ALJDEC

98F-TC980320-COS · State Board of Cosmetology · 1998-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 1998. APPEARANCES: Bridget F. Harrington, Assistant Attorney General, appeared on behalf of the Arizona State Board of Cosmetology (“Board”). Phan C. Phan, Licensee, owner and manager of Season Nails, and holder of personal license No. 59600159, as well as salon license No. M6493, appeared on her own behalf. Thu C. Phan, Licensee and holder of personal license No. 59400858, 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. The hearing in this matter was held for the purpose of determining whether the Board is justified in taking disciplinary action against each Licensee. 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. Phan C. Phan, Licensee, is owner and manager of Season Nails, and holder of personal license No. 59600159, as well as salon license No. M6493. Thu C. Phan, Licensee, is holder of personal license No. 59400858 and is an employee of Season Nails. 2. This matter arises, initially, out of a compliant filed by Tamara Ochoa with the Board, alleging that Thu C. Phan committed malpractice while performing nail fill-ins on December 19, 1997. During the hearing in this matter, Ms. Ochoa testified that she patronized Season Nails on December 19, 1998, for fill-ins over her lifting acrylic nails. Thu C. Phan performed the services. Ms. Ochoa noted that she expressed her concerns to Licensee regarding dirt under her acrylic nails and signs of fungus. On December 25, 1997, after noticing problems with her nails, Ms. Ochoa removed her acrylic nails and observed fungus. She proceeded to file a compliant with the Board.[1] 3. On January 16, 1998, Linda Stroh, an Inspector/Investigator for the Board, interviewed Ms. Ochoa concerning her compliant filed with the Board. During the hearing in this matter, Inspector Stroh testified to her observations and opinions regarding Ms. Ochoa’s nails. She observed signs of fungus and that several nail plates were filed very thin. She opined that the fill-ins were performed improperly. Inspector Stroh’s testimony was uncontroverted and is found to be credible. 4. On January 27, 1998, Inspector Stroh inspected Season Nails. The preponderance of the evidence establishes that the following conditions were present during Inspector Stroh’s inspection: nail clippings on the floor; soiled wet sanitizers; tables not being sanitized after each client; the common use by clients of scrub brushes; soiled drills, drill bits, nippers, and clippers, and rusted nippers in dry storages; and the absence of tuberculocidal disinfectant. As a consequence of her findings, Inspector Stroh gave the salon an unsatisfactory grade. 5. On May 16, 1998, Inspector Stroh inspected Season Nails a second time. The preponderance of the evidence establishes that clients continued to use a common scrub brush. As a consequence of her finding, Inspector Stroh gave the salon a second unsatisfactory grade. 6. Finally, the preponderance of the evidence establishes that the Board has taken disciplinary action against Thu C. Phan two times in the past. See T/C 960293 and W/C 970158. Prior discipline is a factor to be considered in aggravation in assessing appropriate and fair discipline.

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.

Section 32-572(A) provides that the Board may take disciplinary action for the following causes: 4. Malpractice and incompetence. xxx 6. Violating any provision of this chapter or any rule adopted pursuant to this chapter.

The latter of these provisions is virtually the same as §32-574(A)(10). Section 32-574 outlines unlawful acts and violations under the chapter. With respect to sanitation standards, in particular, §32-541 sets forth certain statutory requirements for salons, including safety and sanitation requirements. This provision also requires that owners and managers of salons be responsible for and follow applicable salon safety and sanitary requirements. See Arizona Administrative Code (“A.A.C.”) R4- 10-110(B). Rule R4-10-109 outlines specific infection control and safety standards.

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 against 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 each Licensee in this matter. The Board demonstrates by a preponderance of the evidence that the activities and/or omissions outlined in paragraphs 2 through 5 of the Findings of Fact constitute violations of A.R.S. §§32-541, 32-572(A)(4); 32-572(A)(6), 32- 574(A)(10), as well as R4-10-109(B), (C), (D), (E), (F), (H), (Judge), (K), (L), and (M).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that Phan C. Phan be placed on disciplinary probation for a period of six (6) months commencing on the effective date of the final order in this matter. Terms of probation should include Licensee’s full compliance with relevant statutes and regulations during the probation period. Also, Phan C. Phan should be required to pay, on or before the termination of the probation period, a civil penalty in the amount of $300.00. In addition, Licensee should be required to attend an infection protection class. Finally, the failure to fully comply with the probation terms should result in the automatic revocation of Phan C. Phan’s licenses upon termination of the probation period. With respect to Thu C. Phan, it is recommended to the Board that he be placed on disciplinary probation for a period of six (6) months commencing on the effective date of the final order in this matter. Terms of probation should include Licensee’s full compliance with relevant statutes and regulations during the probation period. Also, Thu C. Phan should be required to pay, on or before the termination of the probation period, a civil penalty in the amount of $300.00. In addition, Licensee should be required to attend an infection protection class, and pay to the Board in the name of Tamara Ochoa the sum of $12.00 as restitution. Finally, the failure to fully comply with the probation terms should result in the automatic revocation of Thu C. Phan’s licenses upon termination of the probation period. Done this day, October 9, 1997.

_________________________________ Kip M. Micuda Administrative Law Judge

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

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

By _______________________________

----------------------- [1] Ms. Ochoa also complained a blood spill occurred during the service by Thu C. Phan. Although the Notice of Formal Hearing in this matter alleges that a “blood spill occurred and no proper blood spill procedures were conducted,” during the hearing the Board moved to omit this allegation from the notice. This Judge granted the Board’s motion.

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