Cook v. Department of Commerce , 347 P.3d 5 ( 2015 )

2015 UT App 64_________________________________________________________
THE UTAH COURT OF APPEALS
MONICA CECILIA COOK,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
DIVISION OF OCCUPATIONAL AND PROFESSIONAL
LICENSING, AND BOARD OF NURSING,
Respondents.
Opinion
No. 20130974-CA
Filed March 19, 2015
Original Proceeding in this Court
David S. Cook, Attorney for Petitioner
Sean D. Reyes and Nancy L. Kemp, Attorneys
for Respondents
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
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.
Cook v. Department of Commerce
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;
1. Cook is not required to submit CME certificates to DOPL to
renew her APRN license or her license to administer and
prescribe controlled substances, but she must retain those
certificates in case of an audit.
20130974-CA 2 2015 UT App 64Cook v. Department of Commerce
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
2. It is unclear from the record when Cook actually became
aware that her national certification had expired.
20130974-CA 3 2015 UT App 64Cook v. Department of Commerce
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.
3. The Board undertakes the duties specified in Utah Code
sections 58-1-202 and -203, which include recommending to
DOPL the minimum standards for educational programs,
qualifying a person for licensing or certification, and advising
DOPL in its investigations. Utah Code Ann. § 58-31b-201
(LexisNexis 2012); id. §§ 58-1-202, -203.
20130974-CA 4 2015 UT App 64Cook v. Department of Commerce
¶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
4. Cook first requested agency review on September 17, 2012, but
DOPL filed a Motion for Additional Relief and a motion to
remand for the limited purpose of reopening the record to add a
more accurate and complete list of questions Cook answered in
connection with her online renewal of her licenses. DOPL issued
a new order adopting the Board’s amended findings on March
15, 2013.
5. On August 23, 2012, DOPL granted Cook’s application for a
license as a registered nurse. Cook has also regained certification
with the NCC, and now meets the APRN licensing requirements.
20130974-CA 5 2015 UT App 64Cook v. Department of Commerce
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)
20130974-CA 6 2015 UT App 64Cook v. Department of Commerce
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 58-1-
501(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
20130974-CA 7 2015 UT App 64Cook v. Department of Commerce
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 marks omitted). ‚Utah courts have a ‘long
history of relying on dictionary definitions to determine plain
meaning.’‛ Brixen, 2001 UT App 210, ¶ 14 (quoting State v. Redd,
1999 UT 108, ¶ 11, 992 P.2d 986).
¶14 Here, we focus on the word ‚false.‛ ‚False‛ means ‚not
corresponding to truth or reality.‛ Webster’s Third New Int’l
Dictionary 819 (1993). Contrary to Cook’s assertion, the plain
meaning of the word gives no regard to a person’s intent. What
is false is simply ‚[u]ntrue‛ and ‚can be so by intent, by
accident, or by mistake.‛ Black’s Law Dictionary 677 (9th ed.
2009). Accordingly, we must determine whether substantial
evidence supports the Department’s finding that Cook’s
statements were untrue.
¶15 The Department relied on the statements Cook made on
two license renewal applications in deciding that she engaged in
20130974-CA 8 2015 UT App 64Cook v. Department of Commerce
unprofessional conduct. Cook attested in each application that:
(1) she was nationally certified in her area of specialty; (2) she
met the requirements for renewing her APRN license or would
meet the requirements by the expiration of her current license;
and (3) ‚to the best of *her+ knowledge, the information
contained in th[e] application [was] complete and correct . . . .‛6
¶16 None of these statements accorded with the facts. Cook
did not have national certification, inasmuch as her certification
lapsed in 2008. The statements ‚I am qualified in all respects for
the renewal . . . of this license‛ and ‚[I] certify that [I] have
completed or will complete all renewal requirements‛ were
untrue because national certification in the specialty area of
practice is a requirement for license renewal.7
¶17 Finally, Cook’s certification that ‚*t+o the best of my
knowledge, the information contained in this application is
complete and correct‛ was not true. While the phrase ‚to the
best of my knowledge‛ may offer some refuge from penalties for
inadvertent omissions and errors, Cook was aware that her
6. Because only the signature pages of Cook’s online license
renewal applications were available, DOPL presented a
computer screen shot of another nurse’s APRN license renewal
application as evidence of the statements contained in the online
application. Cook does not dispute the content of the
applications she signed but argues that the other application is
hearsay and consequently inadmissible. Because Cook failed to
adequately brief this assertion with legal analysis or any
support, we do not review this issue. See Utah R. App. P.
