535 DOS 10
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant, DECISION
-against-
EUN S. SHIN, also known as YUBIN
SHIN, and BEAUTY FOREVER,
Respondents.
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The above matter was heard by the undersigned, Scott NeJame, on June 29, 2010, at the office of the Department of State located at 123 William Street, New York, New York.
Respondent Eun S. Shin, also known as Yubin Shin (“respondent Shin”), was assisted in translation by Department of State License Investigator Sang Lee. After being advised of her and Beauty Forever’s right to be represented by an attorney, respondent Shin chose to represent herself and respondent Beauty Forever.
The complainant was represented by Supervising License Investigator William F. Schmitz.
COMPLAINT
The complaint alleges that the respondents committed violations of General Business Law Article 27 and the regulations thereunder pertaining to their ownership and operation of an appearance enhancement business.
The complainant withdrew the charge that the respondents failed to post a sign at the entrance of their shop pursuant to 19 NYCRR §160.10(a).
FINDING OF FACTS
1) The notice of hearing initially scheduling the hearing for April 22, 2010 together with the complaint were served by certified mail addressed to the respondents at their licensed business address and delivered on March 26, 2010 (State’s Ex. 1) (the date of delivery was also obtained through the United States Postal Service website under the Track and Confirm search result). Based on an adjournment request made by respondent Shin, the tribunal rescheduled the hearing to June 29, 2010.
2) The respondents are licensed to operate an appearance enhancement business doing business as Beauty Forever at 36 26A Bell Blvd., Bayside, New York for the period of February 9, 2010 to February 9, 2012. Respondents were not licensed to operate an appearance enhancement business prior to February 9, 2010. Respondent Shin was licensed as an esthetician for the period of February 8, 2008 to February 8, 2010 (State’s Ex. 2). The tribunal takes official notice of the records of the Department of State and finds that respondent Shin renewed her license as an esthetician for the period of February 8, 2010 to February 8, 2012.
3) On or about August 3, 2009, Carol A. Herzberg (“Herzberg”) submitted a complaint form to the complainant alleging that she went to Beauty Forever to remove crows feet and wrinkles from her face and that Jerry Seddon performed at least two procedures in his office. She was dissatisfied with the results and wanted a refund of her $3,200 because the service did not do as advertised (State’s Ex. 3).
4) On October 13, 2009, Department of State License Investigator Meghan Salmieri (“Inv. Salmieri”) conducted an inspection of the respondents’ shop and observed, among other things, the following (State’s Ex. 5):
a. The shop did not have an appearance enhancement business license;
b. There was no proof of a surety bond or liability insurance on the premises;
c. Respondent Shin was performing hair removal on a male customer; and
d. There was a microdermabrasion machine in a treatment room and the services that were provided were: microdermabrasion, laser hair removal, pigment treatment, laser photo facial, fraxel laser, B-clear laser and titan laser.
5) Inv. Salmieri obtained advertisements that were placed and paid for by respondent Shin regarding the services provided at the respondents’ shop (State’s Ex. 4). She also contacted the manufacturer of the machine found at the respondents’ shop and was told that it is intended for use by trained medical professionals only. She contacted Jerry Seddon, who told her that he was not a licensed nurse or doctor, but that he was awarded a certificate of merit by the American Medical Association (State’s Ex. 7).
6) From a search of the New York State Education Department’s website and from the testimony at the hearing, the tribunal concludes that neither Mr. Seddon nor the respondents have ever been licensed in New York to engage in any medical profession.
7) Respondent Shin testified that she was not aware she needed a business license. She has two children and went through a painful divorce, through which Mr. Seddon helped her. She rents space to Mr. Seddon and receives a commission from him. Mr. Seddon has cancer and has not been working in the shop for the past approximately one year. His wife has her own laser service and she comes, by appointment, to do laser treatments. She did not know that Mr. Seddon had to be licensed by the Education Department in order to do laser or other medical-type treatments. She bought one machine from a broker and the other machine, Mr. Seddon owned and brought with him. Finally, the tribunal took official notice that the respondents were and are insured for their shop for the period of May 1, 2009 to May 1, 2010. Respondent Shin testified that she did have proof of insurance at the shop at the time of inspection, but because she was busy, she couldn’t show it to the investigator.
