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24A-101264-BUS · Department of Public Safety - Student Transportation · 2023-11-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Cancellation of the School Bus Driver Certificate of:
Harvey Deal
Certificate No. 49345
No. 24A-101264-BUS
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 23, 2023
APPEARANCES: Appellant Harvey Deal appeared on his own behalf. The Arizona Department of Public Safety was represented by Assistant Attorney General Kenneth Hughes.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Harvey Deal (Appellant) was the holder of Arizona School Bus Driver Certificate No. 49345 (Certificate) issued by the Arizona Department of Public Safety (Department).
At all times relevant, Appellant worked for Pinon Unified School District (PUSD). As part of his employment, PUSD required Appellant to submit to drug screening.
On or about August 8, 2023, Appellant submitted a urine drug screen, which results were positive for Marijuana.
By letter dated August 15, 2023, the Department notified Appellant that his Arizona School Bus Driver Certificate No. 49345 had been cancelled effective immediately and that he could reapply for certification after August 1, 2024.
The Department cancelled Appellant’s certificate because it found that he had violated A.A.C. R13-13-102(K)(1)(a), A.A.C. R13-13-102(K)(1)(d), and A.A.C. R13-13-102(K)(1)(h).
On or about September 8, 2023, the Department issued a Notice of Hearing setting the matter for administrative hearing on October 20, 2023, at the Office of Administrative Hearings in Phoenix, Arizona.
At the hearing, the Department presented the testimony of Kimberly Thomas, an employee of the Department. Appellant testified on his own behalf.
Appellant fully acknowledged he had tested positive, and did not challenge the Department’s cancellation or the waiting period before he could reapply. Appellant apologized for the policy violations and indicated that he did not smoke while driving the children but had only smoked at home.
CONCLUSIONS OF LAW
The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G)(2).
The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.
A preponderance of the evidence is “evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary 1182 (6th ed. 1990).
A.A.C. R13-13-102 provides, in pertinent part, as follows:
K. Denial, cancellation, or suspension of certificate
1. Based on an assessment of the totality of the circumstances, the Department may deny a certificate to an applicant or may cancel or suspend a certificate of a school bus driver for:
a. Failing to meet or comply with the requirements of this Article;
. . . .
d. Demonstrating behavior that endangers the educational welfare or personal safety of students, teachers, or school bus drivers or other co-workers
. . . .
h. Having a verified positive result to any controlled substance or alcohol test required by subsections (C)(1), (2), or (3), at any time.
The evidence established that Appellant had a verified positive result to a controlled substance test. Consequently, the Department established grounds under A.A.C. R17-9-102(K)(1)(h) to cancel or suspend Appellant’s Arizona School Bus Certificate.
The violation of A.A.C. R17-9-102(K)(1)(h) constitutes a failure to meet or comply with the requirements of the applicable statutes. Therefore, the Department established valid grounds under A.A.C. R17-9-102(K)(1)(a) to cancel or suspend Appellant’s Arizona School Bus Certificate.
While Appellant testified that he did not smoke when he was driving students, such circumstance does not guarantee that he did not operate a school bus at some point during the time he was under the effects of having smoked and, thus, may have endangered the educational welfare or personal safety of student. Therefore, the Department had grounds under A.A.C. R17-9-102(K)(1)(d) to cancel or suspend Appellant’s School Bus Certificate.
The Department is required to inform a school bus driver whose certificate is cancelled of the amount of time that must elapse before that driver may reapply for certification. In determining the amount of time that must elapse before reapplication, the Department shall consider: (a) the seriousness of the offense leading to the cancellation; (b) the frequency with which the offense occurred; and (c) the amount of time required to correct the offense. See A.A.C. R17-9-102(K)(4).
The Department informed Appellant that he could reapply after August 1, 2024. The Department considered the seriousness and frequency of such offense, and determined that a one year period for re-application was appropriate. Appellant acknowledged using marijuana was a mistake and accepted the cancellation and the waiting period. Therefore, the Department presented sufficient evidence to demonstrate that a one-year waiting period was appropriate.
Consequently, Appellant’s appeal should denied based on his violations of A.A.C. R13-13-102(K)(1)(a), A.A.C. R13-13-102(K)(1)(d), and A.A.C. R13-13-102(K)(1)(h).
ORDER
IT IS ORDERED that Appellant’s appeal is denied and Appellant’s certificate is cancelled effective immediately.
IT IS FURTHER ORDERED Appellant is eligible to reapply for a School Bus Driver Certificate after August 1, 2024.
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 is five days after the date of that certification.
Done this day, November, 12, 2023.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Ken Hunter
Department of Public Safety - Student Transportation
2102 West Encanto Boulevard
Phoenix, AZ 85009
Kenneth Hughes
Assistant Attorney General
[email redacted]
Harvey Deal
[email redacted]
By: OAH Staff