Haveman v. Bureau of Professional & Occupational AffairsHaveman v. Bureau of Professional & Occupational Affairs
- Reporters:
- Before:
- Anne E. Covey, Mary Hannah Leavitt, Renée Cohn Jubelirer, P. Kevin Brobson, Patricia A. McCullough, Michael H. Wojcik, Ellen Ceisler
OPINION BY JUDGE COVEY FILED: August 25, 2020
Before this Court is the Application for Summary Relief (Application) filed by Courtney Haveman (Haveman) and Amanda Spillane (Spillane) (collectively, Petitioners) filed in this Court‘s original jurisdiction. After review, we grant the Application.
Background
Petitioners are Pennsylvania residents who applied for limited cosmetology licenses from the Bureau of Professional and Occupational Affairs, State Board of Cosmetology (Board), to become licensed estheticians.1 Although
Facts
On December 11, 2018, Petitioners filed a Petition for Review in the Nature of a Complaint for Declaratory and Injunctive Relief (Petition), seeking: (1) a declaration that the good moral character requirement of Section 5 of the Law, and all rules, regulations, policies and practices of the Board implementing that requirement are unconstitutional and facially violate the due process and equal protection clauses of the Pennsylvania Constitution; (2) an order permanently enjoining the Board from enforcing that provision against Haveman, Spillane or anyone else; and (3) attorney‘s fees, costs and expenses.4
On February 11, 2019, the Board filed preliminary objections to the Petition on the basis that the Petition was not legally sufficient (demurrer), timely or ripe for review, and because Petitioners lacked standing and failed to exhaust their administrative remedies. On March 13, 2019, Petitioners filed their response to the preliminary objections. On December 9, 2019, this Court overruled the Board‘s preliminary objections and directed the Board to answer the Petition. See Haveman v. Bureau of Prof‘l & Occupational Affairs, State Bd. of Cosmetology (Pa. Cmwlth. No. 765 M.D. 2018, filed December 9, 2019). In the meantime, the parties conducted
Petitioners filed the Application on December 20, 2019. On January 6, 2020, the Board opposed the Application. On January 21, 2020, Petitioners filed a brief in support of their Application. On February 20, 2020, the Board filed its brief in opposition to the Application and Petitioners filed a reply brief on May 22, 2020. The parties presented oral argument on June 11, 2020. The matter is ready for this Court‘s disposition.
Discussion
[Pennsylvania Rule of Appellate Procedure] 1532(b) provides that “[a]t any time after the filing of a petition for review in an . . . original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.”
Pa.R.A.P. 1532(b) . “An application for summary relief is properly evaluated according to the standards for summary judgment.” Myers v. Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015). That is, in ruling on a[n application] for summary relief, the evidence must be viewed in the light most favorable to the non-moving party and the court may enter judgment only if: (1) there are no genuine issues of mаterial fact; and (2) the right to relief is clear as a matter of law.
Flagg v. Int‘l Union, Sec., Police, Fire Prof‘ls of Am., Local 506, 146 A.3d 300, 305 (Pa. Cmwlth. 2016) (emphasis added). “An application for summary relief is appropriate where a party asserts a challenge to the constitutionality of a statute and no material facts are in dispute.” Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018).
Here, Petitioners contend that there are no material facts in dispute, and they are entitled to relief because the good moral character requirement
The Board responds that genuine issues of material fact exist that preclude summary relief in Petitioners’ favor, and Petitioners’ right to relief is not clear because the Requirement complies with the substantive due process and equal protection mandates in the Pennsylvania Constitution.
A. Clear Right to Relief
The United States (U.S.) Supreme Court has cautioned: “We must keep in mind that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.‘” Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)).” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). Accordingly,
[t]here is a strong presumption in the law that legislative enactments are constitutional. Christ the King Manor v. Dep‘t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006) (en banc), aff‘d per curiam, 951 A.2d 255 (Pa. 2008). . . . A court will not declare a statute unconstitutional unless the constitutional violation is clear, palpable, and plain. Id. The court will resolve all doubts in favor of constitutionality. Id. Thus, a party challenging the constitutionality of a statute has a heavy burden of persuasion. Id.
