*1 London Cal.App.2d 297], and to action, providing coverage for circuity avoid the insurance suggested should be resorted to It is nowhere Valentine first. financially companies involved are any of the three against pay portion judgment unable Valen- judgment payment against tine ; such satisfy judgment against other judgment Valentine but unlikely Mid- only in event that both debtors. Century insolvent Travelers should become event, princi- follow; different result could that remote ples escape clause in above forth would render the set inoperable company would become Stuyvesant policy $20,000. liable for full reversed; judgment the case is remanded for further
proceedings consistent opinion. with this Travelers shall appeal against recover its costs on Mid-Century Stuyve- only. sant against them and Stuyvesant Mid-Century shall its own appeal. each bear costs on Jefferson, Acting J.,P. Dunn, J., concurred. petition
A rehearing September 15, 1969, denied petition and appellant for a hearing Court was denied October 1969. Dist., No. 33194. Second Aug. [Civ. Div. Four. 26, 1969.] SHERMAN Appellant, Plaintiff and BONE. v. STATE
BOARD OF al., COSMETOLOGY et Defendants and Respondents. *2 Appellant. for Plaintiff and
Irving Reifman Attorney Lynch, Scholtz, General, Thomas and Kenneth C. General, Respondents. Deputy Attorney for and Defendants appeal judgment FILES, This is from a dismiss- P. J. injunction plaintiff’s complaint against the State ing for an Board Examiners and State Board of Cosmetol- of Barber ogy. demurrer The trial sustained defendants’ without court complaint amend, upon ground failed to leave state a cause of action. of Business and Pro- sole issue is the constitutionality pro- amended which
fessions Code section cosmetologist’s vides that a license does not authorize primarily holder in an which to cut establishment haircutting—i.e.—a barbershop. Plaintiff is a licensed cosmetologist. operates He two eos- metological establishments under the business name of “Sherman’s Shapers” specialize which styling alleges of men’s hair. He the defendants have against threatened to enforce section 6522 him ad- “civilly, ministratively thereby force him to criminally,” enjoined discontinue his unless defendants Although fact, parties court. he does allege appear trial plaintiff court to have assumed is not a barber, licensed and his not man- business establishments are aged a licensed barber.
Enforcement impossible statute would make it for operate essentially continue a business which is using only barbershop, cosmetologists licensed instead of licensed barbers. long separate
California has maintained licensing systems barbering. and for Each is administered professional own board, its under its own statute.1 Business and Professions Code section 6520 defines the of bar- bering2 cosmetology.3 defines the
Except provided exceptions under certain exclusions seq. Law, Code section 6500 et 1Barber Business and Professions Cosmetology Act, seq. Code et and Professions section 7300 Business 6520; 2Business of bar- and Professions Code section bering following practices embraces of or combination of the *3 for hire or reward. (a) Shaving trimming or the beard or the hair. (b) Giving scalp oils, massages creams, with facial and or treatments preparations by appliances. lotions or other hand or either mechanical (c) Singeing, shampooing, arranging, dressing, waving curling, or dyeing applying tonics, waving the hair or hair but not include permanent waving. (d) Applying preparations, antiseptics, powders, oils, clays cosmetic or scalp, to lotions or face neck.” cosmetology 3Business and Professions Code 7321: section “The art of any any following practices: includes and all and combination (a) Arranging, dressing, curling, waving, permanent machineless waving, permanent waving, cleansing) cutting, singeing, bleaching, tint- ing, coloring, straightening, dyeing, brushing, beautifying or otherwise treating by any any person. the hair means of (b) Massaging, cleaning stimulating scalp, neck, face, arms, or upper by part body, hands, devices, or bust of the human means of the apparatus appliances, prepara- or with or without the use of cosmetic tions, tonics, antiseptics, lotions or creams. (c) face, Beautifying neck, arms, upper part bust or of the human body, by preparations, antiseptics, tonics, use of cosmetic lotions or creams. (d) Removing body superfluous by any person hair from the electrolysis depilatories tweezers, or the use of use chemicals, or use preparations any appliances or the use of devices or description, except by commonly light waves, or kind the use of known rays. as (e) Cutting, trimming, polishing, tinting, coloring, cleansing or mani- curing person. the nails of practice barbering to or statute, a misdemeanor to do without a license quite different prescribed licensing have boards The two qualification for lic training aas
