ALJDEC

99F-TC980143-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. Mai Ngo C. Nguyen (“Licensee”), holder of personal license no. 59700561, appeared on her own behalf. Lap D. Bui (“Bui”), the former owner of Magic Tan & Nails (“Magic”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. At the outset of the scheduled hearing, Department made a motion to consolidate docket numbers 99F-TC980098-COS and 99F-TC980143-COS based on the fact that both matters were actually the same case but merely involved different internal Department “tracking” numbers. For good cause shown these matters were deemed consolidated.

2. At all times material to the matter herein, Licensee was the holder of personal license no. 59700561 and Bui was the owner of Magic. Bui does not currently own Magic. It is important to note that Licensee and Bui are married to one another.

3. Evidence of record demonstrated that a prior complaint was filed against Licensee and Bui, as the holder of the salon license of Magic, in Department’s case nos. 98F-T/C980098-COS and 98F-T/C980143-COS. In the interest of settling that matter, Licensee, Bui, and Department entered into a consent agreement, resulting in an Order of Department dated June 11, 1998.

4. The salient portions of the aforementioned Order of Department provided as follows: a. Licensee was placed on a period of probation for one year. b. The salon license of Magic was placed on a period of probation for one year. c. A $1,500.00 civil penalty was imposed against Bui, as the owner of Magic. The civil penalty was to be paid in installments of $125.00 beginning on June 1, 1998 and due on the first of the month for eleven (11) months. d. A $900.00 civil penalty was imposed against Licensee, to be paid in installments of $75.00 due on the first of the month for eleven months. e. Licensee and Bui were to attend a law review course at their own expense and also complete the infection protection class administered by Department.

5. Evidence of record demonstrated that Licensee and Bui complied with all of the requirements of the above-described terms of probation except for the civil penalty conditions. It was uncontroverted that they commenced making payments on the respective civil penalties but failed to make all of the required payments. Bui made two payments of $125.00 and Licensee made two payments of $75.00.

6. Notwithstanding Bui and Licensee’s defense that they cannot afford the payments required by the prior Order of Department, the evidence of record established that they failed to comply with this requirement of the prior Order of Department. The failure to comply with all of the terms and conditions of the prior Order of Department constitutes a violation of the applicable charged section of the State’s Cosmetology laws and warrants imposition of appropriate disciplinary sanctions against the personal license of Licensee who, unlike Bui, still holds a license issued by Department .

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of Department pursuant to A.R.S. §32-501, et seq.

2. Pursuant to the provisions of A.R.S. § 32-571, Department has the authority to impose disciplinary sanctions against a licensee.

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

4. Uncontroverted evidence of record established that Licensee and Bui failed to comply with the terms and conditions of a prior Order of Department, thereby supporting disciplinary action by Department under the provisions of A.R.S. § 32-572(A)(9). Since Bui is no longer the holder of a salon license, Department has no jurisdiction to impose any effective further disciplinary action against him.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the personal license of Mai Ngo C. Nguyen, no. 59700561, shall be revoked on the 121st 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 personal license of Mai Ngo C. Nguyen shall be placed on disciplinary probation for a period of 120 days. If on or before the conclusion of this 120 day period of probation Licensee pays Department $750.00 (the balance due on her prior civil penalty) then the above-described license revocation shall not take place but instead the complaint against her license shall be closed. It is further recommended that on or before 120 days following the effective date of the Order entered in this matter Bui shall pay to Department $1,250.00 for the balance due on the prior civil penalty imposed against him as the prior holder of the salon license for Magic.

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