24(a)(9).
7. According to Utah Administrative Code R156-31b-303(3)(b),
Cook was required to have current certification in her specialty
area of practice. Utah Admin. Code R156-31b-303(3)(b).
20130974-CA 9 2015 UT App 64Cook v. Department of Commerce
license would expire in 2008, and she also stated she read and
understood Utah’s Nurse Practice Act Rule.
¶18 The license renewal application also advised ‚that false,
misleading, or fraudulent submittal may result in loss of
licensure, criminal prosecution or both and is subject to audit.‛
This cautionary language would put a reasonable person on
notice that the applicant should exercise care in confirming the
accuracy of the information she provided. If nothing else, the
language of the renewal application should have provoked
inquiry or a simple investigation of the facts by Cook, but
between 2008 and 2012, Cook failed to make sufficient inquiry
into her national certification status or the recertification
requirements. Instead, she believed she did not need to submit
her CME hours to the NCC based on the erroneous assumption
that the requirements imposed upon other types of healthcare
professionals, such as physicians and physician assistants,
applied to APRNs. In light of the whole record, substantial
evidence supports the finding that Cook made false
communications in each of two APRN license renewal
applications. Therefore, we do not disturb the Department’s
finding that Cook engaged in unprofessional conduct.
II. The Department’s Decision to Fine Cook and Publish the
Action Against Her Licenses Was Reasonable, But the Decision
to Revoke Her Licenses Exceeds the Bounds of Reasonableness.
¶19 Based on the determination that Cook engaged in
unprofessional conduct, the Department fined her $5,000,
revoked her licenses, and published the action against her
licenses in the national databanks and DOPL’s disciplinary
newsletter. Cook argues the Department’s sanction decisions
were an abuse of discretion because they do not constitute ‚a
reasonable and probable deduction from the actual facts.‛
(Internal quotation marks omitted.) (Citing Tolman v. Salt Lake
County Attorney, 818 P.2d 23, 26 (Utah Ct. App. 1991).)
Specifically, she argues the Department’s sanctions were
20130974-CA 10 2015 UT App 64Cook v. Department of Commerce
‚extremely punitive‛ especially considering she ‚has not been
charged with any crime‛ and ‚voluntarily report[ed] the lapse of
her NCC certification.‛ The Department found that the fine and
license revocations were well within DOPL’s discretion and
noted that federal law requires DOPL to report the action taken
against Cook’s licenses.
¶20 Utah Code section 58-1-401 authorizes DOPL to take
disciplinary action against a license and vests it with discretion
to select an appropriate sanction. We review an agency’s
discretionary decision for an ‚abuse of discretion to ensure that
it falls within the bounds of reasonableness and rationality.‛
Murray v. Labor Comm’n, 2013 UT 38, ¶ 32, 308 P.3d 461 (internal
quotation marks omitted). ‚Reasonableness, in turn, is
essentially a test for logic and completeness rather than the
correctness of the decision.‛ Id. Thus, we must determine
whether Cook’s unprofessional conduct reasonably warranted
the sanction imposed. Cf. Tolman, 818 P.2d at 32. In other words,
if this court determines that the facts support the Department’s
decision, it must affirm ‚unless it finds the sanction so clearly
disproportionate to the charges as to amount to an abuse of the
*Department’s+ discretion.‛ See id. (citation and internal
quotation marks omitted).
¶21 First, Cook argues the decision to fine her $5,000 was
beyond the Department’s statutory authority and an abuse of its
discretion. Utah Code subsection 58-31b-503(6)(b)(i) subjects
violators to a fine of ‚up to $10,000 per single violation‛ and
Utah Administrative Code R156-31b-402(1)(h) imposes a fine
between $500 to $10,000 for ‚dealing with the Division or Board
through the use of fraud, forgery, intentional deception,
misrepresentation, misstatement, or omission.‛ See Utah Admin.
Code R156-31b-402(1)(q) (allowing the imposition of a fine for
‚*p]racticing or attempting to practice the profession of nursing
by any form of action or communication which is false,
misleading, deceptive, or fraudulent‛). The Department had the
discretion to assess a fine that was considerably higher than the
20130974-CA 11 2015 UT App 64Cook v. Department of Commerce
amount imposed in this case. Moreover, it fined Cook for each
time she submitted false communications to DOPL on the 2010
and 2012 APRN license renewal applications. The fine imposed
against Cook was well within the statutory boundary, and not
unreasonable on the record before us.
