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19A-1805084-NUR · State Board of Nursing · 2019-07-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF DENIAL OF No. 19A-1805084-NUR APPLICATION FOR LICENSE BY: ADMINISTRATIVE LAW JUDGE JOHNELLE LYNN HOSKIE, DECISION TO PRACTICE REGISTERED NURSING IN THE STATE OF ARIZONA

HEARING: June 18, 2019 at 1:00 PM.1 APPEARANCES: Johnelle Lynn Hoskie (“Applicant”) appeared on her own behalf. Assistant Attorney General Elizabeth Campbell, Esq., appeared on behalf of the Arizona State Board of Nursing (“Board”) with Bonnie Richter and Janeen Dahn as witnesses. Brian Tso, John Capone, and Irene Bargas observed. Kristi Spires (Certificate No. 50135) served as the official court reporter.2

ADMINISTRATIVE LAW JUDGE: Jenna Clark

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following RECOMMENDED ORDER to the Executive Director of the Board. FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. The Board is the authority for licensing and regulating the practice of nursing in the State of Arizona. 2. On or about May 15, 2018, Applicant submitted an application for licensure as a registered nurse licensure by examination to the Board. By this date, however, Applicant had not successfully passed the NCLEX-RN3 examination required for licensure. The record was held open until July 05, 2019, to allow the Office of Administrative Hearings to receive the court reporter’s official hearing transcripts for this matter. Ms. Spires’ REPORTER’S TRANSCRIPT OF PROCEEDINGS is the official record for 19A-1805084-NUR. 3 National Council Licensure Examination is a nationwide examination for the licensing of nurses in the United States since 1982. The purpose of the NCLEX is to assess a candidate's ability to provide safe, Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 3. On April 02, 2019, the Board issued an ORDER OF DENIAL.4 4. On April 22, 2019, Applicant submitted an appeal and requested a hearing on the denial.5

5. On April 22, 2019, pursuant to ARIZ. REV. STAT. § 41-1092.02, the Board

referred the matter to the Office of Administrative Hearings (“OAH”), an independent

state agency, for an evidentiary hearing.

6. On April 23, 2019, the Board issued a NOTICE OF PUBLIC HEARING ON

DENIAL OF LICENSURE, informing Applicant that, pursuant to her request, a hearing

would be held at OAH on June 18, 2019, at 1:00 p.m. 6

7. The underlying April 02, 2019, ORDER OF DENIAL outlines that the Board

denied Applicant’s application because (1) on October 28, 2009, the Board denied

Applicant’s nursing assistant certification application due to alleged violations of the

Nurse Practice Act, including a January 18, 2008, conviction for Intoxication (one

count), misdemeanor Possession of Alcohol by a Minor (two counts), and Disorderly

Conduct (one count); (2) on December 10, 2009, Applicant plead guilty to the charge of

Criminal Damage/DV, which was dismissed on June 10, 20110, due to Applicant’s

completion of a diversion program; (3) on December 08, 2014, Applicant was convicted of DUI, slightest degree, a misdemeanor; (4) on August 25, 2016, Applicant was convicted of Extreme DUI above 0.15%, a misdemeanor; (5) on March 13, 2018, Applicant was convicted of Disorderly Conduct, a misdemeanor; and (6) based on certain recommendations and findings regarding Applicant as outlined in a March 17, 2019, psychological examination.7 HEARING EVIDENCE 8. The Board called Bonnie Richter – Senior Investigator, and Janeen Dahn, PhD – Associate Director of Licensing, Hearings & Compliance, as witnesses and

effective nursing care upon entry into practice in the United States and its territories. There are two types of examinations: one for registered nurses and another for practical nurses. See Board Exhibit 11. See Board Exhibit 12. 6 See NOTICE OF HEARING. submitted eleven public exhibits and one confidential exhibit. Applicant testified on her own behalf. The NOTICE OF HEARING was also admitted into the evidentiary record. Richter’s testimony

9. Investigator Richter testified that she was assigned to Case No 1805084.

10. Initially, Investigator Richter reviewed Applicant’s prior history with the

Board. On May 06, 2008, Applicant applied for certification as a Nursing Assistant.8

Because Applicant acknowledged criminal convictions on her application the Board

conducted an investigation.9 Based on their findings, the Board issued an ORDER which

directed Applicant to schedule a psychological evaluation within five days.10 Applicant’s

application was denied on October 28, 2009, after she failed to timely complete the

evaluation.11

11. On September 10, 2018, Applicant was mailed an Investigative

Questionnaire with instructions that she complete and return it with police records for

each of her disclosed offenses, and also include a personal statement for each offense.

