ALJDEC

98F-OGC980240-COS · State Board of Cosmetology · 1998-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 1998. APPEARANCES: Bridget F. Harrington, Assistant Attorney General, appeared on behalf of the Arizona State Board of Cosmetology (“Board”). Rosalia Grecu, Licensee, apparent owner of Forever Young Beauty & Tanning Salon and holder of personal license No. 19100598, as well as salon license No. C6530, appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ This matter came on for hearing on the date noted above, pursuant to notice duly mailed to Licensee. The hearing in this matter was held for the purpose of determining whether the Board is justified in taking disciplinary action against Licensee. 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. Rosalia Grecu, Licensee, is holder of personal license No. 19100598, as well as salon license No. C6530. Despite her protestations to the contrary, the preponderance of the evidence establishes that Licensee is both the owner and manager of Forever Young Beauty & Tanning Salon. 2. During the hearing in this matter, Penny O’Dell, Administrative Assistant to the Board, testified regarding the Board’s order in T/C970528. The preponderance of the evidence demonstrates that the Board found and concluded, in T/C970528, that Licensee committed malpractice in performing a waxing service. Because the Board found that the evidence concerning the matter was not serious enough to warrant a formal proceeding, the Board imposed probation requirements, pursuant to Arizona Revised Statutes (or “A.R.S.”) §32-573(E)(3). One of the requirements of probation the Board imposed was that “Licensee shall take and pass the cosmetology examination given by the Board” before the termination of the probationary term, which was extended to September 2, 1998. (Board’s Exhibit A). Ms. O’Dell testified that, while Licensee did, in fact, take the exam on June 10, 1998, she failed to pass (by a score of 75 or more) either the written or practical parts of the exam. Indeed, the preponderance of the record shows that Licensee obtained only a score of 72 on each part of the exam. (See Board’s Exhibit B). The preponderance of the record confirms, therefore, that Licensee has yet to fully comply with the Board’s order in T/C970528.

3. On September 9, 1997, Joanne Morgan, an Inspector/Investigator for the Board, inspected Forever Young Beauty & Tanning Salon. The preponderance of the evidence establishes that the following conditions were present during Inspector Morgan’s inspection: a soiled nail towel on a soiled nail table; soiled files and nail nippers with nail clippings; redipped wax applicators stuck on top of a wax container; a wet sanitizer without a proper covering; and the absence of tuberculocidal disinfectant. (Board’s Exhibits C and E). As a consequence of her findings, Inspector Morgan gave the salon an unsatisfactory grade. (Id.). Inspector Morgan’s testimony is found to be credible. 4. During the hearing in this matter, Licensee challenged virtually all of the allegations of the Board. Unfortunately, her challenges were grounded more in vague and conclusory allegations that the Board acted improperly, rather than credible evidence relevant to the issues at hand. 5. Finally, the preponderance of the evidence establishes that the Board has taken disciplinary action against Licensee four times in the past. See T/C950022, T/C960008, T/C960018 and T/C970528. These prior actions reveal a history of malpractice. (Board’s Exhibit D).

APPLICABLE LAW Arizona Revised Statutes §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.

Section 32-572(A) provides that the Board may take disciplinary action for the following causes: 6. Violating any provision of this chapter or any rule adopted pursuant to this chapter. xxx 9. Failing to comply with an order of the board.

Subsection 6 is virtually the same as §32-574(A)(10). Section 32-574 outlines unlawful acts and violations under the chapter. With respect to sanitation standards, in particular, §32-541 sets forth certain statutory requirements for salons, including safety and sanitation requirements. This provision also requires that owners and managers of salons be responsible for and follow applicable salon safety and sanitary requirements. See Arizona Administrative Code (“A.A.C.”) R4- 10-110(B). Rule R4-10-109 outlines specific infection control and safety standards.

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 Licensee in this matter. The Board demonstrates by a preponderance of the evidence that the activities and/or omissions outlined in paragraphs 2 and 3 of the Findings of Fact constitute violations of A.R.S. §§32-541(B), 32-572(A)(6), 32-572(A)(9), 32- 574(A)(10), as well as R4-10-109(B), (C), (D)(1), (E), (F), (G), (H), and (K). 4. The Board’s prior disciplinary action against Licensee, see T/C950022, T/C960008, T/C960018 and T/C970528, is a factor to be considered in aggravation in assessing appropriate and fair discipline.

RECOMMENDED DECISION Holding a cosmetology license is not a right, rather it is a privilege that a holder earns. With the privilege of holding a cosmetology license, however, comes the responsibility and obligation of fully complying with this State’s cosmetology laws. In performing its essential purpose of protecting the public safety, health, and welfare, the Board is charged with ensuring that license-holders do, in fact, comply with such laws. Unfortunately, License has largely ignored the Board’s efforts to educate her about this State’s cosmetology laws, particularly its infection control and safety standards, as well as the Board’s efforts to convince her of the importance of such laws and standards and the necessity that she fully comply with such laws and standards. It is therefore recommended to the Board that Licensee’s personal license No. 19100598 and salon license No. C6530 be revoked. Done this day, October 13, 1998.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, 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 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826