ALJDEC

00F-000243-COS · State Board of Cosmetology · 2000-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2000, with record held open for written memoranda; record concluded on June 23, 2000. APPEARANCES: Licensee Thuy T. Le appeared representing himself. Bridget F. Harrington, Assistant Attorney General, appeared representing the Arizona State Board of Cosmetology. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

This matter came on for hearing on May 9, 2000 pursuant to the Arizona State Board of Cosmetology (Board) Notice of Formal Hearing issued on April 7, 2000. The record was held open for post-hearing memoranda, and the record was concluded on June 23, 2000. Based on the record, the following determinations and recommendations are made: FINDINGS OF FACT 1. Thuy T. Le is the holder of Establishment License No. M09392 for the operation of a salon (Salon) at 3140 S. 4th Avenue in Yuma, Arizona. The Salon has been licensed since February 1998. There are no records of any complaints to the Board, or any Board inspections, prior to November 1999. 2. Thuy T. Le lives in California, and has never lived in Yuma, Arizona. 3. After the Board received a complaint regarding nail services at the Salon, an Inspector/Investigator (Inspector) for the Board interviewed the complainant, Jessica Pasalano, on November 15, 1999. The Inspector testified that Ms. Pasalano told her that, on November 8, 1999, a young man at a certain station in the Salon had used a drill to remove her cuticles, and that her right index finger had been cut. The Inspector testified that Ms. Pasalano told her the cut(s) drew blood, and that the operator used a green liquid, wiped it off with a tissue, and threw the tissue in the trash. The Inspector testified that she observed, on Ms. Pasalano, scabs, inflammation, redness and peeling of the skin on the fingers. 4. The Inspector went to the Salon to make an inspection. At the inspection on November 16, 1999, the Inspector found the owner was not present, found no licensed manager in charge, and observed no posted establishment license. The Inspector determined that the establishment license was, in fact, delinquent. The Inspector further observed no large wet disinfectant set up, soiled pedicure implements, no tuberculocidal disinfectant, soiled drills, contaminated cuticle oil, and open dry storage. This inspection, complaint number 000184, resulted in an unsatisfactory report. The inspection report was issued therewith to the Salon, and a copy of blood spill procedures was provided to the Salon.

5. The Inspector returned to the Salon on November 30, 1999. At that time, the Inspector again found the owner was not present, found no licensed manager in charge, and observed no posted establishment license. The Inspector determined that the establishment license was still delinquent. The Inspector observed that the blood spill procedures, which were given at the prior inspection, were not posted. The Inspector observed sanitation violations which had not been corrected. The Inspector found an unlicensed operator and business cards which were advertising in a name other than the Salon name issued on the establishment license. The Inspector observed an unlicensed operator complete one person’s set of sculptured nails, and then remove polish and begin to polish another person’s nails. This inspection, complaint number 000214, resulted in an unsatisfactory report. The inspection report was issued therewith to the Salon. 6. The Inspector testified that she had a conversation, in December 1999, with Licensee Le, who told her that he had sold the Salon. 7. The Inspector testified that the Board received a letter in December 1999 from Licensee Le. That letter, dated November 16, 1999, indicates it is in response to complaint number 000184 and the inspection on November 16, 1999. Licensee Le indicated that he had taken over the store on November 5, 1999, and not being fully aware of the Salon’s violations of the Board’s rules, had let the operators of the previous owner stay over until his operator [Ms. Xuan Vo] had arrived on November 15, 1999. Licensee Le indicated that the previous owner’s operators had left without informing him of the incident. Licensee Le indicated that he was trying to settle things in the Salon and was encountering many left- over problems. Licensee attached a copy of a “license” under the name of Hung Hoang, stating that this was proof that he was not the owner until recently. That “license” was either the Yuma city business license (date illegible on the copy in the record) or the state transaction privilege tax license (dated effective May 12, 1999) issued to Hung Hoang. 8. In February 2000, the Board attempted to resolve the matter, and provided its Consent Agreement to Licensee Le for his consideration. The Board did not receive an executed Consent Agreement from Licensee Le. 9. On April 7, 2000, the Board issued its Notice of Formal Hearing to Licensee Le, setting forth the allegations of violations and indicating that the matter would go to hearing on the allegations for the purpose of determining whether good cause existed to impose disciplinary sanctions against the Licensee. 10. At the hearing, Licensee Le testified that, prior to the Salon being sold in May 1999, he had a licensed manager at the Salon, a Ms. Phuong Huynh. Licensee Le testified that, in May 1999, he had sold the Salon to Hung Hoang and assumed that Mr. Hoang would apply for a salon license. Licensee Le testified that Mr. Hoang was a former employee at a salon in Washington, and was moving to Arizona and wanted a salon here. Licensee Le testified that he sold the business and the fixtures to Mr. Hoang, but that he was unable to locate the actual agreement at this time. Licensee Le testified that he did not know that he was supposed to notify the Board of that ownership change, and that his agreement with Mr. Hoang was that Mr. Hoang was to come into the Salon and apply for an owner’s license. 11. Licensee Le testified that he was the lessee on the location lease with the mall, and the mall manager called him in November 1999 to tell him the store was abandoned. Licensee Le testified that he responded to the mall as to the abandonment and the back rent and took over the store again on November 5, 1999. Licensee Le testified that during the time he was not the owner, and until he had a person come in to take over the Salon, he had no control over the operators, and he believes he has no responsibility for the incident on November 8, 1999. Licensee Le believes the then owner, Hung Hoang, was the owner with the responsibility. 12. At the hearing, Licensee Le submitted a hearing brief, with attachments of the Yuma and state business license, the state application for business license and the federal application for a withholding number. Additionally, Licensee Le attached several pages of a multi-page document he had received from the Board, the Consent Agreement. The last page was missing, and on request of the tribunal for the entire document, Licensee Le did provide the last page which had been executed but then crossed out. Licensee explained that he had considered accepting the Board’s agreement in February, but had changed his mind, and decided to come to the hearing to present his arguments in the matter. 13. In his hearing brief, Licensee Le argued that all the violations occurred while Mr. Hoang was in abandonment of the Salon, and that he had to re-take possession of the Salon. Licensee Le argued that Mr. Hoang had applied for a license with the Board, but no copy was available and the Board had denied having received it. Licensee Le argued that he found a new buyer for the Salon and had sold it to Mr. Tinh Van Vu on December 14, 1999, and that he had notified the Board of this sale on December 15, 1999.

