Competition Haircutters v. Cosmetology Examining Bd.
| Decision Date | 15 December 1988 |
| Docket Number | No. 88-0089,88-0089 |
| Citation | 437 N.W.2d 234,148 Wis.2d 946 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. The COMPETITION HAIRCUTTERS, f/k/a the Captain's Chair and the Captain's Chair, Inc., Petitioners-Appellants, v. COSMETOLOGY EXAMINING BOARD, and Wisconsin Department of Regulation and Licensing, Respondents. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Dane County.
AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.
Appeal from an order of the circuit court for Dane county: DANIEL R. MOESER, Judge.
Before GARTZKE, P.J., and EICH and SUNDBY, JJ.
Competition Haircutters appeals from a circuit court order affirming an order of the Cosmetology Examining Board suspending Competition's beauty salon license for thirty days. In a complaint filed with the board by the Department of Licensing and Regulation, Competition was charged with five counts of aiding in the unauthorized practice of cosmetology, contrary to ch. 458, Stats., and Wis.Adm.Code, secs. C 1.03(1), 1.03(3), 7.01(1) and 7.02. The board concluded that Competition aided in the unauthorized practice of cosmetology by employing unlicensed persons to render cosmetology services to patrons on two occasions, and by permitting the beauty salon to operate on three occasions without the manager of record, a licensed manager or a qualified designee on the premises. It found Competition guilty on all five counts.
We conclude that the evidence supports the board's conclusion as to all counts except count one of the complaint. We therefore reverse the trial court's order with directions that it remand the matter to the board to reconsider the appropriate penalty.
I.
Count one alleges that on August 21, 1984, Competition employed an unlicensed person, William Morrill, to provide cosmetology services by giving a patron a haircut, and thus aided in the unauthorized practice of cosmetology, contrary to secs. 458.09(4), 458.13(1), 458.14(2)(h), Stats., and Wis.Adm.Code secs. C 1.03(1) and 7.02. Collectively, these provisions prohibit an unlicensed person from practicing cosmetology, require the owner to secure compliance with the statutes and regulatory rules, and empower the board to suspend or otherwise deal with the license of the beauty salon for violation of ch. 458 or any rule adopted thereunder. Specifically, sec. 458.13(1) provides: "No person may engage in the practice of cosmetology unless the person holds a license issued by the examining board." Haircutting is included in "cosmetology," as defined in sec. 458.01(4).
We conclude that these statutes and administrative regulations do not establish that the cutting of hair by a licensed barber in a beauty salon constitutes the unauthorized practice of cosmetology.
No statute or administrative rule specifically prohibits a beauty salon from employing an unlicensed cosmetologist. Section 458.09(1), Stats., provides that no person may operate a beauty salon without a license. Section 458.01(2) defines beauty salon to include any establishment or place of business where cosmetology is practiced. Cosmetology includes haircutting. Sec. 458.01(4). When Morrill cut hair on Competition's premises he was practicing cosmetology. Wisconsin Adm.Code sec. C 1.03(1) requires the owner of any premises licensed as a beauty salon to be responsible for compliance with ch. 458 and Wis.Adm.Code chs. C 1 to 4, 6 and 7. Section C 7.02 provides that unauthorized practice shall not be aided in any way. Thus, Competition's alleged violation is not for employing an unlicensed person but in aiding a person to commit an unauthorized practice--engaging in cosmetology without a license. If the cutting of hair by a licensed barber in a beauty salon is an unauthorized practice, the allegations of count one were established. We conclude, however, that it is not an unauthorized practice.
Morrill was licensed by the Barbers Examining Board to provide the service he performed--cutting hair. He was barbering. Section 457.01(4)(a), Stats. Read literally, when Morrill cut hair on Competition's premises, sec. 457.01(6) made the premises a barber shop as well as a beauty salon. In fact, when the definitions of "barbering," sec. 457.01(4), "barber shop," sec. 457.01(6), "beauty salon," sec. 458.01(2), Stats., and "cosmetology," sec. 458.01(5), are read literally, an establishment at which haircutting, for example, is done must have a permit to operate a barber shop, sec. 457.04(3), and a license to operate a beauty salon, sec. 458.09(1).