courses instruction and subjects not. in several Cosmetologists are ensing.5 trained required perform to Student barbers of barbers. required opposed shaping, as to 75 haircutting and operations of students. required operations of cosmetology overlapping be- is some that there recognize The statutes Cosmetology 7324, in the vocations. Section tween the two usual others, “Barbers, insofar exempts, among Act, when profession is concerned” ordinary vocation practices. Gen- The Attorney in certain enumerated engaged eral has exception a licensed does not authorize ruled that this cosmetological estab- in a profession his to barber (39 Ops.Cal.Atty.Gen. (1962).) lishment. barbering law, prior read as follows to
Section chapter provisions of this amendment: do the 1967 (a) by the law this apply to: Persons authorized State chiropractic osteopathy or or practice medicine and or surgery drugless practitioner under the persons holding a certificate State, surgical offi- (b) Commissioned medical laws of this service, hospital marine navy or cers States army, of United nurses, practicing cul- Registered (d) Persons (c) beauty ture. provisions of this do not authorize
“However, section beard, trim the or cut exempted shave or persons except that purposes person for cosmetic the hair of any (d) cut the hair. sons included subdivision subject judicial inter- of comment and That was (1967) 249 Examiners pretation Mains v. Board Barber regis- Mains was not Cal.App.2d 459 573]. barber, (under Code, Bus. & Prof. but held certificate tered barbershop. He was a authorizing him conduct 6549) § his cosmetologist, and he licensed shop. upon barbershop suspended certificate The hoard cutting hair therein. It ground unlicensed barber position although phrase “Persons was the board’s *4 beautifying (f) Massaging, cleansing, treating the hands of ’’ person. Cosmetology: 4Barbering: 6523. Code section Business and Professions Business Professions Code section 7320. (barbering) 16, 217 Code sections 5See title California Administrative (cosmetology). and 916 practicing in beauty “persons culture” section meant practice cosmetology,” exception granted by licensed to cosmetologist apply 6522 did not a was section to who barbershop. appellate hair in a of the The court majority disagreed, holding expressly that “section authorizes a operate beauty-culturist-cosmetologist- to in bar- licensed bershop. 465.) (249 Cal.App.2d p. . . .” at Regan (at p. 467): interpret Justice said “I dissented. He to of the Business Professions authorize Code cosmetologist (person practicing culture) licensed to beauty practice cut the hair when hair is incident to of cosmetology. one not authorize not licensed as a engage barbering. barber to . . . majority in in result of decision this case is not public haircutting interest. It sanction the barbershops cosmetologists licensed who are not trained ’’ purpose. for this
This decision came on March Leg- down while the ended, islature was session. Before that session the Legis- portion lature amended the latter of section 6522 to as read “. follows: . . licensed to (d) cosmetology. Persons provisions “However, of this section do not authorize persons exempted of the beard, shave or trim or cut any person purposes except the hair of for cosmetic sons (d) included in subdivision cut the hair when the performed is haircut in a licensed establishment represent which does not being pri- itself marily engaged haircutting, business or which is not primarily engaged cutting. (Italics language.) added to the new legislative repudiation The 1967 amendment clear interpretation. Mains longer intent no open question. argument present Plaintiff’s form of the statute is (1) unconstitutional it is an police power; (2) of the exercise it discriminates arbitrary against plaintiff equal protection and denies laws; vague the statute and indefinite.
