100 DOS 10
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
BODY SOLUTIONS OF WESTBURY, LLC,
BODY SOLUTIONS UNLIMITED, INC
BODY SOLUTIONS OF MANHATTAN, LLC.
BODY SOLUTIONS OF HOLBROOK, LLC, and
The above noted matter came on for hearing before the undersigned, Roger Schneier, on August 26 and November 10, 2009 at the office of the Department of State located at 123 William Street, New York, New York.
Respondent Pandolfo appeared pro se on August 26, 2009 and she and the other respondents other than Jeffrey Kadet were represented by Colin Rathje, Esq., appearing for Kelly, Rode & Kelly, LLP, 330 Old Country Road, Mineola, New York 11501 on November 10, 2009. Respondent Kadet did not appear.
The complainant was represented by staff attorney David A. Mossberg, Esq.
The complaint alleges that the respondents violated various provisions of General Business Law Article 27 and 19 NYCRR Part 160.
FINDINGS OF FACT
1) Notices of hearing together with copies of the amended complaint were served on the respondents by certified and regular mail posted on May 27, 2009, and subsequent notices of adjournment were served by regular mail (State’s Ex. 1 and 3). None of the mailings to Mr. Kadet, made to both his last known business addresses and his residence address, were returned by the Postal Service.
2) Aurora Pandolfo was licensed to operate Appearance Enhancement Businesses on behalf of Body Solutions Unlimited Inc. at 283 Commack Road, Suite 205, Commack, NY 11725 (hereinafter “BS Commack”) from December 5, 2005 to December 5, 2009, and on behalf of Body Solutions of Westbury LLC (hereinafter “ BS Westbury”) at 1400 Old Country Road, Suite C 100, Westbury, New York 11590 from April 24, 2007 to April 24, 2009 (State’s Ex. 2, Resp. Ex. A).
Jeffrey Kadet was licensed to operate Appearance Enhancement Businesses on behalf of Body Solutions of Holbrook LLC (hereinafter “BS Holbrook”) at 440 Broadway Avenue, Holbrook, New York 11741 and on behalf of Body Solutions of Manhattan LLC (hereinafter “BS Manhattan”) at 515 Madison Avenue, Suite 1205, New York, New York 10022 from October 17, 2007 to October 17, 2009 (State’s Ex. 2 and 4). According to Ms. Pandolfo she was a “member” of BS Manhattan (transcript p. 257).
3) Mr. Kadet has never been licensed in the State of New York as a Nurse Practitioner or as a Physician’s Assistant. Ms. Pandolfo has never been licensed in the State of New York to engage in any medical profession (State’s Ex. 5).
4) On September 5, 2007, in response to a newspaper advertisement, Maria Barache went to BS Manhattan to inquire about having scars removed, her stomach tightened, and her buttocks smoothed. After speaking with a manager named Sabina Ms. Barache signed a contract for 20 “VelaSmooth” treatments of her buttocks and 1 “Thermage” treatment (a treatment involving the use of radio waves to heat the deep layers of skin which according to the manufacturer of the equipment “is available only in the offices of qualified physicians” (State’s Ex. 26), and which in the New York City Metropolitan area is generally provided by physicians (State’s Ex. 27)) of her “Tummy” for a total cost of $9,800.00, and she left a deposit of $400.00 and made an additional payment of $1,800.00. On September 7, 2007 she paid an additional $9,400.00, including $1,800.00 for “laser skin rejuvenation” not referred to in the contract (State’s Ex. 7). Subsequently Ms. Barache underwent numerous sessions in which a laser was used on her stomach to remove the scars and her buttocks received “Velasmooth” treatments which involved the application of heat. Ms. Barache was unsatisfied with the results of the treatments and requested a refund, which request was denied.