Phantom Fireworks, 198 A.3d at 1221. “Constitutional challenges to legislative enactments present this Court with questions of law . . . .” Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa. 2019).
In the instant matter, Petitioners claim that the portion of Section 5(a) of the Law, which specifies, in relevant part, that ”[a]n applicant for a limited license shall . . . bе of good moral character,”
Preliminarily, the parties disagree on the proper standard for a facial constitutional challenge. Petitioners assert that the plainly legitimate sweep standard (i.e., a statute is facially unconstitutional if a substantial number of its potential applications are invalid) is applicable. See Petitioners’ Br. at 12; see also Petitioners’ Reply Br. at 13-14. The Board contends that the no set of circumstances standard
In Germantown Cab Company, the Pennsylvania Supreme Court clarified: “A statute is facially unconstitutional only where there are no circumstances under which the statute would be valid.” Germantown Cab Co., 206 A.3d at 1041; see also Wash. State Grange; Clifton v. Allegheny Cty., 969 A.2d 1197 (Pa. 2009). “A facial attack tests a law‘s constitutionality based on its text alone and does not consider the facts or circumstances of a partiсular case.” Peake v. Commonwealth, 132 A.3d 506, 517 (Pa. Cmwlth. 2015) (quoting Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011)). Accordingly, our Supreme Court explained: “In determining whether a statute is facially invalid, courts do not look beyond the statute‘s explicit requirements or speculate about hypothetical or imaginary cases.” Germantown Cab Co., 206 A.3d at 1041; see also Wash. State Grange.
Because Germantown Cab Company is the Pennsylvania Supreme Court‘s most recent pronouncement on evaluating facial challenges, the Board is correct that the Germantown Cab Company Court‘s no set of circumstances standard applies in the instant matter. Thus, the Requirement portion of Section 5(a) of the Law is facially unconstitutional if, based on its text alone, “there are no circumstances under which [it] would be valid.” Germantown Cab Co., 206 A.3d at 1041.
1. Substantive Due Process
The due process clause of the Fourteenth Amendment to the [U.S.] Constitution provides that “[n]o [s]tate shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. CONST. amend. XIV, § 1 . Due process protections also emanate from the Pennsylvania Constitution, particularly Article I, Sections 1, 9, and 11[,PA. CONST. art. I, §§ 1 ,9 ,11 ]. Khan [v. State Bd. of Auctioneer Exam‘rs], 842 A.2d 936, 945 (Pa. 2004).Article I, Section 1 of the Pennsylvania Constitution provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”PA. CONST. art. I, § 1 . As this [Supreme] Court has explained, substantive due process is the “esoteric concept interwoven within our judicial framework to guarantee fundamental fairness and substantial justice.” Khan, 842 A.2d at 946 (quoting Commonwealth v. Stipetich, 652 A.2d 1294, 1299 (Pa. 1995) (Cappy, J., dissenting)).For substantive due process rights to attach, there must be a deprivation of a constitutionally protected interest or property right. Khan, 842 A.2d at 946. If the statute restricts a fundamental right, it is reviewed under strict scrutiny. If the statute impacts a protected but not fundamental right, then it is subject to rational basis review. Khan, 842 A.2d at 946-47; Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003); cf. Wash. v. Glucksburg, 521 U.S. 702, 721 (1997) (stating that, under federal precedent, legislation restricting a right that is not fundamental is subject to rational basis review).
Pursuant to
Article I, Section 1 [of the Pennsylvania Constitution] , protected interests include the right of an individual to pursue his or her livelihood or profession. Khan, 842 A.2d at 945; Nixon, 839 A.2d at 288. . . . [A]lthough the right to engage in a licensed profession is an important right, it is not a fundamental right. See Nixon, 839 A.2d at 288 (recognizing that the right to engage in a particular occupation is not a fundamental right).
