ALJDEC decisions subject to certification as final
21A-201903082-NUR · State Board of Nursing · 2020-11-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF DENIAL OF APPLICATION FOR LICENSE BY:
CRAIG STEVEN JONES
TO PRACTICE PRACTICAL
NURSING IN THE STATE OF ARIZONA
No. 21A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 08, 2020 at 8:30 AM.
APPEARANCES: Assistant Attorney General Elizabeth Campbell, Esq. appeared on behalf of the Arizona State Board of Nursing (“Board”) with Irene Barajas as a witness. Craig Jones (“Applicant”) appeared on his own behalf. Kristi Spires (CCR No. 50135) served as the Court Reporter for the proceedings.
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
The Board is the authority for licensing and regulating the practice of nursing in the State of Arizona.
On or about January 22, 2019, Applicant submitted an application for licensure to the Board as a Licensed Practical Nurse (“LPN”) by endorsement. In the application Applicant disclosed that he had a previously issued license revoked.
On or about December 13, 2019, the Board received a completed questionnaire by Applicant whereby he admitted that his California nursing license had been revoked “based on two convictions for driving under the influence in September 2007, and March 2008; a conviction for driving with a suspended license in October 2007; and a conviction for public intoxication in March 2007.” Applicant further noted, “First step was to stop lying to myself that I am a responsible drinker, and I can control my drinking. The truth is I am an alcoholic and I have lost eh ability to control drinking.” [sic]
On March 26, 2020, the Board voted to continue its investigation into Applicant’s background and fitness, and to also permit Applicant an opportunity to obtain a psychological evaluation, including a substance abuse relapse/recovery evaluation, by a Board-approved psychologist. Applicant was notified that he had 45-days to complete the evaluation and have it returned to the Board.
On April 20, 2020, the Board received written confirmation from Applicant noting his decision not to submit for the Board’s psychological evaluations. In his letter Applicant reasoned that his denial was due to financial hardship and the fact that he no longer required an endorsement.
On July 17, 2020, the Board issued an Order of Denial.
On August 19, 2020, Applicant submitted an appeal and requested a hearing on the denial.
On August 28, 2020, pursuant to Arizona Revised Statute (“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.
On September 03, 2020, the Board issued a Notice of Public Hearing on Denial of Licensure (“Notice”), informing Applicant that, pursuant to her request, a hearing would be held at OAH on October 08, 2020, at 8:30 a.m. The Notice identifies that the issue to be addressed is whether the Board’s denial of Applicant’s LPN application should be upheld, based on Applicant’s alleged act of unprofessional conduct and Applicant’s alleged failure to establish grounds for licensure after his previous denial in 2009 pursuant to Ariz. Rev. Stat. § 32-1663(A) and Arizona Administrative Code (“Ariz. Admin. Code”) R4-19-404.
Hearing Evidence
The Board called Irene Barajas – Senior Investigator as a witness and submitted public exhibits 1-14 into the record. Applicant testified on his own behalf and submitted public exhibit A. The Notice of Hearing was also admitted into the record. The substantive evidence of record is as follows:
On or about August 03, 1999, Applicant plead guilty to Driving Under the Influence (“DUI”) and Driving with a Suspended License in the Superior Court of California.
Although Applicant was originally cited on November 05, 1995, he did not report the citation to the California Board of Vocational Nursing (“CBVN”) until February 17, 2009, whereby he informed them that the case had been dismissed.
On April 08, 2003, Applicant plead guilty to Driving While License Suspended for DUI in the Superior Court of California.
On December 04, 2004, the CBVN granted Applicant’s application for licensure as Licensed Vocational Nurse (“LVN”).
On or about March 05, 2007, Applicant plead guilty to Disorderly Conduct in the Superior Court of California.
On or about September 27, 2007, Applicant plead nolo contendere to DUI in the Superior Court of California.
On October 16, 2007, Applicant plead nolo contendere to Driving While License Suspended for DUI in the Superior Court of California.
On or about March 18, 2008, Applicant plead nolo contendere to DUI in the Superior Court of California.
