ALJDEC

98F-OGC970195-COS · State Board of Cosmetology · 1998-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 1998. APPEARANCES: Bridgett Fitzgibbons Harrington, Assistant Attorney General, appeared on behalf of the Arizona State Board of Cosmetology (“Board”). Denise Mohamed, owner of Unique Nails of California and holder of personal license No. 89600001 and salon license No. M5804, and Don Nguyen, manager of Unique Nails of California and holder of personal license No. 19600739, Licensees, 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. Denise Mohamed is owner of Unique Nails of California and holder of personal license No. 89600001 and salon license No. M5804. Don Nguyen is manager of Unique Nails of California and holder of personal license No. 19600739. 2. On or about March 8, 1997, Licensees signed a Consent Agreement and Order (“agreement’) with the Board. The agreement provides for a six (6) month probation and $250.00 civil penalty against both Licensees. 3. During the hearing in this matter, Cheryl Adams, Administrative Assistant to the Board, testified that Licensees have, to date, paid only $50.00 of the civil penalty. Ms. Adam’s testimony was credible. 4. The record demonstrates by a preponderance of the evidence that Licensees have failed to comply with an order of the Board. 5. The record also demonstrates by a preponderance of the evidence that Licensees were duly notified of the hearing in this matter.

APPLICABLE LAW 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)(9) provides that the Board may take disciplinary action for “failing to comply with an order of the board.”

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 each Licensee in this matter. Once accomplished, each Licensee has the burden of going forward and demonstrating that the Board should refrain from exercising its discretion in favor of disciplinary action in this matter. 3. The Board sustains its burden of demonstrating that it may take disciplinary action against each Licensee in this matter; that is, the Board demonstrates by a preponderance of the evidence that each Licensee failed to comply with an order of the Board, pursuant to A.R.S. §32- 572(A)(9).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that Ms. Mohamed and Mr. Nguyen each be placed on disciplinary probation for a period of three (3) months commencing on the effective date of the final order in this matter. The following terms of probation should be imposed: 1. That Licensees fully comply with the probation terms previously imposed by the Board; that is, that Licensees pay the remaining $200.00 of the civil penalty.

Licensees’ failure to fully comply with the probation terms set forth herein should result in the automatic revocation of Licensees’ licenses upon termination of the probationary period. Done this day, January 16, 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 ___________________________

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