Administrative document

98F-TC970022-COS · 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”). Becky Felix, manager of Genesis Ultimate Illusions, license No. C5846, and holder of personal license No. 18601452, 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. Becky Felix is manager of Genesis Ultimate Illusions and holder of personal license No. 18601452. 2. On or about June 6, 1997, Ms. Felix signed a Consent Agreement and Order (“order”) with the Board. The order imposes a $250.00 civil penalty against Ms. Felix and requires that she pay such penalty on or before October 15, 1996. 3. During the hearing in this matter, Cheryl Adams, Administrative Assistant to the Board, testified that Ms. Felix has, to date, failed to pay the civil penalty. Ms. Adam’s testimony was credible. 4. The record demonstrates by a preponderance of the evidence that Ms. Felix has failed to comply with an order of the Board. 5. The record also demonstrates by a preponderance of the evidence that Ms. Felix was duly notified of the hearing in this matter.

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)(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 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 Ms. Felix in this matter; that is, the Board demonstrates by a preponderance of the evidence that Ms. Felix 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. Felix 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 Ms. Felix fully comply with the agreement and order previously imposed by the Board; that is, that Ms. Felix pay the $250.00 civil penalty.

Ms. Felix’s failure to fully comply with the probation terms set forth herein should result in the automatic revocation of her personal license upon termination of the probationary period. Done this day, February 25, 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