12. On October 09, 2018, Applicant returned the requested information to the

Board.12

13. Investigator Richter made the following factual determinations. On December 10, 2009, Applicant plead guilty to Criminal Damage/DV, a class two misdemeanor. The charge was dismissed on June 10, 2010 because Applicant successfully completed a diversion program. Applicant admitted to the Board that her alcohol consumption and anger with her husband resulted in the conduct for which she was arrested. On December 08, 2014, Applicant plead guilty to DUI, slightest degree, a class one misdemeanor, due to arrest where her blood alcohol content was 0.19%. Applicant contended to the Board that she had completed all court-ordered treatments and paid all related fines. On August 25, 2016, Applicant plead guilty to Extreme DUI See Board Exhibit 11; see also Board Exhibits 3-5, 7, and Confidential Board Exhibit 8. Alleged violations of ARIZ. REV. STAT. §§ 32-1663(A), 32-1663(B), 32-1601(26)(d), 32-1601(26)(e), 32- 1601(26)(g), 32-1601(26)(h), 32-1601(26)(j), and ARIZ. ADMIN. CODE R4-19-403(17). See Board Exhibits 1 and 9. See Board Exhibits 1, 3, and 9 See Board Exhibits 1 and 9. 11 Id. BAC .15-.19%, a class one misdemeanor. Applicant admitted to the Board that she used alcohol to manage stresses regarding finances, her marriage, and nursing school, and as a result of her arrest she was jailed for nine days and had to complete treatment

programs and pay additional fines. On March 13, 2018, Applicant plead guilty to

Disorderly Conduct, a class one misdemeanor. Applicant admitted to the Board that on

her graduation day she drank alcohol and ended up involved in a familial altercation

that resulted in her arrest and participation in a sixty-one day treatment program.13

14. On February 04, 2019, the Board asked Applicant to submit to a

psychological evaluation.

15. On February 15, 2019, Applicant was evaluated by a Board-approved

psychologist.14 The resulting report was delivered to the Board on or about March 08,

2019.15

16. On or about March 21, 2019, the Board unanimously voted to deny

Applicant’s application for licensure.16

17. An ORDER OF DENIAL was issued to Applicant on April 02, 2019.17

18. Applicant submitted her request for a State Fair Hearing on Aril 22,

2019.18 Dahn’s testimony 19. Dr. Dahn testified that Applicant’s hospital records directly controvert her assertion that she had “not been drinking heavily” on February 11, 2019; specifically, that Applicant’s plasma ethanol levels were “critical” and potentially fatal. 20. Applicant’s evaluating psychologist noted issues with Applicant’s veracity regarding the frequency and volume of Applicant’s alcohol consumption.

See Board Exhibits 4-7. See Board Exhibit 9. See Confidential Board Exhibit 8. Id. See Board Exhibit 10. See Board Exhibit 11. 18 See Board Exhibit 12. 21. Dr. Dahn opined, based on her review of Applicant’s psychological evaluation, that it was clear Applicant had neither obtained nor sustained meaningful sobriety let alone admitted the extent of her alcohol dependency.

Applicant’s testimony

22. Applicant testified that she made some “poor decisions” in her youth and

did not know how to address or correct them, including the August 04, 2009, ORDER OF

DENIAL issued by the Board.

23. Regarding her referenced “poor decisions,” Applicant did not confirm or

deny her addiction or abuse of alcohol. Applicant maintained that she did not “strike”

anyone contrary to the police report underlying her December 16, 2016, arrest.

Applicant did, however, admit that she was still on probation from her February 16,

2016, DUI arrest whereby she was prohibited from drinking alcohol.

24. Applicant testified that she tendered her criminal guilty pleas, in large

part, because she was afraid of being sentenced to the maximum penalty if she were to

be found guilty at trial.

25. Regarding her requisites for licensure as a registered nurse, Applicant

admitted that she failed the NCLEX-RN examination. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction under ARIZ. REV. STAT. §§ 32-1606(B)(10), 32-1663, 32-1664, and 41-1092.11(B) to regulate and control the licensure and practice of nursing in the State of Arizona. Pursuant to ARIZ. REV. STAT. §§ 32-1601 to 1669 and ARIZ. ADMIN. CODE R4-19-101 to 815 the Board has authority to impose disciplinary sanctions for violations of the Nurse Practice Act. 2. Applicant bears the burden of persuasion to show that she meets the requirements for her application to be granted.19 3. The standard of proof on all issues is that of a preponderance of the evidence.20 4. A preponderance of the evidence is: See ARIZ. REV. STAT. § 41-1092.07(G)(1). 20 See ARIZ. ADMIN. CODE R2-19-119. 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. ARIZ. REV. STAT. § 32-1663(A) 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.”

6. ARIZ. REV. STAT. § 32-1663(B) provides that “[i]n its denial order, the

board shall immediately invalidate any temporary license or certificate issued to the

applicant.”

