Haveman v. Bureau of Prof'l & Occupational Affairs

• Decision Date: 25 August 2020
• Docket Number: No. 765 M.D. 2018,765 M.D. 2018
• Citation: 238 A.3d 567
• Parties: Courtney HAVEMAN and Amanda Spillane, Petitioners v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Cosmetology of the Commonwealth of Pennsylvania, Respondent
• Court: Pennsylvania Commonwealth Court

238 A.3d 567

Courtney HAVEMAN and Amanda Spillane, Petitioners

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Cosmetology of the Commonwealth of Pennsylvania, Respondent

No. 765 M.D. 2018

Commonwealth Court of Pennsylvania.

Argued June 11, 2020

Decided August 25, 2020

Andrew Ward, Arlington, VA and William N. Clark, Philadelphia, for Petitioners.

Shana M. Walter, Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COVEY

Before this Court is the Application for Summary Relief (Application) filed by Courtney Haveman (Haveman) and Amanda Spillane (Spillane) (collectively, Petitioners) filed in this Court's original jurisdiction. After review, we grant the Application.

Background

Petitioners are Pennsylvania residents who applied for limited cosmetology licenses from the Bureau of Professional and Occupational Affairs, State Board of Cosmetology (Board), to become licensed estheticians.¹ Although Haveman and Spillane met all of the other requirements, the Board denied their applications to sit for the esthetician examination and receive a license because they did not demonstrate good moral character as required by Section 5(a) of what is commonly referred to as the Beauty Culture Law (Law),² 63 P.S. § 511(a).³

Facts

On December 11, 2018, Petitioners filed a Petition for Review in the Nature of a Complaint for Declaratory and Injunctive Relief (Petition), seeking: (1) a declaration that the good moral character requirement of Section 5 of the Law, and all rules, regulations, policies and practices of the Board implementing that requirement are unconstitutional and facially violate the due process and equal protection clauses of the Pennsylvania Constitution; (2) an order permanently enjoining the Board from enforcing that provision against Haveman, Spillane or anyone else; and (3) attorney's fees, costs and expenses.⁴

On February 11, 2019, the Board filed preliminary objections to the Petition on the basis that the Petition was not legally sufficient (demurrer), timely or ripe for review, and because Petitioners lacked standing and failed to exhaust their administrative remedies. On March 13, 2019, Petitioners filed their response to the preliminary objections. On December 9, 2019, this Court overruled the Board's preliminary objections and directed the Board to answer the Petition. See Haveman v. Bureau of Prof'l & Occupational Affairs, State Bd. of Cosmetology , 2019 WL 6698112 (Pa. Cmwlth. No. 765 M.D. 2018, filed December 9, 2019). In the meantime, the parties conducted discovery. On January 8, 2020, the Board filed an answer and new matter to the Petition. On January 30, 2020, Petitioners filed a reply to the Board's new matter.

Petitioners filed the Application on December 20, 2019. On January 6, 2020, the Board opposed the Application. On January 21, 2020, Petitioners filed a brief in support of their Application. On February 20, 2020, the Board filed its brief in opposition to the Application and Petitioners filed a reply brief on May 22, 2020. The parties presented oral argument on June 11, 2020. The matter is ready for this Court's disposition.

Discussion

[Pennsylvania Rule of Appellate Procedure] 1532(b) provides that ‘[a]t 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.’ Pa.R.A.P. 1532(b). ‘An application for summary relief is properly evaluated according to the standards for summary judgment.’ Myers v. Commonwealth , 128 A.3d 846, 849 (Pa. Cmwlth. 2015). That is, in ruling on a[n application] for summary relief, the evidence must be viewed in the light most favorable to the non-moving party and the court may enter judgment only if : (1) there are no genuine issues of material fact ; and (2) the right to relief is clear as a matter of law .

Flagg v. Int'l Union, Sec., Police, Fire Prof'ls of Am., Local 506 , 146 A.3d 300, 305 (Pa. Cmwlth. 2016) (emphasis added). "An application for summary relief is appropriate where a party asserts a challenge to the constitutionality of a statute and no material facts are in dispute." Phantom Fireworks Showrooms, LLC v. Wolf , 198 A.3d 1205, 1220 (Pa. Cmwlth. 2018).

