STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
462 DOS 00
-----------------------X
DIVISION OF LICENSING SERVICES,
Complainant,
-against-
THUY T. LE,
Owner of the following 14 appearance enhancement businesses:
1. Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413,
2. Professionail, 4545 Transit Road, Suite 836,Williamsville, NY 14221,
3. Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940,
4. Nail Studio, Galleria at Crystal Run, Ste. 8201,Middletown, NY 10940,
5. Nail Studio, 1008 Eastview Mall, Victor, NY 14564,
6. Professionail, 115A Cobblestone Dr., Victor, NY 14564,
7. Le S Nail Studio, 9852 Carousel Center Dr., Syracuse, NY 13290, 8. Nail Studio, 768 B, Alberta Dr., Amherst, NY 14226,
9. Nail Studio, Poughkeepsie Galleria, Suite. C203,Poughkeepsie, NY 12601,
10. Professionail, 88 3 Dunning Road, Walkill, NY 10940,
11. Nail Studio I, 104 Greece Ridge Center Dr.,Rochester, NY 14624,
12. Nail Studio, 285 Irondequoit Mall Dr., Rochester, NY 14622,
13. Nail Studio, 3065 Rte 50, Ste. E3, Wilton Mall, Saratoga Springs, NY 12866,
14. Nail Studio, Walden Galleria, Apt. J204, Buffalo, NY 14225,
Respondent.
-----------------------X
ADMINISTRATIVE LAW TRIBUNAL
333 E. Washington Street, Hearing Room "B", Syracuse, NY 13202 41 State Street, Albany, NY 12231
Held: Felix Neals, Supervising Administrative Law Judge
-------------------------------------
HEADNOTES
1. Where the inspections by the Division of Licensing Services' investigators occurred during regular business hours of the six462 DOS 00-2-
places located at the addresses and labeled in the names licensed by the Division of Licensing Services as appearance enhancement businesses, and during the inspections, the investigators saw both licensed and unlicensed persons perform regulated, appearance enhancement services to enhance the appearance of the nails of the hands of persons for a fee, the substantial evidence proved that the respondent, owner of the six, appearance enhancement businesses inspected, permitted, authorized or suffered the violations of law and regulation found by the investigators.
2. An appearance enhancement business owner who:
A. operated an unlicensed, appearance enhancement business violated General Business Law, §401(2), and 19 New York Codes, Rules and Regulations, §160.3;
B. permitted fifteen, unlicensed, appearance enhancement persons to engage in regulated, appearance enhancement activity in the six appearance enhancement businesses violated General Business Law, §401(1), and 19 New York Codes, Rules and Regulations, §160.2;
C. failed to maintain on the premises of four appearance enhancement business premises, evidence of bond or insurance violated General Business Law, §405 (2), and 19 New York Codes, Rules and Regulations, §160.9;
D. failed to post an appearance enhancement business license in the business premises violated of General Business Law, §408(5), and 19 New York Codes, Rules and Regulations, §160.10(c);
E. failed in four, appearance enhancement businesses to post signs indicating the licensure of the businesses and the availability for review of the rules and regulations governing the appearance enhancement businesses and practices violated General Business Law,§408(5), and 19 New York Codes, Rules and Regulations, §160.10(a);
F. failed in two, appearance enhancement businesses to post individual, appearance enhancement licenses of four licensees violated General Business Law, §408 (5), and 19 New York Codes, Rules and Regulations, §160.10(b);
G. failed to retain for two years and to have available for inspection by the Division of Licensing Services invoices for all
inspection sterilants and disinfectants used in three, apprearance enhancement businesses businesses violated 19 New. York Codes, Rules and Regulations § 160.14(c);
H. failed to provide covered containers for hair and other waste material in an appearance enhancement business violated 19 New York Codes, Rules and Regulations, §160.16(d);
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I. improperly stored implements used in providing appearance enhancement services in an appearance enhancement business violated 19 New York Codes, Rules and Regulations, §160.17(c);
J. allowed the presence and presumptive use of non-disposable, neck dusters in the six, appearance enhancement businesses inspected violated 19 New York Codes, Rules and Regulations, §§160 .18 (a) (9)
and 160.18(b);
K. failed to have available at all times plastic bags and sealable, rigid containers in two, appearance enhancement businesses violated 19 New York Codes, Rules and Regulations, §160.19(c);
L. failed to provide hand washing facility in an appearance enhancement business violated 19 New York Codes, Rules and Regulations, §160.22(b);
M. failed on three occasions to have material data sheets on file in a metal cabinet accessible to all employees in two, appearance enhancement businesses violated 19 New York Codes, Rules and Regulations, §§160.25(d);
N. improperly stored chemicals in an appearance enhancement business violated 19 New York Codes, Rules and Regulations, §160.2(a);
O. used improperly labelled bottles and products in two, appearance enhancement businesses violated 19 New York Codes, Rules and Regulations, §160.26;
P. failed to have a photograph of licensee affixed to individual, appearance enhancement licenses of three licensees at two, appearance enhancement businesses violated 19 New York Codes, Rules and Regulations, §160.28(a);
Q. failed to have a photograph affixed to the appearance enhancement business licenses at two appearance enhancement businesses violated 19 New York Codes, Rules and Regulations, §160.28(b); and
R. In each of two, appearance enhancement businesses posted the licenses of two persons who did not perform appearance enhancement services at those premisses demonstrated untrustworthiness under General Business Law, §410(7)(c).
