ALJDEC - Licensing
2024F-0161-BHE · Board of Behavioral Health Examiners · 2024-05-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Arturo Morales, Licensed Associate Counselor Appellant. Case no. 2023-0161
Appellant.
No. 2024F-0161-BHE
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 29, 2024
APPEARANCES: Bretton Barber, Esq. represented Appellant Arturo Morales. Assistant Attorney General Mona Baskin represented the Arizona Behavioral Health Examiners Board (Board).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Board’s Exhibits 1 through 7.
_____________________________________________________________________
FINDINGS OF FACT
1. On November 14, 2022, the Board received Appellant’s Licensed Associate Counselor (LAC) application where he answered affirmative to multiple background questions.
2. Appellant answered yes to the two questions regarding previous disciplinary action against a license or certificate and surrendering a license or certificate.
3. Appellant represented in his LAC application that he surrendered his CNA license for 5 years due to accusations of inappropriate behavior concerning a relationship with a patient (Patient).
4. Appellant also disclosed three previous terminations from behavioral entities.
5. The executed Consent for Entry of Voluntary Surrender with the Arizona Board of Nursing included the following in part:
a. Findings of Facts:
• From 12/97 – 01/01, Appellant was employed as a certified nursing assistant at Hospital.
• On or about 01/14/01, Patient presented to the ER with a drug overdose and Patient’s husband reported to management that Appellant had a personal and sexual relationship with Patient while she was in the psychiatric unit in or around 05/00 or 06/00.
• On 01/15/01, Appellant was suspended pending an investigation and on 01/16/01, Appellant met with management and admitted to giving Patient his personal pager number.
• Appellant also admitted he washed Patient alone in the shower 1 to 5 times because she was in a vegetative state.
• On or about 01/17/01, management interviewed the unit’s charge nurse who reported they never told Appellant to bathe Patient and Patient was never in a vegetative state; management viewed Patient’s records which showed she was independent with her bathing.
• On or about 01/19/01, Patient reported during her 05/00 admission to Hospital, Appellant entered the shower room the first day and told Patient she had a lovely body.
• Patient reported the same day, Appellant kissed her and the second day Appellant kissed her and they exchanged “I love you.”
• Patient reported the third day Appellant asked to see Patient’s breasts, the fourth day they planned to meet in the shower room, and the fifth day they had sexual intercourse in the shower room.
• Patient attempted to contact Appellant after her discharge but he rejected her and Patient reported falling into a depression and resumed taking pills and consuming alcohol.
• Appellant told Patient that his conduct was inappropriate and feared losing his job.
• On or about 01/26/01, Appellant met with Hospital management and he admitted having a sexual relationship with Patient.
• On or about 01/29/01, Appellant was terminated from Hospital.
b. Conclusions of Law:
• Appellant admits to the Findings of Facts and Conclusions of Law.
• Appellant understands he has an opportunity to request a hearing and declines to do so and agrees to this Order and waives all rights to a hearing, rehearing, appeal, or judicial review relating to this Order.
• Appellant understands that the admissions in the Findings of Facts are conclusive evidence of a violation of the Nurse Practice Act and may be used for purposes of determining sanctions in any future disciplinary matter.
• Appellant understands the right to consult legal counsel prior to entering into this Consent Agreement and such consultation has either been obtained or waived.
6. On March 14, 2001, the Arizona State Nursing Board issued an Order that provided as follows:
• The board accepts the Voluntary Surrender of Appellant’s certified nursing assistant certificate and the Order will be filed with the board and made public.
• It is ordered that Appellant may apply for reinstatement of said certificate after a period of 5 years.
7. On March 14, 2001, Appellant signed the Voluntary Surrender and was executed the same day.
8. On February 16, 2023, the Board interviewed Appellant. Appellant made the following representations during the interview:
Appellant admitted to having sexual intercourse with Patient but denied that it was something that occurred more than once.
Appellant did not read the Nursing Board surrender document since he knew he had done something wrong.
Appellant represents he was told he did not need legal representation regarding the surrender of his license.
Appellant knew what he did was wrong and never attempted to consult with anyone professionally.
Appellant engaged in counseling services with his pastor for roughly 5 years which was prompted by the surrender of his CNA license.
Appellant has since read the Consent Agreement for the surrender of his CNA license thoroughly and understands he waived his right to counsel and admitted to all of the allegations in the document.
9. Appellant signed a document surrendering his CNA license without thoroughly reading it.
10. The document Appellant signed indicated he knew he had a right to legal counsel and was waiving that right.
11. The Nursing Board documents indicated Patient was a psychiatric patient, increasing Patient’s vulnerability.
12. Appellant inappropriately engaged in sexual conduct with Patient while she was an active patient at Hospital, violating numerous Nursing Board rules and statutes.
13. On June 12, 2023, the Board issued a notice denying Appellant’s LAC application.
14. Appellant requested a hearing regarding the denial.
15. A hearing was held on April 29, 2024.
16. At hearing, Complainant testified on behalf of himself. The Board presented the testimony of its Investigations Manager, Jarett Carver.
17. At hearing, Appellant did not dispute the findings of the Board. Appellant explained that he is a changed person. Appellant testified to the effect that he can now see that Patient was a victim of his actions. Appellant stated that after the incident with Patient, he received counseling from his Pastor at his church. However, Appellant provided no other testimonial or written evidence to demonstrate that he meets the minimum requirements for licensure.
CONCLUSIONS OF LAW
The Board has jurisdiction over Appellant pursuant to A.R.S. §§ 32-3251 et seq. and the rules promulgated by the Board relating to Appellant’s professional practice as a licensed behavioral health professional.
Appellant has the burden of proof, with the standard of proof being clear and convincing evidence. A.R.S. §32-3281(X). Clear and convincing evidence is a “heightened standard of proof that indicates that the thing is highly or reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284-85, ¶25 (2005)(quoting BLACK’S LAW DICTIONARY 7th ed.); see also BLACK’S LAW DICTIONARY 674 (10th ed. 2014)(clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”).
3. Based on findings of fact 1 through 17, the Administrative Law Judge concludes that Respondent has failed to establish by Board has established by clear and convincing evidence that he meets the minimum requirements for licensure based on violations of A.R.S. §§ 32-3275(A)(5),(A)(6), and A.R.S. §32-3251(16)(1).
RECOMMENDED ORDER
It is recommended the Board’s denial of Appellant application for licensure as a licensed associate counselor be affirmed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, May 20, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tobi Zavala, Executive Director
Board of Behavioral Health Examiners
Arturo Morales
[email redacted]
Bretton H. Barber, Esq.
Barber Law Group
Barber Law Group, PLLC
[email redacted]
Mona Baskin
Assistant Attorney General
Office of the Arizona Attorney General
Licensing&[email redacted]
Tobi Zavala
Board of Behavioral Health Examiners
[email redacted]
[email redacted]
By: OAH Staff