                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                   ELLIOTT E. FISHER, Plaintiff/Appellant,

                                         v.

      ARIZONA STATE BOARD OF NURSING, Defendant/Appellee.

                              No. 1 CA-CV 18-0167
                                FILED 2-21-2019


            Appeal from the Superior Court in Maricopa County
                       No. LC2017-000132-001 DT
                 The Honorable Patricia Ann Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Elliott E. Fisher, Apache Junction
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael Duval Raine
Counsel for Defendant/Appellee



                        MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.
                            FISHER v. ASBN
                           Decision of the Court

W I N T H R O P, Judge:

¶1            Elliot Fisher appeals the superior court’s order affirming the
decision of the Arizona State Board of Nursing (“the Board”) to revoke
Fisher’s practical nurse license. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Fisher was licensed by the Board as a practical nurse. In 2012,
the Board received a complaint from Fisher’s employer, a youth mental-
health and substance-abuse treatment center, about his inappropriate
interactions with adolescent patients.

¶3             Following its investigation, the Board filed a complaint and
notice of hearing, requesting the Office of Administrative Hearings conduct
a formal hearing to determine whether grounds existed for the Board to
discipline Fisher. The complaint alleged as a basis for disciplinary action
that Fisher had committed unprofessional conduct by (1) making
inappropriate comments with sexual connotations to female adolescent
patients; (2) driving his vehicle rapidly across a parking lot toward his
employer’s management personnel, causing them to fear for their safety; (3)
failing to disclose all of his employers for the previous five years to the
Board in response to its investigative request; (4) improperly obtaining
confidential healthcare information about a former patient; (5) failing to
report his conviction for felony computer tampering to the Board within ten
days; (6) failing to appear for a shift as a charge nurse; and (7) refusing to
consistently lock his medication cart.1 See A.R.S. § 32-1601(26)(b), (d), (h),




1       The Board’s original complaint alleged that Fisher’s felony
conviction constituted grounds to revoke his license. See former Ariz. Rev.
Stat. (“A.R.S.”) § 32-1606(B)(17) (requiring the Board to revoke the license
of a person who has been convicted of a felony). During the course of these
proceedings, former subsection (B)(17) was renumbered (B)(16), see 2015
Ariz. Sess. Laws, ch. 262, § 4 (1st Reg. Sess.), and later again renumbered to
(B)(17), see 2018 Ariz. Sess. Laws, ch. 1, § 17 (1st Spec. Sess.). The Board
removed the allegation that Fisher’s felony conviction constituted grounds
to revoke his license after Fisher’s conviction was designated a
misdemeanor. See 2016 Ariz. Sess. Laws, ch. 282, § 1 (2nd Reg. Sess.)
(adding a caveat for a licensee who has been convicted of a felony that has
been designated a misdemeanor in then-A.R.S. § 32-1606(B)(16)).



                                      2
                             FISHER v. ASBN
                            Decision of the Court

(j), (l)2; Ariz. Admin. Code (“A.A.C.”) R4-19-401(C)(6), (8), (9); R4-19-403(1),
(3), (4), (9), (26), (29), (31).

¶4            Fisher received notice of the complaint and participated in a
two-day contested evidentiary hearing.          After the hearing, the
Administrative Law Judge (“ALJ”) issued findings of fact and conclusions
of law in a decision recommending the Board revoke Fisher’s license. The
ALJ concluded Fisher had committed unprofessional conduct in violation
of Arizona law and applicable regulations, and his lack of accountability
demonstrated he could not be “regulated,” meaning, in the Board’s
opinion, Fisher’s unprofessional behaviors could not be eliminated or
controlled through education, training, or supervision.

¶5           The Board accepted the ALJ’s order in its entirety and
revoked Fisher’s license. See A.R.S. § 41-1092.08(B). Fisher sought superior
court review of the Board’s decision. See A.R.S. §§ 12-905(A), 32-1665(B).
The superior court affirmed the decision, concluding the Board had
afforded Fisher due process and substantial evidence supported the
decision.

¶6           Fisher timely appealed, and we have jurisdiction pursuant to
A.R.S. § 12-913. See Svendsen v. Ariz. Dep’t of Transp., 234 Ariz. 528, 533,
¶ 13 (App. 2014) (interpreting § 12-913 as permitting an appeal to this
court).

                                   ISSUES

¶7            Fisher’s opening brief fails to state the issues presented for
review, as required by Arizona Rule of Civil Appellate Procedure 13(a)(6).
However, his brief may be fairly read to challenge the superior court’s order
affirming the Board’s decision on the grounds that the hearing procedure
violated his right to due process and the Board’s decision was not
supported by substantial evidence.