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
462 DOS 00
-----------------------X
DIVISION OF LICENSING SERVICES,
Complainant,
-against-
THUY T. LE, DECISION
Owner of the following 14 appearance
enhancement businesses:
1. Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413,
2. Professionail, 4545 Transit Road, Suite 836,Williamsville, NY 14221,
3. Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940,
4. Nail Studio, Galleria at Crystal Run, Ste. 8201,Middletown, NY 10940,
5. Nail Studio, 1008 Eastview Mall, Victor, NY 14564,
6. Professionail, 115A Cobblestone Dr., Victor, NY 14564,
7. Le S Nail Studio, 9852 Carousel Center Dr., Syracuse, NY 13290, 8. Nail Studio, 768 B, Alberta Dr., Amherst, NY 14226,
9. Nail Studio, Poughkeepsie Galleria, Suite. C203,Poughkeepsie, NY 12601,
10. Professionail, 88 3 Dunning Road, Walkill, NY 10940,
11. Nail Studio I, 104 Greece Ridge Center Dr.,Rochester, NY 14624,
12. Nail Studio, 285 Irondequoit Mall Dr., Rochester, NY 14622,
13. Nail Studio, 3065 Rte 50, Ste. E3, Wilton Mall, Saratoga Springs, NY 12866,
14. Nail Studio, Walden Galleria, Apt. J204, Buffalo, NY 14225,
Respondent.
-----------------------X
ADMINISTRATIVE LAW TRIBUNAL
333 E. Washington Street, Hearing Room "B", Syracuse, NY 13202 41 State Street, Albany, NY 12231
Held: March 16, 2000, and July 16, 2000
Held: Felix Neals, Supervising Administrative Law Judge
-------------------------------------
The respondent, Mr. Thuy T. Le, 8532 Westminster Boulevard, Westminster, California 92683, was represented by Winston N. D.
462 DOS 00 -2-
Phan, Esq., 1101 East Garvey Avenue, Suite 203, Monterey Park, California 91755.
The complainant, the Division of Licensing Services, was represented by Scott NeJame, Esq., Litigation Counsel, 84 Holland Avenue, Albany, NY 12208.
ISSUE
Under the provisiohS of General Business Law, §411, State Administrative Procedure Act, Articles 3 and 4, and 19 New York Codes, Rules and Regulations, Part 400, the State charges that the respondent, Mr. Thuy T. Le, currently licensed to conduct twelve, appearance enhancement businesses, engaged in the following acts of misconduct in the following, six, appearanceenhancement businesses:
1. Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, on March 10, 1999: (A) permitted or employed Timmy Trong Nguyen, Nini Francis Le, Hoa Xuan Nguyen, and Kim Le Nhung to act as nail specialists without being licensed; (B) failed to affix his photograph on his business license in violation of 19 New York" Codes, Rules and Regulations, §160. 28 (b);(C) failed to maintain evidence of bond or liability insurance on the premises, a violation of 19 New York Codes, Rules and Regulations, §160.9; (D)failed to post a sign as required by 19 New York Codes, Rules and Regulations, §160 .10 (a); (E) failed to retain invoices of all sterilants and disinfectants pursuant to 19 New York Codes, Rules and Regulations, §160.14(c) ;(F) permitted, authorized or suffered operators to use dusters which could not be immersed in disinfectant, a violation of 19 New York Codes, Rules and Regulations, §160 .18 (a) (9) ; (G) failed to maintain plastic bags and sealable rigid containers in violation of 19 New York Codes, Rules and Regulations, §160.19(c); (H) failed to have available Material Safety Data Sheets in violation of 19 New York Codes, Rules and Regulations, §160 .25 (d); (I) posted photocopy of nail specialty license of Hien Pham, a licensee who does not work at the appearance enhancement shop, and (J) posted photocopy of nail specialty license of Nga M. Dug, a licensee who does not work at the appearance enhancement shop.
2. Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413:
A) On March 18, 1999:(1)permitted or employed Huy X. Dinh to actas a nail specialist without being licensed; (2) permitted, authorized or suffered two, appearance enhancement operators, Minh N. Tieu and Ly M. Tieu, to violate 19 New York Codes, Rules and Regulations, §160.28(a), by failing to affix their photographs to their individual licenses; (3) permitted, authorized or suffered three, appearance enhancement operators, Chi Ho, Minh N. Tieu, and Huy X. Dinh, to violate 19 New York Codes, Rules and Regulations, §160.10(bl' by failing to post their individual licenses; (4)
462 DOS 00 -3-
failed to retain invoices of all sterilants and disinfectants, a violation of 19 New York Codes, Rules and Regulations, §160.14(c); and (5) failed to have available Material Safety Data Sheets as required by 19 New York Codes, Rules and Regulations, §160.25(d).