14. Licensee Le admitted that he had failed to notify the Board of the sale in May 1999, and essentially maintained that he is not responsible for the practice incident because neither he nor his manager was in control of the Salon at the time that Mr. Hoang had abandoned the Salon. Licensee Le argued that it is unfair of the Board to ask to impose such stiff penalties for a first violation, and that he came to the hearing to make his arguments on principle. 15. The Board’s representative objected to the hearing brief, stating that the Notice of Hearing says a person can file the answer within ten days of the Notice. The Board objected to the relevancy of its Consent Agreement as being included with the hearing brief, in that it represents settlement negotiations. 16. The Board’s representative argued that Licensee Le is responsible for all acts and violations in the Salon while he is the holder of the Salon’s license. The Board’s representative argued that every licensee is charged with knowledge of the statute and rules, and that Licensee Le went through his own licensing process and, thereby, knew or should have known that the Board only licenses qualified owners. The Board’s representative argued that an owner’s responsibilities include supervising employees, hiring only licensed employees, having a qualified manager on site, and to notify the Board within ten days of selling the Salon.

17. The Board alleged the following violations: a. Violations of Statute and Rules, pursuant to A.R.S. §§32-572.A.6 and 32-574.A.10, with each of the following violations: b. Violations of salon requirements, in violation of A.R.S. §32-541, c. Several and repeated uncorrected sanitation violations, in violation of A.R.S. §32-572.A.8, d. Violation of permitting an unlicensed person to perform services, in violation of A.R.S. §32-574.A.5, e. The safety violations for infection control, for the blood spill incident, in violation of A.A.C. R4-10-112.J, f. The posting and advertising violations, in violation of A.R.S. §§32- 541, 32-543, 32-544 and A.A.C. R4-10-111, g. The failure to file appropriate documents to the Board on the May 1999 sale of the salon, in violation of A.R.S. §32-545.

