ALJDEC

98F-WC970270-COS · State Board of Cosmetology · 1999-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 1999. APPEARANCES: Bridget Harrington, Assistant Attorney General, appeared on behalf of the Arizona State Board of Cosmetology. Felicia Horton, Licensee, 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 Licensee. The hearing in this matter was held for the purpose of determining whether the Board is justified in taking disciplinary action against 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. Felicia Horton, Licensee, is holder of License No. 18800468 for the practice of cosmetology in the State of Arizona. 2. On or about July 8, 1997, after an informal interview, the Board entered an Order against Licensee, concluding that she performed an uneven hair weave. The Order required that Licensee attend a three hour hair color class and provide to the Board proof of her attendance. 3. During the hearing in this matter, Penny O’Dell, Administrative Assistant to the Board, testified regarding Licensee’s compliance with the Board’s prior order in this matter. Ms. O’Dell testified that Licensee has failed to produce evidence that she attended the hair color class. Ms. O’Dell’s testimony is credible and unrefuted. The preponderance of the evidence establishes, therefore, that Licensee has yet to fully comply with the Board’s prior order in this matter. 4. The record also demonstrates by a preponderance of the evidence that Licensee was duly notified of the hearing in this matter.

APPLICABLE LAW 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.

A.R.S. §32-572(A)(9) provides that the Board may take disciplinary action for “failing to comply with an order of the board.”

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 Licensee in this matter; that is, the Board demonstrates by a preponderance of the evidence that Licensee has failed to comply with an order of the Board, pursuant to A.R.S. §32-572(A)(9).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that Licensee be placed on disciplinary probation for a period of one (1) month 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, Licensee should be required to comply fully with the order previously imposed by the Board; that is, that Licensee attend a three hour hair color class and provide to the Board evidence of her attendance. Finally, Licensee’s failure to comply fully with the probation terms set forth herein should result in the automatic revocation of the affected license in this matter upon termination of the probationary period, without further proceedings. Done this day, February 10, 1999.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By _______________________________

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