B. On April 27, 1999: (1) permitted or employed Nhan Nguyen to act as a nail specialist without being licensed; (2) failed to post a sign as required by 19 New York Codes, Rules and Regulations, §160.10(a); (3) permitted, authorized or suffered operators to use neck dusters in violation of 19 New York Codes, Rules and Regulations, §160.18(a) (9); (4) failed to have available Material Safety Data Sheets as required by 19 New York Codes, Rules and Regulations, §160.25(d); and (5) used improperly labeled bottles and/or products in violation of 19 New York Codes, Rules and Regulations, §160.26.
C. Nhan Nguyen failed to cooperate with the investigator in that Nhan Nguyen left the appearance enhancement business without completing the service that he was providing to a customer.
D. In an effort to defraud the Division of Licensing Services, New Hartford Nail Studio employees, contractors, affiliates, operators, managers and associates took measures to evade and to circumvent the Division of Licensing Services’ inspection of the establishment.
3. Nail Studio, Galleria at Crystal Run, Ste. 8201, Middletown, NY 10940, on March 23, 1999: (A) permitted or employed Hang Le Nguyen, also known as Le Hang Nguyen, to act as a nail specialist without being licensed; (B) failed to maintain evidence of bond or liability insurance on the premises pursuant to 19 New York Codes, Rules and Regulations, §160. 9 (c); (C) permitted, authorized or suffered operators to use dusters, a violation of 19 New York Codes, Rules and Regulations, §160 .18 (a) (9); (D) failed to maintain plastic bags and sealable rigid containers, a violation of 19 New York Codes, Rules and Regulations, §160.19(c); and (E) posted photocopies of nail specialty licenses of Hien Pham and of Nga M. Ong, neither of whom worked at the appearance enhancement shop.
4. Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221:
(A) On September 15, 1999: (1) operated an appearance enhancement
business without an appearance enhancement business license a violation of General Business Law, §401; (2) permitted, authorized or suffered appearance enhancement operator, Trang N. Troung Tien, to violate 19 New York Codes, Rules and Regulations, §160.28(a), by failing to affix his photograph to his individual license; (3) failed to maintain evidence of bond or liability insurance on the premises as required by 19 New York Codes, Rules and Regulations, §160.9; (4) failed to post a sign as required by 19 New York Codes, Rules and Regulations, §160 .10 (a) ; (5) permitted, authorized or
462 DOS 00 -4-
suffered an appearance enhancement operator, Trang N. Truong Tien, to violate 19 New York Codes, Rules and Regulations, §160.28(a), by failing to post his individual license; (6) failed to provide covered waste containers, a violation of 19 New York Codes, Rules and Regulations, §160.16(d); (7) authorized or.suffered operators to use neck dusters in violation of 19 New York Codes, Rules and Regulations, §160.18(a) (9); and (8) unsanitary lavatory conditions (failed to contain a single service soap or toweling), a violation of 19 New York Codes, Rules and Regulations, §160.22(f).
B. On September 19, 1999, performed negligent or incompetent nail specialty service on a customer, Ms. Judy Li Puma.
C. On October 12, 1999: (1) permitted or employed Khai M. Ong to act as a nail specialist without being licensed to so act; and (2) failed to affix his photograph on his business license, a violation of 19 New York Codes, Rules and Regulations, §160.28(b).
5. Nail Studio, 1008 Eastview Mall, Victor, NY 14564, on December 29, 1999: (A) permitted or employed Trang X. Nguyen, Ouynh A. Cao,
Shawn Nguyen, Anthony A. Vuong, and Tristan T. Nguyen to act as nail specialists without being licensed; (B) permitted, authorized or suffered appearance enhancement operators to violate 19 New York Codes, Rules and Regulations, §160.160.28(a), by failing to affix their photographs to their individual licenses; (C) failed to maintain evidence of bond or liability insurance on the premises, a violation of 19 New York Codes, Rules and Regulations, §160.9; (D) permitted, authorized or suffered operators to use dusters, a violation of 19 New York Codes, Rulesand Regulations, §160 .18 (a) (9); (E) used improperly labeled bottles and/or products, a violation of 19 New York Codes, Rules and Regulations, §160.26; and (F) posted temporary nail specialty licenses of Hoa T. Nguyen and Linh T. Le, individuals who no longer worked at that shop.
6. Professionail, 115A Cobblestone Dr., Victor, NY 14564, on January 12, 2000: (A) permitted or employed Sy V. Nguyen to act as a nail specialist without being licensed; (B) failed to post a sign, a violation of 19 New York Codes, Rules and Regulations, §160 .10 (a); (C) permitted, authorized or suffered operators to improperly store implements, a violation of 19 New York Codes, Rules and Regulations, §160.17(c); (D) permitted, authorized or suffered operators to use dusters, a violation of 19 New York Codes, Rules and Regulations, §160 .18 (a) 9); and (E) permitted, authorized or suffered operators to improperly store chimicals in violation of 19 New York Codes, Rules and Regulations, §160.25(b).
