testified that he worked as a clinical nurse for 35 years and received no complaints about his nursing practice. Applicant pointed out that some of the incidents that the Board alleged against him went back to 1977 or 1985. Many of the charges were not for threatening or harassment, but for coming within 500’ of someone. The only charge to which he ever pled guilty was threatening his father in 1987.

See the Board’s Exhibit 12 at 146-50. See the Board’s Exhibit 16, 49 The Board’s Exhibit 19. 40. Applicant testified that no court ever convicted him of threatening or harassing Isaac Thapedi. If Dr. Thapedi had 8 protective overs, he had made 16 requests that a court find a violation, but no court ever made such a finding. Applicant

testified that he never had contact with Dr. Thapedi or his girlfriend and that he never

sent them any messages. Applicant testified Dr. Thapedi contacted him to try to get a

finding that Applicant violated a protective order. Applicant also testified that he may

have sent some messages to Dr. Thapedi because he was a physician who was in

trouble in the surgical unit. If he did the “Asian thing,” he would have told everyone

around.

41. Applicant testified that after Dr. Thapedi started working in the hospital, the

infection rate went from 3.4% to 12%. Although he reported his concerns, no one did

anything. Applicant testified that he wife was discharged with a hole in her esophagus

due to Dr. Thapedi’s care, but Dr. Thapedi said he did not know anything about it.

42. Applicant testified that the only reason that his wife is still alive is that

Applicant was there that day. Applicant testified that Dr. Thapedi is no longer doing

surgery. Applicant will never forget his wife being unable to breathe when she was only

46 years old. 43. Applicant testified that the two women mentioned in the Board’s investigation never complained when their needs were satisfied. 44. Applicant denied ever intimidating anyone. Instead, he testified that he stimulated the people he came across who did not know what they were doing. 45. Applicant testified that an experienced doctor at the V.A. advised him to try marijuana after he could not kick alcohol. 46. Applicant testified that the obituary that he had published in the Bangor Daily News was between him and LBK. Applicant testified that he does not know who wrote the obituary, but believes someone related to LBK wrote it. Applicant testified that he had a good relationship with LBK. He has never threatened a woman in his life. 47. Applicant testified that he does not know when the documents from the internet that showed his name with the title, “R.N.” were first submitted, but denied ever soliciting work as an R.N. when he lacked an active license, because that would be fraud. 48. Applicant testified that he has never committed a crime of moral turpitude,

that the statute of limitations has run on most of the misconduct that the Board alleged,

and that no law prevents him from being licensed. Applicant testified that he would not

be detrimental on the floor of a healthcare institution and that he feels he could

contribute to the community as a trained professional nurse. He would be available for

some psychological evaluation. He has undergone drug screening in the past and

never tested positive.

49. Applicant testified that he wrote Chasing the Death Dragon because he has

always been a writer and that it is part of his personality. Applicant testified that if Dr.

Thapedi felt intimidated, what Applicant wanted to do was to stimulate if someone was

doing something wrong. It is a question of life and death. Applicant testified that the

focus of his whole life has been public safety.

CONCLUSIONS OF LAW

1. The Board is the duly constituted authority for licensure and regulation of nurses in Arizona. This matter lies with its jurisdiction.50 2. Applicant bears the burden of proof to establish by a preponderance of the evidence that he is qualified to be licensed as an RN in Arizona and that the Board therefore erred in denying his application for reinstatement of his RN license.51 3. Cause exists for the Board to deny Applicant’s application for reissuance of his RN license because he has committed unprofessional conduct as defined by certain provisions of A.R.S. § 32-1601(26),52 as follows:

50 A.R.S. § 32-1606(A)(8) See A.R.S. §§ 32-1601(14)(d); 32-1663(A); 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). A.R.S. § 32-1601(26) provides in relevant part as follows: "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: (a) Committing fraud or deceit in obtaining, attempting to obtain or renewing a license or a certificate issued pursuant to this chapter. (b) Committing a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude. In either case, conviction by a 3.1 A.R.S. § 32-1601(26)(a) by failing to disclose most of his criminal history, including the 1987 felony of assault, on his November 27, 1998 application for licensure by endorsement.

3.2 A.R.S. § 32-1601(26)(b) by committing the felony of assault against his

father in 1987.

3.3 A.R.S. § 32-1601(26)(e), (g), (h), and/or (J) by his extensive history of

threats and intimidation against former co-workers LBK, Brenda Smith, and Dr.

Thapedi, who at one time supervised Applicant, and his use of the title, “RN” when he

did not possess a valid active license, in violation of A.R.S. § 32-1666(A)(2).53

3.4 A.R.S. § 32-1601(26)(d), more specifically A.A.C. R4-19-403(17) by being

habitually under the influence of marijuana to the extent that his judgment may have

been impaired and his nursing practice detrimentally affected and A.A.C. R4-19-

403(18) by obtaining, possessing, and using marijuana without having a medical

marijuana card, which remains a federal and state criminal offense in Arizona.54

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. (e) Being mentally incompetent or physically unsafe to a degree that is or might be harmful or dangerous to the health of a patient or the public. (f) Having a license, certificate, permit or registration to practice a health care profession denied, suspended, conditioned, limited or revoked in another jurisdiction and not reinstated by that jurisdiction. (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. 53 A.R.S. § 32-1666(A)(2) provides in relevant part as follows: A. It is unlawful for a person who is not licensed or certified under this chapter to: .... 2. Represent or use any title, abbreviation, letters, figures, sign, card or device to indicate that the person or any other person is a registered nurse, graduate nurse, professional nurse, nurse practitioner, clinical nurse specialist, practical nurse, licensed nursing assistant or certified nursing assistant. 54 A.A.C. R4-19-403 provides in relevant part as follows: 4. Because the record does not show that Applicant’s Maine or Massachusetts licenses were ever disciplined, even though Applicant for some reason voluntarily surrendered his Massachusetts license, there is no basis for a finding that Applicant

committed unprofessional conduct as defined by A.R.S. § 32-1601(26)(f).

5. Although the Board may not have granted Applicant’s 1998 application for

licensure by endorsement if Applicant had fully disclosed his criminal history, the issue

of rehabilitation is still relevant to this matter. Unfortunately, however, Applicant has

not demonstrated that he has changed his behaviors or rectified the views and attitudes

that led him to the charges of unprofessional conduct in Case No. 13A-1104047 and

his eventual voluntary surrender of his RN license. Therefore, the Board should affirm

its decision to deny Applicant’s application for reinstatement of his RN license under

A.R.S. §§ 32-1663(A)55 and 32-1664(O).56

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED affirming the Board’s denial of Applicant Peary Allen Brown’s application for reissuance of his RN License No. RN105646 and dismissing his appeal in Case No. 19A-1709109-NUR. 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.

For purposes of A.R.S. § 32-1601(24)(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: .... 17. A pattern of using or being under the influence of alcohol, drugs, or a similar substance to the extent that judgment may be impaired and nursing practice detrimentally affected, or while on duty in any health care facility, school, institution, or other work location; 18. Obtaining, possessing, administering, or using any narcotic, controlled substance, or illegal drug in violation of any federal or state criminal law, or in violation of the policy of any health care facility, school, institution, or other work location at which the nurse practices; A.R.S. § 32-1663(A) concerns disciplinary action and provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.” A.R.S. § 32-1664(O) concerns investigations and hearings and 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.” Done this day, November 19, 2018.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Joey Ridenour, RN, MN, Executive Director State Board of Nursing