Cornwell v. California Bd. of Barber & Cosmetology
| Decision Date | 02 May 1997 |
| Docket Number | No. Civil 97-0138-B(POR).,Civil 97-0138-B(POR). |
| Citation | 962 F.Supp. 1260 |
| Court | U.S. District Court — Southern District of California |
| Parties | Joanne CORNWELL, et al., Plaintiffs, v. CALIFORNIA BOARD OF BARBERING AND COSMETOLOGY, et al., Defendants. |
David Kleinfeld & Richard Segal, Pillsbury, Madison & Sutro L.L.P., San Diego, CA, Clint Bolick & Donna Matias, Institute for Justice, Washington, DC, for Plaintiffs.
Kathleen Lam, Deputy Attorney General for the State of California, San Diego, CA, for Defendants.
ORDERING GRANTING DEFENDANTS' MOTION TO DISMISS AS TO PLAINTIFF AHNHCA; DENYING DEFENDANTS' MOTION TO DISMISS AS TO PLAINTIFF CORNWELL; GRANTING PLAINTIFFS' 45 DAYS LEAVE TO FILE AN AMENDED COMPLAINT
This matter came on regularly for hearing on defendants' motion to dismiss. Plaintiffs are represented by David Kleinfeld and Richard Segal of Pillsbury, Madison & Sutro LLP and by Clint Bolick and Donna Matias of the Institute for Justice. Defendants are represented by Kathleen Lam, Deputy Attorney General for the State of California. After careful consideration of the moving and opposing papers, the Court hereby GRANTS defendants' motion to dismiss as to plaintiff American Hairbraiders and Natural Hair Care Association (AHNHCA), and DENIES defendants' motion to dismiss as to plaintiff JoAnne Cornwell.
Plaintiffs Dr. JoAnne Cornwell (Dr. Cornwell) and the American Hairbraiders and Natural Hair Care Association (AHNHCA) are suing two State of California agencies and various individuals alleging that California's licensing requirement for hairbraiders violates the due process, equal protection and privileges and immunities clauses of both the federal and California constitutions. The Court has jurisdiction over these claims under
42 U.S.C. § 1983, 28 U.S.C. §§ 1331, 1367.
Plaintiff Dr. Cornwell is the owner of Sisterlocks, a sole proprietorship, which specializes in African hair styling. Plaintiff AHNHCA is a non-profit nationwide organization dedicated to protecting the rights of hair-braiders and natural hair stylists. Its members are individuals and salons engaged in the business of African hair styling and natural hair care. Complaint ¶¶ 5-6.
Defendants Rosemary Faulkner, Daniel Seirras, Dianne Eastman, Joan Castle Joseff, Jeanette Keaton, Ronald Lind, Carole Matchette, Howard Stein and Philip Taylor are board members of defendant California Board of Barbering and Cosmetology (CBBC). Defendant Pamela Ramsey is the Executive Officer of defendant CBBC, and defendant Susan Harrigan is an Enforcement Officer for the CBBC. The CBBC is established and authorized by Cal. Bus. & Prof. Code §§ 7302 and 7312 to regulate the practice of barbering and cosmetology in the State of California, to issue licenses, to discipline persons who violate the Barbering and Cosmetology Act (Cal. Bus. & Prof.Code §§ 7301 et seq.), and to oversee inspections of barbering and cosmetology establishments. Plaintiffs are suing these defendants in their official capacities for enforcing the Barbering and Cosmetology Act. Complaint ¶ 7.
Defendant Department of Consumer Affairs (DCA) is established as a State and Consumer Services Agency by Cal. Bus. & Prof.Code § 100 to regulate various occupations. The DCA is responsible for establishing minimum qualifications and standards of competency, issuing licenses, and ensuring compliance with regulations authorized under the California Business and Professions Code. The CBBC acts under the authority and supervision of the DCA. Complaint ¶ 8.
Defendant Daniel E. Lungren is the Attorney General for the State of California. Pursuant to Cal. Bus. & Prof Code § 321, the Attorney General has the authority to seek an injunction against any acts or practices in violation of any state law that the director of a regulatory agency finds may cause harm to consumers. Plaintiffs sue Lungren in his official capacity. Complaint ¶ 10.
Under the Barbering and Cosmetology Act, it is unlawful for a person to engage in barbering, cosmetology, or electrolysis for compensation without a valid license from the CBBC, to engage in barbering or cosmetology in an establishment that does not have a valid license, or to operate an establishment without a valid license. Cal. Bus. & Prof Code § 7317. Cosmetology includes "[a]rranging, dressing, curling, waving, machineless permanent waving, cleansing, cutting, shampooing, relaxing, singeing, bleaching, tinting, coloring, straightening, dyeing, brushing, applying hair tonics, beautifying, or otherwise treating by any means the hair of any person." Cal. Bus. & Prof.Code § 7316(b)(1).
