Eleven Eleven Pennsylvania, LLC v. Commonwealth, State Board of Cosmetology

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eleven Eleven Pennsylvania, LLC, :
Petitioner :
:
v. : No. 651 M.D. 2016
: Argued: June 5, 2017
Commonwealth of Pennsylvania, State :
Board of Cosmetology; Ian J. Harlow, :
Commissioner of Professional and :
Occupational Affairs, in his official :
capacity; and Pedro A. Cortes, Secretary :
of the Commonwealth of Pennsylvania, :
in his official capacity, :
Respondents :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: August 14, 2017
Before us is Eleven Eleven Pennsylvania, LLC’s (Petitioner) application
for summary relief, seeking a declaration that the State Board of Cosmetology’s
(Board) regulation requiring a lavatory within a salon’s square footage, 49 Pa.
Code §7.79 (Lavatory Regulation), is preempted by the Pennsylvania Construction
Code Act (Construction Code Act).1 Petitioner also seeks to permanently enjoin
the Board, the Commissioner of Professional and Occupational Affairs, Ian J.
Harlow, and the Secretary of the Commonwealth, Pedro A. Cortes (collectively,
Respondents) from enforcing the Lavatory Regulation. Upon consideration, we
grant the application for summary relief.
1
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§7210.101-.1103.
I. Background
The Beauty Culture Law (Law)2 established the Board and its powers.
Pursuant to Section 11 of the Law, the Board may prescribe regulations. 63 P.S.
§517. The Board promulgated regulations regarding the physical requirements of a
salon, including the Lavatory Regulation. Pursuant to the Lavatory Regulation,
salons must have “adequate lavatories on the premises.” 49 Pa. Code §7.79. In
2009, the Board amended the Lavatory Regulation to clarify that it interprets the
phrase “on the premises” to mean “within the square footage of the salon.” Id.Petitioner designs and develops salons for which it submits
applications to the Board. As such, Petitioner is subject to the Board’s regulations.
Petitioner employs a specific business model whereby it invests in
retail space and then constructs within the space multiple, separate salons, each
consisting of one to four chairs (Eleven Eleven Facilities). Petitioner licenses use
of each salon space within its Eleven Eleven Facilities to independent
cosmetologist licensees who operate each salon area independently of Eleven
Eleven and each other. In this manner, cosmetologists are business owners instead
of salon employees.
Eleven Eleven Facilities include lavatories for the shared use by all of
the salons located in each Eleven Eleven Facility, accessed through a common
corridor. Thus, none of the Eleven Eleven Facilities have a lavatory within the
square footage of an individual salon as the Lavatory Regulation requires.
2
Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§507-527.
2
Petitioner leased space for Eleven Eleven Facilities in three locations
in Allegheny County; each location houses more than 10 salons. Petitioner applied
for licenses for each salon within the Eleven Eleven Facilities. Licensure depends
on an inspection by the Board and a successful physical inspection for compliance
with Board regulations. Eleven Eleven Facilities comply with the Board’s salon
regulations, with the exception of the Lavatory Regulation. As a result, Petitioner
sought variances from the Lavatory Regulation.
Petitioner filed a petition for review in our original jurisdiction
challenging the Lavatory Regulation, and seeking declaratory and injunctive relief.
Specifically, Petitioner contended the Lavatory Regulation is expressly preempted
by Section 104(d)(1) of the Construction Code Act, rendering it invalid and
unenforceable.
As discussed in more detail below, Section 104(d)(1) provides that
construction regulations adopted by a board or state agency are preempted by
regulations promulgated under the Construction Code Act. 35 P.S.
§7210.104(d)(1). The Department of Labor and Industry (Labor & Industry)
adopted such regulations, known as the Uniform Construction Code. Labor &
Industry’s regulations incorporate the 2009 International Building Code (IBC)
pertaining to plumbing systems, and the 2015 IBC exceptions to “employee and
public toilet facilities,” and “(i) Section 304.1 [of the 2009 IBC] concerning
‘Business Group B’ uses and occupancies ….” 34 Pa. Code §403.21(a)(1).
3
Petitioner asserts it complies with the Uniform Construction Code
regarding lavatory construction. Based on express preemption in the Construction
Code Act, Petitioner contends the Board is precluded from enforcing the Lavatory
Regulation.3
Petitioner filed its application for summary relief now before us, and
supporting brief. To its brief, it appended a declaration of David Raduziner
(Raduziner Declaration) describing its business model, and included the standard
floor plan for multiple-salon construction in Eleven Eleven Facilities. At the same
time, with Respondents’ consent, Petitioner amended its petition for review.