5) On February 26, 2008, in response to newspaper advertisements, Janet Zullo went to BS Westbury and met with employee Zathy Tsapelis to discuss the removal of age spots on her face and body. Ms. Zullo entered into a $6,000.00 contract for “skin resurfacing” (micro dermabrasion), “Refirme ST,” “Matrix,” and laser lesion removal, and she paid in full by credit card. The treatments were intended to deal with both the age spots and loose skin and wrinkles (State’s Ex. 9). On the same day Ms. Zullo received the micro dermabrasion treatment, which left her skin very irritated, and the irritation was further exacerbated by skin products which BS Westbury sold to her.
On the advice of her dermatologist (State’s Ex. 10) Ms. Zullo decided not to go through with the treatments and requested a refund, but that request was denied (State’s Ex. 11).
6) On March 11, 2008, in response to a Penny Saver ad, Andriana Ramniceau and her daughter, Donna Ramniceau went to BS Holbrook to inquire about “Thermage” treatments. They spoke with “counselor” Lisa Talbot who told them that “Thermage” treatments would cost them $8,000.00 each, and offered the less expensive alternative of “Refirme ST,” which she stated was a similar procedure, the only difference being the number of sessions required and the need to replace the heads of the “Thermage” machine more frequently. Both of the Ramniceaus entered into $5,000.00 contracts for 5 “Refirme ST” treatments of their faces and necks (State’s Ex. 12 and 14) which BS Holbrook arranged to be financed by Chase Health Advance, a health care financing company (State’s Ex. 13).
The Ramniceaus subsequently returned and received “Refirme ST” treatments which were administered by a non-physician technician. Unsatisfied with the results they requested a refund, which request was denied.
7) On April 2, 2007 Aida Wiegers went to BS Commack and entered into an agreement to have 1 “Thermage” treatment for “a face lift type of things” (transcript p. 89) and 4 “Laser Skin Rejuvenation” treatments to remove spots on her neck and back, for a total price of $6,500.00 to be financed by GE Care Credit, a lender which provides credit exclusively for health care (States’ Ex. 15 and 28). After having the “Thermage” treatment, which she found to be very painful, Ms. Wiegers saw no change, which situation did not change after a second treatment which she was given because of the failure of the first treatment. The treatments were administered by a technician who was not a doctor. BS Commack’s employees refused to give her the laser treatments.
Ms. Wiegers disputed the charges with Care Credit, but received no satisfaction (State’s Ex. 16), and she continues to be billed for and to pay them (State’s Ex. 17).
8) On May 19, 2008 Marie Serbin went to BS Westbury to get “general info on fat reduction procedures” for her lower stomach and thighs (transcript p 101-102). She was induced to contract for a “Thermage” treatment for $11,900.00, with a full face “Skin Resurfacing” included at no additional charge, with the charges to be financed through Chase Health Advance (State’s Ex. 18). Within a few days Ms. Serbin had a change of heart, cancelled her appointments, and attempted to cancel the contract. Those attempts were futile, and although she never received any services (BS Westbury claims she received services in excess of $6,000.00), she continues to be billed on a reduced balance (State’s Ex. 19).
9) On June 30, 2007 Diana Angulo went to BS Commack to see about having marks on her face removed, and she was induced to enter into a contract for 1 “Thermage” treatment, 8 “Laser Skin Rejuvenation” treatments (a procedure in which a laser is used to break down pigment), 8 “Laser Spider Vein Removal” treatments, 2 “Sclerotherapy Vein Removal” treatments (a procedure in which saline solution is injected into the veins), and 6 “Diamondtome Microdermabrasion” treatments (a procedure in which the top layer of skin is removed by abrasion (State’s Ex. 25)) at a total cost of $15,000.00 to be financed through GE Care Credit (State’s Ex. 20). She then observed the very young age of the technicians whom she was told would perform the procedures and decided not to proceed with the treatments. Two days later she sent an e-mail cancelling the contract, but she received no satisfaction, and she has been billed by GE Care Credit (State’s Ex. 21) which has refused to make any adjustment and sold the account to a collection agency when she made no payments.