¶22 Second, Cook claims the Department abused its discretion
by publishing her unprofessional conduct in (1) the national
databanks, and (2) the DOPL disciplinary newsletter on
September 1, 2012 and April 1, 2013. But federal law requires
DOPL to report to the national databanks any ‚adverse action‛
taken against a health care practitioner, and therefore, reporting
the revocation of Cook’s licenses to the databanks was not an
abuse of discretion. See 45 C.F.R. § 60.9(a)(1). Further, the Utah
Code requires DOPL to promptly report any adverse actions
against an APRN’s license to the coordinated licensure
information system. See Utah Code Ann. § 58-31d-102 art. VII,
§ 2 (LexisNexis 2012). Because it had taken adverse action
against Cook’s license, publishing the adverse action in a
newsletter is reasonable and indeed was required by statute.
¶23 Finally, Cook argues that the Department abused
its discretion in revoking her licenses. Utah Code section 58-1-
401(1) states, ‚The division shall . . . act upon the license of
a licensee who does not meet the qualifications for licensure
under this title.‛ Utah Code Ann. § 58-1-401(1) (LexisNexis
Supp. 2014). Moreover, the ‚division may refuse to issue
a license to an applicant and may refuse to renew or may revoke,
suspend, restrict, place on probation, issue a public reprimand
to, or otherwise act upon the license of a licensee for‛ engaging
in unprofessional conduct. Id. § 58-1-401(2)(a). While the statute
requires the Department to take action against Cook’s license
for her failure to maintain her qualifications, it provides for
a range of possible sanctions without offering guidance as
to which might be appropriate in a given situation. See id. § 58-1-
401(1), (2).
20130974-CA 12 2015 UT App 64Cook v. Department of Commerce
¶24 To determine whether revoking Cook’s license for making
a false statement on a license renewal application is within the
bounds of reasonableness and rationality, we review the
sanctions in light of the Department’s past disciplinary practices.
See Johnson-Bowles Co. v. Division of Sec. of the Dep’t of Commerce,
829 P.2d 101, 116–17 (Utah Ct. App. 1992). The Department has
cited no cases—and our research has unearthed none—in which
a professional’s license was revoked for unintentionally making
a false statement on a license renewal application. But the
Department has disciplined professionals, including nurses, for
unprofessional conduct in various other circumstances. These
reported cases can be grouped into those which resulted in: (1)
license revocation or (2) some other disciplinary action.
¶25 The cases in which the Department decided to revoke a
professional license included egregious conduct, usually
involving conduct that posed a danger or harm to others. For
instance, professionals have had their licenses revoked for
practicing under the influence of a controlled substance,
molesting clients, gross incompetence, and theft.8 In contrast, in
8. See, e.g., Vance v. Fordham, 671 P.2d 124, 125–26 (Utah 1983) (an
osteopathic physician ‚utilize*d] methods and mechanisms
totally foreign to the practice of medical doctors or osteopaths
and [had] diagnostic abilities . . . founded upon questionable
theory rather than scientific knowledge‛); Schlosser v. State, 2004
UT App 2U, paras. 7–8 (a massage therapist molested clients);
Taylor v. Department of Commerce, 952 P.2d 1090, 1092 (Utah Ct.
App. 1998) (a veterinarian was grossly incompetent and grossly
negligent); Rogers v. Division of Real Estate of the Dep’t of Bus.
Regulations, 790 P.2d 102, 104–05, 107 (Utah Ct. App. 1990) (real
estate agent made a written agreement with a dying woman to
liquidate her property, then failed to deliver any proceeds from
sales to the woman or return the unsold property).
20130974-CA 13 2015 UT App 64Cook v. Department of Commerce
the cases in which the Department imposed something less than
revocation, the professionals’ unprofessional conduct posed less
potential for harm, even though it sometimes involved outright
dishonest conduct.9
¶26 Cook’s case is more analogous to the second group of
cases. For instance, in Scientific Academy of Hair Design, Inc. v.
Bowen, the Department suspended an academy’s license to
operate a cosmetology school after its officer willfully falsified a
document, issued false advertisements, and failed to comply
with a previous order. 738 P.2d 242, 243 (Utah Ct. App. 1987).
