169 A.3d 141
Pa. Commw. Ct.2017Background
- Eleven Eleven Pennsylvania, LLC operates shared-space salons: multiple independent licensed cosmetologists lease individual 1–4 chair salon units within a larger facility and share common lavatories accessed via a corridor.
- The State Board of Cosmetology regulation (49 Pa. Code §7.79) requires salons to have “adequate lavatories on the premises,” which the Board interpreted in 2009 to mean a lavatory must be located "within the square footage of the salon."
- Eleven Eleven’s floorplans do not place a lavatory inside each individual leased salon space, so it sought variances and challenged the Lavatory Regulation as preempted by the Pennsylvania Construction Code Act (Construction Code Act), 35 P.S. §7210.101 et seq., which implements the Uniform Construction Code (UCC).
- The UCC (incorporating the International Building/Plumbing Codes) prescribes minimum numbers, accessibility, and location/travel-distance standards for lavatories based on occupancy classifications (e.g., Business Group B includes barber and beauty shops).
- The Board granted Eleven Eleven variances to date, but Eleven Eleven pursued declaratory and injunctive relief seeking a ruling that the Board’s requirement of a lavatory within each salon is expressly preempted by Section 104(d)(1) of the Construction Code Act.
- The Commonwealth Court granted Eleven Eleven’s application for summary relief, declaring the Lavatory Regulation preempted to the extent it requires a lavatory within the square footage of each salon and permanently enjoining enforcement of that language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s Lavatory Regulation is preempted by the Construction Code Act | The UCC governs number/location/accessibility of lavatories for business occupancies; Section 104(d)(1) expressly preempts different construction standards, so the Board cannot require a lavatory within each salon’s square footage. | The Lavatory Regulation is a licensure/public-safety requirement specific to cosmetology and supplements (does not conflict with) the UCC; the Board may impose additional safety-focused licensure criteria and variances are available. | Held: The Lavatory Regulation is preempted to the extent it requires a lavatory within the square footage of each salon; UCC preempts differing construction standards. |
| Ripeness for judicial review | Immediate controversy: Petitioner must seek variances and faces uncertainty and potential denial in future licensure/inspections; threatened enforcement of an unlawful rule causes harm. | No actual controversy because variances have been or can be granted; any economic harm can be remedied by damages. | Held: The challenge is ripe; variances granted do not eliminate the controversy and the Court may decide the preemption issue. |
| Whether factual disputes about public safety preclude summary relief | Preemption is a question of law; factual disputes about public interest cannot overcome an express statutory preemption clause. | Factual record (e.g., Board declarations about chemical risks) raises material issues precluding summary judgment. | Held: Court grants summary relief because preemption is legal and not defeated by factual assertions about public safety. |
| Whether exceptions in the Construction Code Act preserve Board authority | Plaintiff: Exceptions are limited (health care/State institutions and certain Departments); Board is not among entities allowed to exceed UCC. | Respondents: Agencies can add requirements for atypical conditions; Board’s rule addresses unique cosmetology risks. | Held: Exceptions do not apply to Board; Legislature made Labor & Industry/UCC preeminent, so Board cannot add conflicting construction standards. |
Key Cases Cited
- Indian Rocks Prop. Owners Ass’n, Inc. v. Glatfelter, 28 A.3d 1261 (Pa. 2011) (recognizing Construction Code Act express preemption clause)
- Schuylkill Twp. v. Pa. Builders Ass’n, 7 A.3d 249 (Pa. Cmwlth. 2010) (Uniform Construction Code preempts and rescinds differing construction standards)
- Flanders v. Ford City Borough, 986 A.2d 964 (Pa. Cmwlth. 2009) (UCC preemption over municipal/construction standards)