STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS

Transcription

1 STATE OF MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES BUREAU OF HEARINGS In the matter of Christopher Michael Smith, Petitioner v Bureau of Health Services, Respondent / Docket No Agency No Agency: Bureau of Health Services Case Type: Intent to Deny Refusal to License Issued and entered this 8 th day of February, 2001 by C. David Jones Administrative Law Judge PROPOSAL FOR DECISION PROCEDURAL HISTORY On or about July 10, 2000, Petitioner applied for a practical nurse license. On November 7, 2000, Respondent sent Petitioner notice of intent to deny application for licensure. On or about November 22, 2000, Petitioner s written demand for hearing was received. On December 19, 2000, a Notice of Hearing was mailed scheduling the hearing to commence on January 26, 2001, at 9:00 a.m. On January 26, 2001, the hearing commenced as scheduled. Linda Craven, Assistant Attorney General, represented Respondent. Thomas Sparks, Attorney at Law, represented Petitioner.

2 Page 2 The following witnesses testified for Petitioner: Chad Sharpe, former supervisor; Patricia Van Arsdale, mother of Petitioner; and Christopher Michael Smith, Applicant and Petitioner. The following exhibits offered by Petitioner were admitted into the record: Petitioner s Exhibit 1, December 18, 2000, letter from Mott Community College; Petitioner s Exhibit 2, November 20, 2000, letter from IHS; and Petitioner s Exhibit 3, academic record. Respondent offered no witnesses or exhibits. Subsequent to hearing a letter was received from Petitioner s mother. The letter was returned, however, because the record had been closed. ISSUES AND APPLICABLE LAW The applicable law in this case is the Public Health Code of 1978, as amended, (Health Code), MCL , et seq., MSA 14.15(1101), et seq. The applicable rules are 1996 AACS, R The issues in this case are as follows: 1. Was Petitioner convicted of felonies in violation of Health Code Section 16221(b)(v)? 2. Does Petitioner lack good moral character in violation of Health Code Section 16221(b)(vi)? 3. Has Petitioner failed to meet one or more of the requirements for licensure under Health Code Section in violation of Health Code Section 16221(k)?

3 Page 3 FINDINGS OF FACT The undersigned Administrative Law Judge finds the following facts: 1. Petitioner was born July 6, After graduation from high school he joined the military and eventually received training as a medic. 2. On August 17, 1992, Petitioner plead guilty to receiving and concealing stolen property over $100, a felony. In part he was sentenced to 16 months probation and required to pay restitution in the amount of $2,100. He was in jail for two weeks awaiting trial. He had been involved with a group of people who broke into a restaurant at night and stole property. 3. On November 29, 1993, Petitioner plead guilty to attempted license documents/plates-forgery, a felony. In part he was sentenced to 30 days in jail, 36 months probation, and 100 hours community service. He actually served two weeks in jail because of good behavior and had work release during the incarceration. Petitioner s license plates had expired, and he could not afford the cost of insurance and new plates. He went to a mall parking lot, peeled the tag off another car, and put it onto his own car. 4. Petitioner enrolled at Mott Community College in January 1996 and began taking classes winter semester of In the fall of 1997 Petitioner began taking medical classes with plans to become a nurse, although he was not actually accepted into the nursing program until later. Petitioner knew that felony convictions could hinder his ability to be licensed as a nurse.

4 Page 4 5. Petitioner completed the practical nursing portion of the program at Mott in June He anticipates completing his nursing program (thus receiving the training for a registered nurse) and receiving his associate s degree in May Petitioner has maintained a grade point average of 3.06 (slightly higher than a B). In his nursing programs he has demonstrated responsibility, accountability, and reliability. His clinical instructors have described him as self-directed, observant, team-player, pleasant, good thinker, and safe. 7. On March 15, 1999, Petitioner plead guilty to embezzlement agent over $100, a felony. In part he was sentenced to 180 days in jail (with work release), 36 months probation, and was required to pay restitution of $ From about August through October 1998 Petitioner had embezzled funds from his employer, Flint Carpeting. He received payments from customers, and when they paid in cash he kept the cash for himself. 8. Petitioner married for the first time in September 1997 and has a daughter by the first wife. Petitioner and his first wife lived beyond their means, and Petitioner believed acquiring additional money was necessary to maintain his marriage. This motivated him to embezzle the money. Subsequently, Petitioner divorced his first wife. He has irregular contact with his child and currently pays no child support because he has no job, but is attending school. 9. In December 1998 Petitioner applied at Rosehill Center to work as a nurse technician. On his application he listed his first two convictions, but the clinical supervisor overlooked them and hired him. Rosehill Center provides inpatient psychiatric

5 Page 5 rehabilitation in a three-stage behavior modification program. Petitioner s job duties were to pass medications and work one on one with patients in stage 1. Petitioner enjoyed this work, and his career goal is to be a psychiatric nurse. 10. When Petitioner was sentenced to jail in March 1999, Rosehill reviewed his application and discovered he had listed the two prior convictions. Rosehill did not fire Petitioner, but allowed him to continue working on work release during his incarceration. Petitioner continued working at Rosehill until February The clinical supervisor at Rosehill presented testimonial evidence on behalf of Petitioner. He indicated Petitioner did outstanding work, set standards for others and was reliable, trustworthy, fair, honest, and open. There is no evidence that Petitioner took the property of others while working at Rosehill. 12. From July 2000 to December 2000 (when he quit) Petitioner worked at Riverbend Nursing Home (Integrated Health Services). Riverbend is a nursing home caring primarily for elderly patients. Petitioner was a nurse technician providing patient care and some associated treatments. According to Riverbend Petitioner had a professional attitude and good attendance and performance and followed instructions and directions well. 13. Petitioner married for the second time in His second wife is a registered nurse working full-time. They have a young daughter, and Petitioner provides child care while the mother works. Petitioner and his new wife have financial difficulties, but Petitioner has adjusted without resorting to crime.