Given the acknowledged lack of a substantial distinction between cosmetology and barbering, construing these statutes to require both a beauty salon license and a barber shop permit whenever hair is cut on the premises would be absurd. We must construe statutes to avoid an absurd or unreasonable result. State v. Zielke, 137 Wis.2d 39, 51, 403 N.W.2d 427, 432 (1987). We must also construe statutes to preserve their constitutionality. State ex rel. Smith v. Oak Creek, 139 Wis.2d 788, 802, 407 N.W.2d 901, 907 (1987).
Competition contends that sec. 458.13(1), Stats., is unreasonable as applied and violates its rights to due process and equal protection. It also claims that there is no rational basis for the distinction made in the statutes and administrative regulations between cosmetologists and barbers and, therefore, the statutes and administrative regulations deprive it of the equal protection of the law.
The record establishes that the only difference between barbering and cosmetology is that barbering includes shaving while cosmetology does not and cosmetology includes manicuring while barbering does not. As early as 1971 it was said "to be a matter of common knowledge that the trade of barbers and that of the cosmetologist are closely akin." 60 OAG 376, 377, citing 56 A.L.R.2d 903. Cosmetology and barbering are subject to regulation under the police power of the state. 60 OAG at 378, citing 10 Am.Jur.2d, Barbers and Cosmetologists, sec. 2 (1963) and Toebe Academy of Beauty Culture v. Kelly, 239 Wis. 103, 300 N.W. 476 (1941). The constitutional validity of such regulations depends on whether they are "reasonably conducive to securing and protecting public health, safety and welfare." 60 OAG at 378, citing 10 Am.Jur.2d, Barbers and Cosmetologists, sec. 1 (1963). A provision of the Illinois Barbers Act prohibiting beauty culturists from cutting hair without a barber's license was held to violate the due process clause because it had no definite relationship to public health, safety and welfare. Banghart v. Walsh, 171 N.E. 154 (Ill.1930), cited in 60 OAG at 378.
In addition to satisfying the due process clause, legislation classifying occupations for purposes of regulation must not deprive a person of the equal protection of the law. The standards for classification are stated in State ex rel. Real Est. Exam. Bd. v. Gerhardt, 39 Wis.2d 701, 710-11, 159 N.W.2d 622, 628 (1968).
The board argues that there is a substantial distinction between barbers and cosmetologists. The majority of barbers still practicing were licensed before 1974. In 1974, schooling requirements were upgraded but licensed barbers were "grandfathered" and not required to obtain schooling in cosmetology services. The board argues that there is thus a "substantial distinction" between cosmetologists and barbers which supports their separate and different treatment.
The board's argument, however, overlooks the constitutional justification for legislative "grandfathering." "If ... the statute ... imposes a licensing or examination requirement on a new entry into a trade, it is well within the legislative prerogative to provide that the past business experience or practical training is a substantial equivalent of any licensing or examination requirement." Wis. Wine & Spirit Institute v. Ley, 141 Wis.2d 958, 969, 416 N.W.2d 914, 919 (Ct.App.1987) (citation omitted). It would undercut the rationale for the grandfathering of barbers if we were to discount the substantial equivalency of business experience and practical training in making a classification analysis between cosmetologists and barbers.
We conclude that because there is no substantial distinction between cosmetology and barbering, if we construe ch. 458, Stats., and Wis.Adm.Code secs. C 1.03(1) and 7.02 to make it an unauthorized practice for a licensed barber to perform barbering services in a beauty salon, we raise serious due process and equal protection questions. We reject that construction and conclude that the allegation of count one is not proved.
III.
We will consider count two in part V. We turn to count three. We may dispose of Competition's contentions as to count three without reaching its claims of unconstitutionality. The third count alleges that on October 2, 1984, Competition employed an unlicensed person to provide cosmetology services for patrons. The employee did not hold a barber's license. The parties stipulated to the truth of the allegation and that the unlicensed person had graduated from a registered school of cosmetology, had applied to the board to take an examination for an operator's license, and was issued an operator's license on November 5, 1984. Competition does not claim that sec. 458.13(1), Stats., is unconstitutional because it requires that cosmetologists be licensed. Occupational licensing and regulation is a proper exercise of the police power of the state. Laufenberg v. Cosmetology Examining Board, 87 Wis.2d 175, 184, 274 N.W.2d 618, 623 (1979). Competition argues that count three should not have been charged because Competition substantially complied with the licensing requirement. We disagree that there was substantial compliance. The examination process is an indispensable part of licensing. Compliance with sec. 458.13(1) after the fact of the violation does not...
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