Germantown Cab Co., 206 A.3d at 1042-43. Accordingly, because Petitioners’ right to practice limited cosmetology impacts an important right, the rational basis test applies. See Germantown Cab Co.; see also Khan.
The Pennsylvania Supreme Court has explained:
Due process challenges under the Pennsylvania Constitution are analyzed “more closely” under the rational basis test
than due process challenges under the [U.S.] Constitution.15 Nixon, 839 A.2d at 287-88 n.15. In Gambone v. Commonwealth, 101 A.2d 634 (Pa. 1954), the Pennsylvania Supreme Court succinctly defined the rational basis test applicable to substantive due process challenges brought under the Pennsylvania Constitution as follows: [A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations.
Gambone, 101 A.2d at 637 (emphasis added). In Nixon, our Supreme Court reaffirmed that for “substantive due process challenges brought under the Pennsylvania Constitution, the rational basis test is that announced by this Court in Gambone.” Nixon, 839 A.2d at 277-78 n.15. This means that the legislature can curtail the right to engage in a сhosen occupation for an important reason, but it may not do so in a way that is overly broad, i.e., “patently beyond the necessities of the case.” Gambone, 101 A.2d at 637. . . .
[FN]15 In the rational basis test used in equal protection and due process challenges brought under the [U.S.] Constitution, ”a court must uphold a statute as rational if it can conceive of any plausible reason for the statute.” Nixon, 839 A.2d at 287-88 n.15. In those challenges, it matters not whether a statutory classification will have some inequitable results. Id.
Hence, “[r]ational basis review requires this Court to examine whether [the Requirement portion of Section 5(a) of the Law] bears a rational relationship to a legitimate state purpose.” Germantown Cab Co., 206 A.3d at 1045.
a. State Objective
The parties do not contest the legitimacy of the state purpose. The Pennsylvania Supreme Court has declared that “the right to practice one‘s chosen profession is subject to the lawful exercise of the Commonwealth‘s power to protеct the health, safety, welfare, and morals of the public by regulating the profession.” Germantown Cab Co., 206 A.3d at 1044. According to the Board, the Law‘s preamble states that it is “[a]n Act [t]o promote the public health and safety by providing for . . . licensing and granting of permits for those who desire to engage in the profession of cosmetology . . . .” Board‘s Br. at 17; Board Answer to Petition at 19. In addition, the Pennsylvania Supreme Court has specifically ruled: ”The [act commonly referred to as the] Barber License Law[7] and the [Law] have but one purpose, and that is the protection of patrons of barber and beauty shops.” Dep‘t of Licenses & Inspections, Bd. of License & Inspection Review v. Weber, 147 A.2d 326, 328 (Pa. 1959) (emphasis added); see also Beauty Hall, Inc. v. State Bd. of Cosmetology, 210 A.2d 495 (Pa. 1965); King v. Bureau of Prof‘l & Occupational Affairs, State Bd. of Barber Exam‘rs, 195 A.3d 315 (Pa. Cmwlth. 2018); Appl. Ex. 1 (Notes of Testimony, Chairman Tammy O‘Neill (Chairman O‘Neill)) at 98 (“Q The point of this process is the protection of salon patrons, correct? [Chairman O‘Neill] Correct.“). Accordingly, Section 5(a) of the Law has a legitimate state objective.
Next, we must determine whether the means the General Assembly established to attain the objective (i.e., the Requirement) bears a rational (i.e., real and substantial) relationship to the objective (i.e., protecting beauty shop рatrons). See Germantown Cab Co.
Petitioners assert in the Petition:
126. The [Requirement] is facially unconstitutional under this clause because it lacks a real and substantial relationship to the protection of the public health, safety, or welfare, or to any other legitimate government interest. It thus violates the right of [Petitioners] and many others like them to pursue a limited cosmetology license free from arbitrary and irrational legislation.
