ALJDEC

98F-WC980183-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”). Marleen Weis, Licensee and holder of personal license No. 19100705, 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. Marleen Weis, Licensee, is holder of personal license No. 19100705. 2. This matter arises out of an anonymous compliant received by the Board alleging that Licensee was performing cosmetology in her home. On December 9, 1997, Linda Stroh, an Inspector/Investigator for the Board, visited Licensee at 621 N. Entrada, Chandler, Arizona, Licensee’s home. While there, Inspector Stroh observed a cosmetology station set up in Licensee’s home. The preponderance of the evidence establishes that, when Inspector Stroh informed Licensee of the anonymous compliant the Board received and asked for Licensee’s response, Licensee admitted performing cosmetology in her home for family and friends. Inspector Stroh’s testimony is credible. 3. On or about December 17, 1997, Licensee submitted a statement to the Board admitting, once again, that she was performing cosmetology in her home for family and friends.

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: 6. Violating any provision of this chapter or any rule adopted pursuant to this chapter.

Section 32-574(A) provides that a person shall not: 9. Operate a salon or school without being licensed pursuant to this chapter. 10. Violate any provision of this chapter or any rule adopted pursuant to this chapter.

Arizona Administrative Code (“A.A.C.”) R4-10-401 adds requirements for the licensing of salons.

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. The Board demonstrates by a preponderance of the evidence that the activities and/or omissions outlined in paragraphs 2 and 3 of the Findings of Fact constitute violations of A.R.S. §§32-572(A)(6), 32-574(A)(9), and 32-574(A)(10), as well as R4-10-401(A).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Board that Licensee 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, Licensee 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 a law review class at her own expense. Finally, the failure to fully comply with the probation terms should result in the automatic revocation of Licensee’s licenses upon termination of the probation period. Done this day, October 8, 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 _______________________________

-----------------------

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