The amended petition identified the harm resulting from enforcement
as being subjected to contradictory requirements and additional compliance costs.
Since filing of the initial petition for review, the Board granted Petitioner’s
requested variances.
Respondents answered the application for summary relief, contesting
the ripeness of Petitioner’s challenge, the lack of undisputed material facts and the
right to relief. Respondents also filed an answer and new matter to the amended
petition for review, to which Petitioner replied on June 5, 2017 (the day of
argument).
3
With its petition, Petitioner filed an application for a preliminary injunction. However,
after a partial hearing, Petitioner withdrew its application.
4
Appended to their brief in opposition to summary relief, Respondents
submitted a declaration of Christopher Butcher, a 20-year employee of the Board
(Butcher Declaration). Butcher and his staff process salon applications, and “until
about a year ago … processed requests for variances from the [L]avatory
[Regulation] or space requirements for salons.” Butcher Declaration at ¶3. He
explained that work in salons exposes patrons to chemicals that pose a risk of
reactions including “scalp irritation, itching, hair breakage, hair loss, redness,
swelling of the face,” and may be severe so as to warrant an emergency room visit.
Id. at ¶7. He confirmed the safety purposes underlying the Lavatory Regulation,
and the reasons for granting or denying variances from the Lavatory Regulation.
The parties filed a joint application for expedited consideration, which
the Court granted. After briefing and oral argument, the matter is ready for
disposition.
II. Discussion
Petitioner argues summary relief is appropriate because the Lavatory
Regulation is expressly preempted by the Construction Code Act and by the
Uniform Construction Code, which occupy the field of installation and use of
plumbing equipment for business occupancies, expressly including beauty salons.
It contends enforcement of the Lavatory Regulation imposes conflicting standards
that disrupt the uniformity of the Uniform Construction Code.
Respondents dispute that the Lavatory Regulation conflicts with the
Uniform Construction Code so as to trigger preemption. Rather, the Lavatory
5
Regulation imposes a licensure criterion based on the safety risks inherent to salon
operations. They argue Petitioner did not establish a clear right to relief or
irreparable harm. Respondents also raise disputes of material fact precluding
summary relief, including the public interest served by the Lavatory Regulation.
In addition, Respondents contend there is no real controversy because Petitioner
may apply for variances from the Lavatory Regulation.
Petitioner presents a question of law, whether the Lavatory Regulation
is preempted by Section 104(d)(1) of the Construction Code Act because the
Uniform Construction Code regulates the number and location of lavatories based
on the classification of occupancy of a structure or portion covered by an
occupancy permit.
A. Legal Standards
Applications for summary relief are governed by Pa. R.A.P. 1532(b).
It provides: “At 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.” Id. “An application for summary relief may be granted
if a party’s right to judgment is clear and no material issues of fact are in dispute.”
Leach v. Turzai, 118 A.3d 1271, 1277 n.5 (Pa. Cmwlth. 2015) (en banc), aff’d, 141
A.3d 426 (Pa. 2016) (citing Hosp. & Healthsystem Ass’n of Pa. v. Com., 77 A.3d
587 (Pa. 2013)). “In ruling on application[s] for summary relief, we must view the
evidence of record in the light most favorable to the non-moving party and enter
judgment only if there is no genuine issue as to any material facts and the right to
6
judgment is clear as a matter of law.” Markham v. Wolf, 147 A.3d 1259, 1270 (Pa.
Cmwlth. 2016) (citation omitted).
The purpose of the Declaratory Judgments Act “is to settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations, and [it] is to be liberally construed and administered.” 42 Pa. C.S.
§7541. Declaratory judgment as to the rights, status or legal relationships is
appropriate only where an actual controversy exists. McCord v. Pennsylvanians
for Union Reform, 136 A.3d 1055 (Pa. Cmwlth. 2016). “An actual controversy
exists when litigation is both imminent and inevitable and the declaration sought
will practically help to end the controversy between the parties.” Id. at 1061(quotation omitted). “Granting or denying a petition for a declaratory judgment is
committed to the sound discretion of a court of original jurisdiction.” GTECH
Corp. v. Dep’t of Revenue, 965 A.2d 1276, 1285 (Pa. Cmwlth. 2009).