127. The [Requirement] is also facially unconstitutional under this clause because it is unreasonable, unduly oppressive, and patently beyond the necessities of regulating cosmetology, or of any other legitimate government interest. It thus violates the right of [Petitioners] and many others like them to pursue their chosen occupation free from arbitrary and irrational legislation.
128. The [Requirement] fails on its face to satisfy any standard of constitutional review for substantive due process rights, no matter how articulated.
Petition at 24.
In Gombach v. Department of State, Bureau of Commissions, Elections & Legislation, 692 A.2d 1127 (Pa. Cmwlth. 1997), this Court explained:
Although good moral character was not defined by the General Assembly, . . . the phrase has been made constitutionally certain by our courts in terms of a person lacking “moral turpitude.“[8]
Good moral character is defined, in part, as including “an absence of proven conduct or acts which have been historically considered as manifestation of moral turpitude.” [Black‘s Law Dictionary] 693 (6th ed. 1990). Our courts have defined moral turpitude as “anything done knowingly contrary to justice, honesty or good morals.” Foose [v. State Bd. of Vehicle Mfrs., Dealers & Salespersons], 578 A.2d 1355, 1357 (Pa. Cmwlth. 1990).
Garner v. Bureau of Prof‘l & Occupational Affairs, State Bd. of Optometry, 97 A.3d 437, 440 (Pa. Cmwlth. 2014) (footnote omitted). In Bowalick v. Dep‘t of Educ., 840 A.2d 519 (Pa. Cmwlth. 2004), this Court concluded: “Considering . . . the cases addressing moral turpitude in different statutory contexts, . . . a crime of moral turpitude requires a reprehensible state of mind or mens rea.” Id. at 523-24.
The Board has declared, relative to the type of crimes for which Petitioners were convicted, that assault and thefts are crimes of moral turpitude, see Appl. Exs. 8, 14, 17, 20, while DUI, drug possession, and possession of drug paraphernalia are not crimes of moral turpitude. See Appl. Exs. 9, 17.
The Court acknowledges that Governor Wolf signed the
In her Dissent, Judge McCullough states that “[t]he Board requests that we review the impact of Act 53 to assess whether the legislation has rendered Petitioners’ constitutional claims moot.” Haveman v. Bureau of Prof‘l & Occupational Affairs, State Bd. of Cosmetology (Pa. Cmwlth. No. 765 M.D. 2018, filed August 25, 2020), slip op. at 2. However, the Board merely notified the Court of Act 53 “as a change in status of authorities.” July 7, 2020 Letter; see
[quoting Moretti [v. State Bd. of Pharmacy], 277 A.2d 516, 518 (Pa. Cmwlth. 1971)]). From these definitions it is apparent that the two phrases, good moral character and moral turpitude, are often used together or to define each other.
Id. at 1130. Garner v. Bureau of Prof‘l & Occupational Affairs, State Bd. of Optometry, 97 A.3d 437, 440 (Pa. Cmwlth. 2014). “Based on Foose and Moretti, we hold that good moral character has been sufficiently defined by judicial interpretation, custom and usage so as to survive constitutional challenge. If a person has committed an act of moral turpitude, it may be determined whether that person is of good moral character.” Gombach, 692 A.2d at 1131 (emphasis added; quotation marks omitted).
This Court “‘must uphold [the Requirement] as rational if it can сonceive of any plausible reason for [it].’ Nixon, 839 A.2d at 287-88 n.15.” Peake, 132 A.3d at 518 n.15. The Board proffered in its brief:
It is important for a potential limited licensee, who will come into direct contact with a person‘s body, to be of good moral character. There is an inherent level of trust involved when a client of an esthetician, nail technologist or natural hair braider lets a stranger touch a part of [his/her] body. This trust is due to the knowledge of that client that the stranger touching [him/her] has been vetted by the licensing process and that the General Assembly fulfilled its duty of public protection when fashioning that process. The result is that a man or woman can be in a rather compromising position with an esthetician but feel a level of comfort knowing that the esthetician is of good moral character.
