BEFORE THE BOARD OF REGISTERED NURSING

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

JOHN MICHAEL FLATH 30 Grand Canyon Ct. Sacramento, CA 95835

Registered Nurse License No. 756396

Respondent.

Case No. 2011-715

OAH No. 2011050103

DECISION

The attached Proposed Decision of the Administrative Law Judge is hereby adopted by the Board of Registered Nursing as its Decision in the above-entitled matter.

This Decision shall become effective on January 27,2012.

IT IS SO ORDERED this 30th day of December ,2011.

Board of Registered Nursing Department of Consumer Affairs State of California

BEFORE THE BOARD OF REGISTERED NURSING

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

In the Matter of the Accusation Against:

JOHN MICHAEL FLATH Case No. 2011-715 Sacramento, CA

OAH No. 2011050103 Registered Nurse License No. 756396

Respondent.

PROPOSED DECISION

Administrative Law Judge Danette C. Brown, State of California, Office of Administrative Hearings, heard this matter in Sacramento, California on October 24, 2011.

Kent D. Harris, Deputy Attorney General, represented Louise R. Bailey, M.Ed., R.N., (complainant), Executive Offic'er of the Board of Registered Nursing (Board), Department of Consumer Affairs.

John Michael Flath, (respondent) was present and was represented by Paul Chan, Attorney at Law.

Evidence was received, the hearing was closed, and the matter was submitted for decision on October 24, 2011.

FACTUAL FINDINGS

1. Complainant filed the Accusation in her official capacity. She signed the Accusation on February 22, 2011.

2. On July 29, 2009, the Board issued registered nurse license number 756396 to respondent. The license expired on May 31, 2011, unless renewed or revoked.

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3. On August 11, 2010, in Superior Court of California, County of Santa Barbara, in the matter entitled People v. John Michael Flath, aka John Michael Flath III, and John M Flath, Case No. 1333244, respondent was convicted, upon a plea of no contest, of violating Penal Code section 602.5, trespassing, a misdemeanor. Imposition of sentence was suspended, and respondent was placed on two years probation, upon the following terms: serve four days in j ai I with credit for time served of two days; pay $375 in fines and fees; stay away from the University of California, Santa Barbara campus; no contact with victim; and obey all laws.

4. The circumstances surrounding the conviction are that, on May 5, 2010, respondent was in the Davidson Library at the University of California, Santa Barbara (UCSB) campus. Respondent was not a student there, but had gone to the UCSB library to work on his paper for his master's degree. Respondent had previously been in Los Angeles for ajob interview, and decided to stay in Santa Barbara for a couple of days, then head home to Sacramento. While in the library on the 4th floor, respondent sat down at a desk diagonally across from a woman who was studying. The woman observed respondent reach down and pull the leg of his shorts up and over so that his erect penis was about 50 to 75 percent exposed. Respondent was looking directly at the woman while he did this. He then put his head down on the desk like he was resting. Respondent then stood up, and walked away. The woman went downstairs and called campus police. An officer found respondent seated at a table on the second floor of the library. The officer observed respondent take off his shirt. The officer asked respondent whether anything had happened on another floor. Respondent did not know what the officer was referring to, and told the officer that he had only been on the second floor. When asked why he took off his shirt, respondent stated that it was getting warm. Respondent denied being involved in any incident that happened. After being identified by the woman, respondent was placed under arrest for indecent exposure.

. 5. The circumstances surrounding respondent's conviction demonstrate that the conviction was substantially related to the qualifications, functions or duties of a registered nurse, in that to a substantial degree it evidences his present or potential unfitness to practice in a manner consistent with the public health, safety, or welfare, within the meaning of California Code of Regulations, title 16, section 1444.

