95 DOS 94
Issued: October 13, 1994
STATE OF NEW YORK
DEPARTMENT OF STATE
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DIVISION OF LICENSING SERVICES,
Complainant,
-against-
DECISION
NICOLO ALOMIA,
Cosmetologist and Owner,
Nick's Hair Club Corp.,
Respondent.
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Administrative Law Tribunal
270 Broadway, New York, NY 10007.
Held: July 12, 1994.
Before: Felix Neals, Administrative Law Judge.
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The respondent, Mr. Nicolo Alomia, 40-18 Bell Boulevard, Bayside, NY 11361, appeared pro se.
The complainant, the Division of Licensing Services, was represented by Mr. William F. Schmitz, Supervising License Investigator and Division Compliance Officer, 270 Broadway, New York, NY 10007.
ISSUE
This matter was brought pursuant to the provisions of General Business Law, §410, to determine if the respondent violated the provisions of General Business Law, §402. The complaint alleges that the respondent engaged in the practice of hairdressing and cosmetology without being licensed.
FACTS
On February 24, 1994, Ms. Tedi Ringel, an investigator of the Division of Licensing Services, inspected a beauty shop, Nick's Hair Club Corp., at 40-18 Bell Boulevard, Bayside, and observed: Mr. Alomia cutting the hair of the head of a male customer; Mr. Alomia's license to operate the beauty shop was valid until August 13, 1995; and Mr. Alomia's license to practice hairdressing and cosmetology had expired on October 31, 1993.
Certified records of the Division of Licensing Services disclosed that a hairdresser/cosmetology license was issued to Mr. Alomia for the licensure term May 6, 1994 - October 31, 1995, based on a "Late Renewal" application affirmed, signed and dated April 26, 1994, by Mr. Alomia.
At the hearing, the respondent admitted the truth of the charges and offered the following explanation: He submitted a renewal application to the Division of Licensing Services for a hairdresser/cosmetology license in September 1993; after several telephonic conversations with the Division's Albany office and being informed that the renewal had not been received, he received another renewal form that was filed in April 1994. In support of his contention that he submitted a renewal application to the Division of Licensing Services for a hairdresser/cosmetology license in September 1993, Mr. Alomia offered a copy of a telephone bill indicating that a call was made to the Albany office of the Division of Licensing Services on March 14, 1993; he did not offer any evidence that a renewal application had been submitted to the Division of Licensing Services in September 1994, for example, copies of telephone bills for calls made to Albany prior to March 14, 1994, of the letter of transmittal, of the renewal application or of the payment of the renewal fee.
OPINION
The provisions of General Business Law, §402, prohibit a person from engaging in the practice of hairdressing and cosmetology unless licensed in accordance with the provisions of General Business Law, Article 27. The practice of hairdressing and cosmetology includes the cutting of the hair of the head of a customer in a beauty shop. Division of Licensing Services v Abbatiello, 65 DOS 94 (1994).
The State presented evidence sufficient to establish that the respondent engaged in the practice of hairdressing and cosmetology in a licensed, beauty shop when he did not possess a current, hairdresser/cosmetology license. In rebuttal to the State's prima facie case and as a defense to the disciplinary charge of unlicensed activity, the respondent contends a timely submission of his application for renewal of his license to practice hairdressing and cosmetology.
Ordinarily, a timely and sufficient application for renewal of a license to practice hairdressing and cosmetology prevents the expiration of the existing license until the application has been finally determined by the Division of Licensing Services; in the event that the application for renewal is denied, the existing license does not expire until the last day for seeking a review of the agency's denial order or a later date fixed by an order of a reviewing court. Excepted from the rule is any valid, summary suspension of a license. State Administrative Procedure Act, §401(2).
A timely and sufficient application for renewal of a license to practice hairdressing and cosmetology means a properly, completed, renewal, application form that is received in an office of the Division of Licensing Services by not later than the date of expiration of the existing license. Evidence is insufficient to prove that a timely and sufficient application for renewal of a license had been filed with the Division of Licensing Services when that evidence consisted solely of a person's efforts to renew a license subsequent to the license's expiration date and following a Division of Licensing Services's inspection of the person's business activity after the license had expired.
A person engages in the unlicensed practice of hairdressing and cosmetology in violation of the provisions of General Business Law, §402, when that person, while possessing an expired, cosmetology license, cuts the hair of the head of a customer and fails to prove by substantial evidence that a properly, completed, renewal, application form was submitted in an office of the Division of Licensing Services by not later than the date of expiration of the existing license.
CONCLUSION OF LAW
The State proved by substantial evidence -- such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact -- that the respondent engaged in the practice of hairdressing and cosmetology without being licensed, a violation of the provisions of General Business Law, §402.
DETERMINATION
IT IS DETERMINED, according to the foregoing and pursuant to the provisions of General Business Law, §409, that the respondent violated the provisions of General Business Law, §402; and therefore, the respondent shall pay a fine of $250 to the Division of Licensing Services on or by October 31, 1994. In the event the fine is not timely paid, all licenses issued to the respondent pursuant to the provisions of General Business Law, Article 27, shall be suspended for a two-month duration of time, beginning November 1, 1994, and continuing until December 31, 1994.
From the testimony and evidence presented at the hearing, the above findings of fact, opinion, conclusion of law, and determination are made, and the adoption of this decision is recommended.
Felix Neals
Administrative Law Judge
Concur and So Ordered on: GAIL S. SHAFFER
October 13, 1994 Secretary of State
By:
James N. Baldwin Executive Deputy Secretary of State