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Bethea-Tumani v. Bureau of Professional and Occupational Affairs

April 28, 2010

GLECINA BETHEA-TUMANI, PETITIONER
v.
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF NURSING, RESPONDENT



The opinion of the court was delivered by: Judge Brobson

Argued: March 16, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In this appeal, Glecina Bethea-Tumani*fn1 (Applicant) petitions for review of a final adjudication and order of the State Board of Nursing (Board), denying her application for a license as a registered nurse by examination under the Professional Nursing Law (Law).*fn2 In April 1994, Applicant pled guilty to aggravated assault, a felony. In July 2008, she pled guilty to insurance fraud and conspiracy, two misdemeanors. She applied to the Board for a license on or about September 8, 2008. In its final adjudication and order, the Board denied Applicant's license application based on these convictions. We affirm.

BACKGROUND*fn3

Applicant was 19 years old*fn4 when, on or about February 4, 1994, she was involved in a fight with another female after leaving work. The verbal altercation, which the other female appears to have initiated, grew into a physical one. Applicant claims that during the fight she saw something that looked like a knife in the other female's hand. Part of Applicant's work uniform included an apron with a box cutter in the front pocket. Applicant pulled the box cutter out of her apron pocket and cut the other female's arm. Bystanders broke up the fight, and the women went their separate ways. A few days later, detectives arrested Applicant. She subsequently pled guilty to aggravated assault and served six months in Philadelphia County Prison.

After her release from prison, Applicant went to school to become a medical assistant. She then secured employment with the Professional Medical Center in Philadelphia, followed by a temporary position with SmithKline. Thereafter, she worked for 10 years as a medical assistant with Philadelphia Health Management Corporation, where she worked with women and children recovering from drug and alcohol addiction. She stopped working in June 2007 to focus on completing nursing school. She completed her nursing studies at Holy Family University in May 2008.

Applicant's July 2008 guilty plea to insurance fraud and conspiracy arose out of a September 2004 incident. While driving her vehicle, Applicant sideswiped a pole. She took the car to an auto body shop for a repair estimate. She and the auto body manager reviewed the damages to the vehicle. When the manager excused himself to take a call, a man, identifying himself as a police officer, approached Applicant. The man told Applicant that he could help her by writing a report of the accident that made it appear that the accident was not Applicant's fault and that he would cover the $500 deductible. When Applicant asked how he would do that, the man told her not to worry, it would be fine, and that he would take care of everything. Though Applicant was a little leery of the man, she acquiesced after he showed her a badge, believing the man would not steer her wrong. Applicant signed some documents and provided the auto body manager with her insurance card and a copy of her driver's license. She told her insurance company that her vehicle was sideswiped.

In 2007, a Federal Bureau of Investigation agent and a Philadelphia police officer questioned Applicant and informed her that she was going to be arrested as part of an insurance scam that involved over 300 people. About five months later, her lawyer informed her that she was going to be charged with insurance fraud and needed to turn herself in. In July 2008, Applicant pled guilty to insurance fraud and conspiracy, two misdemeanors. The court sentenced her to two years supervised probation and ordered her to pay costs and fees of $183.00 and restitution of $3,000.00.

On or about September 8, 2008, Applicant applied to the Board for a license to practice professional nursing by examination in the Commonwealth. Question 5 of the Board's application form requires the applicant to disclose whether the applicant has ever been convicted (including a guilty plea) of any crime, whether a felony or misdemeanor. (R. 5a.) Applicant responded to this question in the affirmative and disclosed to the Board the October 1994 guilty plea for aggravated assault and the July 2008 guilty plea for insurance fraud and conspiracy. (R. 7a.) By letter dated December 1, 2008, counsel to the Board notified Applicant that the Board provisionally denied her application, based upon her criminal history.

Applicant appealed the provisional denial and requested a hearing. The Board appointed a hearing examiner to conduct the hearing. The hearing examiner conducted a formal hearing on March 25, 2009. Applicant was represented by counsel at the hearing. The hearing examiner first admitted into the record, without objection from the parties, Board Exhibit B-1, which consisted of Applicant's license application and other materials considered by the Board in its provisional denial of the application. At the request of the Commonwealth's attorney, and without objection by Applicant, the hearing examiner also admitted into the record certified court records of Applicant's criminal convictions. The Commonwealth offered no additional evidence or direct testimony during the hearing. The parties waived their opportunity to file post-hearing briefs with the Board. (R. 72a.)

Applicant testified on her own behalf.*fn5 She testified about her criminal history, providing details of the circumstances that led to her convictions. She also testified about her family and her employment history, including her pursuit of her nursing degree. She testified that her term of probation for her insurance fraud conviction did not end until July 29, 2010, but could end sooner if she is able to pay her fines before then. (R. 62a-63a.) Applicant also testified that at the time of the hearing she was unemployed, attributing her inability to secure a job as a medical assistant to questions by potential employers about the insurance fraud conviction. (R. 63a.) Finally, she testified about her desire to become a nurse so she could take care of her family and help people. (Id.) In addition to her testimony, she offered two exhibits into evidence. The first was a clinical evaluation of her performance in nursing school. The second was a written statement about her criminal record that she submitted to the Board in support of her application.

The Board deliberated Applicant's appeal of the provisional denial of her application at its May 4, 2009 meeting. In its final adjudication and order dated July 29, 2009, the Board, citing Section 6 of the Law, 63 P.S. §216, found that Applicant had failed to produce "satisfactory evidence that she is of good moral character, can practice nursing with reasonable skill, honesty, and safety to patients, and is able to meet the requirements of the profession." (R. 136a.) In further support of its decision, the Board concluded it was authorized under Section 14(a)(5) of the Law, 63 P.S. §224(a)(5), to refuse to issue a license to Applicant due to her criminal history.

DISCUSSION

On appeal,*fn6 Applicant presents two primary issues for our review. First, Applicant argues that the Board's adjudication and order was legally deficient, in that it did not adequately address the evidence Applicant presented during the hearing in mitigation of her criminal history. Second, Applicant argues that the Board abused its discretion in concluding, without explanation, that Applicant had not furnished satisfactory evidence that she is of good moral character, can practice nursing with reasonable skill, honesty and safety to patients, and is able to meet the requirements of the profession.

The Board was tasked with the duty to determine whether Applicant met the requirements for licensure under Sections 6 and 14(a)(5) of the Law. Commonwealth Court has recognized that the state has the right to license professions "in a manner so as to safeguard the interest of the public from those who are incompetent or unqualified to engage in practice." Allen v. Dep't of State, Bureau of Prof'l and Occupational Affairs, 595 A.2d 771, 773 (Pa. Cmwlth. 1991).

Section 6 of the Law provides, in relevant part: "Every applicant, to be eligible for examination for licensure as a registered nurse, shall furnish evidence satisfactory to the Board that he or she is of good moral ...


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