In order to establish a claim for a permanent injunction, a party must
establish its clear right to relief. Buffalo Twp. v. Jones, 813 A.2d 659 (Pa. 2002).
However, unlike a claim for a preliminary injunction, the party need not establish
either irreparable harm or immediate relief, and a court “may issue a final
injunction if such relief is necessary to prevent a legal wrong for which there is no
adequate redress at law.” Id. at 663. A party must also show greater injury will
result from refusing rather than granting the relief requested. Unified Sportsmen of
Pa. v. Pa. Game Comm’n, 950 A.2d 1120 (Pa. Cmwlth. 2008). Violation of a
statutory scheme justifies injunctive relief. Grine v. Centre Cnty., 138 A.3d 88 (Pa.
Cmwlth. 2016) (en banc).
7
B. Merits
1. Ripeness
First, we address Respondents’ ripeness challenge. Respondents
argue there is no imminent or actual controversy because Petitioner did not suffer
any harm. Respondents also contend any harm from delays or expense of
compliance may be remedied with damages.
Petitioner argues there is an imminent threat to its business-model
because its floorplans for salons do not comply with the Lavatory Regulation.
Petitioner will need to file variances from the Lavatory Regulation, which may not
be granted, thus causing uncertainty. It contends threatened enforcement of an
unlawful regulation constitutes irreparable harm.
To date, the Board granted the variances Petitioner requested from the
Lavatory Regulation. However, the Board’s waiver of the Lavatory Regulation by
allowing a variance does not eliminate the controversy. Arsenal Coal Co. v. Dep’t
of Envtl. Res., 477 A.2d 1333 (Pa. 1984).
This case presents an actual controversy in that Petitioner seeks to
construct uses regulated by the Board. The Board enforces the Lavatory
Regulation against Petitioner, and it has the discretion to deny licensure to
Petitioner’s salons in the future based on non-compliance. The Board also has the
discretion to deny a variance from the Lavatory Regulation. That the Board
granted Petitioner’s pending salon applications did not remove the harm. Id.8
Moreover, resolving this case would not constitute an advisory opinion
because it would resolve a controversy between the parties. McCord. As a result,
we reject Respondents’ ripeness argument and reach the merits.
2. Clear Right- Preemption
Petitioner’s claims for declaratory judgment and permanent injunction
are predicated on its alleged clear right to invalidate the Lavatory Regulation.
Express preemption is the legal basis Petitioner offers for invalidity.
Preemption may be express within a statute, or implied if the statute is
silent on supercession. Skepton v. Borough of Northampton, 486 A.2d 1022 (Pa.
Cmwlth. 1985). The courts recognize the Construction Code Act contains an
express preemption clause in Section 104(d)(1). Indian Rocks Prop. Owners
Ass’n, Inc. of Ledgedale v. Glatfelter, 28 A.3d 1261, 1265 (Pa. 2011); DRB, Inc. v.
Dep’t of Labor & Indus., 853 A.2d 8, 12 (Pa. Cmwlth. 2004) (“The [Uniform
Construction] Code regulations preempt construction standards of any existing
statute, local ordinance or regulation promulgated or adopted by a board,
department, commission, State agency or local government.”).
The Construction Code Act applies generally “to the construction,
alteration, repair and occupancy of all buildings in this Commonwealth.” 35 P.S.
§7210.104(a) (emphasis added). Pursuant to Section 301(a)(1) of the Construction
Code Act, Labor & Industry adopted the Uniform Construction Code,4 35 P.S.
4
The International Code Council (ICC) developed a set of single codes, or International
Codes that supplanted those set by Building Officials & Code Administrators International,
(BOCA). See DRB, Inc. v. Dep’t of Labor & Indus., 853 A.2d 8, 19 n.18 (Pa. Cmwlth. 2004).
9
§7210.301(a)(1), thereby incorporating by reference various model codes. See 34
Pa. Code §403.21; see also Chapters 401, 403 and 405 of Title 34.
Relevant here, Section 104(d) of the Construction Code Act provides
in pertinent part:
(d) Preemption.-
(1) Except as otherwise provided in this act,
construction standards provided by any statute or local
ordinance or regulation promulgated or adopted by a
board, department, commission, agency of State
government or agency of local government shall continue
in effect only until the effective date of regulations
promulgated under this act, at which time they shall be
preempted by regulations promulgated under this act and
deemed thereafter to be rescinded.