On May 16, 1982, the Attorney General issued an opinion that the practice of African hair braiding falls within the definition of "cosmetology" and requires a cosmetology license. 65 Op. Atty. Gen. 284 (May 6, 1982). In order to obtain a license, a person must take a licensing examination. Cal. Bus. & Prof Code § 7321. In order to be qualified to take the examination, a person must have at least a tenth grade education and must have completed a course in an approved cosmetology school, completed an apprenticeship program, or have practiced cosmetology outside of the state for a requisite period of time. Cal. Bus. & Prof.Code § 7321. In its regulations, the CBBC requires cosmetology schools to provide 1,600 hours of technical instruction and practical operations in cosmetology techniques. Cal.Code Reg. § 950.2. These courses must provide instruction in a broad range of cosmetology techniques as well as bacteriology, anatomy, physiology, disinfection and sanitation. Plaintiff alleges that completing such a course takes at least nine months of full-time study and costs between $5,000 and $7,000.
African hair styling is "a highly specialized artistic and cultural form of hair styling and hair care whose main techniques include hair braiding, locking, twisting, weaving, and cornrows." Complaint ¶ 23. These techniques originated centuries ago in Africa and were brought into this country by Africans where the methods have endured and been expanded. Complaint ¶ 24. African hair styling is a form of natural hair care that does not use any chemicals. Complaint ¶ 26. Plaintiff alleges that no CBBC-approved cosmetology schools teach African hair styling techniques as part of their required curriculum. Complaint ¶ 27. Further, the CBBC-mandated curriculum does not include any instruction in African hair styling, natural hair care, braiding, twisting, weaving, locking or cornrowing.
African hair styling is distinct from the type of styling taught in cosmetology schools in that it rejects the application of harsh chemicals to the hair of African-Americans. These chemicals can cause long-term damage to the hair. Instead, African hair styling uses the natural texture of the hair to style the hair. Complaint ¶¶ 30-33. African hair styling involves physical manipulation of the hair and is labor intensive, often requiring between four and twelve hours to complete, including instruction in the proper maintenance of the hairstyle. Complaint ¶ 34.
Many African-American women choose to have their hair styled in African techniques as an expression of their cultural heritage. Complaint ¶ 28.
Plaintiff Dr. Cornwell founded Sisterlocks, a San Diego based company, to meet the natural hair care needs of women with textured hair. Complaint ¶ 39. Dr. Cornwell both styles the hair of African-American women, and trains others in African hair styling. She runs a two-day training seminar and has trained approximately 75 people. Complaint ¶ 40-44. Dr. Cornwell seeks to open her own salon, but she cannot do so unless she obtains a license from the CBBC. Complaint ¶ 48. Dr. Cornwell is not a CBBC-licensed cosmetologist, and believes that the instruction she would receive at a CBBC-approved cosmetology school would be irrelevant to the techniques of African hair styling that she employs. Complaint ¶ 49.
Plaintiff AHNHCA is a nationwide trade association composed of individuals and salons engaging in various forms of hair braiding and African hair styling. Complaint ¶ 53. One of AHNHCA's primary efforts is to "challenge the arbitrary and unreasonable application of state cosmetology and barbering licensing laws and regulations to individuals engaged in the art of African hair styling." Complaint ¶ 55.
Ali Rasheed and his salon, the Braderie, belong to AHNHCA. The Braderie is an African hairbraiding and weaving salon in San Diego. Rasheed owns the business with his wife and their business partner, Marguerite Sylva. Complaint ¶ 60. Ms. Sylva is a Master Braider, certified by the National Braiders Guild, and a licensed cosmetologist. Complaint ¶ 61. At the two Braderie salons, seven individuals, none of whom are licensed cosmetologists, perform braiding and weaving services for customers. Most of them, including Ms. Sylva, learned their craft in Africa. Complaint ¶¶ 64-65.
On October 2, 1996, a CBBC inspector visited the Braderie in San Diego and issued a "Notice of Violation and Assessment of Fine" to the salon and to Ms. Sylva whose cosmetology license had expired. Ms. Sylva was cited for practicing cosmetology without a license and the Braderie was cited for "aiding and abetting unlicensed activity." Both Ms. Sylva and the Braderie were fined $100. Complaint ¶¶ 67-68. The Braderie was also charged with operating an establishment without a license and for braiding activity by unlicensed people. Complaint ¶ 70. Ms. Sylva and the Braderie have appealed their citations and fines. Complaint ¶ 71.
Many of the braiders at the Braderie cannot afford to take a cosmetology course, and believe that such a course would not teach them anything relevant to African hair styling. Moreover, many of them emigrated from Africa and do not possess the tenth grade...
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