ALJDEC decisions subject to certification as final

20A-1803039-NUR · State Board of Nursing · 2020-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF REGISTERED

NURSE LICENSE NO. RN131496

ISSUED TO:

WILLIAM ROGER COUNTS,

RESPONDENT

No. 20A-1803039-NUR

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 30, 2020; the record closed on July 7, 2020

APPEARANCES: Respondent William Roger Counts did not appear. Assistant Attorney General Sabrina Khan represented the Arizona State Board of Nursing. Anna Anderson, Senior Investigator, appeared as a witness for the Arizona State Board of Nursing. Court Reporter Cindy Bachman was also present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

The Arizona State Board of Nursing (“Board”) has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to A.R.S. §§ 32-1606, 1663, and 1664. 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 through 1667 and the Arizona Administrative Code Rules 4-19-101 to 4-19-815.

Respondent William Roger Counts (“Respondent”) holds Board-issued registered nurse (RN) license number RN131496.

On March 15, 2018, the Board received an emailed complaint indicating that felony charges regarding child pornography were pending against Respondent. Based on this complaint the Board opened an investigation.

Senior Investigator for the Board, Anna Anderson, testified that a previous investigator had been initially been assigned to investigate this matter. During the course of the investigation, the Board gathered the court records pertaining to the criminal matter.

On May 16, 2017, in Arizona District Court case number CR-17-00669-001-PHX, Respondent was charged with multiple felony counts of Distribution of Child Pornography and Possession of Child Pornography. Respondent did not disclose the indictment to the Board.

On May 22, 2018, Respondent was convicted, pursuant to a guilty plea, of Possession of Child Pornography, a Class C felony. Respondent failed to report this felony conviction to the Board.

On January 14, 2019, Respondent was sentenced to a forty-eight (48) month prison term with credit for time served, supervised release for life, and to pay $3,000.00 in restitution to the victim. Respondent did not disclose his sentencing to the Board.

The Board submitted into evidence Respondent’s Response to the Notice of Charge (“Response”) received by the Board on May 4, 2020. In the Response, Respondent admitted to his crime. The Board also submitted into evidence Respondent’s Answer to the Board’s Complaint received by the Board on June 4, 2020. Attached to the Answer were letters provided to the judge in Respondent’s criminal case. One of the letters provided was written by Respondent. In the last paragraph, Respondent states, “However, my actions were not sexually motivated in anyway; possibly seeing others suffer would make me feel better about myself.”

On or about May 20, 2020, the Board issued a Complaint and Notice of Hearing that alleged violations of A.R.S. § 32-1601(26)(b), (d), (j), (l); A.A.C. R4-19-403(28) and (29); and A.R.S. § 32-3208(A).

The Notice of Hearing was sent via certified mail to Respondent at his addresses of record.

The Administrative Law Judge delayed the start of the hearing for Respondent’s appearance. However, Respondent did not appear at the hearing either personally or through an attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed prior to the hearing convening. Consequently, Respondent did not present any evidence to defend his Registered Nurse License.

CONCLUSIONS OF LAW

The Notice of 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. This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).

The Board bears the burden of proof and must establish cause to penalize Respondent’s registered nurse’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

The Board established by a preponderance of the evidence that Respondent engaged in unprofessional conduct, conduct that is or might be harmful to the health of a patient or the public, and failed to notify the Board within ten days after the charges were filed, as alleged in the Complaint and Notice of Hearing. Given Respondent’s failure to properly report his criminal charges and conviction to the Board and failure to appear at the duly noticed hearing, Respondent cannot be regulated at this time.

In light of the risk of potential harm to which patients were exposed as a result of Respondent’s actions and violations of the Nurse Practice Act, the Board established cause to impose a disciplinary sanction against Respondent’s license under A.R.S. § 32-1606(B)(17) and A.R.S. § 32-1663(D).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Board revoke Respondent William Roger Counts’ Registered Nurse License number RN131496.

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.

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-137160-45720000Done this day, July 17, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director

State Board of Nursing

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001

-137160-45720000