We first refer to the standards which a court reviews a legislature’s police power: exercise Optical
In Williamson v. Lee Okla. U.S. *5 461], Supreme Court, speaking of 563, L.Ed. 75 S.Ct. the [99 limiting and the of regulating an Oklahoma statute said, pp. pp. L.Ed. : optometry, at 487-488 at [99 571-572] needless, require- law a wasteful may “The Oklahoma exact legislature, it is not the ment in cases. But many advantages disadvantages of the courts, balance the and requirement. every re- new . . . But the law need be spect be It its aims to constitutional. logically consistent with correction, and that enough is is at hand for that there an evil legislative particular it measure might thought be awas rational to correct it. way day this uses the Due Process gone is when Court down
Clause Amendment to strike state of the Fourteenth conditions, laws, and industrial because regulatory of business unwise, of with a they improvident, be or out harmony ’’ particular thought. school of City Angeles Los In Rock Products v. Consolidated Co. of Cal.Rptr. 342], 57 Cal.2d P.2d [20 pointed out: . the our Court “. . determination of regulations, is true with all and form of such necessity power, a police legislative of is and not exercises primarily judicial function, a to be tested the courts not and is may think what or the judges collectively individually solely by particular regulation, but necessity wisdom or of a question is reasonable basis the answer to the there any support regula- fact to determination necessity tion’s wisdom ? and its deter- Legislature of the California reflect acts barbering mination that the vocations of Cosmetologists are trained separate shall remain and distinct. practice in a field than in and wider of activity entitled to barbers, appropriate an but some prac- cosmetology. Barbers activity missible is a field, of hair primary tice a narrower where activity.' training of barbers cosme- The instruction in view. prescribed with such distinction tologists has been objective principal of this suggested has been system health, licensing and that standardization pri- competence to the “ancillary by-product Examiners purpose.” (See Doyle v. Board Barber mary 349].) But Cal.App.2d 504, competence primary or second- whether standards ary, beyond question statutory provides scheme standards, say for such we this is cannot unreasonable. It Legislature is thus not unreasonable for the that, to say although cosmetologists may cut hair in the course broader cosmetology, establishment which is harieutting business of shall use primarily those who are trained registered as barbers.
Plaintiff opinion, calls attention to a sentence in Mains supra, majority “Finally, where the said the construction of either cosmetologist act to in a barbershop forbid to work (so long practices as his are limited mentioned) acts 465.) (249 Cal.App.2d would be unconstitutional.” at p. *6 That statement went case, issues of the beyond where upon interpretation decision rested existing the then regard statute. We cannot it as an authoritative interdiction of a policy not Legisla- enacted. Now that yet spoken ture point, has on the entitled to have its directly judged light enactment reasons which are now being advanced support. in its argument
Plaintiff’s 6522 that section is arbitrary is based upon assumption solely his regulation it competi- argument tion. This appears fails where it Legisla- ture could have concluded that reasonably the amendment help would competence to maintain standards public interest. statute only The sense discriminatory
any licensing specified discriminates system making activ- lawful persons for those ity who qualify and obtain a license. being There a reasonable basis for limitation, no ‘‘ equal protection invidious denial is involved. Plaintiff’s contention that the statute vague rests upon supposed determining which establish- difficulty “primarily ments are ting.” engaged in the haircut- argument poses His problem the familiar classify- ing borderline note, however, cases. We suffers from no to his own classification uncertainty for, shops his own statement, “specialize his and cut- styling ’' ting hair. The fact that borderline enough cases is not will arise make a vague. statute unconstitutionally Courts have found interpreting the word capable of
themselves applying v. “primarily” (See in other statutes. Malat Riddell as used 102,104, 1030], 86 S.Ct. L.Ed.2d U.S. [16 People Berry (1956) v. construing a federal revenue act; 818], construing building P.2d Cal.App.2d 33 safety [304 v. United Harriss U.S. law. See also States 808], rejecting 74 S.Ct. the contention that L.Ed. penal statute “principally” made word unconstitutionally barbershop is so well under- vague.) institution The cannot society that we in our say stood referred to in the 1967 amendment what is understand section 6522. judgment is affirmed.
Jefferson, Dunn, J., J., concurred. petition hearing for- a Court Appellant’s 22, 1969. denied October