Doyle v. Board of Barber Examiners

Decision Date21 August 1963
Citation33 Cal.Rptr. 349,219 Cal.App.2d 504
CourtCalifornia Court of Appeals Court of Appeals
PartiesWilliam E. DOYLE, Individually, and doing business as Jim Doyle's Barber Shop, Petitioner and Appellant, v. BOARD OF BARBER EXAMINERS of the State of California, Respondent. Civ. 10569.

Edward P. Freidberg, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., by Richard Lucas, Deputy Atty. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

After a hearing, respondent Board of Barber Examiners ordered a 15-day suspension of petitioner's certificates as a registered barber and as operator of a barbershop. Basis of the order was a finding that petitioner had employed three apprentices in a single shop, in violation of section 6550 of the California Business and Professions Code. Petitioner instituted the present proceeding, seeking a writ of mandate to annul the suspension. In the court below the parties stipulated that petitioner indeed had employed three apprentices in a single shop and that the only issue was constitutionality of the statutory restriction. The lower court concluded that the statute was constitutional and denied the writ. Petitioner appeals.

Section 6550 of the Business and Professions Code reads as follows: 'No registered apprentice may independently practice barbering, but he may as an apprentice do any or all of the acts constituting the practice of barbering under the immediate personal supervision and employment of a registered barber.

'Each shop may employ apprentices in the ratio of one apprentice to each registered barber working in the shop, but not to exceed two apprentices in each shop.'

The parties' constitutional contentions are intertwined with conflicting interpretations of the statute. Petitioner construes the statute as permitting a ratio of one apprentice per registered barber in the shop, even though the latter is himself only an employee. The board, on the other hand, contends that section 6550 imposes a ceiling of one apprentice per barbership-owner, regardless of the number of registered journeymen employed in the shop. Obviously there are fewer shops in California than registered barbers. Thus judicial acceptance of one or another of these conflicting interpretations would greatly expand or limit the permissible number of barber apprentices in this state. In our view, legality of petitioner's conduct does not turn on resolution of these conflicting claims, hence it is unnecessary to pass on them. Just as plainly as words may do, section 6550 imposes a limit of two apprentices in any one barbership. Petitioner admits his employment of three apprentices in a single shop. If the limit of two apprentices per shop is valid, petitioner must lose his appeal regardless of interpretive quarrels over other aspects of the statute.

Petitioner's contention is that the statutory limitation is an arbitrary and unreasonable exercise of the state's police power, violative of the due process of law guaranteed to him by the Fourteenth Amendment to the federal Constitution and by article I, section 13, of the state Constitution. The contention raises issues in that area of constitutional law called 'substantive due process.' Petitioner places reliance on Marx v. Maybury, 8 Cir., 30 F.2d 839, and Hoff v. State, 39 Del. 134, 197 A. 75. In the former a three-judge federal court invalidated a Washington statute which prohibited employment of more than one apprentice per barbershop. In the latter a Delaware statute limiting beauty shop apprentices was held arbitrary and violative of due process.

California law establishes a Board of Barber Examiners, requires licensing of barbers, barber apprentices, shops and barber colleges; fixes standards of training, education and morality, and imposes sanitary regulations. (Bus. & Prof.Code, secs. 6500-6636.) Licensing or registration as a barber requires an 18-month period as a registered apprentice 'under the immediate personal supervision and employment of a registered barber.' (Bus. & Prof.Code, sec. 6545.) 1 Apprenticeship, in turn, must be preceded by graduation from an approved barber college, administering a course of not less than 1,248 hours at a rate not exceeding eight hours per working day. (Bus. & Prof.Code, secs. 6546, 6535.) The barber college course thus requires a minimum of about six months. Combined length of schooling and apprenticeship is two years. Passage of an examination is a preliminary to registration either as a barber or as a barber apprentice. (Bus. & Prof.Code, secs. 6545, 6546.) A registered apprentice may do all the acts constituting the practice of barbering under the immediate supervision and employment of a registered barber. (Bus. & Prof.Code, sec. 6550.) The practice of barbering without an appropriate certificate of registration is unlawful. (Bus. & Prof.Code, secs. 6523, 6524.)

