ALJDEC

98F-TC970627-COS · State Board of Cosmetology · 1998-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On June 17, 1998, a hearing was held to determine if the Respondents violated provisions of A.R.S. §32-572(A), §32-543, §32-574(A), §32-541(B), A.A.C. R4-10-108 and A.A.C. R4-10-109. Vu Kim Lieu Nguyen (the "Owner") appeared on her own behalf. Jim Tran (the "Manager") failed to appear. Assistant Attorney General Bridget Fitzgibbons Harrington represented the Arizona State Board of Cosmetology (the "Board"). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Vu Kim Lieu Nguyen (the "Owner") is the holder of License Number 59700036 for the practice of nail technology in the State of Arizona. She is also the former owner of First Blu Cactus Nails, the holder of License Number M4645. First Blu Cactus Nails is located at 925 West Baseline Road #104, Tempe, Arizona.

2. Jim Tran (the "Manager") is the holder of License Number 59600953 for the practice of nail technology in the State of Arizona and was the manager of First Blu Cactus Nails.

3. On or about May 16, 1997, an employee at First Blu Cactus Nails performed nail services on Daniella Pinda ("Pinda"). On or about June 3, 1997, Pinda filed a Complaint with the Board. Linda Stroh, an Inspector and Investigator for the Board, personally interviewed Pinda on June 12, 1997.

4. Inspector Stroh testified that Pinda had fungus under three fingernails on her left hand. Inspector Stroh further testified that Pinda had a little fungus under one nail on her right hand. Inspector Stroh testified that Pinda had already had the fungus treated but a fungus stain was still visible under the nails. Inspector Stroh also testified that drill marks and gouges were apparent on Pinda's nails. Inspector Stroh testified that these drill marks were excessive.

5. On or about June 11, 1997, Inspector Stroh inspected First Blu Cactus Nails. Inspector Stroh testified that the Owner was not present but the Manager was present. Inspector Stroh testified that she observed the following: A. No large wet sanitizer was present; B. Employees were using the same scrub brushes and nail brushes on successive customers; C. Soiled drill bits and files were present; D. Work tables were not properly disinfected; E. The business sign said "Cactus Nails"; F. The business cards said "Cactus Nails"; and G. The personal licenses and the latest inspection sheet were not properly posted.

6. The Owner testified that she was not present at First Blu Cactus Nails from April 1997 through May 1998 due to illness. The Owner testified that she left Mr. Jim Tran in charge of First Blu Cactus Nails during her absence. The Owner testified that Mr. Tran is not currently the manager at First Blu Cactus Nails.

7. The Manager failed to appear for the hearing scheduled for June 17, 1998. Notice of this hearing was properly mailed to the Manager's last known business address.

CONCLUSIONS OF LAW

1. The Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990).

2. The Board has sustained its burden of demonstrating by a preponderance of the evidence that the Owner has violated the following:

(1) A.R.S. §32-574(A)(10)-violation of a statute or rule; (2) A.R.S. §32-572(A)(6)-violation of a statute or rule; (3) A.R.S. §32-572(A)(4)-malpractice or incompetency; (4) A.R.S. §32-541(B)-safety and sanitary requirements; (5) A.R.S. §32-543(2)-posting of a current license; (6) A.R.S. §32-572(A)(5)-false advertising; (7) A.A.C. R4-10-108(A)-display of licenses and signs; (8) A.A.C. R4-10-109(B),(C),(E),(F)-sanitary implements.

3. The Board has not sustained its burden of demonstrating by a preponderance of the evidence that the Owner has violated A.A.C. R4-10- 109(D)(6), (N) and (P). The undersigned Administrative Law Judge finds that Pinda’s statements to Inspector Stroh are unreliable hearsay.

4. The Board has sustained its burden of demonstrating by a preponderance of the evidence that the Manager has violated the pertinent statutory provisions and rules alleged in the Notice of Formal Hearing. See A.A.C. R4-10-110(A).

RECOMMENDED DECISION

The undersigned Administrative Law Judge recommends that the Owner's personal License Number 59700036 be placed on probation for a period of three (3) months commencing on the effective date of this Order. It is further recommended that during the three month probationary period, the Owner shall be required to perform the following: A. Attend the Board's law review class and infection protection class at her own expense. B. Pay to the Board a $300.00 civil penalty.

It is further recommended that if the Owner fails to comply with the conditions of probation as set forth in this Order, License Number 59700036 shall be revoked.

The undersigned Administrative Law Judge further recommends that the Manager's personal License Number 59600953 be placed on probation for a period of three (3) months commencing on the effective date of this Order. It is further recommended that during the three month probationary period, the Manager shall be required to perform the following: A. Attend the Board's law review class and infection protection class at his own expense. B. Pay to the Board a $300.00 civil penalty.

It is further recommended that if the Manager fails to comply with the conditions of probation as set forth in this Order, License Number 59600953 shall be revoked.

Done this day, July 7, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

ATTN: Cheryl Adams

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

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