Board‘s Br. at 15. This Court agrees with the Board that, based on the statutory definitions of cosmetology and esthetics, that patrons seeking the services of a cosmetologist and/or esthetician place themselves in vulnerable situations. Under the
Because the Requirement bears a rational relationship to its objective of protecting beauty shop patrons, Petitioners have failed to state a viable claim that the Requirement, on its face, violates substantive due process. Accordingly, Petitioners do not have a clear right to relief on their substantive due process claim.
2. Equal Protection
Petitioners assert in the Petition:
134. Applicants for limited cosmetology licenses are similarly situated to applicants for barber‘s licenses.
135. Applicants for limited cosmetology licenses are similarly situated to applicants for unlicensed jobs at spas and salons.
136. Requiring good character of applicants for limited cosmetology licenses but not of applicants for barber‘s licenses and unlicensed jobs at spas and salons facially violates equal protection because it bears no real and substantial relationship to the protection of the public health, safety, or welfare, or to any other legitimate government interest.
137. Requiring good character of applicants for limited cosmetology licenses but not of applicants for barber‘s licenses and unlicensed jobs at spas and salons facially violates equal protection because it is unreasonable, unduly oppressive, and patently beyond the necessitiеs of regulating cosmetology, or of any other legitimate government interest.
138. Requiring good character of applicants for limited cosmetology licenses but not of applicants for barber‘s
licenses and unlicensed jobs at spas and salons facially violates equal protection because it bears no rational relationship to any legitimate government interest. 139. The [Requirement] fails on its face to satisfy any standard of constitutional review for equal protection, no matter how articulated.
Petition at 25-26.
Chairman O‘Neill acknowledged that, although salon receptionists, cashiers, make-up technicians and shampooers work alongside licensed cosmetologists and estheticians in salons, often with the same patrons and with similar access to their belongings, those other salon employees are not subject to the Requirement. See Appl. Ex. 1 at 97-99. Moreover, the General Assembly did not subject barbers to the Requirement.
Despite that the Barber License Law‘s purpose “is [likewise] the protection of patrons of barbеr . . . shops[,]” Weber, 147 A.2d at 328; see also King, the Barber License Law
does not [similarly] prohibit licensure based on a prior conviction of any kind, nor does it require that applicants demonstrate that they are of good moral character. [See Section 3 of the Barber License Law,]
63 P.S. § 553 . . . . Instead, the Barber License Law requires only that applicants be at least 16 years old, have at least an eighth-grade education, have a specified amount of training and experience, and pass the applicable examinations. [See]63 P.S. § 553 .
Section 2.1 of the Barber License Law11 defines “barbering,” in relevant part, as follows:
To shave or trim the beard; to cut, shape, trim or blend the hair with the proper tools or instruments designed for this purpose; to shape the eyebrows, to give facial and scalp massaging, facial and scalp treatment, with any
preparations made for this purpose, either by hand or by mechanical or electrical appliances; to singe and shampoo the hair or apply any makes of hair cream, hair lotions or hair tonics; to dye, color or bleach the hair and to perform any service on a wig or hairpiece; to style and to render hair straightening, hair processing, hair weaving, hair waving and curling, with such methods as: manual, mechanical, chemical or electrical with the proper devices or proper chemical compounds developed and designed for this purpose.
Like estheticians, licensed barbers are permitted to shape/tweeze eyebrows, dye hair (including eyelashes and eyebrows), and give facial treatments and massages. See
Notably, Section 17 of the Law declares, in pertinent part: “Nothing in this [Law] is intended to be inconsistent with the [Barber License Law.]”
The Barber License Law and the [Law] are in effect legislаtive [conjoined] twins. It is true they were born two years apart, but in the life of a commonwealth, and certainly in the life of the general welfare of a people, two years may be but a moment. The kinship between these two creatures of the Legislature was recognized in the [Law] by the language:
“Nothing in this [Law] is intended to be inconsistent with the [Barber License Law],” . . .
