ALJDEC

99F-990413-COS · State Board of Cosmetology · 1999-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 1999 APPEARANCES: The Arizona State board of Cosmetology ("Department") was represented by Assistant Attorney General, Bridget Harrington. Huong T. Ong ("Ong"), holder of personal license no. 59500395, failed to appear. Ong is the manager of the nail establishment, Paulene’s Nails ("Paulene’s"), license no. M06158. Pham Ba Lam ("Lam") the owner of Paulene’s and holder of the aforementioned establishment license also failed to appear. 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 Ong was the holder of personal license no. 59500395. In addition, at all times material hereto Lam was the owner of Paulene’s, establishment license no. M06158. Lam does not hold a personal license.

2. On March 5, 1999, an assigned inspector/investigator ("inspector") for Department arrived at Paulene’s for the purpose of conducting a sanitation, safety and compliance inspection. Lam was not present at the time of said inspection but Ong was on the premises.

3. The uncontroverted evidence of record established that on the aforementioned inspection date the following deficiencies in the operation of Century were present: a. Seven soiled drill bits were present in a specified work station. b. Soiled files were present in a specified work station. c. There was no dry storage at a specified work station. d. The same scrub brushes were used at a specified workstation sink and in the restroom. e. Specified buffers were soiled. f. Baby food jars, which were not labeled, contained acetone or nail polish remover. g. A wax bath contained debris. h. There was no posting of blood spill procedures or recent inspection reports. i. There was no tuberculocidal disinfectant available. j. Nail clippings were on the floor.

All of the foregoing are found to constitute violations of the applicable charged sections of the State's Cosmetology laws.

4. On the date of the above-described inspection, Department’s inspector also observed an unlicensed individual polishing nails, in violation of the applicable State Cosmetology licensing laws.

5. As a direct result of the findings at the March 5, 1999 inspection, an unsatisfactory inspection report was issued.

6. As the manager of Paulene’s, Ong, as well as Lam, had the responsibility to insure that Paulene’s was in compliance with all of the applicable provisions of the State's Cosmetology laws.

7. Undisputed evidence of record demonstrated that Department has issued a prior disciplinary sanction against the salon license of Paulene’s as a result of a consent agreement entered in State Board of Cosmetology complaint no. 990047. This prior consent agreement was executed by Department and Lam in January 1999 (only several months prior to the date of the inspection at issue in the instant matter) and provided for a $250.00 civil penalty. It is important to note that Ong was the manager of Paulene’s at the time of the inspection that resulted in the entry of this consent agreement.

8. The above-described State Board of Cosmetology complaint no. 990047 involved similar violations to those described herein, including the failure to post inspection guidelines, failure to post blood spill procedures, failure to post the most recent inspection report, soiled drill bits, and soiled items found in a dry storage container. Ong and Lam’s failure to correct these violations by the time of the March 5, 1999 inspection constitutes a violation of the applicable State’s Cosmetology laws.

9. Paulene's prior record with Department is viewed as a matter in aggravation for any disciplinary sanctions to be imposed against the salon license of Paulene’s in the instant case.

10. It was adequately demonstrated that Ong and Lam were duly notified of the date and time of scheduled hearing. By their failure to appear at the hearing, Ong and Lam failed to present any matters in defense or mitigation.

11. Ong and Lam's apparent disregard for the State’s Cosmetology laws warrants the imposition of appropriate disciplinary sanctions against the personal license of Ong and the salon license issued for Paulene’s.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of Department, pursuant to A.R.S. § 32-501, et seq. 2. The undisputed evidence of record established that Ong and Lam violated the provisions of A.R.S. §§ 32-572A (6), 32-574A (5) and (10), 32- 572A (8), 32-541B; namely, A.A.C. R4-10-109 B,C,D, E,F,H,J(4),K, and M, and A.A.C. R4-10-110A (1) and (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 the personal license of Huong T. Ong, no. 59500395, shall be revoked on the 181st day after the effective date of the Order entered in this matter. It is further recommended, commencing on the effective date of the Order entered in this matter, that the personal license of Huong T. Ong shall be placed on disciplinary probation for a period of 180 days. If on or before the conclusion of this 180 day period of probation Ong pays a $300.00 civil penalty to Department, attends and completes an infection protection class, attends and completes a law review class, and Paulene’s receives a satisfactory inspection from Department, then the above-provided license revocation shall not take place but instead the complaint filed against the personal license of Ong shall be closed. In view of the foregoing, it is recommended that the salon license of Paulene’s, no. M06158 shall be revoked on the 181st day after the effective date of the Order entered in this matter. It is further recommended, commencing on the effective date of the Order entered in this matter, that the above-described salon license of Paulene’s shall be placed on disciplinary probation for a period of 180 days. If on or before the conclusion of this 180 day period of probation Pham Ba Lam pays a $300.00 civil penalty to Department, attends and completes an infection protection class, attends and completes a law review class, and Paulene’s receives a satisfactory inspection from Department, then the above-provided license revocation to be imposed against Paulene’s shall not take place but instead the complaint filed against the salon license of Paulene’s shall be closed. Done this day, September 2, 1999

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826