ALJDEC - Licensing
25A-2023110526-NUR · State Board of Nursing · 2024-12-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
IN THE MATTER OF APPLICATION FOR
LICENSE BY:
FRANK JOHN HADLEY,
AKA: John Hadley
TO PRACTICE PRACTICAL NURSING
IN THE STATE OF ARIZONA
No. 25A-[number redacted]-NUR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 4, 2024 with the record held open until November 18, 2024 for the purposes of receiving the court reporter’s transcript.
APPEARANCES: Applicant Frank John Hadley appeared on his own behalf. Assistant Attorney General Roberto Pulver appeared on behalf of the Arizona State Board of Nursing.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Arizona State Board of Nursing Exhibits 1-14 were admitted into evidence.
_____________________________________________________________________
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.
On October 21, 2023, Applicant applied for reissuance of LPN licensure.
After an investigation, the Board denied Applicant the re-issuance of a LPN license on September 6, 2024.
On July 23, 2024, Applicant requested a hearing before the Office of Administrative Hearings, an independent state agency.
On November 4, 2024, the hearing was held. The Board offered the testimony of Bella Portuese, and Applicant testified on his own behalf.
Ms. Portuese was a Senior Investigator with the Board and reviewed Applicant’s Re-Issuance Application.
Ms. Portuese testified that Applicant had a history of substance abuse and disciplinary action with the Board. For example, Ms. Portuese testified to the following:
On December 19, 2007, Applicant signed and entered into a Consent Agreement for a minimum 36-month probation for violations of the Nurse Practice Act related to failure to follow standards of documentation while working as a practical nurse, and criminal convictions involving alcohol, admitting that his convictions were related to his problem with alcohol and he made the decision to stop drinking in June 2006.
On June 4, 2009, Applicant surrendered his practical nursing license for violations of the Nurse Practice Act related to non-compliance with his Consent Agreement.
On April 2, 2015, Applicant applied for reissuance of his practical nursing license.
On September 16, 2016, Applicant entered into a Consent Agreement for a Stayed Revocation, not to exceed 12 months, to complete a refresher course only, followed by a minimum 36-month Stayed Revocation Probation.
On June 19, 2017, Applicant’s practical nursing license was revoked additional violations of the Nurse Practice Act related to non-compliance with his September 16, 2016 Consent Agreement.
In addition, Ms. Portuese testified that on or about November 30, 2023, Board staff mailed Applicant a letter reminding him that as an applicant for reissuance, he was required to submit documentation showing that the basis for his revocation has been removed and that reissuance of his license would no longer constitute a threat to public health or safety.
Ms. Portuese testified that Applicant submitted a recovery questionnaire in which he asserted that he had been sober since June 2, 2006, and had been going to AA. Applicant stated he had not completed a drug/alcohol rehabilitation program. However, he also stated that he had been attending an aftercare program since 2007.
Further, Ms. Portuese testified that during her interview with Applicant, he asserted that questions about his current medications constitute a violation of “HIPAA Law,” and the Board “Don’t need to know,” and that he did not want to disclose the name or address of his medical provider. Applicant asserted that the Board’s request to have his “sponsor” provide statements regarding Applicant’s success in AA violated the 12th tradition of the program.
Ms. Portuese also testified that Applicant failed to disclose misdemeanor charges issued by Tucson Municipal Court on July 2, 2017, for intentionally placing a person in fear of imminent physical harm, a misdemeanor, and disorderly conduct – fighting. Ms. Portuese testified that while these charges were ultimately dismissed in October 20218, Applicant still had a duty to disclose the same on his Application.
Ms. Portuese testified that during her interview with Applicant, he stated he was “arrested, went to court, and did court requirements.” Ms. Portuese asked Applicant if he was charged with intentionally placing a person in fear of imminent physical harm, and he stated, “I was charged with that.” Applicant did not provide Board staff with additional information on the incident.
Ms. Portuese testified that she then compiled her Investigative Report, and presented the same to the Board. In her report she recommended that either the Board deny licensure to Applicant, or provide Applicant an opportunity to undergo a comprehensive psychological investigation.
On July 19, 2024, the Board considered the matter and voted “Applicant failed to submit substantial evidence that the basis for the previous revocation has been removed and that the reissuance of Applicant’s license will not be a threat to public health or safety. Based upon the findings of fact and statute/rule violations identified in the Investigative Report, information presented at the Board meeting, and a review of the evidence submitted by Applicant, the Board denied licensure.
Finally, Ms. Portuese testified that she believed that Applicant was unable to be regulated, as he failed multiple times to provide the required information and only wanted to disclose the information that he believed the Board should have.
Applicant testified that he never harmed a patient, and would comply with the Board as long as it was reasonable. Applicant also testified that he was forthcoming as much as he thought was requested by the Board.
Applicant testified that he did not want to be a full time nurse as he was content with his job as a GS 5 at the Veteran’s Administration, but wanted to volunteer if needed.
Further, Applicant testified that he did not intentionally mislead the Board with his answer to the criminal history portion of the application and that he had a learning disability while prevented him from correctly answering the same.
Applicant also did not want to disclosure his medical history as requested by the Board as he believed it violated HIPPA laws. Likewise, Applicant did not want to disclose his sponsor at AA due to privacy concerns.
Finally, Applicant testified that he was sober and attended AA meetings at least two times per week
CONCLUSIONS OF LAW
This matter lies within the Board’s jurisdiction under A.R.S. § 32-1606(B)(10).
Applicant bears the burden of proof to establish by a preponderance of the evidence that he was met the qualifications to practice in Arizona and that, therefore, the Board erred in denying his application. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 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.” Black’s Law Dictionary 1120 (8th ed. 2004).
A.R.S. § 32-1646(A)(3) states, “A. In the regulation of licensed nursing assistants, the board may:... 3. Deny a license or refuse to renew a license or take disciplinary action if a licensed nursing assistant commits an act of unprofessional conduct.”
A.R.S. § 32-1663(A) states, “A. If 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.”
A.A.C. R4-19-403 (20) and (25)(a) defines unprofessional conduct as:
20. Engaging in fraud, misrepresentation, or deceit in taking a licensing examination or on an initial or renewal application for a license or certificate;
. . .
25. Failing to:
a. Furnish in writing a full and complete explanation of a matter reported pursuant to A.R.S. § 32-1664, or
b. Respond to a subpoena issued by the Board;
Applicant failed to establish by a preponderance of the evidence that the Board’s denial of his re-issuance of his license was in error. In fact, a preponderance of the evidence established that Applicant engaged in unprofessional conduct as outlined in A.A.C. R4-19-403(20) and (25)(a).
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that Applicant’s appeal of the denial of his application be denied.
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, December 2, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Joey Ridenour, RN, MN, Executive Director
State Board of Nursing
Frank John Hadley
4608 East Holmes Street
Tucson, AZ 85711
[email redacted]
Roberto Pulver
Office of the Attorney General
[email redacted]
By: OAH Staff