***
(3) Nothing in this act shall preempt any licensure or
Federal certification requirements for health care
facilities, intermediate care facilities for the mentally
retarded or for persons with related conditions or State
institutions. This paragraph includes building and life
safety code standards set forth in applicable regulations.
(4) Nothing in this act shall limit the ability of the
Department of Aging, the Department of Health or the
Department of Public Welfare [now Human Services] to
promulgate or enforce regulations which exceed the
requirements of this act.
35 P.S. §7210.104(d) (emphasis added; subsection (2) relating to homeowners’
associations or community association regulations omitted). The Lavatory
Regulation is a regulation adopted by a board of State government.
10
Notably, there are exceptions to the express preemption. Under Section
104(d)(3), certain Federal and State licensure and certification requirements for
facilities caring for mentally ill or disabled persons or persons with related
conditions are not subject to preemption. 35 P.S. §7210.103 (definition of “State
institutions”), §7210.104(d)(3); see also Section 901 of the Human Services Code,5
62 P.S. §901 (definition of “State institutions”). Importantly, the Board’s licensing
requirements for beauty salons are not included in this exception to preemption.
Also, under Section 104(d)(4), regulations of the Department of Aging,
the Department of Health, or what is now the Department of Human Services, that
exceed the requirements of the Construction Code Act are not subject to preemption.
Significantly, regulations by the Board which exceed the requirements of the
Construction Code Act are not saved from preemption.
Under the preemption clause, the Uniform Construction Code
preempts any construction standards that are different from those in the Uniform
Construction Code. Flanders v. Ford City Borough, 986 A.2d 964, 970 (Pa.
Cmwlth. 2009). Thus, “[w]ith limited exceptions, the Uniform Construction Code
preempts and rescinds construction standards established in any Pennsylvania
statute, local ordinance or regulation.” Schuylkill Twp. v. Pa. Builders Ass’n, 935
A.2d 575, 577 (Pa. Cmwlth. 2007), aff’d, 7 A.3d 249 (Pa. 2010).
5
Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§101-1503.
11
Citing a case dealing with municipal ordinances, which are covered
by a special chapter of the Construction Code Act,6 Respondents argue that
additional requirements may be added to those found in the Uniform Construction
Code to deal with unusual circumstances or atypical conditions of construction if
the conditions are not already specifically covered by the requirements of the
corresponding statutes. Resp’ts’ Br. in Opp’n to Pet’r’s Appl. for Summ. Relief at
7. Respondents then argue that the Lavatory Regulation is enforced in addition to
the requirements of the Uniform Construction Code, the Lavatory Regulation
addresses special cosmetology concerns, and, unlike the Uniform Construction
Code, the Lavatory Regulation requires a certain specific location for the lavatories
within the square footage of each licensed business. Id. at 7-9.
We reject Respondents’ attempt to avoid express preemption. The
Uniform Construction Code specifies the number, accessibility and location of
lavatories for beauty salons operating under a certificate of occupancy. The
Lavatory Regulation is different from the provisions in the Uniform Construction
Code and therefore is preempted. Flanders.
More particularly, the 2009 IBC, Chapter 29 (“Plumbing Systems”), is
part of the Uniform Construction Code. Section 2901, titled “Scope,” makes clear
that the chapter “shall govern the erection, installation, alteration, repairs,
relocation, replacement, addition to, use or maintenance of plumbing equipment
and systems.” Ex. A, Am. Pet. for Review (emphasis by italics in original).
Section 2902.1 of the 2009 IBC specifies the minimum number of fixtures, based
6
Schuylkill Twp. v. Pa. Builders Ass’n, 7 A.3d 249 (Pa. 2010).
12
on types of occupancy. Id. Table 2902.1 of the 2009 IBC specifies the minimum
number of lavatories and water closets for “Business Group B” classified
occupancies. Id.7 In turn, Section 304.1 of the 2009 IBC specifies that “Barber
and beauty shops” are included in the “Business Group B” occupancy
classification. Ex. B, Pet’r’s Reply Br.