The general validity of such a statutory licensing system cannot be seriously questioned. Public health, sometimes described in terms of sanitation or safeguards against communicable disease, is regarded as the police power objective which justifies licensing of barbers. (In re Scaranino, 7 Cal.2d 309, 311, 60 P.2d 288, Ganley v. Claeys, 2 Cal.2d 266, 268, 40 P.2d 817; 7 Am.Jur. 613-614, 616-617; Annotations, 20 A.L.R. 1111, 98 A.L.R. 1080; see Fellman, A Case Study in Administrative Law--The Regulation of Barbers, 26 Wash.L.Q. 213.) Some occupational licensing laws aim at assuring the public a minimum standard of training, experience and proficiency in the particular calling. (Rosenblatt v. Cal. St. Bd. of Pharmacy, 69 Cal.App.2d 69, 73, 158 P.2d 199; Whitcomb v. Emerson, 46 Cal.App.2d 263 at p. 273, 115 P.2d 892 at page 897; 11 Cal.Jur.2d 565.) Dictum in a California decision recognizes 'the purpose of standardizing competency of barbers' as one objective of barber licensing. (In re Boehme, 12 Cal.App.2d 424, 428, 55 P.2d 559.) Statutory demands for minimum education and training as a condition of barber licensing are usually viewed as ancillary to the primary purpose of public health protection. (Moler v. Whisman, 243 Mo. 571, 147 S.W. 985; 7 Am.Jur., Barbers, sec. 7, p. 616; Fellman, op. cit., pp. 217-218.) 2

On occasions in the past, California courts have nullified particular barbering regulations having no connection with the public interest. Ex parte Jentzsch, 112 Cal. 468, 44 P. 803, nullified a former Penal Code section which required barbershops to close on Sunday afternoon. Later the courts invalidated a legislative attempt to impose a similar closing requirement as part of the statewide licensing law. (In re Scaranino, supra, 7 Cal.2d 309, 60 P.2d 288; In re Boehme, supra, 12 Cal.App.2d 424, 55 P.2d 559.) Both cases evidenced the view that statutory attempts to eliminate or restrict competition among barbers would not stand the test of constitutionality. Thus, in Scaranino (7 Cal.2d at p. 312, 60 P.2d at p. 289) the court stated: 'The * * * [statute] here involved cannot, of course, be upheld as a valid restriction of competition among those engaged in the profession of barbering.' In the Boehme case (12 Cal.App.2d at p. 429, 55 P.2d at p. 562), the court remarks: 'It seems apparent to us that the real object in view in enacting * * * [the statute] was not to prescribe one day of rest in seven for barbers, but plainly to restrict competition among the owners of the shops. Such an object is certainly not within the police power under our Constitution.'

In Ganley v. Claeys, supra, 2 Cal.2d 266, 40 P.2d 817, the court invalidated a local ordinance regulating barbershop hours as having no relationship to its claimed public health objective. Another ordinance, prohibiting outdoor posting of barbership price lists, was seen as an arbitrary exercise of police power. (People v. Osborne, 17 Cal.App.2d Supp. 771, 59 P.2d 1083.) Local ordinances adopted under authority of a state law and attempting to fix prices of barbering services were nullified in In re Kazas, 22 Cal.App.2d 161, 70 P.2d 962, and In re Landowitz, 22 Cal.App.2d 733, 71 P.2d 334. In the Kazas case the court noted that the legislation was not for the benefit of the general community but for the benefit of barbers alone.

To a minor extent some of these decisions, especially Ex parte Jentzsch, supra, rest on the constitutional inhibition of special or class legislation. For the most part, however, these are 'due process' cases, holding that the attempted regulations were arbitrary, having no reasonable connection with the public health and welfare.

The right to engage in a legitimate employment or business receives recognition as a portion of the individual freedoms secured by the due process provision of the federal and state constitutions. (Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct 752, 1 L.Ed.2d 796; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131; Bautista v. Jones, 25 Cal.2d 746, 749, 155 P.2d 343.) This freedom is subject to the state's police power, which is simply the power to subject individuals to reasonable regulation for the purpose of achieving governmental objectives such as the public safety, health, morals and public welfare. (Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 904; Wholesale Tobacco Dealers Bureau of So. Cal. Inc. v. National Candy and Tobacco Co., 11 Cal.2d 634, 643-646, 82 P.2d 3, 118 A.L.R. 486; Miller v. Board of Public Works, 195 Cal. 477, 484-485, 234 P. 381, 38 A.L.R. 1479; 2 Cooley, Constitutional Limitations (8th ed.) pp. 1224-1227.) 'Reasonable regulation' implies that the regulatory objective is the welfare of the general public as contrasted with that of a special class or segment. (State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 443, 254 P.2d 29.) The law must not be arbitrary; it must rest upon 'adequate reason.' (State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, supra...

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