ALJDEC

98F-IGC970206-COS-RESUBMT · State Board of Cosmetology · 1998-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 1998. APPEARANCES: Bridgett F. Harrington, Assistant Attorney General, appeared on behalf of the Arizona State Board of Cosmetology (“Board”). Kevin Nielson, owner of Supercuts, license No. C6507, and Renea Smith, manager of Supercuts and holder of personal license No. 19000004, failed to appear.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ This matter came on for hearing on the date noted above, pursuant to notice duly mailed to Licensees. Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Kevin Nielson is the owner of Supercuts, license No. C6507. Renea Smith is the manager of the salon and holder of personal license No. 19000004. 2. On December 8, 1995, Linda Stroh, an Inspector/Investigator for the Board, visited the salon in Mesa, Arizona. Inspector Stroh testified, during the hearing in this matter, to observing that the establishment license was not properly posted, that soiled clipper guards were present at two workstations, and that unsanitized items were present in one dry storage. As a consequence of her findings, Inspector Stroh gave the salon an unsatisfactory grade. 3. On September 19, 1996, Inspector Stroh visited the salon a second time. She observed one employee fail to follow proper sanitation procedures by failing to sweep the floor between clients. Again, Inspector Stroh gave the salon an unsatisfactory grade. 4. Inspector Stroh’s testimony was credible and uncontroverted. 5. The evidence further establishes that, at the time of the foregoing events, Mr. Nielson was the owner of the salon and Ms. Smith was the manager of the salon.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-571 provides that the Board may take any one or a combination of the following disciplinary action: 1. Revoke a license. 2. Suspend a license. 3. Impose a civil penalty in an amount not to exceed two thousand dollars. 4. Publicly reprove a license. 5. Issue a letter of concern.

A.R.S. §32-572(A) provides that the Board may take disciplinary action for a number of reasons, including: 6. Violating any provision of this chapter or any rule adopted pursuant to this chapter.

Similarly, §32-574(A)(10) provides that a person shall not “[v]iolate an y provision of this chapter or any rule adopted pursuant to this chapter.” A.R.S. §32-541 sets forth specific statutory requirements for salons, including safety and sanitation requirements. Section 32-543(1) requires that salons display their salon license in a conspicuous location in the salon. Finally, A.A.C. R4-10-109 outlines specific, applicable sanitation requirements.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Board pursuant to A.R.S. §32-501, et seq. 2. The Board has the initial burden of demonstrating by a preponderance of the evidence that it may take disciplinary action against a licensee. Once accomplished, a licensee has the burden of going forward and demonstrating that the Board should refrain from exercising its discretion in favor of disciplinary action. Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. The Board sustains its burden of demonstrating that it may take disciplinary action against Mr. Nielson and Ms. Smith, individually, in this matter; that is, the Board demonstrates by a preponderance of the evidence that the foregoing activities or omissions constitute violations of A.R.S. §§32-541(B), 32-543(1), 32-572(A)(6), and 32-574(A)(10), as well as A.A.C. R4-10-109(B), (C), (D), and (H).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that Mr. Nielson and Ms. Smith each be placed on disciplinary probation for a period of six (6) months commencing on the effective date of the final order in this matter. Terms of probation should include Licensees’ full compliance with relevant statutes and regulations during the probation period. Also, Licensees should be required to pay, on or before the termination of the probation period, a civil penalty in the amount of $600.00, $300.00 assessed to each Licensee. Finally, the failure to fully comply with the probation terms should result in the automatic revocation of the license in issue upon termination of the probation period. Done this day, February 26, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826