18. The Board’s representative requested that the tribunal consider a recommendation that the cited License M09392 be revoked, despite there having been no prior violations, due to the blood spill and proper procedures not being followed, an unlicensed person providing services, the numerous, repeated and uncorrected sanitation violations, the failures to comply with the Board’s statutes and rules and overall owner responsibility for the License. The Board’s representative requested that the tribunal consider additional discipline of a civil penalty of $500.00 to be paid within six months of the Board’s ORDER, and a prohibition for Thuy T. Le to own or manage a salon in Arizona for three years. CONCLUSIONS OF LAW 1. The Board has jurisdiction in this matter pursuant to A.R.S. §32- 501 et seq. 2. The Board has authority to make inspections at any time during the posted business hours pursuant to A.R.S. §32-504.B. 3. In the nature of an Exhibit, a party may make written hearing brief submissions pursuant to A.A.C. R2- 19-115. In order to overcome any prejudice of inability to verbally respond to such Exhibits, the other side should be given the opportunity to file a response brief. In this case, that opportunity was provided to the Board in response to the Licensee’s hearing brief. 4. The testimony showed that, on November 8, 1999, Jessica Pasalano, received services from an unknown operator at this Salon, and used a drill in removing her cuticles, cutting her right index finger. The cut(s) drew blood, and the operator used a green liquid, wiped it off with a tissue, and threw the tissue in the trash. The testimony showed that at least one finger was cut, with blood drawn, and that blood spill procedures were not followed. These are violations of A.R.S. §32-572.A.6 (statute and rule), A.R.S. §32-574.A.10 (statute and rule), A.R.S. §32-541 (salon requirements) and A.A.C. R4-10-112 (infection control and safety standards). 5. The testimony showed that, on November 16, 1999, the Board’s Inspector went to the Salon and made an inspection. The testimony and the inspection report show that the Inspector found the owner was not present, found no licensed manager in charge, and observed no posted establishment license. The record shows that the Salon license was, in fact, delinquent. The testimony and the inspection report show no large wet disinfectant set up, soiled pedicure implements, no tuberculocidal disinfectant, soiled drills, contaminated cuticle oil, and open dry storage. These are violations of A.R.S. §32-572.A.6 (statute and rule), A.R.S. §32-574.A.10 (statute and rule), A.R.S. §32-541 (salon requirements), A.R.S. §32-543 (display of license), A.R.S. §32-544 (salon license renewal), and A.A.C. R4- 10-112 (infection control and safety standards). 6. The testimony showed that, on November 30, 1999, the Board’s Inspector returned to the Salon and made another inspection. The testimony and the inspection report show that the Inspector again found the owner was not present, found no licensed manager in charge, and observed no posted establishment license. The record shows that the Salon license was still delinquent. The testimony and the inspection report show sanitation violations which had not been corrected. The testimony and the inspection report show an unlicensed operator and business cards which were advertising in a name other than the Salon name issued on the establishment license. The testimony and the inspection report show an unlicensed operator completing one person’s set of sculptured nails, and then remove polish and beginning to polish another person’s nails. These are violations of A.R.S. §32-572.A.6 (statute and rule), A.R.S. §32-574.A.10 (statute and rule), A.R.S. §32-541 (salon requirements), A.A.C. R4-10- 111(name on license), A.R.S. §32-543 (display of license), A.R.S. §32-544 (salon license renewal), A.A.C. R4-10-112 (infection control and safety standards), A.R.S. §32-572.A.8 (repeated failure to correct infractions), and A.R.S. §32-574.A.5 (permit an employee to perform unlicensed work). 7. The testimony and evidence show that, in May 1999, Licensee Le sold the Salon to Hung Hoang. The testimony shows that Licensee Le did not notify the Board of this sale until December 1999. This is a violation of A.R.S. §32-572.A.6 (statute and rule), A.R.S. §32-574.A.10 (statute and rule), and A.R.S. §32-545 (salon transfer of ownership). 8. The testimony of Licensee Le was that he took over the store or took back the store on November 5, 1999 when he let the mall manager know that he would do so. It is presumed that what was meant by that testimony was that he took over responsibility for the mall location, for which he was the contractual lessee. However, such a presumption does not mean that Licensee Le was somehow not also still responsible for the Salon, its operations and its actions. Licensee Le testified that he had another person, Ms. Xuan Vo, come to Arizona to take over the operations (manage) the Salon effective November 15, 1999. The first inspection took place on November 16, 1999, and the second inspection took place on November 30, 1999. According to the testimony, Ms. Vo was not present at the time of either inspection, both of which took place after a time when Licensee Le indicated that he had taken back/taken over the Salon. The issuance of an establishment license to Licensee Le makes him responsible for all actions and violations, for which the Board may discipline the establishment license, which might occur there. Even though he may have, in fact, sold the Salon’s business and its fixtures, Licensee remained responsible on that establishment license and, therefore, for that establishment and the establishment license until another establishment license was applied for and approved by the Board for that Salon. There is no evidence that Mr. Hoang applied for a license with the Board. There is no other owner of record for the establishment License M09392. Pursuant to A.A.C. R4-10-113, the owner and the manager are responsible for all that occurs at a salon and, therefore, Thuy T. Le is responsible for the determined incidents and violations at the Salon. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the cited License be revoked, but with a twelve month stay period, effective one month from the Board’s ORDER in this captioned matter, and that: 1. the establishment license [License M09392] is on probation during the twelve month probation/stay period; and 2. That the Licensee Salon is to come into compliance with all sanitation rules and regulations, and the Salon must pass an inspection (be given a grade of satisfactory) twice within a six month period; and IT IS FURTHER RECOMMENDED that the Licensee Salon be fined $500.00 in civil penalty, and pay that $500.00 in civil penalty within six months of the Board’s ORDER; and IT IS FURTHER RECOMMENDED that if these conditions are met within the probation/stay period, the probation imposed on the License Salon would terminate and there would be no revocation. However, IT IS FURTHER RECOMMENDED that if any one of these conditions as to the Licensee Salon are not met within the probation/stay period, that the establishment License M09392, be revoked effective immediately, without need for a hearing on the revocation, and Thuy T. Le not be eligible for any Arizona establishment or Arizona personal license for a period of one year thereafter. RECOMMENDED this day, July 20, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this ____ day of July, 2000, to:

Ms. Sue Sansom, Executive Director Arizona State Board of Cosmetology ATTN: Cheryl Adams 1721 East Broadway Tempe, AZ 85282

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827