PROCEDURAL HISTORY
Complainant's motion for a change of venue from Syracuse to Albany as a more central location for convenience of witnesses was granted.
462 DOS 00 -5-
The tribunal denied complainant's motion to consolidate pending actions with the current action after issue had been joined.
Decision was reserved on respondent's motion to dismiss or strike certain portions of the complaint.
The parties were given until September 27,2000, to submit law memoranda.
SUMMARY OF EVIDENCE
Evidence admitted includes the following:
1. Pleadings consisting of notice of hearing, amended complaint, and nine, appearance enhancement inspection reports.
2. Division of Licensing Services certified, license history of respondent.
3. Division of Licensing Services certified searches of license records.
4. Appearance Enhancement Inspection reports.
5. Certificate of liability insurance.
WITNESSES: Ms. Carolyn Williams, License Investigator, Messrs. George Monroe, Senior License Investigator, Michael Slabicki, License Investigator, Ronald Schwartz, Senior License Investigator, of the Division of Licensing Services, and Misses Othinan Hie Pham and Nka Ong testified as witnesses for the State.
FACTS
By the substantial evidence, I find the following facts:
Mr. Thuy T. Le is or was licensed as the owner of the following, fourteen appearance enhancement businesses for the licensure terms indicated:
1. Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, October 13, 1998, to October 13, 2000.
2. Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, September 28, 1999, to September 28, 2001.
3. Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, September 9, 1999, to September 9, 2001.
4. Nail Studio, Galleria at Crystal Run, Ste. 8201, Middletown, NY 10940, January 13, 1999, to January 13, 2001.
462 DOS 00 -6-
5. Nail Studio, 1008 Eastview Mall, Victor, NY 14564, August 11, 1998, to August 11, 2000.
6. Professionail, 115A Cobblestone Dr., Victor, NY 14564, September 29, 1999, to September 29, 2001.
7. Le S Nail Studio, 9852 Carousel Center Dr., Syracuse, NY 13290, September 22, 1998, to September 22, 2000.
8. Nail Studio, 768 B, Alberta Dr., Amherst, NY 14226, June 23, 1998, to June 23, 2000.
9. Nail Studio, Poughkeepsie Galleria, Suite. C203,Poughkeepsie, NY 12601, April 18, 1998, to April 18, 2000.
10. Professionail, 88 3 Dunning Road, Walkill, NY 10940, April 15,1998, to April 15, 2000.
11. Nail Studio 1, 104 Greece Ridge Center Dr., Rochester, NY 14624, October 6, 1998, to October 6, 2000.
12. Nail Studio, 285 Irondequoit Mall Dr., Rochester, NY 14622, May 5, 1999, to May 5, 2001.
13. Nail Studio, 3065 Rte 50, Ste E3, Wilton Mall, Saratoga Springs, NY 12866, September 15, 1997, to September 15, 1999.
14. Nail Studio, Walden Galleria, Apt. J204, Buffalo, NY 14225,October 2, 1997, to October 2, 1999.
In the duration of time from March 10, 1999, to January 12, 2000, the following six, appearance enhancement businesses owned by respondent were inspected by Division of Licensing Services' investigators during regular, business hours. During the inspections, the investigators observed various services being performed on the nails of the hands of persons, the payments of money by persons for services, posted price lists, and the presence of cash registers. Each investigator prepared an appearance enhancement inspection report that noted the investigator's observations; and at the end of each inspection, a copy of the appearance enhancement report was left by each investigator with an employee of the appearance enhancement business inspected.
On March 10, 1999, a Division of Licensing Services' investigator inspected the licensed, appearance enhancement business, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, during regular, business hours and observed the following: (A) Four persons not licensed to engage in licensed, appearance enhancement activities, (1) Timmy Trong Nguyen (who produced a California cosmetology license) applying nail polish to the nails of the hands of a person, (2) Nini Francis Le (who produced a Texas cosmetology license) applying a liquid to the nails of the hands of a person,
462 DOS 00 -7-
(3) Hoa Xuan Nguyen (who produced a California cosmetology license) applying nail polish to the nails of the hands of a person, and (4) Kim Le Nhung (who produced a California cosmetology license) applying nail polish to the nails of the hands of a person; (B)photocopies of two, nail specialty licenses posted for two licensees, Hiem Pham and Nya M. Dug, who did not work at the appearance enhancement shop; (C) did not maintain evidence of bond or liability insurance on the premises; (D) did not have posted at entrance of shop the required sign; (E) failed to retain invoices of all sterilants and disinfectants; (F) operators used dusters which could not be immersed in disinfectant; (G) did not maintain plastic bags and sealable, rigid containers; (H) did not have available material safety data sheets. The investigator observed a posted price list, an appointment book, and a cash register on the premises.