Further, 2009 IBC, Section 2902.3.1 is titled “Access,” and it covers
accessibility requirements, ease and duration of availability to public toilet
facilities. Id. Also, 2009 IBC, Section 2902.3.2 is titled “Location of toilet
facilities in occupancies other than covered mall buildings.” That section provides
that “the required public and employee toilet facilities shall be located not more
than one story above or below the space required to be provided with toilet
facilities and the path of travel to such facilities shall not exceed a distance of 500
feet (152 400 mm).” Id. (emphasis by italics in original). In addition, 2009 IBC,
Section 2902.3.3 is titled “Location of toilet facilities in covered mall buildings,”
and it contains different maximum travel distances to toilet facilities. Id.Given the foregoing regulations, together with numerous others whose
provisions would be cumulative on this point, it is clear that the Uniform
Construction Code provides all the construction details necessary to determine the
number, accessibility and location of lavatories for patrons and employees of
beauty salons. Because the Board’s Lavatory Regulation implicates different
requirements regarding the number, accessibility and location of beauty salon
7
The same is true for Table 403.1 of the 2009 IPC (International Plumbing Code). Ex.
A, Pet’r’s Reply Br.
13
lavatories, the Lavatory Regulation is preempted by the plain language of Section
104(d)(1) of the Construction Code Act, 35 P.S. §7210.104(d)(1). Flanders.
Further on this line of reasoning, we reject Respondents’ arguments
which are erroneously premised on the lack of specific coverage of details in the
Uniform Construction Code. As demonstrated above, the Uniform Construction
Code covers all aspects of the number, accessibility and location of beauty salon
lavatories.
In addition, we reject Respondents’ arguments which are erroneously
based on the legal premise that State agencies generally may add requirements to
those found in the Uniform Construction Code. Under some circumstances, the
Construction Code Act expressly permits municipalities8 to enact ordinances with
requirements which equal or exceed requirements of the Uniform Construction
Code. Section 503 of the Construction Code Act, 35 P.S. §7210.503. However,
this empowerment is not extended to State agencies other than the Departments of
Aging, Health, and what is now Human Services. Section 104(d)(3), (4) of the
Construction Code Act, 35 P.S. §7210.104(d)(3), (4) (quoted above). The “add-
on” authorization is not extended to the Board.
We would reach the same conclusion even if it were determined that
the preemption provision of the Construction Code Act is ambiguous. Under such
a circumstance, we would attempt to discern the intent of the General Assembly.
8
“Municipality” is defined in Section 103 of the Construction Code Act as: “A city,
borough, incorporated town, township or home rule municipality.” 35 P.S. §7210.103.
14
In doing so we would use the analytical process our Supreme Court uses to
determine which entity the General Assembly intended to have preeminent powers
over a given area of regulation. This process, originally set forth in Department of
General Services v. Ogontz Area Neighbors Association, 483 A.2d 448 (Pa. 1984),
was recently applied by the Court in City of Pittsburgh v. Fraternal Order of
Police, Fort Pitt Lodge No. 1, ___ A.3d ___ (Pa., No. 18 WAP 2016, filed May 22,
2017), 2017 WL 2229859, and in Southeastern Pennsylvania Transportation
Authority v. City of Philadelphia, 101 A.3d 79 (Pa. 2014) (SEPTA). “The first
step requires the reviewing court to determine, through examination of the statutes,
which governmental entity, if any, the General Assembly expressly intended to be
preeminent.” SEPTA, 101 A.3d at 87 (citation omitted).
Here, in the Construction Code Act, the General Assembly
memorialized its intent that Labor & Industry, and its Uniform Construction Code,
shall be preeminent over construction standards by other State boards or agencies,
with the notable exceptions of more stringent standards promulgated by the
Pennsylvania Departments of Aging, of Health and what is now the Department of
Human Services. Section 104(d) of the Construction Code Act, 35 P.S.
§7210.104(d). More succinctly, the General Assembly intended Labor &
Industry’s construction standards to be preeminent over those of the Board.
Having determined as a matter of law that the Lavatory Regulation is
preempted by the Construction Code Act, we conclude that Petitioner has stated a
clear right to declaratory and injunctive relief. Grine (violation of a statutory
scheme constitutes enjoinable harm).
15
3. Disputed Facts
In addition, Respondents contend there are factual disputes that
preclude summary relief at this stage. Specifically, they argue fact-finding would
show the public interest served by the Lavatory Regulation.9
However, our determination of preemption is a conclusion of law, and
it is difficult to understand how fact-finding about the public interest served by the
Lavatory Regulation can modify the plain preemption language of the Construction
Code Act. 35 P.S. §7210.104(d). Also, Respondents do not demonstrate how
judicial fact-finding can overcome the express “Legislative findings and purpose”
in Section 102 of the Construction Code Act, 35 P.S. §7210.102, especially the
Legislative findings and purpose related to efficiency in the process of construction
and costs of construction.10 Because fact-finding cannot change the statute-based
result, we grant summary relief.