10) On August 9, 2008 Jeannette Giannini went to BS Commack to discuss “Smart Lipo.” She discussed the procedure (which she was told would be performed by a doctor at BS Westbury) with BS Commack’s employee. She was told that she would first have to have “Endermologie” treatments (a procedure in which rollers lift and stretch the skin (State’s Ex. 23)), and she entered into a contract for 20 such treatments for $2,000.00, with a complementary “Skin Resurfacing” included, and she paid a $1,000.00 deposit on her Master Card.. Ms. Giannini was uncomfortable with the arrangement, so when she went home she researched the respondents on the internet and did not like what she saw. She immediately telephoned to cancel her appointments, but no one answer the phone. Subsequently, not having had any treatments, she attempted to cancel in person and then to receive a credit from Master Card, both without success (State’s Ex. 22).
11) On September 11, 2008 Frank Ortner, acting in response to an advertisement placed by the respondents (State’s Ex. 6), went to BS Westbury to discuss having the loose skin on his fact tightened. He was induced to enter into a contract for a “Thermage” treatment (described on an attached document as a “Face-Lift) for $5,600.00 along with a complementary “Skin Resurfacing” (State’s Ex. 23). He left a deposit of $1,000.00, and when he returned for the treatment on October 9, 2008 he paid the balance on his American Express card. He then had the treatment administered by a technician. Although he was told that the treatment would take the better part of a day, the actual treatment took only about one hour (he was at the respondent’s premises for a total of 2 hours and 35 minutes), and he asked, without success, for his money back.
12) On July 2, 2007 Kristin Mc Donald entered into a contract with BS Commack to pay $8,000.00 for a “Thermage” treatment and 8 “Laser Skin Rejuvenation” treatments, with payment financed by GE Care Credit in an arrangement made by Body Solutions Unlimited (State’s Ex. 34 and 35).
13) On August 11, 2007 Jaci Cujilan contracted with BS Westbury for one “Thermage” treatment at a cost of $3,500.00 (State’s Ex. 36).
14) On March 13, 2008 Ronnie Lamm entered into a contract with BS Holbrook for 6 “Laser Hair Removal” treatments at a cost of $5,700.00, with additional treatments to be provided at no cost in case of re-growth, and she paid a deposit of $1,500.00 and had the first session. On April 22, 2008 she made an additional payment of $840.00 and had the second session. On June 3, 2008 she paid an additional $840.00 and had a third session. On July 23, 2008 she paid an additional $840.00 and had a fourth session. On September 3, 2008 she paid an additional $840.00 and had a fifth session and scheduled another appointment for October 16, 2008. On October 16, 2008 Ms. Lamm called BS Holbrook, but the call was answered by “Smart Laser M.D.,” and she was informed that BS Holbrook was out of business, that they had taken over, and that they were unaware of his appointment. She was re-scheduled for November 3, 2008, at which time she went to the office and paid another $840.00. Smart Laser M.D. however failed to honor the guarantee of additional treatments in case or re-growth (State’s Ex. 38).
15) On May 15, 2008 Joan Malaspina entered into a $6,000.00 contract with BS Holbrook for 5 session of the “Trinity Pkg.” which involves “Matrix,” “Refirme-St,” and “Laser SR.” Payment was arranged through Chase Health Advantage (State’s Ex. 40).
16) On April 19, 2008 Linda Caracappa entered into a $6,000.00 contract with BS Commack for on session of the “Trinity Pkg,” payment for which was financed through Chase Health Advantage (State’s Ex. 41 and 42).
17) On May 19, 2008 Judith Elbaum entered into a $7,000.00 contract with BS Westbury for “Skin Resurfacing,” “Thermage,” “Refirme-ST,” and “Laser Matrix” treatments of her face and neck, payment for which was financed through Capital One Healthcare Finance (State’s Ex. 43).