On March 18 and April 27, 1999, an investigator of the Division of Licensing Services inspected the licensed, appearance enhancement shop, Nail Studio, Rts. 5 and 5A, Apt LO1, New Hartford, NY 13413, during regular business hours and observed the following:
A. on March 18, (1) Huy X. Dinh, a person not then licensed to engage in licensed, appearance enhancement activities, filing the nails of the hands of a person for a fee of $25; (2) three, licensed, appearance enhancement operators, Huy X. Dinh, Chi Ho, and Minh N. Tieu, kept their individual license in a desk drawer in the shop; and (3) two, licensed enhancement operators, Minh N. Tieu and Ly M. Tieu, did not have a photograph on their individual licenses posted in the shop; (4) did not retain invoices of all sterilants and disinfectants; and (5) did not have available material safety data sheets.
B. On April 27 (1) Nhan Nguyen (identified by operators in the establishment), a person not licensed to engage in licensed,
appearance enhancement activities, applying polish to the nails of a person for a fee of $7 (Nhan Nguyen left the shop during the inspection); (2) neck dusters at work stations; (3) bottles labelled "alcohol" or "remover" without product names; and (4) did not have available material data safety sheets.
3. On March 23, 1999, a Division of Licensing Services' investigator inspected the appearance enhancement business, Nail Studio, Galleria at Crystal Run, Ste. 8201, Middleton, NY 10940, during regular, business hours and observed the following: (A)Hang Le Nguyen (who produced a California cosmetology license), not licensed to perform regulated, appearance enhancement activities in New York, applying nail polish to the nails of the hands of two persons; (B) neck dusters; (C) did not have plastic bags and sealable rigid containers; (D) posted photocopies of nail specialty licenses of Hien Pham and of Nga M. Ong, neither of whom worked at the appearance enhancement shop. During the inspection, the
462 DOS 00 -8-
investigator saw business cards, a posted price list, and a cash register.
4. On September 15 and October 12, 1999, a Division of Licensing Services' investigator inspected the appearance enhancement business, Professionail,4545 Transit Road, Suite 836, Williamsville, NY 14221, and observed the following:
A. on September 15, 1999: (1) the appearance enhancement business was not licensed (having been first licensed on September 28, 1999): (2) a licensed, appearance enhancement operator, Trang N. Truong Tien, did not have her license posted and did not have her photograph affixed to her license, filing the nails of the hands of a person who paid a fee in cash for the service; (3) two, soiled neck dusters; (4) toilet facilities lacked soap and toweling; (5)two, uncovered, trash cans; (6) did not have the required sign posted at the entrance of the establishment; (7) did not maintain evidence of bond or liability insurance on the premises. During the inspection, the investigator obtained a flyer that advertised the “grand opening” of Professionail and a list of services and prices.
B. on October 12, 1999: (1) an unlicensed person, Khai M. Ong, removing nail polish from and filing the nails of the hands of a person who paid an unknown amount for the service; (2) the appearance enhancement business license lacked a photograph.
5. On December 29, 1999, a Division of Licensing Services' investigator inspected the licensed, appearance enhancement business, Nail Studio, 1008 Eastview Mall, Victor, NY 14564, during regular, business hours and observed the following: (A) two persons paying $15 and $20 to licensed, appearance enhancement operators for services; (B) temporary, nail specialty licenses of Roa T. Nguyen and Linh T. Lee posted, individuals who did not then work at the appearance enhancement shop; (C) five persons not then licensed to perform regulated, appearance enhancement services (1)Trung X. Nguyen, applying liquid to the nail of the hands of a person, (2) Quynh A. Cao applying acrylic to the nails of the hands of a person, (3) Shawn Nguyen filing the nails of the hands of a person, (4) Anthony A., Vuong filing the nails of the hands of a person, and (5) Tristan T. Nguyen doing a nail set on the nails of the hands of a person; (D) an expired, business, liability, insurance policy declaration.
6. On January 12, 2000, a Division of Licensing Services' investigator inspected the licensed appearance enhancement business, Professionail, 115A Cobblestone Dr., Victor, NY 14564, during regular, business hours and observed the following: (A) Sy V. Nguyen (who produced a Florida cosmetology license) a person not licensed to engage in regulated, appearance enhancement activities, buffing the nails of the hands of a person who stated that she was paying for the services; (B) used files and buffers stored in
462 DOS 00 -9-
drawers before being cleaned and disinfected; (C) neck dusters and soft bristle brushes in drawers at operator's stations used to dust the nails of the hands of persons; (D) twenty-four bottles labeled lIacetonell stored in a back room and not in a metal cabinet. During the inspection, the investigator noted that a price list was posted.
Respondent produced a certificate of current insurance for two, appearance enhancement businesses, Nail Studio, 1 Galleria Drive, Middletown, and Nail Studio, 1008 Eastview Mall, Victor, and offered proof of current insurance for all appearance enhancement businesses owned by respondent.
OPINION
General Business Law, Article 27, was enacted and the regulation, 19 New York Codes, Rules and Regulations, Part 160, was adopted to ensure the safety, welfare, and health of persons who patronize appearance enhancement businesses.
