ALJDEC

98F-TC970222-COS · State Board of Cosmetology · 1997-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 1997 APPEARANCES: Bridget Harrington, assistant Attorney General, on behalf of the State Tam Minh Nguyen, Respondent-Licensee, in her own behalf ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT On or about July 26, 1996, Carol Seibold (Seibold) went to the Tammy’s Pro Nails (Tammy’s), for either nail fills or nail repair. She was seen by Nguyen Van Dinh (Nguyen) who was licensed in California but not in Arizona.

On October 30, 1996, Seibold telephoned the Arizona State Board of Cosmetology (Board), to complain about work done by Nguyen. According to Seibold’s complaint, she had been at Tammy’s Pro Nails on or about July 26, 1996, and Nguyen was repairing her nails but became agitated when Seibold would pull her hand away because of pain. Nguyen finally just gave Seibold some clippers and told her to do the repair herself. JoAnne Morgan (Morgan), an investigator and inspector for the Board had been to Tammy’s on March 12, 1996, and met with the licensee, Tam Minh Nguyen (Tam), as well as Nguyen who identified himself as “Tony” . During her inspection, Morgan asked about Tony’s license and was shown a license for Xuan Nguyen (Xuan) who is Tam’s sister. Tony was working at Xuan’s station but was not licensed in Arizona at the time. Nguyen and Tam have had a marital type relationship for approximately nine years although they are not formally married. On November 14, 1996, in response to the Seibold complaint, Morgan returned to Tammy’s and observed a person identified as Tri H. Nguyen (Tri), providing nail services for a client. Tri was licensed in California but not in Arizona. Morgan contacted Tam and left a copy of the Inspection Report rating the establishment as unsatisfactory because an unlicensed nail technician was working on a client. On April 29, 1997, Morgan again went to Tammy’s and contacted Nguyen. Morgan who still did not know that Nguyen was not Xuan, asked where Xuan’s license was. Nguyen informed Morgan that he was not Xuan who is Tam’s sister and that he (Nguyen) had been trying to obtain his Arizona license under a reciprocity agreement, but had been denied. On June 20, 1997, Tam had an informal interview before the Board concerning Nguyen working without a license. On June 28, 1997, Morgan again went to Tammy’s and observed Nguyen performing nail services on a client at station two. Nguyen was still not licensed in Arizona. He received his Arizona license in mid-October, 1997. The Respondent-Licensee has two prior violations of unlicensed persons performing nail services in March and May of 1996. These cases, Nos. T/C 960420 and W/C 960622, resulted in a Consent Agreement and Order with fines of $1,250.00, and law review and infection protection classes for Tam. CONCLUSIONS OF LAW A.R.S. §32-572(A)(6) allows the Board to take disciplinary action for violation of any statute under title 32, Chapter 5, or any rule promulgated under the chapter. A.R.S. 32-574(A)(5) makes it unlawful for a person to permit an employee or another person under his supervision and control, to perform cosmetology, aesthetics or nail technology without a license. A.R.S. 32-572(A)(3) allows the Board to take disciplinary action for commission of an act involving dishonesty, fraud or deceit with the intent to substantially benefit oneself or another or substantially injure another. Paragraph 3 of the Notice of Formal Hearing (Notice) alleges that Tam permitted Nguyen who was unlicensed, to perform nail services on Seibold on July 26, 1996.

The allegation is not sustained by the evidence because the testimony of Seibold is not sufficiently reliable. Seibold testified she paid $15.00 in cash for a nail fill on July 26, 1996. Morgan testified Seibold told her she paid $3.00 for a nail repair when making her complaint three months after the incident. This conflict plus the unexplained passage of three months between the incident and the complaint, and the additional passage of one year for the instant hearing, contribute to the conclusion that Seibold has insufficient independent recollection of this incident, including the alleged date, so as to recall it accurately. Paragraph 4 of the Notice alleges that Tam permitted Tri H. Nguyen who was unlicensed, to perform nail services on a client, on November 14, 1996. Morgan’s testimony is sufficiently reliable to conclude that Tri although licensed in California, was not licensed in Arizona and that Tam knew this and allowed her to perform nail technology. The testimony indicated that Tri was related to Tam. A violation of A.R.S. §32-574(A)(5) is established by a preponderance of the substantial evidence. Paragraph 5 of the Notice alleges that Nguyen admitted performing nail services for over a year, using Xuan’s Arizona license. Morgan’s testimony is given credence over Nguyen’s version of the events. Nguyen’s testimony regarding the contested issues in this case lacks credibility. The nature of the admission to Morgan is too broad to find a specific violation of A.R.S. §32-574(A)(5) in addition to specific violations of that statutory section which are found in the instant hearing. However, considering all the evidence, a violation of A.R.S. §32- 572(A)(3) is clearly established. Paragraph 6 of the Notice alleges that Tam permitted Nguyen, who was unlicensed, to perform nail technology on a client, on June 28, 1997. The most credible and competent evidence proves the allegation and a violation of A.R.S. §32-574(A)(5). It is noted that this violation was approximately eight days after Tam had a meeting with Board. Although the above violations also technically constitute violations of A.R.S. §32-572(A)(6), there is no lawful basis for imposing separate sanctions under this statute for the same acts which have been found to violate the more specific statutes which are referenced in these conclusions. The Respondent-Licensee’s prior violations when taken in conjunction with warnings by, and discussions with Morgan as well as the Board show that nothing has had a sufficient impact on the Licensee to cause her to conform her conduct to the requirements of the law. Her violations are willful, intentional and on going. It is evident that even though the Licensee may not be fully conversant in English, she was fully informed and understood that persons unlicensed in Arizona could not perform services in her salon. Despite this, she and Nguyen knowingly continued to defy the Board and the law for well over a year. RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Order entered in this matter that Salon License No. M6557 issued to Tammy’s Pro Nails be revoked pursuant to the authority of A.R.S. §32-571.1; It is further recommended that on the effective date of the Order entered in this matter that License No. 59500691 issued to Tam Minh Nguyen be suspended for a period of thirty (30) days to be followed by a period of six (6) months’ probation pursuant to the authority of A.R.S. §32-571.2 and 3; It is further recommended that as a condition of probation, the Licensee be ordered to pay a civil penalty of Five Hundred ($500.00) Dollars, prior to the termination of any probation imposed in this case, pursuant to the authority of A.R.S. §32-571.4 It is further recommended that if the Licensee fails to comply with the conditions of probation as set forth in the Order entered in this case, then License No. 59500691 shall be automatically revoked. Done this day, November 6, 1997.

_______________________________ ALLEN W. REED Administrative Law Judge

Original transmitted by mail this ____ day of November, 1997, to:

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

By _______________________________ -----------------------

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