Eleven Eleven Pa., LLC v. Commonwealth

• Decision Date: 14 August 2017
• Docket Number: No. 651 M.D. 2016.,651 M.D. 2016.
• Citation: 169 A.3d 141
• Parties: ELEVEN ELEVEN PENNSYLVANIA, LLC, Petitioner v. 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
• Court: Pennsylvania Commonwealth Court

169 A.3d 141

ELEVEN ELEVEN PENNSYLVANIA, LLC, Petitioner

v.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

No. 651 M.D. 2016.

Commonwealth Court of Pennsylvania.

Argued: June 5, 2017

Decided: August 14, 2017

Adam M. Shienvold, Harrisburg, for petitioner.

Lindsey A. Bedell, Deputy Attorney General, Harrisburg, for respondents.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE SIMPSON

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.

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.

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).

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).

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 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., 621 Pa. 260, 77 A.3d 587 (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 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, 571 Pa. 637, 813 A.2d 659 (2002). However, unlike a claim for a preliminary injunction, the party need not establish either irreparable harm or...