General Business Law, Article 12-A:
1. outlaws ownership and operation of an unlicensed, appearance enhancement business (§401[2]);
2. forbids the unlicensed practice of any regulated, appearance enhancement discipline (§401[1]);
3. requires a licensed, appearance enhancement business to maintain evidence of bond or liability insurance on the premises of the business (§405[2]);
4. prescribes that a licensed, appearance enhancement business must operate in accordance with licensing rules and regulations promulgated under General Business Law, §404;
5. defines an appearance enhancement business as the business of providing any or all of the services required to be licensed under General Business Law, §401, at a fixed location (§400);
6. defines the practice of nail specialty as the providing for a fee services of enhancing the appearance of the nails of the hands of a person for a fee, including the cutting, shaping and the application and
hands of a person (§400[4]);
7. mandates that a license certificate issued under Article 27-A be posted in a conspicuous place in the licensed premises and that a sign stating the rules and regulations governing the licensed activities be posted at the entrance of the licensed premises (§408[5]).
.
,
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19 New York Codes, Rules and Regulations, Part 160:
1. defines an owner as the person who owns, controls or operates an appearance enhancement business (§160.1[d];
2. forbids the unlicensed practice of any regulated appearance enhancement activity (§160.2);
3. forbids the engagement in any unlicensed, appearance enhancement business (§160.3);
4. requires an owner of an appearance enhancement business to maintain a surety bond in the amount of $50,000, accidental and professional liability insurance policies, each in the minimum amount of $25,000 per occurrence and $75,000 in the aggregate, or a general liability policy in such amounts, with evidence of the insurance or of the bond also maintained on the premises, and filed with the Division of Licensing Services (§160.9);
5. mandates that an owner post at the entrance of the business premises (a) the appearance enhancement business license (§160 .10 [c]) with an affixed photograph of the licensed owner (§160.28[b]), and (b) a sign that indicates the licensure of the business and operators and the availability upon request for review the rules and regulations that govern the appearance enhancement business and practices §160.10[a]);
6. requires that individual, appearance enhancement license of an operator be conspicuously posted at the location where appearance enhancement services are practiced (§160.10[b]);
7. prescribes that a licensed, appearance enhancement practitioner have his or her photograph affixed to his or her license (§160.28 [a]).
8. imposes on the owner of a licensed, appearance enhancement business the responsibility of the business's compliance with all applicable law and regulation (§160.11);
9. states that for at least two years, invoices for all sterilants and disinfectants used in the appearance enhancement business must be retained and evidence of such invoices must be available at the time of inspection of the business by the Division of Licensing Services (§160 .14 [c] );
10. prescribes that in the appearance enhancement premises, an owner shall provide covered containers for hair, paper, and other waste materials (§160.16[c]);
11. requires that after each customer use, combs, brushes and other implements that are used on the hair shall be cleaned with warm water and , soap or a detergent to remove all hair and scalp debris,
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rinsed thoroughly, dried with clear toweling or other absorbent material, and completely immersed in an EPA approved hospital grade disinfectant and the implements shall be soaked for ten minutes or more, removed, rinsed, dried and stored in a drawer, cabinet or covered container (§160.17[c]);
12. states that all implements shall be transported to and from the remote location in covered containers, and clean implements shall be kept in containers separate from those implements that have been used and marked according to their status (§160.17[e]);
13. forbids the common use of an emery board for more than one person (§160 .18 [a] [6] ) ;
14. outlaws the use of non-disposable neck dusters in the business operations (§160 .18 [a] [9]) and creates a presumption that the presence of emery boards and non-disposable neck dusters in an appearance enhancement business is evidence of use (§160.18[b];
15. requires that plastic bags and sealable, rigid containers shall be available at all times for use when appearance enhancement services' are being provided, and absence of containers is presumptive evidence of noncompliance (§160.19[c]);
16. requires that handwashing facilities be available in all lavatories, including towels or hor air for hand drying (§160. 22[f] ;
17. mandates that an owner must have on file in a metal cabinet accessible to all employees for inspection material safety data sheets of chemicals used in the business(§160.25[c]);
18. prescribes that all chemicals used in the conduct of an appearance enhancement business shall be posted in a metal cabinet (§160.25 [a]);
19. states that all products used in the conduct of an appearance enhancement business must be maintained with the original manufacturer labelling intact (§160.26).
The inspections by the Division of Licensing Services' investigators occurred during regular business hours of the six places located at the addresses and labeled in the names licensed by the Division of Licensing Service as appearance enhancement businesses. During the inspections, the investigators saw both licensed and unlicensed persons perform regulated, appearance enhancement services to enhance the appearance of the nails of the hands of persons for a fee. Consequently, the substantial evidence proves that the respondent, owner of the six, appearance enhancement businesses inspected, permitted, authorized or suffered the following violations: 462 DOS 00 -12-
1. operated. an unlicensed, appearance enhancement business, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, in violation of General Business Law, §401(2), and 19 New York Codes, Rules and Regulations, §160.3.
2. permitted fifteen, unlicensed, appearance enhancement persons to engage in regulated, appearance enhancement activity in the six appearance enhancement businesses, violations of General Business Law, §401 (1), and 19 New York Codes, Rules and Regulations, §160.2.