The academy claimed a certain person was an instructor at the
school in its advertisements and an application for licensure
when he was not. Id. at 245–46. It insisted the statements made in
the advertisements and on its application were not willfully
false, but a clear preponderance of evidence supported a
determination that the academy knew there was no employment
contract with this person. Id. at 246. Moreover, when the
academy knew there would never be an employment contract
9. See, e.g., Salazar v. McGinn, 499 P.2d 857, 858 (Utah 1972) (a
barber’s license suspended after his apprentice was caught
practicing without supervision); Jepson v. Division of Occupational
& Prof’l Licensing, 2005 UT App 316U, para. 2 (a nurse privately
reprimanded for possessing controlled substances outside his
responsibilities as a nurse and failing to produce a medication he
purchased for a patient); Johnson-Bowles Co. v. Division of Sec. of
the Dep’t of Commerce, 829 P.2d 101, 115–16 (Utah Ct. App. 1992)
(suspended a broker-dealer’s registration for one year and
imposed a two-year probation for dishonest and unethical
activities); Scientific Acad. of Hair Design, Inc. v. Bowen, 738 P.2d
242, 243 (Utah Ct. App. 1987) (a cosmetology academy’s license
suspended for willfully falsifying a document, issuing false
advertisements, and failing to comply with a previous order).
20130974-CA 14 2015 UT App 64Cook v. Department of Commerce
with this individual, it made no attempt to correct the
application. Id.¶27 In another case, Johnson-Bowles Co. v. Division of Securities
of the Department of Commerce, state agency action was initiated
against a broker-dealer after a federal district court had found
that he had unlawfully traded stocks ‚as part of a fraudulent
scheme and device to manipulate and artificially inflate the price
of that stock.‛ 829 P.2d 101, 104–05 (Utah Ct. App. 1992). The
Department issued an order which restricted the broker from
trading stocks. Id. at 105. When the broker-dealer subsequently
purchased additional stocks, the Department suspended his
registration for one year and imposed a two-year probationary
period after it found he had engaged in ‚dishonest and unethical
practices.‛ Id. at 106 (internal quotation marks omitted). This
court explained that the broker-dealer was not sanctioned for
fraudulently transferring shares but for his dishonest and
unethical conduct including illegally purchasing 397,900 shares
of stock after receiving the Department’s order. Id. at 114.
¶28 In this case, Cook engaged in unprofessional conduct by
making a false statement on two APRN licensure renewal
applications. But, unlike Scientific Academy and Johnson-Bowles,
there is no evidence showing she intentionally made these
untrue statements, and she did not engage in further
unprofessional conduct after the Department’s order.
¶29 Even if Cook’s behavior involved unprofessional conduct
that would warrant license revocation, it was unreasonable to
not stay the revocation pending her recertification. In Powell v.
Department of Commerce, DOPL only revoked Powell’s Utah
nursing license after she: (1) failed to report to the Board that her
Arizona nursing license had been revoked because she tested
positive for controlled substances and failed to submit to
required drug evaluations; (2) violated the terms of two
probation agreements; and (3) repeatedly failed to undergo
required drug evaluations. 2012 UT App 83, ¶¶ 3–6, 276 P.3d
20130974-CA 15 2015 UT App 64Cook v. Department of Commerce
1143. Although the Board revoked Powell’s license for
unprofessional conduct, it stayed the revocation and gave her
nearly three years to correct her unprofessional conduct. Id. It
even offered Powell a second probation agreement after she
violated and failed to comply with the first set of terms. Id. Here,
DOPL revoked Cook’s license immediately after determining she
had engaged in unprofessional conduct. Unlike Powell, Cook
voluntarily reported her lapse in national certification and did
not engage in conduct that put her patients’ welfare at risk. To
the contrary, her supervisor stated, ‚I have never known [Cook]
to breech [sic] her professional standards, to work outside of her
scope of practice, intentionally misuse or abuse her position as a
medical professional or misuse or abuse prescription medication
or any other legal or illegal substance.‛
¶30 It is undisputed that aside from her lapse in NCC
certification, Cook was otherwise qualified to be an APRN and
to be licensed to prescribe and administer controlled substances.
