ALJDEC

98F-TC980260-COS · State Board of Cosmetology · 1998-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |§| | |In the Matter of: |§|Docket No.: TC980260-COS | | |§|Docket No.: TC980273-COS | |Tam Minh Nguyen, Owner and |§| | |Licensee, License No. 59500691, |§| | |Minh N. Vu, Licensee, |§|Recommended | |License No. 59715852, |§|DECISION and order | |TAMMY’S PRO-NAILS #M6557 |§| | |378 N. Litchfield Road #112, |§| | |Goodyear, Arizona 85338 |§| | | |§| | | |§| | | |§| | | |§| |

HEARING: July 15, 1998, at 9:00 a.m. APPEARANCES: The Complainant, the Arizona Board of Cosmetology appeared through Assistant Attorney General, Bridget Harrington. The Respondents appeared through their attorney, Bernard Wu. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on July 15, 1998. The Complainant appeared through Assistant Attorney General Bridget Harrington and the Respondents appeared through their attorney, Bernard Wu. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent, Tam Minh Nguyen, is the holder of individual License No. 59500691 and was the owner of Tammy’s Pro Nails, Salon License No. M6557. Salon License No. M6557 was placed on disciplinary probation status between August 1, 1996, and February 1, 1997, and on December 24, 1997, the Arizona State Board of Cosmetology issued an Order revoking Salon License No. M6557. On December 24, 1997, the Arizona Board of Cosmetology issued an Order placing the Respondent’s (Tam Minh Nguyen) individual license, No. 59500691, on active suspension for thirty days followed by disciplinary probation for a period of six months and imposed a $500.00 civil penalty on the license.

2. There was no dispute that Respondent, Tam Minh Nguyen, paid the civil penalty and completed the active license suspension.

3. Respondent, Minh N. Vu, is the holder of individual License No. 59715852.

4. Credible evidence, produced at hearing, established that although the Respondent, Minh N. Vu, had passed the appropriate test and finalized the Respondent’s licensing procedure on November 10, 1997, the Respondent was not properly licensed to practice nail technology in the State of Arizona until November 20, 1997.

5. The parties were in sharp dispute as to whether Respondent, Minh N. Vu, had improperly performed unlicensed work between November 10, 1997, and November 20, 1998.

6. The preponderance of credible evidence, submitted at hearing, established that on November 17, 1998, the Respondent, Minh N. Vu, performed nail work on a Ms. Lynn Paterson-Taylor.

7. Ms. Lynn Paterson-Taylor was dissatisfied with the said Respondent’s work and a complaint with the Arizona State Board of Cosmetology alleging that the Respondent, Minh N. Vu, had performed nail work with dirty hands and that the procedure had been painful.

8. Credible evidence, presented at hearing, established that on December 11, 1997, the Respondent’s assigned inspector conducted an on-site inspection of Tammy’s Pro-Nails, Salon License No. M6557, and that the assigned inspector observed that there was no required tuberculocidal disinfectant, and that there was uncovered dry storage, and that there were nail clippings on the floor and files not contained in dry storage.

9. On November 7, 1997, Ms. Deena K. Kacer filed an oral complaint, with the Arizona State Board of Cosmetology, against Respondent, Tam Minh Nguyen, alleging that improper blood spill procedures were not followed and that a drill was improperly used on Ms. Kacer.

10. Respondent, Tam Minh Nguyen, denies ever having performed any services for Ms. Kacer.

11. The corroborative evidence submitted to substantiate Ms. Kacer’s complaint was insufficient to support a finding of a violation of the charged statutes and rules regarding the Kacer complaint.

12. Credible evidence, presented at hearing, established that Respondent, Tam Minh Nguyen, either knew or should have known that Respondent, Minh N. Vu, was not licensed to perform nail work on November 17, 1998, and that she allowed Minh N. Vu to perform nail work despite his lack of a required license.

13. Credible evidence established that Respondent, Tam Minh Nguyen, filed an affidavit with the Arizona State Board of Cosmetology on December 15, 1997, wherein she stated that Respondent, Minh N. Vu, was licensed by the Respondent to practice nail technology on November 10, 1997.

14. Credible evidence, presented at hearing, established that the Respondent, Tam Minh Nguyen, either knew or should have known that the statement was false.

15. Notice is taken of Respondent, Tam Minh Nguyen’s, prior disciplinary record with the Arizona State Board of Cosmetology.

16. Notice is taken of Respondent, Minh N. Vu’s, prior clear record with the Arizona State Board of Cosmetology.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations, by Respondent, Minh N. Vu, of the provisions of A.R.S. §32-572(A)(6) and A.R.S. §32- 574(A)(10) (violation of statute or rule) by violating A.R.S. §32- 574(A)(1) (practicing nail technology without a license), and by violating A.R.S. §32-541(B) (safety and sanitation) and by violating A.A.C. (Rule) R4-10-109(U).

2. The credible evidence of record established violations, by Respondent Tam Minh Nguyen, of the provisions of A.R.S. §32-572(A)(7) and A.R.S. §32-572(A)(6) and A.R.S. §32-574(A)(10) (violation of statute or rule) by violating A.R.S. §32-541(B) (safety and sanitation) and by violating A.A.C. (Rule) R4-10-109(B),(D)(1) and (2),(E),(H),(J),(K), and (L) (infection control and safety standards).

RECOMMENDED ORDERS

1. In view of the foregoing, it is recommended that the Respondent place the individual license of Minh N. Vu (License No. 59715852) on disciplinary probation for a period of three months commencing on the effective date of the Order issued in this matter.

It is further recommended that, as a condition of probation, the Respondent, Minh N. Vu, be ordered to pay a civil penalty in the amount of $100.00 within the three month probation period.

It is further recommended that, as a condition of probation, the Respondent, Minh N. Vu, be ordered to attend, at his own expense, an infection protection class.

It is further recommended that if the Respondent, Minh N. Vu, fails to comply with the conditions of probation as set forth in the Order issued in this matter then the Respondent’s individual license (License No. 59715852) shall be automatically revoked.

2. In view of the foregoing, it is recommended that the individual license of Respondent Tam Minh Nguyen (License No.5900691) be placed on active license suspension for a period of twenty days to be followed immediately by a period of twelve months probation.

It is further recommended that, as a condition of probation, the Respondent Tam Minh Nguyen be ordered to pay a civil penalty of $500.00 prior to the termination of the recommended twelve months probation in this matter.

It is further recommended that, as a condition of probation, Respondent Tam Minh Nguyen, at her own expense, take an infection protection class.

It is further recommended that if the Respondent, Tam Minh Nguyen, fails to comply with the conditions of probation as set forth in the Order entered in this matter, then her individual license (License No. 5900691) shall be automatically revoked.

Dated this 24th day of July, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. Douglas Administrative Law Judge

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

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

Transmitted by _______________________________

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