ALJDEC

98F-WC970181-COS · State Board of Cosmetology · 1998-07-07

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), §32-574(A), §32-544, §32-541, §32- 543, A.A.C. R4-10-108, A.A.C. R4-10-109 and A.A.C. R4-10-110. Harold Torain (the "Licensee") appeared on his own behalf. Chantel Duval 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. Harold Torain (the "Licensee") is the holder of License Number 19401400 for the practice of cosmetology in the State of Arizona. Chantel Duval is the owner of the X-10 salon (License Number C1894). The X-10 salon is located at 1460 North Scottsdale Road, Tempe, Arizona.

2. Chantel Duval did not appear for the hearing scheduled for June 17, 1998 at 9:30 A.M. Notice of this hearing was properly sent to Ms. Duval at her last known residence and business addresses.

3. Linda Stroh is an inspector and investigator for the Board. On or about November 27, 1996, Inspector Stroh scheduled a cosmetology appointment with Duval for December 4, 1996 at the X-10 salon.

4. On or about December 11, 1996, Inspector Stroh inspected the X-10 salon. Inspector Stroh testified that she observed Duval performing cosmetology services on customers. Inspector Stroh testified that Duval was performing these services while unlicensed. Furthermore, Inspector Stroh testified that the salon license was delinquent.

5. Inspector Stroh testified that on December 11, 1996, she observed no license posted at the X-10 salon. She further observed hair on the floor and certain implements that were not properly in dry storage.

6. Inspector Stroh testified that the Licensee was named as X-10's manager on Duval's application for the salon license. Inspector Stroh testified that the Licensee was not present during the December 11, 1996 inspection.

7. On or about February 21, 1997, Inspector Stroh again inspected the X-10 salon. Inspector Stroh testified that the Licensee's license was posted at the X-10 salon. Inspector Stroh testified that the Licensee signed the Inspection Report. See State's Exhibit #2.

8. The Licensee testified that he was never the manager for the X-10 salon. The Licensee testified that he never signed the Inspection Report. The Licensee testified that Duval was using his name (without his permission) to attract business.

9. Inspector Stroh testified that she is familiar with the Licensee through seminars, trade shows and magazines. Inspector Stroh testified that she "could not positively state" that the Licensee was the man who signed the Inspection Report on February 21, 1997. It should be noted that the Licensee's signature on a previous Motion to Continue does not match the signature on the Inspection Report.

10. On or about April 24, 1997, Duval performed hair extensions on a customer named Tessira Claybaugh. Ms. Claybaugh testified that the hair extensions fell out within ten days. Ms. Claybaugh testified that Duval claimed to be licensed to perform hair extensions. Ms. Claybaugh testified that Duval would not refund the $450.00 paid for the hair extensions.

11. In July of 1996, an employee at the X-10 salon performed hair extensions on Michelle Palmer. Ms. Palmer testified that the man identified himself as Harold Torain. However, Ms. Palmer testified that the Licensee (present at the hearing) was not the same man who performed the hair extensions on her in July of 1996. Ms. Palmer testified that the man who did her hair extensions was much younger than the Licensee.

12. Ms. Palmer testified that her hair extensions fell out within two days. Ms. Palmer also testified that (1) her scalp was burned, (2) the extensions were the wrong color, and (3) there was excessive glue in her hair. Ms. Palmer testified that Duval would not refund the $375.00 paid for the hair extensions.

13. Inspector Stroh testified that she attempted to contact Duval and the Licensee. Inspector Stroh checked the phone book and found a company named Torain Hair Extensions located at 2015 E. 5th Street #17, Tempe, Arizona. See State's Exhibit #3. Inspector Stroh testified that she visited Torain Hair Extensions on July 11, 1997. Inspector Stroh testified that she observed a salon station which included a mirror, a blow dryer and a salon chair. Inspector Stroh testified that the Board had not issued a license for this establishment.

14. The Licensee testified that he does not perform cosmetology services at Torain Hair Extensions. The Licensee testified that he only sells hair products and extensions (to beauty suppliers and hair dressers) at this establishment. The Licensee testified that the salon station at Torain Hair Extensions is just a chair and mirror to help customers blend and view hair products.

15. The undersigned Administrative Law Judge finds that the Licensee was not operating a salon or performing cosmetology services at the Torain Hair Extensions location. The undersigned Administrative Law Judge further finds that the Licensee was not advertising to perform cosmetology services at the Torain Hair Extensions location.

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 Chantel Duval has violated the following:

(1) A.R.S. §32-572(A)(6)-violation of a statute or rule; (2) A.R.S. §32-574(A)(10)-violation of a statute or rule; (3) A.R.S. §32-574(A)(1)-performing cosmetology services without a license; (4) A.R.S. §32-574(A)(9)-operating a salon without being licensed; (5) A.R.S. §32-544-failure to properly renew the salon license; (6) A.R.S. §32-541-failure to follow safety and sanitation requirements; (7) A.R.S. §32-543-failure to display a license; (8) A.R.S. §32-572(A)(4)-malpractice or incompetency; (9) A.A.C. R4-10-110-display of current license; (10) A.A.C. R4-10-109(C),(D)(2), (H) and (L)-sanitary implements.

3. The Board has not sustained its burden of demonstrating by a preponderance of the evidence that the Licensee has violated A.R.S. §32- 572(A)(6), §32-572(A)(5), §32-574(A)(9), §32-574(A)(10) and A.A.C. R4-10- 108 as set forth in Findings of Fact 15.

RECOMMENDED DECISION

In view of the foregoing, the undersigned Administrative Law Judge recommends that License Number C1894 be revoked and that Chantel Duval pay a civil penalty to the Board in the amount of $825.00 for restitution.

It is further recommended that no disciplinary action be taken against Harold Torain, the Licensee.

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