                                 ANALYSIS

¶8           In reviewing an order upholding the decision of an
administrative agency, we review whether the agency’s determination is

2      The legislature has renumbered the applicable statute. See 2017 Ariz.
Sess. Laws, ch. 80, § 1 (1st Reg. Sess.) (renumbering subsection (24) of A.R.S.
§ 32-1601 as subsection (26)). Because the relevant provisions are
substantially the same, we cite the current version of this and all statutes
throughout this decision.


                                       3
                             FISHER v. ASBN
                            Decision of the Court

contrary to law, not supported by substantial evidence, arbitrary and
capricious, or an abuse of discretion. A.R.S. § 12-910(E). We view the facts
in the light most favorable to upholding the agency’s decision and will not
re-weigh conflicting evidence. Shorey v. Ariz. Corp. Comm’n, 238 Ariz. 253,
258, ¶ 14 (App. 2015); DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 335-36
(App. 1984). We will affirm if substantial evidence supports the decision,
but we review de novo questions of law. Comm. for Justice & Fairness v. Ariz.
Sec’y of State’s Office, 235 Ariz. 347, 351, ¶ 17 (App. 2014).

       I.     Due Process

¶9            A professional licensee maintains a property interest in his
license, and the State must afford due process before restricting that
interest. Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106, ¶ 18
(App. 1999). Due process generally requires “notice and an opportunity to
be heard” in a meaningful manner and at a meaningful time. Id. at 106-07,
¶ 20 (citations omitted). The party asserting a denial of due process must
show prejudice. Cty. of La Paz v. Yakima Compost Co., 224 Ariz. 590, 598,
¶ 12 (App. 2010). We review de novo an alleged denial of due process.
Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014) (citation omitted).

¶10           Although Fisher does not specify how he believes the Board
denied him due process, he asserts the ALJ (1) denied his request to
continue the hearing, and (2) interrupted him at the hearing and would not
let him present additional evidence.

¶11           The Board filed its original complaint in March 2016 and
requested a May 2016 hearing date. The ALJ continued the hearing date
several times due to events in Fisher’s criminal proceeding and witness
unavailability. The first hearing day occurred on November 8, 2016. After
the ALJ scheduled the second hearing day, Fisher filed an emergency
motion to continue, explaining (1) he was unable to attend because he was
the caregiver for a terminally-ill woman, and (2) he needed additional time
to obtain discovery and prepare for the hearing.3 The ALJ denied the
motion, noting Fisher had offered no evidence that his care for a terminally-
ill patient prohibited him from attending the hearing and his failure to
earlier seek discovery did not constitute grounds to continue the hearing
date. Fisher subsequently testified at length during the hearing, but he did
not introduce any exhibits and declined to present additional witnesses. He


3     Fisher also asked the ALJ to stay the action, pending resolution of all
appeals associated with his criminal conviction and his complaint against
the Board’s investigator.


                                      4
                             FISHER v. ASBN
                            Decision of the Court

then attempted to repeat his testimony during his closing argument, and
the ALJ instructed him not to restate his testimony but to summarize why
he disagreed with the Board’s charges.

¶12           Fisher had notice and a fair opportunity to present his
evidence at the hearing, and the ALJ’s refusal to continue the hearing to a
later date, or to allow Fisher to re-open his case and offer additional
testimony during his closing argument, did not deprive Fisher of his right
to due process. See A.R.S. § 41-1092.07(F)(1) (“Neither the manner of
conducting the hearing nor the failure to adhere to the rules of evidence
required in judicial proceedings is grounds for reversing any
administrative decision or order if the evidence supporting the decision or
order is substantial, reliable and probative.”).

       II.    Substantial Evidence

¶13          Substantial evidence supports the Board’s decision that Fisher
engaged in unprofessional conduct as defined by Arizona law and
applicable regulations. See A.R.S. § 32-1601(26)(b), (d), (h), (j), (l); A.A.C.
R4-19-401(C)(6), (8), (9); R4-19-403(1), (3), (4), (9), (26), (29), (31).

              A. Behavior That Might Be Harmful or Dangerous to the Health of
                 a Patient or the Public

¶14           The record shows Fisher made inappropriate statements
containing sexual connotations to female adolescent patients. He admitted
to two psychologists, and during the administrative hearing, that he had
said, “When I close my eyes I think of adult things,” and “Beat me, hit me,
call me dirty names,” while in the presence of female adolescent patients.
The Board’s investigator testified that sexual innuendo was particularly
inappropriate with, and potentially harmful to, the vulnerable patient
population in the facility where Fisher worked.

