ALJDEC

98F-TC980125-COS · State Board of Cosmetology · 1998-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 1998

APPEARANCES: Mr. Tam V. Ho, Owner, appeared representing himself. Mr. Ly A. Nguyen did not appear. Ms. Bridget F. Harrington, Assistant Attorney General, appeared for the Arizona State Board of Cosmetology.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

This matter came on for hearing on June 3, 1998 pursuant to the Arizona State Board of Cosmetology (Board) Notice of Formal Hearing issued on May 13, 1998. Based on the record, the following determinations and recommendations are made: FINDINGS OF FACT 1. Ly A. Nguyen is the Manager of the T.K. Exotic Nails salon (Salon) at 3117 South Mill Avenue in Tempe, Arizona. Mr. Nguyen is the holder of License No. 18401479 for the practice of cosmetology in Arizona.

2. Tam V. Ho (Licensee) is the Owner of the T.K. Exotic Nails salon (Salon) at 3117 South Mill Avenue in Tempe, Arizona. The establishment holds License No. M6044. 3. At the hearing in this matter, the Board’s Notice of Hearing was amended to correct the name of the Complainant, which is Barbara Loy and not Barbara Roy, on Page 2, Line 10 of the Notice. 4. On or about September 17, 1997, Miss Loy went to the Salon for nail services. Miss Loy testified that “Anthony” [Anthony Pham] had used a drill bit on her natural nails, and that she had observed him use that same drill bit on the feet and hands of a previous customer. Miss Loy testified that the drill bit had nail bits or nail residue on it. Miss Loy testified that “Anthony” had cut[1] her cuticles, and had cut one finger with blood being drawn. Miss Loy testified that “Anthony” put some green or clear liquid on the cut and then finished the manicure, and that he had not had her wash her hands nor did he use any cotton. Miss Loy testified that she believed she paid about $23.00 or $26.00 for the services. 5. On or about October 2, 1997, the Board’s Inspector-Investigator conducted an inspection at the Salon. Neither the Owner nor the Manager was present at the time of the inspection. The Board’s Inspector found no proper wet set-up; found common use of scrub brushes at the sink; and found unsanitized dry items at “Anthony’s” station. 6. On further investigation of the complaint, the Board’s Inspector- Investigator interviewed Miss Loy on October 22, 1997. The Inspector testified that Miss Loy had received an acrylic overlay done on her nails, and that at that time of the October interview, there was still some acrylic residue on Miss Loy’s nails. The Inspector testified that she observed deep drill marks in the natural nail plate and stress fractures in the nail plate; and that she had observed these on ring and little fingers of the left hand, and on thumb and ring finger of the right hand. The Inspector testified that she observed both thumbs with the corners of the nails drilled out, and that there were recent signs of healing marks on at least one thumb and ring finger where the drill had cut Miss Loy. 6. Anthony Pham was not present at the hearing for any questioning as a witness. Any concurrent matter between the Board and Licensee Anthony Pham was handled in a Consent Agreement prior to the hearing in this matter. /// 7. Minh Pham, wife of Anthony Pham was present at the hearing as a witness, testifying that she had been present that day at the time of the nail services. Minh Pham testified that she had explained to Miss Loy how to make her nails strong, apparently referring to having the acrylic process done. Minh Pham testified that she had asked Miss Loy how she liked the services and that Miss Loy had said she liked it. Minh Pham testified that there was only one little cut on the finger and that Anthony had used the antiseptic on the finger. Minh Pham testified that it is not possible for the drill to be used on a customer’s feet because the cord is too short to reach the feet. Minh Pham testified that the charges for the nail services was only $20.00; $19.00 for the services and $1.00 for a tip. 8. At the hearing, the Board argued that the circumstances of the nail services for Miss Loy contained several sanitation violations. The Board argued that drill bits may not be used on natural nails or to cut nail cuticles, but may only be used on acrylic nails, arguing Arizona Administrative Code (A.A.C.) R4-9-109.P. The Board argued that drill bits are to be disposable, but if they are not disposed, they are required to be sanitized, arguing A.A.C. R4-9-109.B, .F, and .K. The Board argued that proper blood spill procedures had not been followed, arguing A.A.C. R4-9- 109.J.1 through .4. 