7. ARIZ. REV. STAT. § 32-1601(26)(d) provides that unprofessional conduct

includes “[a]ny conduct or practice that is or might be harmful or dangerous to the

health of a patient or the public. 8. ARIZ. REV. STAT. § 32-1601(26)(d) provides that unprofessional conduct includes “[b]eing 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.” 9. ARIZ. REV. STAT. § 32-1601(26)(g) provides that unprofessional conduct includes “[w]ilfully or repeatedly violating a provision of this chapter or a rule adopted pursuant to this chapter.” 10. ARIZ. REV. STAT. § 32-1601(26)(h) provides that unprofessional conduct includes “[c]ommitting an act that deceives, defrauds or harms the public.” 11. ARIZ. REV. STAT. § 32-1601(26)(j) provides that unprofessional conduct includes “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” 12. ARIZ. ADMIN. CODE R4-19-403(17) provides, in pertinent part, that unprofessional conduct is defined as “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public includes a pattern of using or being under the influence of alcohol … to the extent that judgment may be impaired and nursing practice detrimentally affected.”

13. A license to practice nursing is a privilege, not a right. The legislature

has charged the Board with protecting the public and those who deal with licensed

practitioners when it issues certificates and licenses.21 The Board has discretion22 to

grant or deny a license to an applicant under ARIZ. REV. STAT. §§ 32-1663(A) and 32-

1601(26).23 An application with a criminal record must be given close scrutiny and

careful consideration when one applies for a professional license. The conviction of a

crime, however, is not a permanent bar to being licensed.

14. The issue in this case is, in light of Applicant’s multiple convictions and

intervening conduct since her most recent conviction, whether Applicant can be trusted

at this time to be responsible in her conduct with patients and members of the public if

the Board grants her a nursing license.

15. The time period required for a license applicant to establish rehabilitation

is commensurate with the period of misconduct and the severity of the offenses.

16. Applicant did not offer any credible testimony or evidence that she has learned from her past mistakes and/or is highly unlikely to repeat them in the future. Applicant did not admit that she has difficulties with alcohol, or offer evidence that she has obtained sobriety and is able to sustain it for any period of time.

See Laws 1992, Ch. 14, § 3. See ARIZ. REV. STAT. § 32-1663(A) (“The board may . . . deny the issuance of a license” under certain circumstances (emphasis added)). 23 See, e.g., Matter of Rivkind, 164 Ariz. 154, 160-61, 791 P.2d 1037, 1043-44 (1990) (“[C]ourts are uniformly impressed by an attorney’s sincere efforts at rehabilitation and contrition, especially if such efforts demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct.”); Application of Spriggs, 90 Ariz. 387, 388-90, 368 P.2d 456 (1962) (where 4 years had passed since conviction for income tax evasion and evidence showed rehabilitation, applicant readmitted to bar without being required to pass bar exam again); Ulrich v. Board of Funeral Service, 289 Mont. 407, 961 P.2d 126 (1998) (“[A]n applicant whose license has been denied or revoked due to a criminal conviction . . . is entitled to apply for reinstatement and he is entitled to a full hearing . . . .”); cf. Matter of Wines, 135 Ariz. 203, 205-06, 660 P.2d 454, 456-57 (1983) (after considering circumstances of conviction as well as respondent’s poor prior record, Arizona Supreme Court did not disbar attorney but instead suspended him for a period of 5 years, with credit for 16 months interim suspension during pendency of proceedings). 17. Here, Applicant’s disclosures regarding her arrests and convictions rightfully called into question her culpability regarding her underlying criminal conduct. Applicant’s explanations did not evince her understanding of the grievous nature of her

actions, or acceptance of responsibility for the harm she caused to herself, others

involved, and greater public.

18. The mission of the Board is to protect and promote the welfare of the

public by ensuring that each person holding a nursing license or certificate is

competent to practice safely.24 This mission is fulfilled through the regulation of the

practice of nursing and the approval of nursing education programs, and supersedes

the interest(s) of any individual or group.25

19. After closely scrutinizing Applicant’s arrests, convictions, and related

underlying conduct, and after careful consideration of Applicant’s intervening personal

and professional behaviors, this Tribunal holds that Applicant has not established by a

preponderance of the evidence that she is not a danger to patients or the public. The

evidence of record establishes that Applicant’s struggles with alcohol impedes her

ability to be regulated by the Board at this time.

20. Notably, Applicant’s failure to successfully pass her NCLEX-RN exam prohibits the Board from lawfully issuing Applicant a license for her May 15, 2018, application. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the Executive Director of the Board uphold the Board’s April 02, 2019, ORDER OF DENIAL regarding Applicant’s May 15, 2018, application for licensure as a registered nurse by examination. Done this day, July 15, 2019.

/s/ Jenna Clark Administrative Law Judge

See https://www.azbn.gov/board/about-the-organization/. 25 Id. Transmitted electronically to: Joey Ridenour, RN, MN, Executive Director State Board of Nursing