¶15          Further, Fisher admitted that he was “hot” and “really mad”
when he drove his vehicle rapidly toward his employer’s management
personnel in a parking lot after he received negative feedback about these
comments. The individuals he approached feared for their safety and
documented the incident.

¶16           Fisher also refused to keep his medication cart locked when
he was not near it, failed to arrive for his scheduled shift at another facility,
and quit without notice. The Board’s investigator testified that this conduct
increased the risk of patient harm because (1) an unlocked medication cart
increased the risk of patients accidentally or intentionally ingesting unsafe


                                       5
                              FISHER v. ASBN
                             Decision of the Court

medications, (2) Fisher was responsible for supervising nursing assistants,
and (3) quitting without notice made it difficult for the facility to ensure
adequate nursing staff.

¶17           These behaviors supported the Board’s conclusion that Fisher
engaged in unprofessional conduct. See A.R.S. § 32-1601(26)(d) (including
as unprofessional conduct “[a]ny conduct or practice that is or might be
harmful or dangerous to the health of a patient or the public”); A.A.C. R4-
19-403(9) (“[f]ailing to take appropriate action to safeguard a patient’s
welfare or follow policies and procedures of the nurse’s employer designed
to safeguard the patient”).

               B. Making a Written False or Inaccurate Statement to the Board
                  During an Investigation

¶18           During its investigation, the Board sent Fisher a questionnaire
that asked him to list all of his employment for the previous five years.
Although Fisher avowed his answers were “true, complete and correct,”
the Board later obtained records from other employers that Fisher did not
identify, and he admitted at the hearing that he failed to disclose several of
his previous employers.

¶19           This evidence supported the Board’s conclusion that Fisher
engaged in unprofessional conduct by making a written false or inaccurate
statement to the Board during its investigation. See A.A.C. R4-19-403(26)
(including as unprofessional conduct “[m]aking a written false or
inaccurate statement to the Board or the Board’s designee in the course of
an investigation”); see also A.R.S. § 32-1601(26)(j) (“[v]iolating . . . a rule that
is adopted by the board”).

               C. Committing a Felony and Failing to Self-Report a Felony
                  Conviction to the Board

¶20           In 2015, a jury convicted Fisher of computer tampering, a class
six felony. Fisher admitted at the hearing that he did not personally notify
           4

the Board of his conviction.

¶21         This evidence supports the Board’s determination that Fisher
engaged in unprofessional conduct by committing a felony and failing to

4      The conviction was not, as Fisher suggests, for a misdemeanor
charge. The Pinal County Attorney charged Fisher with, and the jury
convicted him of, a class six undesignated felony. Ten months later, the
court designated the conviction a class one misdemeanor.


                                         6
                            FISHER v. ASBN
                           Decision of the Court

self-report a conviction for a felony or undesignated offense within ten
days. See A.R.S. § 32-1601(26)(b) (including as unprofessional conduct
“[c]ommitting a felony”), (l) (“[f]ailing to self-report a conviction for a
felony or undesignated offense within ten days after the conviction”);
A.A.C. R4-19-403(29) (“[f]ailing to notify the Board, in writing, of a
conviction for a felony or an undesignated offense within 10 days of the
conviction”). The evidence also supports the Board’s determination that
Fisher had engaged in unprofessional conduct by failing to protect
confidential information, as the criminal charges arose because Fisher
improperly obtained confidential patient records for his personal use in his
employment grievance proceeding. See A.R.S. § 32-1601(26)(j); A.A.C. R4-
19-401(C)(6) (stating a licensed practical nurse shall “[p]rotect confidential
information unless obligated by law to disclose the information”).

¶22           Finally, Fisher argues at length in his appellate briefs that he
engaged in a protected disclosure to his employer about unsafe patient care
and that the employer’s subsequent complaint about him to the Board, and
the Board’s disciplinary action, were in retaliation for that disclosure. The
ALJ was entitled to reject Fisher’s testimony, and we will not re-weigh the
evidence. See Shorey, 238 Ariz. at 258, ¶ 14; DeGroot, 141 Ariz. at 335-36.

                              CONCLUSION

¶23          For the foregoing reasons, we affirm the superior court’s
order affirming the Board’s decision to revoke Fisher’s practical nurse
license.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                        7