3. failed to maintain on the premises of four appearance enhancement business premises, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, Nail Studio, Galleria at Crystal Run, Ste. 8201, Middletown, NY 10940, and Nail Studio, 1008 Eastview Mall, Victor, NY 14564, evidence of bond or insurance, violations of General Business Law, §405(2), and 19 New York Codes, Rules and Regulations, §160.9.
4. failed to post an appearance enhancement business license in the premises, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, a violation of General Business Law, §408 (5), and 19 New York Codes, Rules and Regulations, §160.10(c).
5. failed in four, appearance enhancement businesses, Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, Professionail, 115A Cobblestone Drive, Amherst, NY 14226, and Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, to post signs indicating the licensure of the businesses and the availability for review of the rules and regulations governing the appearance enhancement businesses and practices, violations of General Business Law, §408(5), and 19 New York Codes, Rules and Regulations, §160.10(a).
6. failed in two, appearance enhancement businesses, Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, and Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, to post individual, appearance enhancement licenses of four licensees, violations of General Business Law, §408(5), and 19 New York Codes, Rules and Regulations, §160.10(b).
7. failed to retain for two years and to have available for inspection by the Division of Licensing Services invoices for all sterilants and disinfectants used in three, appearance enhancement businesses, Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, and Nail Studio, 1008 Eastview Mall, Victor, NY 14564, violations of 19 New York Codes, Rules and Regulations, §160.14(c).
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8. failed to provide covered containers for hair and other waste material in the appearance enhancement business, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, a violation of 19 New York Codes, Rules and Regulations, §160.16(d).
9.improperly stored implements used in providing appearance enhancement services in the appearance enhancement business, Professionail, 115A Cobblestone Dr., Victor, NY 14564, in violation of 19 New York Codes, Rules and Regulations, §160.17(c).
10. presence and presumptive use of non-disposable, neck dusters in the six, appearance enhancement businesses inspected, violations of 19 New York Codes, Rules and Regulations, §§160 .18 (a) (9) and 160.18 (b) .
11. failed to have available at all times plastic bags and sealable, rigid containers in two, appearance enhancement businesses, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, and Nail Studio, Galleria at Crystal Run, Ste. 8201, Middletown, NY 10940, violations of 19 New York Codes, Rules and Regulations, §160.19(c).
12. failed to provide handwashing facility in the appearance enhancement business, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, in violation of 19 New York Codes, Rules and Regulations, §160.22(b).
13. failed on three occasions to have material data sheets on file in a metal cabinet accessible to all employees in two, appearance enhancement businesses, Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, and Nail Studio, 1 Galleria Dr., #C201,Middletown, NY 10940, violations of 19 New York Codes, Rules and Regulations, §§160.25(d).
14. improperly stored chemicals in the appearance enhancement business, Professionail, 115A Cobblestone Dr., Victor, NY 14564, in violation of 19 New York Codes, Rules and Regulations, §160.25(a).
15. used improperly labelled bottles and products in two appearance enhancement businesses, Nail Studio, Rts. 5 and 5A, Apt.L01, New Hartford, NY 13413 and Professionail 115A Cobblestone Dr., Victor, NY 14564, in violation of 19 New York Codes, Rules and Regulations, §160.26.
16. failed to have a photograph of licensee affixed to individual, appearance enhancement licenses of three licensees at Nail Studio, Rts. 5 and 5A, Apt. L01, New Hartford, NY 13413, and at Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, violations of 19 New York Codes, Rules and Regulations, §160. 28 (a).
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17. failed to have a photograph affixed to the appearance enhancement business licenses at two appearance enhancement businesses, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221, and Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, violations of 19 New York Codes, Rules and Regulations, §160.28(b).
18. In each of two, appearance enhancement businesses, Nail Studio, 1 Galleria Dr., #C201, Middletown, NY 10940, and Nail Studio, Galleria at Crystal §410(7) (c).
The Division of Licensing Services failed to prove that on September 19, 1999, negligent or incompetent, nail specialty services were performed on a customer in the appearance enhancement business, Professionail, 4545 Transit Road, Suite 836, Williamsville, NY 14221.
The tribunal finds meritless the following contentions of the agency:
1. That a negligent inference be drawn from the respondent's absence from the hearing. Respondent, represented by counsel, was not subpoenaed by the State.
2. That revocation of all licensed appearance enhancement businesses owned by the respondent is the only sanction that assures protection of the public. Of the fourteen, licensed,
appearance enhancement businesses owned by respondent, theu-State offered evidence of violations in six of those businesses. It is the State's burden to prove by substantial evidence that the other eight businesses are being operated in violation of law.
The tribunal finds inefficacious the following arguments of respondent:
1. The evidence failed to establish an employment relationship between the respondent (licensed as the owner of the appearance enhancement businesses) and the unlicensed operators found to have been providing regulated, appearance enhancement services in those businesses.
Law imposes on a licensed owner of an appearance enhancement business full responsibility for compliance with all law and regulation governing the business (General Business Law, §404; 19 New York Codes, Rules and Regulations, §160.11).
2. The evidence failed to prove that the services performed in the appearance enhancement businesses were being performed for a fee. The substantial evidence proves that in the six, appearance
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enhancement businesses inspected by the Division of Licensing Services, regulated, appearance enhancement services were offered and performed for a fee. Respondent did not offer evidence that respondent established numerous, appearance enhancement businesses to provide free services to the consuming public.
