276 P.3d 1143
Utah Ct. App.2012Background
- Powell is a Utah and Arizona-licensed nurse who self-reported in 2004 to Arizona for inappropriate controlled-substance use and entered a professionals-in-recovery program.
- She tested positive for oxycodone four times and alcohol once over two-and-a-half years and did not obtain a required chemical dependency evaluation; Arizona revoked her license in 2006.
- In 2007, Utah Division entered a stipulation staying revocation for five years of probation; Powell agreed to terms including abstaining from drugs.
- In 2008, Powell admitted violations of the 2007 stipulation, notably failing to provide drug-analysis samples; the Division stayed revocation and imposed a new four-year probation with Compass Vision drug testing.
- The 2008 Order required Powell to report concerns about drug-testing procedures, warned that noncompliance could be grounds for revocation, and Powell signed after consulting counsel.
- In 2009, the Division sought an order to show cause alleging further violations, the Board of Nursing recommended license revocation, and the Division revoked Powell’s license in 2010; Powell sought judicial review, challenging substantial evidence and reasonableness of the sanction, which the Department upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantial-evidence support for revocation | Powell argues no ongoing substance abuse evidence. | Division/Board relied on 2008 Order violations to revoke. | Yes; revocation upheld based on 2008 Order violations not ongoing abuse. |
| Arbitrary or capricious nature of the sanction | Revoation overly punitive given lack of current abuse evidence. | Sanction justified by failure to comply with the 2008 Order and history of noncompliance. | Not arbitrary or capricious; order terms and history justify revocation. |
| Preservation of arguments on severity of sanction | Challenge to permanent revocation not preserved. | Noted but preserved issues focus on substantial evidence and reasonableness. | Unpreserved issues not considered; main challenges resolved on substantial-evidence/reasonableness. |
Key Cases Cited
- Patterson v. Utah Cnty. Bd. of Adjustment, 893 P.2d 602 (Utah Ct.App. 1995) (substantial evidence standard for agency decisions)
- Smith v. Workforce Appeals Bd., 252 P.3d 372 (2011 UT App 68) (definition of substantial evidence in Utah administrative review)
- Bourgeous v. State Dep't of Commerce, 41 P.3d 461 (2002 UT App 5) (reasonableness standard for agency action in Utah)
- Columbia HCA v. Labor Comm'n, 258 P.3d 640 (2011 UT App 210) (review of agency action for reasonableness and arbitrariness)
- Hampton v. Professional Title Servs., 242 P.3d 796 (2010 UT App 294) (appellate briefing requirements and development of authority)