18) On June 6, 2008 Jeannette Fantini entered into a $6,000.00 contract with BS Commack for 6 “VelaShape” treatments for fat on her “flanks/love handles,” (a procedure using heat and rollers) and 6 “Laser Hair Removal” treatments of her forearms, payment for which was financed through Capital One Healthcare Finance.
19) On August 29, 2008 Tia Moore entered into a $3,300.00 contract with BS Holbrook for 6 “Laser Hair Removal” treatments of her neck, lip, and side burns, and she made payment with her American Express Card (State’s Ex. 45).
20) On August 30, 2008 Salvatore Burriesci entered into a $6,800.00 contract with BS Commack for 3 “Salicylic” acne treatments and 6-12 “Laser Tattoo Removal” treatments (a procedure in which a laser is used to break up the ink pigments), and payment was financed (State’s Ex. 46).
21) In May 2007 Suan A. Kwokzo, a registered nurse, went to BS Commack seeking employment. She was told by office manager Eva Christ that she could learn “all phases of lasering for $16,000.00 in LTI -A Laser Training Institute,” which was located in the same premises as was BS Commack. She paid, financing the charges through GE Care Credit, which was advised by BS Commack that the charges were for health services, only to learn that it was on the job training (State’s Ex. 29).
22) On July 7, 2007 Susan Strauss entered into an agreement with Laser Training Institute to pay $9,985.00 for training in various of the services provided by the respondents and financed the tuition through GE Care Credit in an arrangement made by BS Commack (State’s Ex. 30 and 31).
23) On June 13, 2007 Consuelo Arango entered into an agreement with Laser Training Institute to pay $10,500.00 for training in various of the services provided by the respondents and financed the tuition through GE Care Credit in an arrangement made by Body Solutions Unlimited (State’s Ex. 32 and 33).
24) On April 19, 2007 Senior License Investigator Steve Wakely conducted an inspection of BS Commack. He noted that there was no posted sign stating that the business and the persons working there are licensed by the Department of State and that the applicable rules and regulations are available for inspection, that there was no itemized price list posted, that there was no photograph on the business license, and, based on posted certificates indicating that the persons to whom they were issued were “certified aestheticians” that there were two unlicensed operators in the shop (State’s Ex. 2 and 24).
25) Neither BS Commack nor Laser Training Institute were ever licensed or approved by the New York State Education Department Bureau of Proprietary School Supervision, although according to that Bureau they should have been as they operated a trade program. According to the findings of Department of Education Hearing Officer Walter Donnaruma, Esq., those respondents operated an unlicensed facility, employed unlicensed personnel, offered unapproved courses of study, and misrepresented the legitimacy and quality of the school to potential students, and recommended the assessment of a fine of $207,500.00 plus restitution to students (State’s Ex. 47).
26) According to Ms. Pandolfo, BS Commack used lasers for hair reduction by killing the follicles and for vein removal by collapsing the capillaries.
OPINION AND CONCLUSIONS OF LAW
I- As regards the respondents which failed to appear, the holding of an ex parte quasi-judicial administrative hearing was permissible, inasmuch as there is evidence that notice of the place, time and purpose of the hearing was properly served. Patterson v Department of State, 36 AD2d 616, 312 NYS2d 300 (1970);Roy Staley v Division of Licensing Services, 14 DOS App 01; Matter of the Application of Rose Ann Weis, 118 DOS 93.
II- The expiration of the respondents’ licenses does not deprive this tribunal of jurisdiction over acts which occurred while those licenses were in effect. Albert Mendel & Sons, Inc. v N.Y. State Department of Agriculture and Markets, 90 AD2d 567, 455 NYS2d 867 (1982); Main Sugar of Montezuma, Inc. v Wickham, 37 AD2d 381, 325 NYS2d 858 (1971).