63 P.S. § 523 .
It is a cardinal rule of statutory construction that a statute must never be read, unless the text impels so extraordinary a reading, as to impart to it an absurd intent.
When Chairman O‘Neill was asked “What about good character is relevant to the practice of cosmetology?,” she responded: “Serving the public. It‘s a major part of their job, [] dealing with the public, serving the public, communicating with the public, as well as their overall success.” Appl. Ex. 1 at 72. When asked: “Do you think that there‘s anything about cosmetology that offers specific risks of certain kinds of crime?,” Chairman O‘Neill responded: “No.” Appl. Ex. 1 at 74-75.
However, despite that the Law was not intended to be inconsistent with the Barber License Law,
Accordingly, since Petitioners have made a viable claim that the Requirement, on its face, violates equal protection, they have a clear right to relief.
The Board argues that there are outstanding issues of material fact that preclude this Court from granting judgment in Petitioners’ favor. Specifically, the Board asserts that “[a] genuine issue of material fact also exists as to Petitioner[s‘] assertion that the Board has a ‘mission to ensure good salon experiences[,]’ [Petitioners‘] Br. [at] 9[,]” rather than to promote patron safety. Board‘s Br. at 9. The Board further claims that the absence of studies, interviews or testimony that good moral character protects salon patrons, raises a factual issue to be resolved at trial. See Board‘s Br. at 9. In addition, the Board contends that the details of other Board decisions included with Petitioners’ Application raise factual issues related to whether there is no circumstance under which the Requirement would be valid. See Board‘s Br. at 7. The Board also maintains that “determining the ability of the Board to apply the provisions in a constitutional manner requires resolution of disputed facts.” Bоard‘s Br. at 8. Further, the Board argues that Petitioners’ declaration that applicants with the wrong criminal history cannot become cosmetologists is an outstanding factual issue, since the Board routinely grants licenses to applicants with criminal histories. See Board‘s Br. at 10. However, there is no factual dispute that the Requirement‘s purpose is patron protection. Moreover, because Petitioners assert a facial challenge, and these purported factual issues concern the constitutionality of the Requirement as applied, they are not material to this Court‘s decision.12
The Board further asserts that Petitioners’ allegation that there is nothing unique about cosmetology to justify character reviews, and the differences between barbers and other salon employees as compared to cosmetologists must also be
Accordingly, there are no genuine issues of material fact that would preclude this Court from granting summary relief.
Conclusion
Based on the foregoing, because the Requirement, on its face, violates the equal protection mandates of the Pennsylvania Constitution, this Court grants Petitioners’ Application.
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
AND NOW, this 25th day of August, 2020, the Application for Summary Relief filed by Courtney Haveman and Amanda Spillane is GRANTED. Section 5(a) of what is commonly referred to as the Beauty Culture Law, Act of May 3, 1933, P.L. 242, as amended,
ANNE E. COVEY, Judge
FILED: August 25, 2020
Petitioners Courtney Haveman (Haveman) and Amanda Spillane (Spillane) (collectively, Petitioners) have criminal records. Because of those criminal records, Respondent Bureau of Professional and Occupational Affairs, State Board of Cosmetology (Board), denied Petitioners’ applications for a limited license to practice esthetics under what is commonly referred to as the Beauty Culture Law or Cosmetology Law (Law).1 Specifically, based on the convictions, and only based
Petitioners both had available administrative remedies to address the Board’s separate decisions to decline their applications based on their criminal histories. Haveman, however, elected not to proceed with a hearing before the Board. The Board issued a final adjudication, denying her application on October 7, 2016. Spillane requested a hеaring and received an adverse adjudication from the Board on November 4, 2015, but chose not to appeal the adjudication to this Court. Roughly two and three years later, respectively, Spillane and Haveman initiated this action in our original jurisdiction.
I agree with the Honorable Bonnie Brigance Leadbetter, who, in her dissenting opinion on December 9, 2019, would have sustained the preliminary objections of the Board to our exercise of original jurisdiction in this matter. Haveman v. Bureau of Prof‘l and Occupational Affairs, State Bd. of Cosmetology (Pa. Cmwlth., No. 765 M.D. 2018, filed Dec. 9, 2019) (Leadbetter, S.J., dissenting). Petitioners actively participated in an administrative process that, had they seen through to fruition, would have allowed this Court to address their alleged facial
For this reason, I would deny Petitioners’ Application for Summary Relief and dismiss this matter for lack of original jurisdiction.6
P. KEVIN BROBSON, Judge
FILED: August 25, 2020
Here, the Bureau of Professional and Occupаtional Affairs, State Board of Cosmetology of the Commonwealth of Pennsylvania (Board) denied the applications of Courtney Haveman and Amanda Spillane (Petitioners) for licensure as estheticians on the basis that they did not satisfy the “good moral character” requirement of section 5(a) of the statute known as the Beauty Culture Law,1
While I agree that there are significant constitutional issues that would be applicable here, I believe we must first address the issue of mootness for failure to exhaust administrative remedies, a procedure which, if pursued through its natural course, could have provided Petitioners with an adequate remedy.
Although petitioners need not avail themselves of or even exhaust administrative remedies when they lodge a facial constitutional challenge to a statutory provision, see East Coast Vapor, LLC v. Pennsylvania Department of Revenue, 189 A.3d 504, 511 (Pa. Cmwlth. 2018) (en banc), Petitioners here decided to apply for licensure and elected to pursue the administrative process with and through the Board. Yet, along with that administrative channel and procedure came an automatic right to file a petition for review with this Court. See Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017). In Lehman v. Pennsylvania State Police, 839 A.2d 265, 275 (Pa. 2003), our Supreme Court explained that petitioners’ “facial challenges to a statute’s constitutionality need not be raised before the administrative tribunal to be reviewed by an appellate court.” Id. at 275. In so deciding, our Supreme Court confirmed that this Court could have entertained Petitioners’ constitutional claims on direct appeal from the Board.
However, Petitioners chose to not file a petition for review with this Court from the Board’s order denying their applications. During the pendency of this appeal, on July 17, 2020, the Board filed a submission with this Court, contending that the enactment of the Act of July 1, 2020, P.L. 575, No. 53 (Act 53), severely altered its authority to implement the “good moral character” requirement of section 5(a), namely the manner in which it may or can take into consideration past criminal convictions when deciding to grant licensure. The Board requests that
PATRICIA A. McCULLOUGH, Judge
FILED: August 25, 2020
I agree with the outcome of this case and the majority’s determination that rational basis review applies to this matter, pursuant to our Supreme Court’s holding in Germantown Cab Co. v. Philadelphia Parking Authority, 206 A.3d 1030, 1041 (Pa. 2019). I also concur fully in the majority’s well-reasoned conclusion that the “good moral character” requirement of Section 5(a) of the statute known as the Beauty Culture Law,1
I. Background
Petitioners are two women who want to become estheticians, which are cosmetologists who focus on skincare. This requires only a limited license rather than a full cosmetology license, but the State Board of Cosmetology (Board) applies the “goоd moral character” requirement equally to both types of licenses.
II. Due Process and the “Good Moral Character” Requirement
Article I, Section 1 of the Pennsylvania Constitution guarantees “an individual’s right to engage in any of the common occupations of life.”
Petitioners contend the statutory “good moral character” requirement deprives them of their chosen occupations and thereby violates their substantive due process rights. The sole purpose of Pennsylvania’s cosmetology laws is to protect patrons of beauty salons. Dep‘t of Licenses & Inspections, Bd. of License & Inspection Review v. Weber, 147 A.2d 326, 328 (Pa. 1959). As Petitioners correctly point out,
Good character has nothing to do with protecting beauty salon patrons. Indeed, the Board admits that it has no evidence that the good character requirement protects salon customers. See Appl. for Summary Relief, Ex. 7 (Board could not identify evidence that the requirement serves a purpose). In fact, the Board already has separate authority to withhold licenses for misbehavior that is related to cosmetology.
Moreover, the good character requirement is unconstitutionally imprecise and arbitrary. “The touchstone of due process is protection of the individual against arbitrary action of the government.” Peake, 132 A.3d at 518 (quoting Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003)); see also Johnson, 59 A.3d at 20 (“The substantive protections of due process are meant to protect citizens from arbitrary and irrational actions of the government.“). By definition, arbitrary laws do not advance state interests.
The Board argues Petitioners cannot sustain a facial challenge because they cannot show the statute is invalid in all circumstances. The Boаrd posits that its decisions granting licenses to some applicants with criminal records demonstrate that the statute is constitutional as applied in those cases. However, the Board’s uneven application of its prejudice against former criminals is not relevant to whether the statute is facially unconstitutional.
The Board also argues that good moral character may be important to eligibility for professional licenses. The Board points to this Court’s approval of such a requirement for notaries and asserts it has applied the “good moral character” standard of Section 5(a) similarly. Again, this is not relevant to whether that
Rational basis review “require[s] an individual challenging legislation to show either that the legislation does not further a legitimate state interest[] or that the legislation is not rationally related to this legitimate state interest.” Germantown Cab Co., 206 A.3d at 1044 (citing Washington v. Glucksburg, 521 U.S. 702, 728 (1997), and Romer v. Evans, 517 U.S. 620, 635 (1996)). “In addition, Pennsylvania balances the rights of the individual against the public interest.” Germantown Cab Co., 206 A.3d at 1044-45.
Here, there is facially no rational relation between the “good moral character” requirement of Section 5(a) and the legislature’s asserted interest in public health and safety. Further, Petitioners persuasively argue that their individual rights outweigh any indeterminate public interest. In this regard, it is notable that the Board simply asserts that the “good moral character” requirement of Section 5(a) bears a rational relation to the public interest because the legislature is presumed to make decisions based on the public interest. This circular argument does not support the Board’s contention that the public interest outweighs that of Petitioners for purposes of rational basis review.
Finally, the Board contends good moral character is important because clients must be able to trust their estheticians, as estheticians are in physical contact with clients. The Board asserts, with absolutely no supporting evidence, that clients may find themselves “in a rather compromising position” with an esthetician (аlthough apparently not with a barber using a straight razor) and need the comfort of knowing the person touching them is of good moral character. This bald assertion is simply without record support. Thus, the Board has failed to point to any specific set of
For these reasons, I conclude that Section 5(a) facially violates constitutional rights of substantive due process, as well as equal protection rights, under rational basis review. I would grant Petitioners’ requested relief on this additional basis. Therefore, I respectfully dissent from that portion of the majority’s decision concluding that Section 5(a) does not facially violate Petitioners’ substantive due process rights.
ELLEN CEISLER, Judge
Notes
An applicant for an esthetician license shall have completed three hundred hours of instruction in esthetics in a licensed school of cosmetology and passed an examination limited to that practice. Licensed estheticians may operate a salon limited to that license. An applicant may be permitted to apply to take a written examination upon completion of at least two hundred fifty hours of instruction in esthetics in a licensed school of cosmetology. The examination shall include both theoretical and procedural skill questions as prescribed by the board. Any applicant may apply and is eligible for licеnsure upon (i) passing the written examination, (ii) completion of the required three hundred hours of instruction, and (iii) certification by a duly licensed school of satisfactory completion of all program requirements.
The [B]oard shall have the power to refuse, revoke, refuse to renew or suspend licenses, upon due hearing, on proof of violation of any provisions of this [Law], or the rules and regulations established by the [B]oard under this [Law], or for gross incompetency or dishonest or unethical practices, or for failing to submit to an inspection of a licensee‘s salon during the business hours of the salon.