A. Diop v. BPOA, State Board of Cosmetology of The Com. of PA
363 M.D. 2020
| Pa. Commw. Ct. | Mar 3, 2022Background:
- Petitioners Astou Diop, Tanyita Henry, and Awa Gaye (natural hair braiders) challenged Pennsylvania’s Beauty Culture Law requirement that commercial natural hair braiders obtain a limited license (300 hours of Board‑approved instruction and an exam).
- Petitioners allege the curriculum/exam focus on unrelated cosmetology subjects, few schools offer the 300‑hour braiding course, and enforcement (warnings, fines, cease‑and‑desists) harms braiders and businesses.
- Bureau/Board enforce the licensing requirements; a 2018 Bureau report and the Governor recommended deregulation, finding little public‑health justification for the license.
- Petitioners asserted substantive due process (Article I, §1) and equal protection (Article I, §26) claims, both facially and as applied; Respondents filed preliminary objections.
- The court sustained objections: dismissed Henry’s as‑applied claims for lack of standing, dismissed the facial substantive due process claim, and dismissed the equal protection claims (facial and as‑applied). Diop’s and Gaye’s as‑applied substantive due process claims may proceed; Respondents must answer.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Henry's standing to bring as‑applied challenge | Henry intends to open a braiding salon and would braid for pay but for the Law; pre‑enforcement review warranted to avoid forcing her to choose between violating law or foregoing work | Henry does not currently braid commercially, so she is not presently aggrieved; standing not established | Court: Henry lacks standing for as‑applied claims; aspirational intent is speculative; pre‑enforcement doctrine not applicable here |
| Facial substantive due process challenge to licensing scheme | 300‑hour requirement and exam are not substantially related to public health/safety; Bureau report and Governor concluded the license is unnecessary; statute functions as economic protectionism | Law is presumptively constitutional; limited license requires sanitation, scalp/anatomy, and braiding skills—reasonably related to patron health and safety | Court: Facial challenge fails. Accepting pleadings, there are valid circumstances under which statute is constitutional; Petitioners’ facts support only as‑applied, not facial, relief |
| Equal protection (facial and as‑applied) | Law irrationally treats experienced unlicensed natural braiders worse than licensed cosmetologists who can legally braid without specific braiding training | Cosmetologists receive 1,250 hours of training including skills covering braiding and care of all hair types; the groups are not similarly situated | Court: Equal protection claims fail. Petitioners and licensed cosmetologists are not similarly situated; rational basis review satisfied |
| Joinder of all licensed braiders as indispensable parties (Respondents’ claim) | N/A (Respondents argued joinder required if facial claim proceeds) | Respondents sought dismissal or joinder of all active/inactive/suspended limited license holders | Court: Because facial substantive due process claim dismissed, court did not reach/resolve the joinder objection |
Key Cases Cited
- Diwara v. State Board of Cosmetology, 852 A.2d 1279 (Pa. Cmwlth. 2004) (held hair braiding falls within cosmetology definition)
- Germantown Cab Co. v. Philadelphia Parking Authority, 206 A.3d 1030 (Pa. 2019) (facial invalidity standard; statute presumed constitutional)
- Gambone v. Commonwealth, 101 A.2d 634 (Pa. 1954) (substantive due process/rational‑basis test for occupational regulation)
- Yocum v. Pennsylvania Gaming Control Board, 161 A.3d 228 (Pa. 2017) (permitting pre‑enforcement review in some facial challenges)
- Firearm Owners Against Crime v. City of Harrisburg, 218 A.3d 497 (Pa. 2019) (pre‑enforcement standing for facial challenges to penal ordinances)
- Ladd v. Real Estate Commission, 230 A.3d 1096 (Pa. 2020) (analysis of instructional‑hour requirements in licensing context)
- Bergdoll v. Kane, 731 A.2d 1261 (Pa. 1999) (standing requires substantial, direct, immediate interest)
- William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (plaintiff must show more than common citizen interest to be aggrieved)