III- As testified to by Walter Ramos, Esq., RN, Executive Secretary of the Board of Medicine, Medical Physics, Athletic Training and Dietetics and Nutrition of the State of New York, an appointee of the Board of Regents, it is the position of that Board that the use of a laser or non-ablative radio frequency procedures, including Thermage, to treat any medical condition, including the removal of wrinkles and spider veins, is the practice of medicine, and the practitioner must be a physician, or a nurse practitioner supervised by a physician, who is licensed by the New York State Department of Education, and no corporation or limited liability company other than a professional corporation or limited liability may pay a physician to perform such procedures. See Education Law §§6521 and 6522.
The evidence clearly establishes that the respondent business corporation and non-professional limited liability companies, under the supervision of Ms. Pandolfo and Mr. Kadet, provided laser, “Thermage,” and “Refirme,” and “Sclerotherapy” treatments to customers for, among other things, the removal of wrinkles, age spots, tattoos, and scars, fat reduction, spider vein removal by the collapsing of capillaries, and hair removal through the killing of follicles. In so doing they engaged in the practice of medicine without a license, thereby violating 19 NYCRR 160.27 and providing services not within the practice of Appearance Enhancement and demonstrating untrustworthiness.
IV- Pursuant to General Business Law §401 no person may engage in the practice of esthetics without being licensed to do so, and pursuant to 19 NYCRR 160.11 the owner of an Appearance Enhancement Business is liable for any violation of that statute which occurs on the premises of that owner’s business. An inspection of BS Commack disclosed that there were two unlicensed estheticians working there. I find, therefore, that Ms. Pandolfo and BS Commack, violated General Business Law §401.
V- The respondents operated what they styled as a laser training institute and charged the students who enrolled for such training. In numerous cases those charges where financed through companies the services of which were restricted to financing health care services. In so doing they misrepresented that the payments were for health care services and thereby further demonstrated untrustworthiness.
VI- BS Commack was found by the New York State Education Department to have operated an unlicensed facility, employed unlicensed personnel, offered unapproved courses of study, and misrepresented the legitimacy of Laser Training Institute to potential students. That finding establishes that BS Commack further demonstrated untrustworthiness. However, since Ms. Pandolfo was excluded from the Education Department’s decision, the charge relating to that decision regarding her is dismissed.
VII- Pursuant to 19 NYCRR 160.10[d] the owner of an Appearance Enhancement Business must conspicuously post an itemized price list of services provided by that business. Ms. Pandolfo and BS Commack violated that regulation.
VIII- Pursuant to 19 NYCRR 160.28[b] the photograph of the owner or operator of an Appearance Enhancement business must be affixed to the business license. Ms. Pandolfo and BS Commack violated that regulation.
IX- Pursuant to 19 NYCRR 160.10[a] the owner of an Appearance Enhancement Business must conspicuously post in the shop a sign stating that the business and individual operators are licensed by the Department of State and that the rules and regulations governing the business and practices are available for review. Ms. Pandolfo and BS Commack violated that regulation.
X- The complainant seeks an order of restitution for the fees collected by the respondents. I find, however, that the evidence is insufficient to determine with sufficient exactitude what restitution may be actually due. Further, should the tribunal order restitution at this time it has no way to enforce the order as the respondents are no longer licensed, although should the respondents ever apply for renewal of their licenses or for new licenses and the complainant be able to establish how much restitution is due to whom there is nothing to preclude it from conditioning consideration of the applications on restitution. At the present time, however, the issue of restitution should be directed to the civil courts.
WHEREFORE, IT IS HEREBY DETERMINED THAT Aurora Pandolfo, Body Solutions of Westbury, LLC, Body Solutions Unlimited, Inc., body Solutions of Manhattan, LLC, Body Solutions of Holbrook, LLC, and Jeffrey Kadet have violated 19 NYCRR 160.27 and have demonstrated untrustworthiness, and in addition Aurora Pandolfo and Body Solutions Unlimited Inc. have violated General Business Law §401 and 19 NYCRR 160.10[a], 160.10[d], and 160.28[b], and accordingly, pursuant to General Business Law §410, their licenses to operate Appearance Enhancement Businesses are deemed revoked effective immediately.
Administrative Law Judge
Dated: January 28, 2010