Cook v. Dep't of Commerce

• Decision Date: 19 March 2015
• Docket Number: No. 20130974–CA.,20130974–CA.
• Citation: 347 P.3d 5,2015 UT App 64
• Parties: Monica Cecilia COOK, Petitioner, v. DEPARTMENT OF COMMERCE, Division of Occupational and Professional Licensing, and Board of Nursing, Respondents.
• Court: Utah Court of Appeals

347 P.3d 5

2015 UT App 64

Monica Cecilia COOK, Petitioner

v.DEPARTMENT OF COMMERCE, Division of Occupational and Professional Licensing, and Board of Nursing, Respondents.

No. 20130974–CA.

Court of Appeals of Utah.

March 19, 2015.

David S. Cook, Bountiful, for Petitioner.

Sean D. Reyes and Nancy L. Kemp, Salt Lake City, for Respondents.

Judge KATE A. TOOMEY authored this Opinion, in which Judges J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

Opinion

TOOMEY, Judge:

¶ 1 Monica Cecilia Cook challenges the Department of Commerce's decision to revoke her Advanced Practice Registered Nurse (APRN) license, revoke her license to prescribe and administer controlled substances, and fine her $5,000 for unprofessional conduct. We approve the decision as to the unprofessional-conduct determination and the fine, but we set aside the Department's revocation of her licenses.

BACKGROUND

¶ 2 In 2005, the National Certification Corporation (the NCC) certified Cook as a Woman's Health Care Nurse Practitioner. The same year, Cook applied to the Division of Occupational and Professional Licensing (DOPL) for an APRN license and a license to administer and prescribe controlled substances. In completing her application for licensure, Cook stated that her national certification would expire March 31, 2008, and attested that she had read and understood Utah's Nurse Practice Act Rule. By so attesting, Cook indicated her understanding that “disciplinary action may be taken against [her] license for unlawful or unprofessional conduct.”

¶ 3 Between 2005 and 2012, Cook regularly took continuing medical education (CME) courses but failed to submit proof of her CME to the NCC to renew her national certification.¹ As a result, Cook's NCC certification expired on March 31, 2008. Although national certification was required for relicensing in Utah and her national certification had expired, in January 2010 and again in January 2012, Cook renewed her APRN license and her license to administer and prescribe controlled substances through DOPL's online renewal application.

¶ 4 In each online license renewal application, Cook reviewed and affirmed the following statements:

I am qualified in all respects for the renewal or reinstatement of this license;

To the best of my knowledge, the information contained in this application is complete and correct, and is free of fraud, misrepresentation, or omission of material fact;

...

In accordance with Subsection R156–31b–303(3)(b) [of the Utah Administrative Code], you must have National Certification in your specialty area of practice ...;

By selecting “Continue” you hereby certify that you have completed or will complete all renewal requirements ... before the expiration or reinstatement of your current license; and

Please note that false, misleading, or fraudulent submittal may result in loss of licensure, criminal prosecution or both and is subject to audit. Additionally, [DOPL] reserves the right to initiate action at any time against a licensee who did not meet the renewal/reinstatement requirements at the time the license was issued.

¶ 5 In November 2011, Cook contacted the NCC to inquire about the status of her national certification.² In early 2012, Cook's employment ended because she was not nationally certified. On April 2, 2012, Cook wrote a letter to the Board of Nursing (the Board)³ relinquishing her APRN license and informing the Board that she had recently learned she had inadvertently allowed her NCC certification to expire, not realizing she needed to renew it. She wrote, “I understand that the Board of Nursing may assess me with a citation or fine for my situation. I am willing to pay any such reasonable penalty as I am at fault....”

¶ 6 In June 2012, DOPL filed a Verified Petition and Notice of Agency Action, alleging that Cook had engaged in unprofessional conduct by falsely attesting that she was nationally certified when she renewed her APRN license. Cook filed an answer alleging that DOPL improperly delegated its duties to the NCC, violated her constitutional rights, failed to properly comply with its duties to notify her of the national certification requirement, and lacked the authority to fine her for unprofessional conduct. Additionally, the answer stated that Cook believed she had current national certification because she had taken the required CME courses.

¶ 7 Although Cook raised constitutional concerns during a telephonic prehearing conference, the Administrative Law Judge (ALJ) limited the issues to be heard by the Board to (1) whether Cook's actions constituted grounds for sanctioning her, (2) whether Cook's state of mind constituted a mitigating circumstance, and (3) what sanction, if any, should be imposed.