9
For the first time, in its reply brief, Petitioner argues the Board lacks the authority to
enforce the Lavatory Regulation because it exceeds the Board’s enabling legislation. Because
this basis for relief is not raised in its application, and the Board had no opportunity to challenge
that legal theory, we do not address it. Commonwealth v. Basemore, 744 A.2d 717, 726-27 (Pa.
2000) (“A reply brief, however, is an inappropriate means for presenting a new and substantively
different issue than that addressed in the original brief.”); see Pa. R.A.P. 2113(a).
10
Section 102 of the Construction Code Act, 35 P.S. §7210.102, titled “Legislative
findings and purpose,” provides in pertinent part (with emphasis added):
(a) Findings.-The General Assembly finds as follows:
(1) Many municipalities within this Commonwealth have no
construction codes to provide for the protection of life, health,
property and the environment and for the safety and welfare of the
consumer, general public and the owners and occupants of
buildings and structures. Consumers and occupants may be at risk
from substandard construction.
(Footnote continued on next page…)
16
(continued…)
(2) Likewise, in some regions of this Commonwealth a
multiplicity of construction codes currently exist and some of these
codes may contain cumulatively needless requirements which limit
the use of certain materials, techniques or products and lack
benefits to the public. Moreover, the variation of construction
standards caused by the multiplicity of codes may slow the process
of construction and increase the costs of construction.
(3) The way to insure uniform, modern construction standards
and regulations throughout this Commonwealth is to adopt a
Uniform Construction Code.
(4) The model code of the Building Officials and Code
Administrators International, Inc., (BOCA), is a construction code
which has been widely adopted in this Commonwealth and in the
geographical region of the United States of which this
Commonwealth is a part. Adoption of a nationally recognized
code will insure that this Commonwealth has a uniform, modern
construction code which will insure safety, health and sanitary
construction.
(b) Intent and purpose.-It is the intent of the General Assembly
and the purpose of this act:
(1) To provide standards for the protection of life, health,
property and environment and for the safety and welfare of the
consumer, general public and the owners and occupants of
buildings and structures.
(2) To encourage standardization and economy in construction
by providing requirements for construction and construction
materials consistent with nationally recognized standards.
(3) To permit to the fullest extent feasible the use of state-of-the-
art technical methods, devices and improvements consistent with
reasonable requirements for the health, safety and welfare of
occupants or users of buildings and structures.
(Footnote continued on next page…)
17
III. Conclusion
For all these reasons, we grant Petitioner’s Application for Summary
Relief, thereby granting the prayer for relief in Petitioner’s Amended Petition for
Review in the Nature of Complaint for Declaratory and Injunctive Relief.
ROBERT SIMPSON, Judge
(continued…)
(4) To eliminate existing codes to the extent that these codes are
restrictive, obsolete, conflicting and contain duplicative
construction regulations that tend to unnecessarily increase costs or
retard the use of new materials, products or methods of
construction or provide preferential treatment to certain types or
classes of materials or methods of construction.
(5) To eliminate unnecessary duplication of effort and fees
related to the review of construction plans and the inspection of
construction projects.
(6) To assure that officials charged with the administration and
enforcement of the technical provisions of this act are adequately
trained and supervised.
***
(8) To start a process leading to the design, construction and
alteration of buildings under a uniform standard.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eleven Eleven Pennsylvania, LLC, :
Petitioner :
:
v. : No. 651 M.D. 2016
:
Commonwealth of Pennsylvania, State :
Board of Cosmetology; Ian J. Harlow, :
Commissioner of Professional and :
Occupational Affairs, in his official :
capacity; and Pedro A. Cortes, Secretary :
of the Commonwealth of Pennsylvania, :
in his official capacity, :
Respondents :
ORDER
AND NOW, this 14th day of August, 2017, Petitioner Eleven Eleven
Pennsylvania, LLC’s application for summary relief is GRANTED. Accordingly,
we DECLARE that 49 Pa. Code §7.79 (the Lavatory Regulation) is
PREEMPTED by operation of Section 104(d) of the Pennsylvania Construction
Code Act,1 35 P.S. §7210.104(d)(1), to the extent it requires a lavatory “within the
square footage of the salon.”
FURTHER, we DECREE that Respondents are PERMANENTLY
RESTRAINED from enforcing the preempted language of the Lavatory
Regulation.
ROBERT SIMPSON, Judge
1
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§7210.101-1103.