On or about August 13, 2008, Applicant submitted an LPN by endorsement application to the Board. On March 25, 2009, the Board voted to continue its investigation into Applicant’s background and fitness, and to also permit Applicant an opportunity to undergo a substance abuse evaluation by a Board-approved psychologist. On July 08, 2009, because Applicant failed to undergo the evaluation, the Board denied Applicant’s LPN application for violations of the Nurse Practice Act. Additionally, Applicant’s application was denied due to his aforementioned criminal record and admission that he “makes bad decisions when drinking.” Applicant did not appeal the Board’s denial.
On May 25, 2010, the CBVN revoked Applicant’s LVN license due to DUI convictions incurred in 2007 and 2008, Driving with a Suspended License conviction in 2007, and a Public Intoxication conviction in 2007.
On September 24, 2014, Applicant’s California LVN license was reinstated on a 3-year stayed revocation. Applicant’s probation was extended by 8-months due to a positive alcohol screen.
On March 08, 2019, Applicant completed his CBVN probation requirements and his LVN license was fully reinstated.
In September 2019, Applicant was hired by the Southern Arizona Veterans Health Care System (“VA”) as a LPN. Applicant has not been disciplined by the VA for any reason during his employment.
In closing, Applicant noted that his employer offers a scholarship for nurses seeking their Registered Nurse (“RN”) license, however, in order to qualify for the scholarship applicants must be working under an Arizona nursing license for 1-year. Applicant argued that he was unaware there was a 5-year waiting period for him to reapply for licensure after being denied by the Board, and opined that if he had known he would have submitted for a psychological and/or substance abuse evaluation because he planned to enroll in a RN program 2021. Applicant argued that he should be given another opportunity as he has been “clean and sober” since 2009.
In closing, the Board noted that Applicant was under discipline at the time of his application to the Board, and that the Board afforded him an opportunity to provide sufficient information to grant his licensure request. The Board argued that Applicant’s failure to read the rules attached to its Order of Denial, which are also posted on the Board’s website, are disconcerting. The Board opined that its duty to protect the public outweighs Applicant’s desire to begin a program he has yet to be accepted into, particularly in light of a substance abuse history Applicant has yet to establish has been remediated.
CONCLUSIONS OF LAW
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.
Applicant bears the burden of persuasion to show that he meets the requirements for her application to be granted. The standard of proof on all issues is that of 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 “[t]he 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.”
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.”
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.
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.”
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.”
Ariz. Admin. Code R4-19-404(C) provides, in pertinent part, that “[a] person who applies for issuance of re-issuance of a license shall submit a written application that contains substantial evidence that the basis for denying or revoking the license has been removed and that the issuance or re-issuance of the license will not be a threat to public health or safety.”
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. The Board has discretion to grant or deny a license to an applicant under Ariz. Rev. Stat. §§ 32-1663(A) and 32-1601(26). 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.
The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses.
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. 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.
The issue in this case is, in light of Applicant’s multiple alcohol-related criminal convictions and intervening conduct since his most recent conviction, whether Applicant can be trusted at this time to be responsible in his conduct with patients and members of the public if the Board grants him a nursing license.
Here, Applicant’s disclosures regarding his arrests and convictions rightfully called into question his culpability regarding his underlying criminal conduct. Applicant’s explanations do not evince his understanding of the grievous nature of his actions, or acceptance of responsibility for the harm he caused to himself, others involved, and greater public at large.
Applicant has not shown that he has learned from his past mistakes and/or is highly unlikely to repeat them in the future, or that he has obtained sobriety and has been able to sustain it for any period of time.
Although the Board was willing to consider Applicant’s licensure application and resulting evaluation, Applicant made a volitional choice not to submit for psychological examination.
After closely scrutinizing Applicant’s records and related underlying conduct, and after careful consideration of Applicant’s intervening personal and professional behaviors, this Tribunal concludes that Applicant has not established by a preponderance of the evidence that he is not a danger to patients or the public.
The evidence of record establishes that Applicant is unwilling to be regulated by the Board at this time.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Executive Director of the Board uphold the Board’s July 17, 2020, Order of Denial regarding Applicant’s January 22, 2019, application for licensure as a practical nurse by endorsement.
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.
Done this day, November 09, 2020.
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing