A. Diop v. BPOA, State Board of Cosmetology of The Com. of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Astou Diop, Tanyita Henry, :
and Awa Gaye, :
Petitioners :
:
v. : No. 363 M.D. 2020
: Argued: December 16, 2021
Bureau of Professional and :
Occupational Affairs, :
State Board of Cosmetology :
of The Commonwealth of :
Pennsylvania, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE LEAVITT FILED: March 3, 2022
In this original jurisdiction action, Astou Diop, Tanyita Henry, and
Awa Gaye (Petitioners) challenge the constitutionality of certain provisions of the
statute commonly known as the Beauty Culture Law (Law),2 which require a license
to engage in the commercial practice of natural hair braiding. Petitioners challenge
this regulatory regime both facially and as applied to them. Presently before this
Court are the preliminary objections of the Bureau of Professional and Occupational
Affairs (Bureau) and the State Board of Cosmetology of the Commonwealth of
Pennsylvania (Board) (collectively, Respondents). Respondents ask the Court to (1)
dismiss the as-applied constitutional claims of Tanyita Henry for lack of standing;
(2) dismiss Petitioners’ facial substantive due process challenge as legally
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
2
Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§507-527.
insufficient;3 and (3) dismiss Petitioners’ as-applied and facial equal protection
claims as legally insufficient.
I. Procedural History
On June 18, 2020, Petitioners filed a petition for review in the nature of
a complaint for declaratory and injunctive relief, alleging that the provisions of the
Law and associated regulations requiring them to obtain a license to engage in
commercial natural hair braiding violate their substantive due process right to pursue
their chosen occupation under Article I, Section 1 of the Pennsylvania Constitution.
PA. CONST. art. I, §1.4 On August 5, 2020, Respondents filed an answer to the
petition for review, denying some factual allegations therein and asserting that
pending legislation in the General Assembly would address Petitioners’ concerns.5
Respondents also asserted that Petitioners failed to plead facts to show an actual case
in controversy and failed to join all indispensable parties, i.e., all individuals who
hold a natural hair braiding license and whose property interest in that license would
be affected were this Court to declare the licensing scheme unconstitutional. In a
3
Respondents raise an additional objection that Petitioners have failed to “join all active, inactive,
and suspended license holders whose rights will be directly affected if the Court provides the
declaratory relief sought.” Respondents’ Brief at 9. Respondents ask the Court to address this
objection only if it allows Petitioners’ facial substantive due process challenge to proceed.
4
It states:
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.
5
Respondents ask the Court to take judicial notice of Senate Bill 60, 205th General Assembly
(2021), which will deregulate the practice of natural hair braiding. Senate Bill 60 is currently
pending before the Senate Consumer Protection and Professional Licensure Committee. The
history of the bill is available on the General Assembly’s website at the following address:
https://www.legis.state.pa.us/cfdocs/billinfo/bill_history.cfm?syear=2021&sind=0&body=S&typ
e=B&bn=60 (last visited March 2, 2022).
2
reply to new matter filed August 18, 2020, Petitioners denied the allegations in
Respondents’ answer.
In August 2020, the parties began to engage in discovery. On April 16,
2021, Petitioners, with Respondents’ consent, filed their first amended petition for
review. In a new Count II, Petitioners asserted that the licensing requirements for
natural hair braiders violate the equal protection guarantee in Article I, Section 26
of the Pennsylvania Constitution.6 The first amended petition also clarified that, in
Counts I and II, Petitioners were challenging the Law both facially and as applied to
them.
On May 7, 2021, Respondents filed preliminary objections to the first
amended petition for review. On May 18, 2021, based on Respondents’ preliminary
objections and pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(1),7
Petitioners filed a second amended petition for review (Petition) as of course. On
June 15, 2021, Respondents filed new preliminary objections to the Petition. On
July 6, 2021, Petitioners filed an answer in opposition to the preliminary objections.
II. Petition for Review
A. Factual Averments
The Petition avers the following facts. Natural hair braiding is a method
of haircare with historical and cultural roots in African and African American
communities. Petition ¶¶2, 19-20. The practice of natural hair braiding “refers to
6
It states: “Neither the Commonwealth nor any political subdivision thereof shall deny to any
person the enjoyment of any civil right, nor discriminate against any person in the exercise of any
civil right.” PA. CONST. art. I, §26.
7
The rules states: “A party may file an amended pleading as of course within [thirty] days after
service of a copy of preliminary objections. If a party has filed an amended pleading as of course,
the preliminary objections to the original pleading shall be deemed moot.” PA.R.CIV.P.
1028(c)(1), PA.R.A.P. 1516(b).
3
twisting, wrapping, weaving, extending, locking or braiding of hair” by hand and, at
times, with the use of simple tools, such as clips, combs and hairpins. Id. ¶¶11-12.8
Natural hair braiding incorporates both traditional and modern styling techniques,
and sometimes includes the use of extensions, decorative beads and other hair
accessories. Id. ¶¶13-14. Natural hair braiding does not involve the use of dyes,
reactive chemicals or other preparations to alter the color of hair or to straighten,
curl or alter the structure of hair. Id. ¶15. It does not require the use of heated tools,
such as a curling iron or flat iron. Id. ¶28. It is dramatically different from general
hair braiding and other types of hairstyling. Id. ¶21. The hair braiding practiced by
Petitioners is “complex and labor intensive,” often taking multiple hours or even
days to complete. Id. Persons of African descent regularly learn to braid hair as
children or teens, and “[f]or many people the choice of natural hair braiding over
other styles is as much a cultural statement and expression of self-identity as it is an
aesthetic concern.” Id. ¶¶20, 22.
8
Section 1 of the Law defines “natural hair braiding” as
[t]he practice of utilizing techniques that result in tension on hair roots of
individuals, such as twisting, wrapping, weaving, extending, locking or braiding of
the hair. The term does not include the application of dyes, reactive chemicals or
other preparations to alter the color or to straighten, curl or alter the structure of
hair.
63 P.S. §507. The Board’s regulations define “natural hair braiding” as:
(i) The practice of utilizing techniques that result in tension on hair roots of
individuals, such as twisting, wrapping, weaving, extending, locking or braiding of
the hair. The term includes the application of heat by the use of a straightening
comb, ceramic iron or similar appliance to prepare the hair for manipulation.
(ii) The term does not include cutting the hair or the application of dyes, reactive
chemicals or other preparations to alter the color or to straighten, curl or alter the
structure of hair.
49 Pa. Code §7.1. Petitioners assert that the definition in the regulation includes acts not typically
performed by natural hair braiders. Petition ¶211.
4
In 2004, this Court held that natural hair braiding falls within the Law’s
definition of “cosmetology” and, thus, the Board was authorized to require hair
braiders to be licensed as cosmetologists. Petition ¶51 (citing Diwara v. State Board
of Cosmetology, 852 A.2d 1279, 1283, 1286 (Pa. Cmwlth. 2004)). In 2006, the
General Assembly amended the Law to create a limited license for natural hair
braiding that requires 300 hours of training and a license examination. Id. ¶¶52, 54;
see Section 5(b)(3) of the Law, 63 P.S. §511(b)(3).9 Relatedly, the Board’s
regulations recommend that 125 hours of the required instruction, or 42% of the
total, cover “[c]ognitive and manipulative skills related to natural hair braiding.” Id.
¶¶191-92 (quoting 49 Pa. Code §7.129(f)).10 Respondents are charged with
9
Section 5(b)(3)(i) of the Law states:
(b) The board shall issue the following limited licenses to qualified applicants:
***
(3)(i) Natural hair braiding license, which shall authorize the holder to engage in
the practice of natural hair braiding only. An applicant for a natural hair braiding
license shall have completed three hundred hours of board-approved subjects
relating to sanitation, scalp care, anatomy and natural hair braiding in a
cosmetology school and passed an examination limited to that practice. Licensed
natural hair braiders may operate a salon limited to that license. An applicant may
be permitted to take a written examination upon completion of at least two hundred
fifty hours of instruction in natural hair braiding 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
licensure upon (A) passing the written examination, (B) completion of the required
three hundred hours of board-approved subjects, and (C) certification by a duly
licensed school of satisfactory completion of all program requirements.
63 P.S. §511(b)(3)(i).
10
The regulation provides, in relevant part:
(f) A school’s natural hair braiding curriculum, excluding electives, must comprise
a minimum of 300 hours and cover the following subjects; the accompanying
breakdown of hours by subjects is recommended:
NATURAL HAIR BRAIDING COURSE OUTLINE
5
enforcing the educational and licensing requirements for natural hair braiding. Id.
¶55.
The Petition alleges that the Law’s educational and licensing
requirements are onerous because few Pennsylvania cosmetology schools offer a
300-hour course specific to natural hair braiding. Petition ¶¶145-55. Further, their
instruction on “cognitive and instructional skills related to natural hair braiding”
approved by the Board is only tangentially related to natural hair braiding. Id. ¶194.
Board-approved instruction focuses on braiding of straight, European style hair and
the braiding of shampooed and straightened circle shape hair, neither of which relate
to natural hair braiding. Id. ¶195. Moreover, the instruction on “professional
practices” and “sciences” is only tangentially related to natural hair braiding because
it includes training on shampoos, chemical treatments and hair straightening tools.
Id. ¶196.
The statutorily mandated natural hair braiding examination must
“include both theoretical and procedural skill questions as prescribed by the Board.”
Petition ¶197 (quoting Section 5(b)(3)(i) of the Law, 63 P.S. §511(b)(3)(i)).
Petitioners allege that natural hair braiding techniques comprise a small quantity, if
any, of the computer administered examination required to obtain a natural hair
braiding license. Id. ¶201. The examination tests on multiple subjects that are not
Recommended
Hours
Professional practices, including sanitation 50
Sciences, including scalp care and anatomy 125
Cognitive and manipulative skills related to natural 125
hair braiding
Total 300
49 Pa. Code §7.129(f).
6
relevant to natural hair braiding, including storage of chemical products, use of
thermal appliances, shampooing and scalp treatments. Id. ¶¶202, 206.
Petitioners further allege that in a 2017 executive order, Governor Tom
Wolf directed the Bureau to identify overly broad or burdensome licensing
requirements. Petition ¶¶56-63. On June 11, 2018, the Bureau issued a report
(Bureau Report) finding that overburdensome licensing requirements can be
particularly harmful to, inter alia, immigrant communities, and identifying
Pennsylvania as “only one of two states in the regional comparison group of 12 states
and only one of 15 states nationwide” that impose licensure requirements on natural
hair braiders. Id. ¶¶67, 70. The Bureau Report identified no public health or safety
justification for the 300 hours of training required under the Law to obtain a limited
license for natural hair braiding, nor did it identify any instance of discipline imposed
for practicing natural hair braiding without a license. Id. ¶¶74, 76. Three days after
issuance of the Bureau Report, Governor Wolf recommended the elimination of the
natural hair braiding limited license because no forms of registration, certification,
or examination for natural hair braiders are necessary to protect public health and
safety. Id. ¶¶77-81. Ian Harlow, Commissioner of Professional and Occupational
Affairs, publicly concurred in the Governor’s recommendation and called for the
deregulation of natural hair braiders. Id. ¶82. Commissioner Harlow identified only
a single instance, from 2003, of discipline imposed for practicing natural hair
braiding without a license. He also stated that the Bureau has never received a
consumer complaint arising from natural hair braiding. Id. ¶84.
Petitioners are skilled practitioners of natural hair braiding. Petition ¶2.
Astou Diop learned braiding by practicing on family, friends and herself and
considers braiding an essential part of her cultural identity. Id. ¶112. She is currently
7
the manager of a natural hair braiding shop in Philadelphia. Id. ¶109. She has had
difficulty finding braiders to meet the demand for her shop’s services because most
skilled braiders in Pennsylvania do not have a license. Id. ¶121. Diop has considered
securing a limited license for herself but the curriculum at the cosmetology school
she visited taught techniques that are not relevant to natural hair braiding. Id. ¶125.
Tanyita Henry learned how to braid hair as a child and, as an adult,
braids her own hair, her daughter’s hair and occasionally the hair of other family
members and friends. Id. ¶¶133-34. She does not currently braid hair for
compensation and, as of the date of the Petition, was laid off from her work as a
surgical technician. Id. ¶¶135, 137. She aspires to open a natural hair braiding salon
and provide braiding services for members of her community in Bellefonte,
Pennsylvania. Id. ¶139. Henry alleges that but for the Law’s education and testing
requirements, she would begin to braid hair for compensation. Id. ¶138.
Henry investigated educational opportunities in her area and learned
that a cosmetology school located five miles from her home does not offer the Board-
mandated 300-hour course in natural hair braiding. Id. ¶146. Henry would have to
take the full 1,250-hour cosmetology program, which Petitioners allege includes
little, if any, instruction on natural hair braiding and costs $10,860. Id. ¶147. She
encountered the same issue with the next closest school that is 50 miles from
Bellefonte. Id. ¶149. A third cosmetology school in Harrisburg, which is 90 miles
from her home, advertises the 300-hour course in natural hair braiding but does not
actually offer it due to insufficient demand. Id. ¶151. Henry enrolled in a full 1,250-
hour cosmetology program several years ago but withdrew because only a few hours
of training were directed to natural hair braiding. Id. ¶156. Henry has avoided
obtaining a cosmetology license because of her past experience in a full cosmetology
8
program, the difficulties in finding childcare and in home-schooling her children
while enrolled in such a program, and the significant additional cost of tuition. Id.
¶161.
Awa Gaye was born in the Republic of Senegal, where she learned and
became an expert in natural hair braiding techniques. Petition ¶¶162, 165. She and
her husband emigrated to the United States in 2007 and settled in New Jersey, where
Gaye obtained a cosmetology license and began working as a natural hair braider.
Id. ¶¶163, 168, 174. After working for four years in New Jersey, Gaye opened a
natural hair braiding shop in Philadelphia. Id. ¶170. She chose Philadelphia because
of its large West African population, and her shop now serves as a cultural meeting
place for West African and African American women. Id. ¶172. Gaye’s shop
employs four additional braiders, some of whom cannot read or write, which
prevents them from attending a school to secure a license or taking a licensing
examination. Id. ¶¶175-76. Gaye has had difficulty finding braiders to meet the
demand for her shop’s services because most skilled braiders in Pennsylvania do not
have a license. Id. ¶177.
The Petition alleges that the Board has issued and continues to issue
warnings, notices of violation, cease and desist letters and administrative penalties
and fines to individual hair braiders for the unlicensed practice of hair braiding and
to salons that employ unlicensed braiders. Petition ¶¶222-23. Enforcement of the
Commonwealth’s licensing requirements has the effect of discouraging businesses
from hiring unlicensed hair braiders and, as a result, braiding businesses are unable
to grow or meet the consumer demand for braiding services. Id. ¶225. Enforcement
of the Commonwealth’s licensing requirements against individual hair braiders
threatens their ability to earn a living. Id. ¶226.
9
Petitioners aver that they are experts at natural hair braiding and have
devoted substantial time and effort to developing their craft and businesses. Petition
¶230. They would have to stop working to obtain a natural hair braiding license and
cannot afford to spend thousands of dollars on tuition at a cosmetology school, where
they would either learn skills they have already mastered or skills that do not relate
to natural hair braiding. Id. ¶231. Petitioners assert that the Board’s enforcement of
the Law and regulations forces them to risk fines and imprisonment every time they
braid hair for compensation or, in the case of Gaye, employ unlicensed natural hair
braiders. Id. ¶¶232, 235. The Board’s actions deprive Petitioners and other braiders
of the ability to pursue their calling. Id. ¶237. Gaye and Diop are unable to reliably
offer hair braiding services to their customers without employing unlicensed
braiders, and they cannot expand their businesses because they cannot find qualified,
licensed braiders to meet demand. Id. ¶244.
B. Constitutional Claims
Based on the foregoing factual averments, Count I of the Petition
asserts that the Law’s licensing requirements for natural hair braiders, as applied to
Petitioners, violates Petitioners’ substantive due process rights as guaranteed in
Article I, Section 1 of the Pennsylvania Constitution. Petition ¶¶252-56. Petitioners
clarify that their Count I substantive due process challenge is also a facial challenge
to the Law’s licensing requirements. Id. at 39-40. Specifically, they assert that the
Law’s licensing requirements bear no substantial relationship to the protection of
public health, safety, welfare, or any other legitimate government interest, and that
requiring a license for natural hair braiding serves only illegitimate economic
protectionism. Id. ¶¶257-65. Petitioners contend that they do not have an adequate
remedy for the irreparable harm to their constitutional rights other than an injunction
10
to bar Respondents from enforcing the Law’s requirement that natural hair braiders
be licensed. Id. ¶266.
Count II of the Petition asserts that the Law’s licensing requirements
for natural hair braiders violate the equal protection guarantee in Article I, Section
26 of the Pennsylvania Constitution, both facially and as applied to Petitioners.
Petition ¶¶268-81. In support, Petitioners assert that the Law treats similarly situated
persons differently by allowing licensed cosmetologists, who lack any training in
natural hair braiding, to provide the service, while denying experienced, but
unlicensed, natural hair braiders the same right. Id. ¶¶277-80.
Petitioners seek a declaration from this Court under the Declaratory
Judgments Act11 that the licensing requirements of the Law pertaining to natural hair
braiding are unconstitutional. They further request that this Court permanently
enjoin Respondents from enforcing the licensing requirements and award attorney
fees to Petitioners.
III. Preliminary Objections
In their preliminary objections, Respondents first demur to Tanyita
Henry’s standing to assert the as-applied challenges to the Law’s licensing
requirements in Counts I and II. Respondents argue that because Henry does not
currently practice natural hair braiding commercially, the Law’s licensing
requirements do not apply to her and, thus, she is not aggrieved. Second,
Respondents demur to Petitioners’ facial substantive due process challenge in Count
I on the basis that it is legally insufficient. Respondents argue that Petitioners have
failed to allege facts to satisfy their heavy burden of showing that the Law, on its
face, clearly, palpably, and plainly violates the Pennsylvania Constitution. Third,
11
42 Pa. C.S. §§7531-7541.
11
Respondents demur to the facial challenge in Count I based on Petitioners’ failure
to join all active, inactive and suspended holders of a limited natural hair braiding
license, who are indispensable parties because their property rights in their licenses
will be directly affected by a judgment in favor of Petitioners.12 Fourth, Respondents
demur to the as-applied and facial equal protection challenges in Count II.
Respondents argue that Count II is legally insufficient because the facts alleged in
the Petition do not support Petitioners’ premise that they are similarly situated to
licensed cosmetologists.
IV. Scope and Standard of Review
In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences that we
may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth.
1994). This Court, however, is not bound by legal conclusions, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion
encompassed in the petition for review. Id. We may sustain preliminary objections
only when the law makes clear that the petitioner cannot succeed on the claim, and
we must resolve any doubt in favor of the petitioner. Id. “We review preliminary
objections in the nature of a demurrer under the above guidelines and may sustain a
demurrer only when a petitioner has failed to state a claim for which relief may be
granted.” Armstrong County Memorial Hospital v. Department of Public Welfare,
67 A.3d 160, 170 (Pa. Cmwlth. 2013).
12
Respondents condition their third objection on the Court overruling their preliminary objection
to Count I, stating that “[i]f Petitioners’ facial challenge to the license requirements is permitted
to proceed, Respondents request the Court sustain their third objection and issue an order requiring
Petitioners to join all active, inactive, and suspended license holders whose rights will be directly
affected if the Court provides the declaratory relief sought.” Amended Brief in Support of
Preliminary Objections, filed 9/1/2021, at 25-26.
12
V. Discussion
A. Standing of Tanyita Henry
In their first preliminary objection, Respondents argue that Henry lacks
standing to challenge the constitutionality of the Law’s licensing requirements as
applied to her because she does not currently practice natural hair braiding
commercially. Thus, because the Law’s licensing requirements do not apply to her,
she is not aggrieved in any way.13
In response, Petitioners argue that Respondents did not object to
Henry’s standing at the earliest possible opportunity, i.e., in their answer to the
original petition for review, and, thus, have waived this objection. Second,
Petitioners argue that this Court need not consider a challenge to one petitioner’s
standing when the other petitioners undisputedly have standing to bring the same
claims. Third, Petitioners assert that precedent supports allowing Henry to bring a
pre-enforcement constitutional challenge.
At the outset, we disagree with Petitioners’ argument that Respondents
waived their right to object to Henry’s standing. Petitioners correctly point out that,
pursuant to Pennsylvania Rule of Civil Procedure 1032(a),14 a party waives all
13
Respondents do not challenge the standing of Diop or Gaye to challenge the Law as applied to
them. Nor do they challenge Henry’s standing to pursue a facial constitutional challenge.
14
Rule 1032(a) states:
(a) A party waives all defenses and objections which are not presented either by
preliminary objection, answer or reply, except a defense which is not required to be
pleaded under Rule 1030(b) [(relating to the court’s lack of subject matter
jurisdiction or the failure to join an indispensable party)], the defense of failure to
state a claim upon which relief can be granted, the defense of failure to join an
indispensable party, the objection of failure to state a legal defense to a claim, the
defenses of failure to exercise or exhaust a statutory remedy and an adequate
remedy at law and any other nonwaivable defense or objection.
PA.R.CIV.P. 1032(a).
13
objections that are not presented by preliminary objection, answer or reply. Further,
“[i]t is well-settled that standing is not a jurisdictional issue and may be waived if
not objected to at the earliest possible opportunity.” Thompson v. Zoning Hearing
Board of Horsham Township, 963 A.2d 622, 625 n.6 (Pa. Cmwlth. 2009). We reject
Petitioners’ premise that Respondents’ earliest opportunity to object to Henry’s
standing was in their answer to the original petition for review. Petitioners amended
their pleading twice, and each time the amended petition for review became the
operative pleading. See, e.g., Brooks v. B & R Touring Co., 939 A.2d 398, 402 (Pa.
Super. 2007) (amended complaint, once filed, becomes operative pleading).
Respondents objected to Henry’s standing in their preliminary objections to the first
amended petition for review and again in their preliminary objections to the Petition.
The issue is not waived.
Petitioners next argue that this Court need not consider a challenge to
Henry’s standing since the other Petitioners undisputedly have standing to bring the
same claims. They contend that Pennsylvania follows the prevailing rule that if one
petitioner has standing to bring a claim, a court need not inquire into the standing of
additional petitioners making the same claim. In support, Petitioners cite
Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877
A.2d 383 (Pa. 2005), and City of Philadelphia v. Commonwealth, 838 A.2d 566 (Pa.
2003). These cases are distinguishable; both involved a facial constitutional
challenge to an act of the General Assembly. Here, the Petition challenges the Law’s
licensing requirements for natural hair braiders both facially and as applied to
Petitioners in their individual circumstances. That some Petitioners have standing
does not automatically confer standing on Henry.
14
We now consider Henry’s standing. It is axiomatic that “[a] party
seeking judicial resolution of a controversy in this Commonwealth must, as a
prerequisite, establish that he has standing to maintain the action.” Bergdoll v. Kane,
731 A.2d 1261, 1268 (Pa. 1999) (quoting Nye v. Erie Insurance Exchange, 470 A.2d
98, 100 (Pa. 1983)). “[I]t is not sufficient for the person claiming to be ‘aggrieved’
to assert the common interest of all citizens in procuring obedience to the law.”
William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280-81 (Pa.
1975). A person is “aggrieved” if she has a “substantial, direct and immediate
interest in the claim sought to be litigated.” Bergdoll, 731 A.2d at 1268.
A “substantial” interest is an interest in the outcome of the
litigation which surpasses the common interest of all citizens in
procuring obedience to the law. A “direct” interest requires a
showing that the matter complained of caused harm to the party’s
interest. An “immediate” interest involves the nature of the
causal connection between the action complained of and the
injury to the party challenging it[.]
South Whitehall Township Police Service v. South Whitehall Township, 555 A.2d
793, 795 (Pa. 1989) (internal citations omitted).
According to the Petition, Henry does not braid hair for compensation.
She avers that it is her goal to open her own natural hair braiding salon and, but for
the Law’s education and testing requirements, she would begin braiding hair for
compensation. We agree with Respondents that, based on these averments, Henry
lacks standing to challenge the Law as applied to her. Only a person who practices
cosmetology for compensation, without a license, risks penalty under the statute.
See Sections 1 and 20(a) of the Law, 63 P.S. §§507, 526(a).15 Because Henry is not
15
Section 1 states that “‘cosmetology’ includes any or all work done for compensation” that is
“generally and usually performed by cosmetologists,” including “braiding” of hair. 63 P.S. §507.
15
currently violating the Law, she is not aggrieved in any way that surpasses the
common interest of all citizens.
We also reject Petitioners’ argument that Henry has the requisite
standing to bring her as-applied challenge under the doctrine of pre-enforcement
review. In support of this argument, Petitioners argue that Henry has expressed her
intent to open her own salon and provide natural hair braiding services for
compensation. She should not have to risk criminal prosecution to test the
constitutionality of the Law’s licensing requirements. Those requirements impose
an “impossible choice” on Henry: risk sanctions by pursuing her career goal or leave
her family and community to travel an unreasonable distance to enroll in a Board-
approved program while foregoing the opportunity for employment in the meantime.
Petitioners’ Answering Brief at 18.
In support of their argument, Petitioners cite Yocum v. Pennsylvania
Gaming Control Board, 161 A.3d 228 (Pa. 2017), and Firearm Owners Against
Crime v. City of Harrisburg, 218 A.3d 497 (Pa. 2019). In both of these cases, the
court stated that “[o]ur existing jurisprudence permits pre-enforcement review of
statutory provisions in cases in which petitioners must choose between equally
unappealing options[.]” Yocum, 161 A.3d at 236 (quoting Robinson Township,
Washington County v. Commonwealth, 83 A.3d 901, 924 (Pa. 2013)). See also
Firearm Owners, 218 A.3d at 512. Yocum and Firearm Owners are instructive but
distinguishable.
In Yocum, an attorney employed by the Pennsylvania Gaming Control
Board challenged the constitutionality of provisions of the Pennsylvania Race Horse
Section 20(a) of the Law states that “[a]ny person who shall practice or teach cosmetology”
without a license may be subject to a fine not exceeding $300 or imprisonment for up to three
months. 63 P.S. §526(a).
16
Development and Gaming Act16 prohibiting her from, inter alia, appearing before
the board or accepting employment with a licensed gaming entity for a period of two
years after termination of employment by the board. The petitioner argued that she
was faced with two equally unappealing and untenable options: (1) test the act’s
employment provisions by violating them, knowing it would subject a licensed entity
that hired her to administrative penalties and the petitioner to sanctions for breach of
her fiduciary duty to clients, or (2) forego the practice of law in her area of expertise
for two years. The board asserted that the petitioner lacked standing because she
was still employed by the board and not yet aggrieved; that her claims were not ripe
because enforcement of post-employment restrictions against her was hypothetical
and speculative; and her request for pre-enforcement review was premature.
In overruling the board’s objections based on standing and ripeness, our
Supreme Court accepted as true the petitioner’s allegations that she wished to leave
her board position and find another job in her specialty, even though she was still
employed by the board, and that the statute facially restricted her ability to seek
future employment opportunities in her specialty, even though the details of her
departure from board employment were not yet known. Yocum, 161 A.3d at 237.
The Court also observed that additional factual development of the petitioner’s
claims, should she seek employment with or be recruited by a licensed gaming
entity, were not likely to shed more light on the constitutionality of the employment
restrictions. The Court noted that such questions of law are “particularly well-suited
for pre-enforcement review.” Id. (quoting Robinson Township, 83 A.3d at 917).
In Firearm Owners, a firearm rights organization and individual gun
owners challenged the constitutionality of ordinances enacted by the City of
16
4 Pa. C.S. §§1101-1904.
17
Harrisburg that regulated in some fashion the use, possession, ownership or transfer
of firearms within the city and imposed criminal sanctions for their violation. The
trial court sustained the city defendants’ demurrer and dismissed the complaint for
lack of standing, reasoning that because the plaintiffs did not allege that they had
ever been cited or threatened with a citation under any of the ordinances, their
asserted harm was speculative. On appeal, this Court held that the plaintiffs had
standing to challenge all but one of the firearm ordinances. Citing the above-quoted
language from Robinson Township, we reasoned that the plaintiffs, “who believe
that the challenged ordinances are facially invalid restrictions on rights afforded
them under the United States and Pennsylvania Constitutions, have no real
alternative avenue to address their grievance. They can curb their conduct to
conform to the ordinances’ mandates or they can willfully violate the law and face
criminal prosecution.” Firearm Owners, 218 A.3d at 513.
Yocum and Firearm Owners are distinguishable from the case sub
judice for the simple reason that the prior decisions addressed facial constitutional
challenges. In that context, it was unreasonable, and unnecessary, to require the
plaintiffs to violate the law or ordinance at issue in order to challenge it. Here, Henry
is asserting that the Law’s licensing requirements are unconstitutional as applied to
her. We agree with Respondents that there must be a practical limit to an
individual’s ability to pursue an as-applied constitutional challenge when she has not
sufficiently averred a direct and immediate interest. Petitioners do not aver that
either Respondent has taken or plans to take an action against Henry. Henry’s
circumstance differs from that of Diop and Gaye because her interest in the
commercial practice of natural hair braiding is purely aspirational. Diop and Gaye,
by contrast, are engaged in natural hair braiding for compensation or employ
18
unlicensed braiders. The alleged harm to Henry is speculative, and Petitioners have
not presented facts to establish her direct and immediate interest in asserting an as-
applied challenge. As noted previously, Respondents do not challenge Henry’s
standing to assert a facial constitutional challenge to the Law’s licensing
requirements.
For all of the above reasons, we sustain Respondents’ objection to the
standing of Henry to challenge the Law’s licensing requirements as applied to her.
B. Facial Substantive Due Process Challenge
Respondents’ second preliminary objection is a demurrer to Petitioners’
facial substantive due process challenge to the Law’s licensing requirements in
Count I of the Petition. In Count I, Petitioners assert that the licensing requirements
are unreasonable and lack a real and substantial relationship to any legitimate
government interest. They contend that several of their factual averments support
their constitutional claim. First, the Bureau conducted a “critical and comprehensive
review” of the facts and circumstances surrounding the natural hair braiding license
under standards similar to the legal substantive due process analysis and determined
that the natural hair braiding license was onerous, unduly burdensome, beyond the
necessities for protecting public health and safety, and had no relation to protecting
the public. Petition ¶¶73, 75, 86-92. Second, Respondents have not produced a
study, report, or other information to demonstrate that there is any danger or risk to
public health or safety from unlicensed natural hair braiding. Id. ¶¶32-42, 53, 84,
219-21, 246-49. Petitioners argue that the Commonwealth does not need to exercise
its police power in this area because members of the public can judge any risk for
themselves. Third, the Law and the accompanying regulation require that only 42%
of the instructional hours be devoted to natural hair braiding, which is lower than the
19
percentage our Supreme Court deemed unreasonable in an analogous case. Petition
¶¶191-92. See also Ladd v. Real Estate Commission, 230 A.3d 1096, 1112-13 (Pa.
2020). Fourth, the testing requirements imposed by the Law and the regulation are
substantially unrelated to the practice of natural hair braiding. Petition ¶¶11-17, 26-
30, 197-99, 201-03, 205-06.
“Legislation enacted by the General Assembly enjoys a presumption of
constitutionality.” Germantown Cab Co. v. Philadelphia Parking Authority, 206
A.3d 1030, 1041 (Pa. 2019). “Accordingly, a statute will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the Constitution.”
Id. (quoting Pennsylvanians Against Gambling Expansion Fund, 877 A.2d at 393).
“Any doubts about whether a challenger has met this high burden are resolved in
favor of finding the statute constitutional.” Germantown Cab Co., 206 A.3d at 1041.
“Constitutional challenges to legislative enactments present this Court with
questions of law[.]” Id.
“A statute is facially unconstitutional only where there are no
circumstances under which the statute would be valid.” Id. “A facial attack tests a
law’s constitutionality based on its text alone and does not consider the facts or
circumstances of a particular 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 has 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.
“For substantive due process rights to attach, there must be a
deprivation of a constitutionally protected interest or property right.” Haveman v.
20
Bureau of Professional and Occupational Affairs, State Board of Cosmetology, 238
A.3d 567, 573 (Pa. Cmwlth. 2020) (citing Khan v. State Board of Auctioneer
Examiners, 842 A.2d 936, 946 (Pa. 2004)). “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.” Haveman, 238 A.3d
at 573. “[A]lthough the right to engage in a licensed profession is an important right,
it is not a fundamental right.” Germantown Cab Co., 206 A.3d at 1043. Thus, the
rational basis test applies here. Our Supreme Court has 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 v. Commonwealth, 101 A.2d 634, 637 (Pa. 1954).
In short, we must determine whether, accepting the well-pleaded
material allegations in the Petition as true, Petitioners can establish that the Law’s
licensing requirements for natural hair braiders, on their face, are “unreasonable,
unduly oppressive, or patently beyond the necessities of the case,” and that those
requirements do not bear a “real and substantial relation” to the public interest they
seek to advance. Id.Here, the legitimacy of the state purpose is undisputed. The title of the
Law, as amended, is “[t]o promote the public health and safety by providing for
21
examination, licensing and granting of permits for those who desire to engage in the
profession of cosmetology[.]” Act of July 7, 2006, P.L. 704, No. 99, §1. Our
Supreme Court has also observed that the Law and its counterpart commonly
referred to as the Barber License Law17 “have but one purpose, and that is the
protection of patrons of barber and beauty shops.” Department of Licenses and
Inspections, Board of License Inspection and Review v. Weber, 147 A.2d 326, 328
(Pa. 1959). Thus, we consider whether the licensing requirements for natural hair
braiders bear a rational, i.e., “real and substantial,” relationship to the health and
safety of hair salon patrons.
We agree with Respondents that Petitioners have not demonstrated that
the Law, on its face, clearly violates the Pennsylvania Constitution. Prior to 2006,
one seeking to practice natural hair braiding was required to obtain a cosmetology
license with 1,250 hours of instruction. In 2006, the General Assembly created a
limited license tailored to the practice of natural hair braiding; currently, an applicant
is required to pass a written examination and complete only 300 hours of Board-
approved instruction in professional practices, including sanitation; sciences,
including scalp care and anatomy; and cognitive and manipulative skills related to
natural hair braiding. Section 5(b)(3)(i) of the Law, 63 P.S. §511(b)(3)(i); 49 Pa.
Code §7.129(f). Ensuring that individuals who offer natural hair braiding services
to the public have basic knowledge of sanitation, scalp care and anatomy is
reasonably related to protecting the safety and health of patrons of hair salons. These
licensing requirements, and the requirement that licensees have training in the
cognitive and manipulative skills related to their chosen profession, are not
17
Act of June 19, 1931, P.L. 589, as amended, 63 P.S. §§551-567.
22
“unreasonable, unduly oppressive or patently beyond the necessities of the case[.]”
Gambone, 101 A.2d at 637.
The problem with Petitioners’ case is that their factual averments relate
to why the Law’s licensing requirements, as applied to them as experienced natural
hair braiders, are unreasonable. Their averments do not indicate why a person with
little or no experience in natural hair braiding should not be required to satisfy the
limited license requirements before offering braiding services to the public for
compensation. It was reasonable for the legislature to ensure that such an individual
first learn the cognitive and manipulative skills necessary to braid hair, and receive
basic training in subjects such as sanitation, anatomy and scalp care. These are
certainly “circumstances under which the statute would be valid.” Germantown Cab
Co., 206 A.3d at 1041. Further, the Bureau Report and the Governor’s
recommendation to eliminate the natural hair braiding limited license are irrelevant
to Petitioners’ facial substantive due process claim. The legislature has decided to
regulate natural hair braiding services, and it is for the legislature, not this Court, to
decide whether deregulation of such services is warranted. We reject Petitioners’
suggestion that the Report is somehow binding on this Court’s constitutional
analysis.
For all of these reasons, we sustain Respondents’ preliminary objection
to Petitioners’ facial substantive due process challenge in Count I of the Petition.18
18
Because we sustain Respondents’ preliminary objection to Count I of the Petition, thereby
dismissing Petitioners’ facial substantive due process challenge, we need not consider
Respondents’ preliminary objection that Petitioners failed to join all indispensable parties to Count
I. See supra note 12.
23
C. Facial and As-Applied Equal Protection Challenges
Respondents’ final preliminary objection is a demurrer to Count II of
the Petition, in which Petitioners assert that the Law’s licensing requirements violate
the equal protection clause in Article I, Section 26 of the Pennsylvania Constitution,
both facially and as applied to them. “The essence of an equal protection claim is
that persons in similar circumstances must be treated similarly.” Burns v. Public
School Employees’ Retirement Board, 853 A.2d 1146, 1152 (Pa. Cmwlth. 2004).
“However, a state may recognize differences and create classifications so long as all
similarly situated persons are treated alike.” Id. “Where the challenged statute does
not burden fundamental rights and does not implicate a suspect or quasi-suspect
classification, it survives equal protection analysis if it is rationally related to a
legitimate government interest.” Id.Underpinning Petitioners’ equal protection claims is their assertion that
licensed cosmetologists may perform natural hair braiding services for
compensation even though no Pennsylvania statute or regulation requires licensed
cosmetologists to have any training in the specific skills required to perform natural
hair braiding. Petition ¶277. Petitioners argue that they and other unlicensed natural
hair braiders are similarly situated to licensed cosmetologists because neither group
of individuals has completed the statutorily mandated 300 hours of Board-approved
subjects, including the 125 hours of “cognitive and manipulative skills related to
natural hair braiding.” Id. ¶278; 49 Pa. Code §7.129(f). Thus, Respondents “treat
similarly situated persons differently by permitting cosmetologists to perform
natural hair braiding services within the Commonwealth of Pennsylvania without
any required training, instruction, or testing in natural hair braiding skills, but
prohibiting [P]etitioners [and other unlicensed natural hair braiders] from legally
24
performing natural hair braiding services within the Commonwealth of Pennsylvania
until they undergo the Board[-]specified training, instruction, and testing in natural
hair braiding skills[.]” Petition ¶281.
We disagree with Petitioners’ premise that they and other unlicensed
natural hair braiders are similarly situated to licensed cosmetologists. Although
cosmetology students are not required to complete the statutorily mandated 300
hours of subjects required for the limited natural hair braiding license, it does not
follow, as Petitioners infer, that all licensed cosmetologists lack training and skills
in natural hair braiding. Cosmetologists must complete 1,250 hours of training at an
accredited school to obtain a license. See Section 6(b.1)(1) of the Law, 63 P.S.
§512(b.1)(1). By definition, “cosmetology” includes all work performed “for the
embellishment … and beautification of the human hair, such as arranging, braiding,
dressing . . . or similar work thereon and thereabout[.] The term also includes the
acts comprising the practice of . . . natural hair braiding[.]” Section 1 of the Law,
63 P.S. §507. See also Diwara, 852 A.2d at 1283 (holding that hair braiding is
encompassed in the definition of “cosmetology”). The Board’s regulation requires
that the cosmetology curriculum include instruction in “Cosmetology Skills –
Cognitive and Manipulative,” which covers skills such as “Hair Shaping,” “Hair
Styling/Fingerwaving,” and “Care of all hair types and textures.” 49 Pa. Code
§7.129(a).19 Thus, licensed cosmetologists, unlike Petitioners and other unlicensed
natural hair braiders, must receive substantial instruction in various cosmetology
skills, including skills related to natural hair braiding. The two groups are not
similarly situated and, thus, Petitioners’ equal protection claims must fail.
19
The Board recommends that the basic cosmetology curriculum include 1,000 hours of
instruction in “Cosmetology Skills – Cognitive and Manipulative.” 49 Pa. Code §7.129(a).
25
Accordingly, we sustain Respondents’ preliminary objection to Count II of the
Petition.
VI. Conclusion
In summary, the Court sustains Respondents’ preliminary objection to
Tanyita Henry’s standing to challenge the constitutionality of the Law’s licensing
requirements for natural hair braiders, as applied to her. Because none of Petitioners’
facial constitutional challenges will proceed, Henry is dismissed as a party. The
Court sustains Respondents’ preliminary objection to Count I of the Petition insofar
as it asserts a facial substantive due process challenge to the licensing requirements.
In light of that ruling, and in accordance with Respondents’ request, the Court does
not rule on Respondents’ preliminary objection that Petitioners failed to join all
indispensable parties to their facial substantive due process challenge. Finally,
because Petitioners fail to state a legally sufficient equal protection claim, either
facially or as applied to them, the Court sustains Respondents’ preliminary objection
to Count II of the Petition.
Petitioners’ claim in Count I that the Law’s licensing requirements, as
applied to them, violate their right to substantive due process will proceed for the
filing of an answer by Respondents.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Astou Diop, Tanyita Henry, :
and Awa Gaye, :
Petitioners :
:
v. : No. 363 M.D. 2020
:
Bureau of Professional and :
Occupational Affairs, :
State Board of Cosmetology :
of The Commonwealth of :
Pennsylvania, :
Respondents :
ORDER
AND NOW this 3rd day of March, 2022, upon consideration of
Respondents’ preliminary objections to Petitioners’ Second Amended Petition for
Review in the above-captioned matter, the Court ORDERS as follows:
Respondents’ preliminary objection to Petitioner Tanyita Henry’s
standing to challenge the constitutionality of Section 5(b)(3) of the act commonly
known as the Beauty Culture Law (Law), Act of May 3, 1933, P.L. 242, as amended,
63 P.S. §511(b)(3), as applied to her, is SUSTAINED and Petitioner Henry is
DISMISSED as a party.
Respondents’ preliminary objection to Petitioners’ facial substantive
due process challenge to Section 5(b)(3) of the Law in Count I of the Second
Amended Petition is SUSTAINED and that part of Count I is DISMISSED. The as-
applied substantive due process claims raised by Petitioners Astou Diop and Awa
Gaye in Count I will proceed and Respondents are directed to file an answer.
Respondents’ preliminary objection to Count II of the Second
Amended Petition is SUSTAINED and Count II is DISMISSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
2