6: In aggravation, on August 7, 1998, respondent was arrested for indecent exposure while on a college campus libraty located in North Carolina. On December 3, 1998, in the Catawba County District Court in NOlih Carolina, in the matter entitled People v. John Michael Flath, Case No. 1998CR 012803, respondent received a verdict of guilty in a trial by judge, of violating NOlih Carolina General Statute 14-159.13, second degree trespassing, a misdemeanor. Respondent was placed on 60 months supervised probation, upci~ the ~.::::: following terms: pay fines of fees of $280; stay away from Lenoir Rhyne Col:l'ege; do~pt :'i3,J

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7. In his letter of explanation to the Board dated April 14, 2008, \~~01:1dent .:.,..' admitted his 1998 misdemeanor conviction for trespassing. He stated that h&-"1U:~peJioffhis girlfriend at school, and was waiting for her in the library for her summer clasS2~o end.."::' H~

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then had a confrontation with a girl whom he had previously dated, and was later approached by campus security who asked him to leave. Respondent was a student at the school, but was not enrolled in summer classes. Respondent further explained that he should have avoided having a verbal altercation with the girl, and should have been more compliant with campus security by leaving when asked to do so. He was 22 years old, and admitted that he was immature in his communication with campus security.

8. Respondent is not currently employed. He previously worked as a registered nurse from November 2009 to March or April 2010 at Asbury Park Nursing and Rehabilitation facility in Sacramento. Respondent received his Bachelor of Science degree in Aeronautics in 2002, and his degree in Nursing in 2005. He entered a masters program in Nursing in 2007. He teceived his master's degree in Nursing in 2010. He would like to work in the area of nursing research. Respondent did not provide documents to confirm his educational background.

9. Respondent is now 35 years old. He was 34 years old when he was convicted in August 2010. The facts and circumstances surrounding his 2010 and 1998 convictions are similar. Respondent is still on probation for his 2010 conviction.

10. Respondent presented no evidence of mitigation or rehabilitation.

11. The costs of prosecution of this matter incurred by the Board were $1,715, as of the date of hearing. Respondent agreed to the amount.of costs requested by the Board. Respondent did not indicate that he is financially incapable of paying costs, ifhe is placed on probation and is able to find gainful employment.

LEGAL CONCLUSIONS

Cause for Disciplinary Action

1. Business and Professions Code section 2761, subdivision (a), J provides in part that the Board may take disciplinary action against a certified or licensed nurse for "unprofessional conduct." Section 2761, subdivision (£), provides that the Board may take disciplinary action for "[c]onviction of a felony or of any offense substantially related to the qualifications, functions, and duties of a registered nurse, in which event the record of the conviction shall be conclusive evidence thereof."

2. California Code of Regulations, title 16, section 1444, sets forth the Board's criteria of substantial relationship, and states in part: "A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered

1 All subsequent statutory references are to the Business and Professions Code, unless otherwise specified.

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nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in ,a manner consistent with the public health, safety, or welfare.. , ."

3. Clear and convincing evidence established cause for discipline of respondent's license pursuant to section 2761, subdivision (f), in conjunction California Code of Regulations, title 16, section 1444, by reason of Findings 3, 4,5 and 6, in that respondent was convicted of a crime that was substantially related to the qualifications, functions and duties of a registered nurse.

Disciplinary Considerations

4. Pursuant to California Code of Regulations, title 16, section 1444.5,2 the Board has adopted Recommended Guidelines for Disciplinary Orders and Conditions of Probation (Guidelines). The Guidelines specify that the following factors are to be considered in determining whether revocation, suspension or probation is to be imposed in a given case:

1. Nature and severity of the act(s), offenses, or crime(s) under consideration.

2. Actual or potential harm to the public. 3. Actual or potential harm to any patient. 4. Prior disciplinary record. 5. Number and/or variety of cun-ent violations. 6. Mitigation evidence. 7. Rehabilitation evidence. 8. In case of a criminal conviction, compliance with

conditions of sentence and/or cOlili-ordered probation. 9. Overall criminal record.

10. Time passed since theact(s) or offense(s) occurred. 11. If applicable, evidence of expungment [sic] proceedings

pursuant to Penal Code Section 1203.4.

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~ ...., ".In reaching a decision on a disciplinary action under the Administrativ~~~ f';?Procedure Act (Government Code section 11400 et seq.), the Board sb:aI1t, ':.:::>consider the disciplinary guidelines entitled: "Recommended Guideline~or ,-­

Disciplinary Orders and Conditions of Probation" (10/02) which are hereby incorporated by reference. Deviation from these guidelines and orders, including the standard terms of probation, is appropriate where the board in its sole discretion determines that the facts of the particular case warrant such a deviation--for example: the presence of mitigating factors; the age of the case; evidentiary problems.