¶ 8 Following a hearing, the Board made recommendations which the DOPL director later adopted. DOPL issued an order concluding that Cook had engaged in unprofessional conduct by allowing her national certification to expire and then submitting two applications attesting she was qualified in all respects for renewal of her APRN license. The order fined Cook $5,000 and revoked her APRN license and her license to prescribe and administer controlled substances. Thereafter, consistent with its normal business procedures, DOPL published its adverse action against Cook's license in two national databanks and in DOPL's disciplinary newsletter.

¶ 9 Cook requested agency review on April 15, 2013.⁴ Additionally, on August 30, 2013, DOPL notified Cook that a conditional APRN license would be issued pending the outcome of agency review.⁵ But in September 2013, after reviewing DOPL's decision to sanction Cook by revoking her licenses and fining her, the Department affirmed DOPL's Amended Order. The Department adopted the Board's findings as conclusive, including the following:

[T]he requirements for renewing an NCC certification are taught and discussed in the associated pre-certification education. Each individual who is awarded a certification is given a handbook that details the process for submitting a renewal application to the NCC. The NCC maintains a website where the process and requirements are posted for easy reference. In addition, the NCC sends each certification holder a renewal reminder, using the address of record, prior to the date of expiration....

The Department also found that DOPL

properly met its obligations to send out renewal notices to [Cook]. [Cook] failed to establish that the sanction of revocation and a $5,000.00 fine was unreasonable or arbitrary or capricious. [Cook] received due process rights of notice and opportunity to be heard. Challenges to the constitutionality of a statute must be deferred to the Courts. [Cook] failed to properly preserve remaining issues for agency review. Finally, [Cook] has failed to establish any basis for her request for an apology from [DOPL] or payment for lost income.

Cook petitions this court for judicial review of the Department's order.

ISSUES ON REVIEW

¶ 10 The principal issue is whether there is substantial evidence that Cook renewed her APRN license by a false communication when she attested that (1) she was nationally certified in her specialty area of practice; (2) she met or would complete all of the APRN license renewal requirements; and (3) to the best of her knowledge, all information in the application was complete and correct. Then, we must determine whether the Department abused its discretion by revoking Cook's licenses, fining her $5,000, and publishing the action it took against her.

ANALYSIS

I. Substantial Evidence Supports the Department's Finding That Cook Engaged in Unprofessional Conduct by Making a False Communication in Her License Renewal Applications.

¶ 11 “ ‘Unprofessional conduct’ means ... practicing or attempting to practice an occupation or profession requiring licensure ... by any form of action or communication which is false, misleading, deceptive, or fraudulent.” Utah Code Ann. § 58–1–501(2)(h) (LexisNexis Supp.2014). Cook first argues a “false” communication must be knowingly false. Second, she asserts that she did not engage in unprofessional conduct because, to the best of her knowledge, the statements she made in renewing her license were not false. The Department found, however, “[Cook's] intent is not relevant under Subsection 58–1501(2)(h)” because a “[m]isrepresentation or a false statement ... does not require the intent to deceive.” (Citing Christensen v. Board of Review, 579 P.2d 335, 338 (Utah 1978) (Maughan, J., dissenting).)

¶ 12 When reviewing an agency decision,

[t]he appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by ... agency action ... based upon a determination of fact ... that is not supported by substantial evidence when viewed in light of the whole record before the court[,] ... [or] the agency action is ... otherwise arbitrary or capricious.

Utah Code Ann. § 63G–4–403(4)(g), (h)(iv) (LexisNexis 2014). But “[w]e review statutory interpretations by agencies for correctness, giving no deference to the agency's interpretation.” Harrington v. Industrial Comm'n, 942 P.2d 961, 963 (Utah Ct.App.1997) (citation and internal quotation marks omitted).

¶ 13 “The fact that the parties offer differing constructions of the statute, in and of itself, does not mean that the statute is ‘ambiguous.’ ” Derbidge v. Mutual Protective Ins. Co., 963 P.2d 788, 791 (Utah Ct.App.1998). When the language of the statute is clear, “we do not look beyond the language's plain meaning to divine legislative intent.” Brixen & Christopher Architects, PC v. State, 2001 UT App 210, ¶ 14, 29 P.3d 650 (citation and internal quotation marks omitted). Thus, we read the statutory language literally and “assume the legislature used each term advisedly,” “unless it would result in an unreasonable or inoperable result.” State v. Sommerville, 2013 UT App 40, ¶ 9, 297 P.3d 665 (citation and internal quotation ...