3. Evidence failed to prove that items prohibited for use by 19 New York Codes, Rules and Regulations, §160.18, were in fact used in performance of appearance enhancement services. Regulation establishes presence-of such items as presumptive proof of use (19 New York Codes, Rules and Regulations, §160.18[b]). Respondent did not offer proof that the items were not used in the performance of Tegulated, appearance enhancement services.
4. Evidence failed to prove a violation of 19 New York Codes, Rules and Regulations, §160.26, because the investigator did not check the contents of the bottles. The regulation requires that “all products used in the conduct of an appearance enhancement business must be maintained with the original manufacturer labelling intact.” The presence in the appearance enhancement business of bottles labelled “alcohol” or “remover” without the original manufacturer labelling violates the regulation. The investigator is not required to test or to examine the contents of improperly labelled bottles.
5. Evidence inappropriately obtained by an investigator from an employee of respondent by obtaining a written statement through coercion. The respondent failed to call his employee to testify regarding the written statement; the evidence submitted does not prove coercion.
6. An investigator failed to follow procedure, because of failure to date an inspection report at the time of inspection; and therefore, the salon manager was not adequately warned. The investigators testified as to the date, time, place, and observations made during the inspection. Respondent failed to offer testimony of the salon manager or evidence of how the failure to date the inspection report prejudiced the respondent in any way.
7. The Division of Licensing Services should not “expect individual appearance enhancement business license owners to perfectly manage their own stores... (or to) prosecute such owners with the maximum penalties” because the agency “with all its resources and training, failed to adequately carry out its duties...” The General Business Law, Article 27 -A, imposes a non-delegable duty on a licensed, appearance enhancement business owner to fully comply with all applicable law and regulations; the statute does not provide to a licensee an exemption from that obligation based on performance of the, licensing agency mandated to enforce the statute.
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8. The respondent's statement “improperly obtained evidence as fruits of a poisonous tree” is conclusory and unsupported by evidence.
9.Because an appearance enhancement business license may be obtained “extremely easy,” there is no requirement for competency at all... lacking such a standard, the law is vague on its face and therefore should not be used to prosecute licensees. Challenges as to the statute's constitutionality or vagueness and other grounds have been addressed and dismissed by the Courts of New York.
The tribunal notes the statement of respondent's counsel: “It should also be noted that Respondent is an 'absentee owner' and has to rely on his on site managers to manage his businesses. As such, he could not possibly supervise compliance with every little detailed requirement from the DLS, such as the posting deficiencies. However, once a report is made regarding those deficiencies, he immediately advises the manager to follow the advise of the DLS.”
Respondent is advised that the law of New York obligates him to manage and supervise compliance of every licensed, appearance enhancement business with every, little, detailed, legal requirement. It is not the responsibility of the licensing agency to supervise respondent's appearance enhancement businesses and report deficiencies to him for his subsequent action of advising his managers.
CONCLUSION OF LAW
Based on the foregoing findings of fact and opinion and as a matter of law, I conclude:
The respondent, Mr. Thuy T. Le, violated the following provisions of law and regulations:
General Business Law, §§401(1), 401(2), 405(2), 408(5), and 410(7)(c).
19 New York Codes, Rules and Regulations, §§160.2, 160.3, 160.9, 160.10(a), 160.10(b), 160.10(c), 160.14(e), 160.16(d), 160.17(e), 160.18(a) (d), 160.19(c), 160.22(b), 160.25(a), 160.25(d), 160.26, 160.28(a), and 160.28(b).
By virtue of this decision, respondent's motion to dismiss the complaint or statement of charges is decided (19 New York Codes, Rules and Regulations, §400.6).
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ORDER
Based on the foregoing findings of fact, opinion, and conclusion of law and under the provisions of General Business Law, §§410(c) and 410 (e) :
I ORDER that the following, six, appearance enhancement business licenses are revoked effective immediately.
1. Nail Studio (21NA1066216), 1 Galleria Dr., Middletown, NY 10940.
2. Nail Studio (21NA1083199), Rts. 5 and 5A, Apt.L01,New Hartford, NY 13413,
3. Nail Studio (21NA1053678), Galleria at Crystal Run, Ste. 8201, Middletown, NY 10940.
4. Professionail (21PR1099700), 4545 Transit Road, Suite 836,Williamsville, NY 14221.
5. Nail Studio (21NA1034830), 1008 Eastview Mall, Victor, NY 14564.
6. Professionail (21PR1100641),115A Cobblestone Dr., Victor, NY 14564.
I FURTHER ORDER that the respondent shall send to Ms. Usha Barat,
Customer Service Unit, Department of State, Division of Licensing Services, 84 Holland Avenue, Albany, NY 12208, the six, appearance enhancement business licenses issued to him under the provisions of General Business Law, Article 27, and revoked by order of this decision.
SO ORDERED:
October 16, 2000
Felix Neals
Supervising Administrative Law Judge