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5. In addition to the Board's Guidelines, California Code of Regulations, title 16, section 1445, subdivision (b), sets forth criteria of rehabilitation in criminal conviction cases, as follows:

(b) When considering the suspension or revocation of a license on the grounds that a registered nurse has been convicted of a crime, the board, in evaluating the rehabilitation of such person and his/her eligibility for a license will consider the following criteria:

(1) Nature and severity of the act(s) or offense(s).

(2) Total criminal record.

(3) The time that has elapsed since commission ofthe act(s) or offense(s).

(4) Whether the licensee has complied with any terms of parole, probation, restitution or any other sanctions lawfully imposed against the licensee.

(5) If applicable, evidence of expungement pr~ceedings

pursuant to Section 1203.4 of the Penal Code.

(6) Evidence, if any, of rehabilitation submitted by the licensee.

6. Applying the Board's criteria to the facts of this case, respondent engaged in a single instance ofserious misconduct, aggravated by a very similar act of misconduct 12 years earlier, which had serious consequences to the public. There was no potential harm to any patient as a result of respondent's conduct. He has no record of prior disciplinary action, but has a record of a prior 1998 criminal conviction. Only one and a half years have elapsed since the conduct giving rise to his August 2010 conviction. Respondent will be on criminal probation until May 2012. Respondent did not produce any evidence of rehabilitation. Respondent is not currently employed as a registered nurse, but he has, according to his testimony; completed a masters program in nursing, so that he may pursue his interest in nursing research.

7. According to the Board's Guidelines, the recommended discipline for a violation of section 2761, subdivision (f) is outright revocation.

8. Complainant is seeking the outright revocation of respondent's license. The Board's position is that the acts leading to respondent's convictions were egregious and substantially related to the qualifications, functions, and duties of a registered nurse, which merit revocation. As a registered nurse, there are boundaries. Both convictions ended in convictions for trespass, but the facts and circumstances surrounding those convictions are

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very troubling, in that they involved indecent exposure incidents at college campus libraries. Respondent did not appear to learn or refrain from the conduct which led to his 1998 conviction, repeating the same type of behavior 12 years later. Respondent denied that he did anything wrong.

9. When all the facts and circumstances are weighed and balanced, it is contrary to the public interest to allow respondent to remain licensed as a registered nurse, even on a probationary basis.

Costs

10. Pursuant to section 125.3, subdivision (a), an administrative law judge may direct a licensee found to have violated the licensing act to "pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case." Section 125.3, subdivision (c), states:

A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the entity bringing the proceeding or its designated representative shall be prima facie evidence of reasonable costs of investigation and prosecution of the case. The costs shall include the amount of investigative and enforcement costs up to the date of the hearing, ,including, but not limited to, charges imposed by the Attorney General.

11. As set forth in Finding 11, the costs of prosecution claimed by the Board herein are in the amount of$1,715. Zuckermcm v. Board ofChiropractic Exam.iners (2002) 29 Ca1.4th 32, identifies the factors to be considered in determining the reasonableness of costs pursuant to statutory provisions like Business and Professions Code section 125.3. The factors include whether the licensee has been successful at hearing in getting charges dismissed or reduced; the licensee's subjective good faith belief in the merits of his or her position; whether the licensee has raised a colorable challenge to the proposed discipline; the financial ability of the licensee to pay; and whether the scope of the investigation was appropriate to the alleged misconduct. In this case, the Board prevailed on all of the allegations in the Accusation.

12. As set forth in Finding 11, respondent did not challenge the reasonableness of the Board's request for costs of prosecution of this matter. Under all of the facts and circumstances, assessment of costs in the amount of $1,715 against respondent is reasonable and appropriate.

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ORDER

1. Registered nurse license number 756396, issued to respondent John Michael Flath, is revoked pursuant to L.egal Conclusion 3.

2. Respondent is to pay to the Board its costs of prosecution of this matter in the amount of$1,715, pursuant to Legal Conclusion 12.