Moreover, by the time Cook notified the Board that her NCC
certification had expired, Cook knew exactly what was required
to renew it. Nevertheless, DOPL opted to apply the harshest
punishment available under the statute without a stay or
probationary period to give Cook the opportunity to correct the
situation. Its decision to promptly revoke Cook’s licenses, when
compared to the Department’s past disciplinary decisions,
suggests she has engaged in especially egregious conduct, and it
has prevented Cook from obtaining employment as an APRN. In
light of the Department’s past disciplinary decisions and the
nature of Cook’s unprofessional conduct, it was outside the
bounds of reasonableness to revoke her licenses without staying
the revocation pending recertification or first placing her on
probation or suspension.
20130974-CA 16 2015 UT App 64Cook v. Department of Commerce
III. Cook’s Remaining Constitutional Issues Were
Inadequately Briefed.
¶31 Cook raises three additional broad arguments which we
decline to review because Cook has failed to carry her burden on
appeal. Pursuant to rule 24 of the Utah Rules of Appellate
Procedure, an adequately briefed argument must contain ‚the
contentions and reasons . . . with respect to the issues presented
. . . with citations to the authorities, statutes, and parts of the
record relied on.‛ Utah R. App. P. 24(a)(9). ‚An adequately
briefed argument must provide ‘meaningful legal analysis.’ A
brief must go beyond providing conclusory statements and ‘fully
identify, analyze, and cite its legal arguments.’ This analysis
‘requires not just bald citation to authority but development of
that authority and reasoned analysis based on that authority.’‛
West Jordan City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d 874(citations omitted).
¶32 First, Cook argues that Utah Code section 58-31b-305(3)
and Utah Administrative Code R156-31b-303(3)(b)(i) are
unconstitutional because they treat post-July 1, 1992 APRNs
differently from pre-July 1, 1992 APRNs, licensed practical
nurses, registered nurses, and physicians. Specifically, she
argues the statute violates the equal protection guarantees of the
Utah and United States constitutions because post-July 1, 1992
APRNs must obtain NCC certification, whereas pre-July 1, 1992
APRNs and other healthcare professionals do not. Although
Cook cites the Utah Constitution, she provides no reasoned
analysis based on relevant legal authority. Instead, her argument
relies on an unsupported assertion that there is no reasonable
basis for the NCC requirement.
¶33 Second, Cook argues the Department’s sanctions violated
her substantive and procedural due process rights under the
Utah Constitution and Fourteenth Amendment to the United
States Constitution. She contends that the $5,000 fine and
publication of the action taken against her licenses were unjust
20130974-CA 17 2015 UT App 64Cook v. Department of Commerce
government penalties, defamation, and a violation of her liberty
interest in reputation. Cook cites several cases and asks us to
adopt the broad statements of the law articulated therein, but
she fails to provide any real legal or factual analysis. Instead, she
simply recites the facts in her case that support her position and
offers a compilation of holdings from inapplicable case law.
Moreover, she fails to analyze the facts within a constitutional
framework that would help us determine whether her rights
were violated.
¶34 Finally, she argues the Department improperly delegated
its statutory authority to the NCC by requiring Cook to know
the NCC’s rules to maintain her license. Cook raises this issue
almost in passing and fails to articulate a legal argument or
provide any relevant support for her conclusory statements.
¶35 In sum, Cook has failed to meet her burden on appeal.
Cook provides no reasoned analysis based on relevant legal
authority, and she fails to analyze the applicable facts within a
constitutional framework that would help us review these
issues. See Utah R. App. P. 24(a)(9).
CONCLUSION
¶36 In light of the whole record, substantial evidence supports
the finding that Cook made false communications in each of two
APRN license renewal applications. Accordingly, the
Department’s decision to fine her $5,000 and publish the adverse
action against Cook’s license is not an abuse of discretion. But
the decision to revoke Cook’s licenses is an abuse of discretion
because, given the Department’s past reported disciplinary
decisions and the nature of Cook’s unprofessional conduct, it
falls outside the bounds of reasonableness. Although the
Department had the discretion to revoke her licenses, doing so is
a draconian response to Cook’s inadvertent false statement.
Staying revocation or placing Cook on probation or suspension
20130974-CA 18 2015 UT App 64Cook v. Department of Commerce
is more consistent with past Department decisions reviewed by
this court.
¶37 We do not disturb the Department’s decision to fine Cook
$5,000 and publish the action against her licenses for
unprofessional conduct, but set aside the Department’s
revocation of her licenses, and direct it to fashion a remedy
consistent with this opinion.
20130974-CA 19 2015 UT App 64