6 Page Petitioner s mother testified that Petitioner s incarceration and new family have motivated him to grow up and that he is more open at this time. 15. Petitioner has not received professional counseling, however, his probation officer has given him advice. Petitioner is worried that if he is convicted of another crime he will go to prison. 16. Petitioner is willing to accept monitoring and a limited license. CONCLUSIONS OF LAW A. Introduction The disciplinary subcommittee shall proceed against an applicant for licensure under the Health Code Section if it finds grounds exist under Health Code Section 16221, MCL ; MSA 14.15(16221); Health Code Section The disciplinary subcommittee may impose sanctions on the applicant including denial and limitation of license, MCL (1); MSA 14.15(16226)(1); Health Code Section 16226(1). An Administrative Law Judge may not recommend or impose penalties against an applicant, MCL (a)(2); MSA 14.15(16231)(a)(2); Health Code Section 16231(a)(2); and 1996 AACS, R (3).

7 Page 7 B. Conviction of Felony As grounds for disciplinary subcommittee action Respondent has alleged the following violation by Petitioner: Section 16221(b)(v). Conviction of... a felony... MCL (b)(v); MSA 14.15(16221)(b)(v); Health Code Evidence on record establishes this ground. Petitioner was convicted of three felonies: in 1992, 1993, and C. Good Moral Character As grounds for disciplinary subcommittee action Respondent has alleged the following violation by Petitioner: 16221(b)(vi). character: Lack of good moral character. MCL (b)(vi); MSA 14.15(16221)(b)(vi); Health Code Section The following legal authorities provide guidance on the meaning of good moral Good moral character means good moral character as defined and determined under act 381 of the Public Acts of 1974, as amended, section of the Michigan Compiled Laws. MCL (5); MSA 14.15(16104)(5); Health Code Section 16104(5)

8 Page 8 follows: 1974 PA 381 in reference to good moral character provides in relevant part as The phrase good moral character or words of similar import when used as a requirement for an occupation or professional license, or when used as a requirement to establish or operate an organization or facility regulated by the state in the Michigan Compiled Laws and administrative rules promulgated under those laws shall be construed to mean the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner. MCL (1); MSA (1)(I) A judgement of guilt in a criminal prosecution or a judgement in a civil action shall not be used in and of itself by a licensing board or agency as proof of a person s lack of good moral character. It may be used as evidence in a determination and when so used a person shall be notified and shall be permitted to rebut the evidence by showing that at the current time he or she has the ability to and is likely to serve the public in a fair, honest and open manner, that he or she is rehabilitated, or that the substance of the former offense is not reasonably related to the occupational profession in which he or she seeks to be licensed. MCL ; MSA (2) Prior to the promulgation of rules pertaining to a board or agency, all felonies shall be considered by the board or agency to be relevant to the ability or likelihood that the person will serve the public in a fair, honest and open manner. MCL (3); MSA (3)(3) The weight of evidence on record establishes this ground for disciplinary subcommittee action. Petitioner has been convicted of three crimes involving theft of property. This property theft demonstrates a propensity not to serve the public in the licensed area in

9 Page 9 a fair, honest, and open manner. Since they were felony convictions, by statute, they are relevant to the issue of good moral character. Indeed nurses often care for weak, sick people who are very vulnerable to property theft. The main issue is whether Petitioner has been rehabilitated so that at the current time he has the ability to, and is likely to, serve the public in a fair, honest, and open manner. Petitioner has not established rehabilitation. It is clear that he has made progress. Since his last conviction in 1999 Petitioner has shown accomplishments at school, employment, and family. Petitioner was also willing at hearing to openly describe his crimes without apparent attempts to minimize or rationalize them. However, it is unclear how durable these changes are. It has only been a short amount of time (less than two years) since his last (third) conviction. Over five years passed between his second and third convictions. D. Requirements for Licensure As grounds for disciplinary subcommittee action Respondent alleged the following violation by Petitioner: Failure to meet one or more of the requirements for licensure or registration under section MCL (k); MSA 14.15(16221)(k); Health Code Section 16221(k) One of the requirements for licensure is that the individual be of good moral character. MCL (1)(v); MSA 14.15(16174)(1)(b); Health Code Section 16174(1)(b). Evidence on record establishes this ground. As noted above Petitioner lacks

10 Page 10 good moral character. PROPOSED DECISION Based on the above Findings of Fact and Conclusions of Law the undersigned Administrative Law Judge recommends the following decision: 1. Petitioner was convicted of felonies in violation of Health Code Section 16221(b)(v). 2. Petitioner lacks good moral character in violation of Health Code Section 16221(b)(vi). 3. Petitioner has failed to meet one or more of the requirements for licensure under Health Code Section 16174, in violation of Health Code Section 16221(k). EXCEPTIONS The parties may file exceptions to this Proposal for Decision within 15 days after the Proposal for Decision is issued and entered. An opposing party may file a response within 5 days after exceptions are filed. Any such exceptions or responses shall be filed with the Department of Consumer and Industry Services, Bureau of Health Services, P.O. Box 30670, Lansing, Michigan, 48909, Attention: Ray Garza. C. David Jones Administrative Law Judge