9. At the hearing, the Board argued that the inspection showed several sanitation violations. The Board argued that unsanitized dry items are a violation of A.A.C. R4-9-109.C and .D. The Board argued that a large wet sanitizer is required to be in place for use during business hours. The Board argued that it is a violation to have common nail scrub brushes under A.A.C. R4-9-109.K, .E and .F. 10. Previously the Board had found sanitation violations at an inspection in the Board’s case number T/C97-0328, and the Salon was under a Consent Agreement on the matter. 11. In May 1996, the Board had sent a letter of concern to the Salon in the Board’s case number T/C96-0442 regarding sanitation at the Salon. 12. The Board’s representative requested that the tribunal consider a recommendation that the cited Licenses be revoked, but that the revocations be stayed for six months during which time the Licenses are on probation, and during which time they must each pay a $300.00 penalty. The Board’s representative requested that the tribunal consider a recommendation that the Salon make restitution of $23.00 for Miss Loy within ten days of the effective date of a Board Order. CONCLUSIONS OF LAW 1. The Board has jurisdiction in this matter pursuant to A.R.S. §32- 501 et seq. 2. The testimony showed that a drill bit had been improperly used in the nail services for Miss Loy on September 17, 1997. The testimony showed that one finger was cut with blood drawn, and that blood spill procedures were not followed. These are violations of A.A.C. R4-9-109. 3. There was a vast difference in the testimony of the Inspector regarding stress marks and/or healing of the nails one month after the services versus the testimony of the Complainant regarding the one cut on one finger. Absent photographic proof of such alleged damage, in the light of Miss Loy’s testimony, no determination can be made in this regard. Additionally, it is presumed that allegations of such abuse or damage by Anthony Pham were addressed in the Consent Agreement between the Board and Anthony Pham. 4. The testimony was inconsistent with regard to the total amount of monies paid for the September 17, 1997 nail services. However, it is determined that a minimum of $20.00 was paid to the Salon by Miss Loy. 5. The testimony showed that sanitation violations were found during the inspection conducted on October 2, 1997. 6. Pursuant to A.A.C. R4-9-110, the Owner and the Manager are responsible for all that occurs at the Salon and, therefore, are responsible for the determined incidents and violations. The alleged violations and determined violations described in Findings of Facts Numbers and 9 and in Conclusions of Law Numbers 2 and 5 constitute violations of sanitation rules and, therefore, are violations of A.R.S. §32-541.B, which requires all safety and sanitation ruled to be followed while a salon is open. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that both the cited Licenses be revoked, but with a six month stay period, effective six months from the Board’s Order in this captioned matter, and that: 1. As to the Salon license [License M6044], the License is on probation during the six month probation/stay period, but the Salon can be open for business during the six month probation/stay period; and 2. That the Salon is to come into compliance with all sanitation rules and regulations, and the Salon must pass a inspection (satisfactory) within the six month probation/stay period; and 3. As to the Personal License [License 19401479], that Ly A. Nguyen be on probation during the six month probation/stay period; and IT IS FURTHER RECOMMENDED that the Licensee Salon and Licensee Nguyen each be fined $200.00 in civil penalty, and each pay that $200.00 in civil penalty within the probation/stay period; and IT IS FURTHER RECOMMENDED that the Salon make restitution to Miss Loy of the amount of $20.00, which shall be paid to the Board within ten days of the Board’s Order, and the Board shall forward the restitution to Miss Loy; and IT IS FURTHER RECOMMENDED that if these conditions as to each Licensee are met within the probation/stay period, the probation imposed on the each of the two Licenses would terminate and there would be no revocation. However, IT IS FURTHER RECOMMENDED that if these conditions as to each Licensee, or respectively as to one License, are not met within the probation/stay period, that the Establishment and the Personal Licenses each, or respectively, be revoked effective immediately. RECOMMENDED this day, June 23, 1998.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this ____ day of June, 1998, to:

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

By ___________________________ ----------------------- [1] Based on the testimony, it is believed that the language Miss Loy used, “cut my cuticles”, meant that Anthony had removed the cuticles by cutting the cuticles, as Miss Loy went on to indicate that he had only cut and drawn blood on one finger.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827