Dated: November'22, 2011

DANET~~O=:WN-:=---­Administrative Law Judge Office of Administrative Hearings

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Exhibit A

Accusation Case No. 2011-715

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KAMALA D. HARRIS Attorney General of California JANICE K. LACHMAN Supervising Deputy Attorney General KENT D. HARRIS Deputy Attorney General State Bar No. 144804

13 00 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-7859 Facsimile: (916) 327-8643

Attorneys for Complainant

BEFORE THE BOARD OF REGISTERED NURSING

DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA

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In the Matter of the Accusation Against: Case No.

JOHN MICHAEL FLATH ACCUSATION -30 Grand Canyon Ct. Sacramento,California 95835

Registered Nurse License No. 756396

Respondent.

Louise R. Bailey, 1v1.Ed., RN ("Complainant") alleges:'

PARTIES

1. Complainant brings this Accusation solely in her official capacity as the Executive

Officer of the Board of Registered Nursing ("Board"), Depmiment of Consumer Affairs.

2. On or about July 29,2009, the Board issued Registered Nurse License Number

756396 to Jolm Michael Flath ("Respondent"). The license was in full force and effect at all

times relevant to the charges brought herein arid will expire on May 31, 2011, unless renewed.

JURISDICTION

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.J. Business m1d Professions Code ("Code") section 2750 provides, in pertinent pmi, that

the Board may discipline any licensee, including a licensee holding a temporary or an inactive

license, for any reason provided in Article 3 (commencing with section 2750) of the Nursing

Practice Act.

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Accusation

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4. Code section 2764 provides, in pertinent part, that the expiration of a license shall not

deprive the Board ofjurisdiction to proceed with a disciplinary proceeding against the licensee or

to render a decision imposing discipline on the license. Under Code section 2811(b), the Board·

may renew an expired license at ~ny time within eight years after the expiration.

STATUTORY PROVISIONS

5. Code section 2761 states, iIi peliinent part:

."The board may take disciplinary action against a certified Or licensed nurse or deny an

application for a celiificate or license for any of the following:

"(a) Unprofessional conduct.

11(f) Conviction of a felony or of any offense substantially related to the qualifications,

functions, and duties of a registered nurse, in which event the record of the conviction shall be

conclusive evidence thereof."

COST RECOVERY

6.' Code section 125.3 provides, in peliinent part, thatthe Board may request the

administrative law judge to direct a licentiate found to have committed a violation or violations of

the licensing act to pay a sum not to exceed the reasonable costs of the investigation and

enforcement of the case.

FIRST CAUSE FORDISCIPLINE

.(Conviction of a Crime)

7. Respondent is subject to discipline under Code section 2761(f), in that on or about

August 11, 2010, in the case of People.v. John Michael Flath, aka John Michael Flath III, John

M Flath, (Super. Ct. Santa Barbara County, Case.No. 1333244), Respondent was convicted by

the Court on his plea of no contest to violating Penal Code section 602.5(a) (trespassing), a

misdemeanor, a crime that is substantially related to the qualifications, functions or duties of a

licensed registered nurse.

8. The circumstances of,the crime was that on or about May 5,2010, Respondent was

anested for .exposing himself while in a campus library located at the University of California,

Santa Barbara. Respondent was charged with violating Penal Code section 647(a) (engaging in

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lewd conduct). Subsequently, Respondent pled no contest to a lesser charge of trespassing, as

more pmiicularly set forth above in paragraph 7.

FACTORS IN AGGRAVATION

9. In order to determine the degree of penalty to be imposed, if any, complainant

alleges the following as factors in aggravation:

10. On or about August 7, 1998, Respondent was arrested for indecent exposure while

in a college campus library located in NOlih Carolina. On or about December 3, 1998, inthe case

of People v. John Michael Flath, Case No'. 1998CR 012803, in Catawba County District Court,

NOlih Carolina, Respondent pled guilty to a lesser charge of second degree trespassing.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

and that following the hearing, the Board of Registered Nursing issue a decision:

1. Revoking or suspending Registered Nurse License Number 756396, issuedto John

Michael Flath;

2. Ordering Jo1111 Michael Flath to pay the Board of Registered Nursing the reasonable

costs of the investigation and enforcement of this case, pursuant to Business and Professions

Code section 125.3; and,

3. Taking such other and further action as deemed necessary and proper.

DATED: ' ----'-'-,~~~----

SA201 0102937 10658121.doc

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Accusation