ALJDEC

99F-990240-COS · State Board of Cosmetology · 1999-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 1999 APPEARANCES: The Arizona State board of Cosmetology (“Department”) was represented by Assistant Attorney General, Bridget Harrington. Amy Brown (“Licensee”), holder of personal license no. 59400855, failed to appear. Licensee is the manager of the nail establishment, Chez Elan (“Chez”), license no. M05542. Nancy Ferguson (“Ferguson”) is the owner of Chez. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. At all times material hereto Licensee was the holder of personal license no. 59400855. In addition, at all times material hereto Ferguson was the owner of Chez, salon license no. M05542. Ferguson does not hold a personal license. 2. Uncontroverted evidence of record established the following facts: a. On February 11, 1998, an assigned inspector/investigator (“inspector”) for Department arrived at Chez for the purpose of conducting a sanitation and compliance inspection. At the time of this inspection, Ferguson was present but Licensee was not on the premises. b. During the course of the above-described inspection, the inspector observed that Chez did not have a sink on the premises other than the sink located in the restroom. At this time Ferguson was advised of A.A.C. R4-10-402 (C), which requires nail salons to have one sink in addition to the restroom sink. c. Based on the fact that the above described Cosmetology rule was not duly promulgated until April 1996, Ferguson was merely given a verbal warning at the time of the above-described inspection, indicating that she would need to bring the salon into sink compliance as soon as possible. d. On December 2, 1998 (some ten months after the above-described verbal warning to install another sink in the nail salon), the assigned inspector conducted a follow-up inspection at Chez. At the time of this follow-up inspection, Licensee was present but Ferguson was not on the premises. e. At the time of the December 2, 1998 inspection, the inspector observed that notwithstanding the verbal warning given to Ferguson in February 1998, there was no sink located on the premises other than the restroom sink. Thus, based on the failure of the license holders to bring the salon into compliance with the applicable law, after being verbally warned of the violation in the past, an unsatisfactory inspection report was issued, resulting in the filing of the instant complaint and notice of formal hearing. 3. Evidence of record supported a finding that the requirement of the additional sink is for sanitation purposes in case of an emergency wherein the restroom may be in use and locked, thereby rendering the restroom sink unavailable. 4. As the manager of Chez, Licensee, as well as Ferguson, had the responsibility to insure that Chez was in compliance with all of the applicable provisions of the State’s Cosmetology laws. 5. The failure of Ferguson and Licensee to install the required additional sink in Chez constitutes violations of the applicable charged sections of the State’s Cosmetology laws. Licensee and Ferguson’s apparent disregard for the cosmetology laws warrants the imposition of appropriate disciplinary sanctions against the personal license of Licensee and the salon license issued for Chez. 6. By their failure to appear for the scheduled hearing, Licensee and Ferguson failed to present any matters in defense or mitigation.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of Department, pursuant to A.R.S. § 32-501, et seq. 2. The uncontroverted evidence of record established that by virtue of failing to install an additional sink on the salon premises, after being duly warned of said deficiency, that Chez and Licensee are in violation of the provisions of A.R.S. §§ 32-572A (6), 32-574A (10), 32-572A (8), and A.A.C. R4-10-402C (3). 3. Pursuant to the provisions of A.R.S. § 32-571, Department has the authority to impose disciplinary sanctions against a licensee.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that personal license no. 59400855, issued to Amy Brown, shall be placed on a period of disciplinary probation for ninety (90) days, commencing on the effective date of the Order entered in this matter. The terms of said probation shall require Licensee to accomplish the following during said probationary period: a. Fully comply with all of the State’s Cosmetology laws. b. Pay a civil penalty of $100.00 to Department. c. Attend and complete Department’s law review and infection protection classes. Any failure by Licensee to fully comply with the above-described terms of probation shall result in the automatic imposition (without further proceedings), of an indefinite suspension of the personal license of Licensee, until full compliance with the above-described terms of probation is accomplished. It is further recommended, based on the foregoing, that the salon license of Chez Elan, no. M05542, shall be placed on a period of disciplinary probation for ninety (90) days, commencing on the effective date of the Order entered in this matter. The terms of said probation shall require Nancy Ferguson to accomplish the following during said probationary period: a. Install the required additional sink in Chez. b. Fully comply with all of the State’s Cosmetology laws. c. Pay a civil penalty of $200.00 to Department. d. Attend and complete Department’s law review and infection protection classes. Any failure by Ferguson to fully comply with the above-described terms of probation shall result in the automatic imposition (without further proceedings) of an indefinite suspension of the salon license of Chez, until full compliance with the above-described terms of probation is accomplished.

Done this day, May 6, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

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

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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826