OPINION AND CONCLUSIONS OF LAW
I- Pursuant to General Business Law §401(2) and 19 NYCRR §160.3, no person may operate an appearance enhancement business without being licensed to do so. The respondents violated that statute and regulation (respondent Beauty Forever is equally liable for the violations of its licensed representative, respondent Shin).
II- Pursuant to 19 NYCRR §160.9, the owner of an appearance enhancement business must maintain either a surety bond, accidental and professional liability insurance, or general liability insurance in prescribed amounts on the premises. Giving the benefit of the doubt to the respondents, I find that respondent Shin did have the required insurance and proof in the shop at the time of inspection, but she was too busy at the time to show proof to the investigator. Therefore, this charge is dismissed.
III- Pursuant to 19 NYCRR §160.27(c), an appearance enhancement licensee is prohibited from practicing medicine, which includes diagnosing or treating diseases of the skin, hair and nails. An owner cannot allow the practice of medicine at his or her shop without an appropriate license.
The advertisements placed by the respondents offer cosmetic laser services to tighten the face, neck, abdomen and other areas in order to treat sun damage, brown spots, spider veins, or acne, or to rejuvenate or resurface skin. Other advertisements offer microdermabrasion to “remove fine lines and age spots from around the eyes, lips and neck. Stretch marks and acne scars can also be dramatically reduced.” The microdermabrasion is described as “A fine stream of crystals and mild suction combine[d] to yield a gentle abrasive action removing the desired cells of skin, leaving skin soft and smooth.” (State’s Ex. 4).
In DLS v. Pandolfo, 100 DOS 10 (2010), the complainant claimed that the respondents practiced medicine without a license. The treatments that were offered by the respondents were “Thermage” treatments (using radio waves to heat deep layers of skin), microdermabrasion and “Laser Skin Rejuvenation” treatments. Administrative Law Judge Roger Schneier found the following:
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.
In this case, the laser and microdermabrasion treatments provided by Jerry Seddon are the unlicensed practice of medicine. By allowing such activity to take place in their shop, the respondents violated 19 NYCRR §160.27(c) and demonstrated incompetence in violation of General Business Law §410(c). Because of the discussion below, I did not find the respondents’ actions to be a demonstration of untrustworthiness.
IV- In setting the penalty for the respondents’ violations, I took into consideration respondent Shin’s testimony that she was caught up in her divorce and was not aware that Mr. Seddon needed a particular license for his services, or that she simply assumed that he had the appropriate licenses for his practice. For that I will fine the respondents the maximum of $500, plus $200 for the unlicensed shop violation. With regard to Mr. Seddon and possibly his wife, I will forward this decision to the Department of Education for their review and consideration.
I caution the respondents that if, in the future, they are found to permit the unlicensed practice of medicine in their shop, they will face the possible suspension or revocation of their appearance enhancement licenses.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT respondents Eun S. Shin, also known as Yubin Shin, and Beauty Forever have violated General Business Law §401(2) and 19 NYCRR §§160.3 and 160.27(c) and demonstrated incompetence in violation of General Business Law §410(c). Accordingly, pursuant to General Business Law §410, they shall pay a fine of $700 to the Department of State on or before July 31, 2010, and should they fail to pay the fine by that date, their license to operate an appearance enhancement business, UID #21BE1350573, and respondent Shin’s license as an esthetician, UID #28SH1285263, shall be suspended for a period commencing on August 1, 2010 and terminating two months after the receipt, by certified mail, by the Department of State of their license certificates. Respondents are directed to send a certified check or money order for the fine payable to “Secretary of State,” or their license certificates, by certified mail, to Norma Rosario, Department of State, Division of Licensing Services, 80 South Swan Street, 10th Floor, Albany, New York 12201.
Scott NeJame
Administrative Law Judge
Dated: July 7, 2010