Here, Petitioners contend that there are no material facts in dispute, and they are entitled to relief because the good moral character requirement (Requirement), on its face,⁵ violates substantive due process on the basis that: (1) cosmetology does not present unique risks of crime; (2) the Requirement irrationally discriminates within the beauty industry; (3) the Board's decisions are arbitrary; and (4) in light of the Board's other powers, the Requirement is unnecessary. Petitioners also assert that the Requirement violates the right to equal protection because it irrationally distinguishes cosmetology applicants from barbers, other salon employees and practicing cosmetologists, and needlessly discriminates against people with criminal histories.

The Board responds that genuine issues of material fact exist that preclude summary relief in Petitioners’ favor, and Petitioners’ right to relief is not clear because the Requirement complies with the substantive due process and equal protection mandates in the Pennsylvania Constitution.

A. Clear Right to Relief

The United States (U.S.) Supreme Court has cautioned: "We must keep in mind that ‘‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’’ Ayotte v. Planned Parenthood of Northern New Eng. , 546 U.S. 320, 329 [126 S.Ct. 961, 163 L.Ed.2d 812] ...(2006) (quoting Regan v. Time, Inc. , 468 U.S. 641, 652 [104 S.Ct. 3262, 82 L.Ed.2d 487] ...(1984) (plurality opinion))." Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Accordingly,

[t]here is a strong presumption in the law that legislative enactments are constitutional. Christ the King Manor v. Dep't of Pub. Welfare , 911 A.2d 624 (Pa. Cmwlth. 2006) (en banc ), aff'd per curiam , 597 Pa. 217, 951 A.2d 255 (2008) .... A court will not declare a statute unconstitutional unless the constitutional violation is clear, palpable, and plain. Id . The court will resolve all doubts in favor of constitutionality. Id . Thus, a party challenging the constitutionality of a statute has a heavy burden of persuasion. Id .

Phantom Fireworks , 198 A.3d at 1221. "Constitutional challenges to legislative enactments present this Court with questions of law ...." Germantown Cab Co. v. Phila. Parking Auth. , 651 Pa. 604, 206 A.3d 1030, 1041 (2019).

In the instant matter, Petitioners claim that the portion of Section 5(a) of the Law, which specifies, in relevant part, that "[a ]n applicant for a limited license shall ... be of good moral character ," 63 P.S. § 511(a) (emphasis added), is facially unconstitutional because it violates the substantive due process and equal protection clauses of the Pennsylvania Constitution.⁶

Preliminarily, the parties disagree on the proper standard for a facial constitutional challenge. Petitioners assert that the plainly legitimate sweep standard (i.e., a statute is facially unconstitutional if a substantial number of its potential applications are invalid) is applicable. See Petitioners’ Br. at 12; see also Petitioners’ Reply Br. at 13-14. The Board contends that the no set of circumstances standard (i.e., a statute is facially unconstitutional only if there is no set of circumstances under which the statute would be valid; that is, the law is unconstitutional in all of its applications) applies. See Board's Br. at 11-12, 14.

In Germantown Cab Company , the Pennsylvania Supreme Court clarified: "A statute is facially unconstitutional only where there are no circumstances under which the statute would be valid." Germantown Cab Co. , 206 A.3d at 1041 ; see also Wash. State Grange ; Clifton v. Allegheny Cty. , 600 Pa. 662, 969 A.2d 1197 (2009). "A facial attack tests a law's constitutionality based on its text alone and does not consider the facts or circumstances of a particular case." Peake v. Commonwealth , 132 A.3d 506, 517 (Pa. Cmwlth. 2015) (quoting Commonwealth v. Brown , 26 A.3d 485, 493 (Pa. Super. 2011) ). Accordingly, our Supreme Court explained: "In determining whether a statute is facially invalid, courts do not look beyond the statute's explicit requirements or speculate about hypothetical or imaginary cases." Germantown Cab Co. , 206 A.3d at 1041 ; see also Wash. State Grange .

Because Germantown Cab Company is the Pennsylvania Supreme Court's most recent pronouncement on evaluating facial challenges, the Board is correct that the Germantown Cab Company Court's no set of circumstances standard applies in the instant matter. Thus, the Requirement portion of Section 5(a) of the Law is facially unconstitutional if, based on its text alone, "there are no circumstances under which [it] would be valid." Germantown Cab Co. , 206 A.3d at 1041.

1. Substantive Due Process

The due process clause of the Fourteenth Amendment to the [U.S.] Constitution provides that ‘[n]o [s]tate shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of law.’ U.S. CONST. amend. XIV, § 1. Due process protections also emanate from the Pennsylvania Constitution, particularly Article I, Sections 1, 9, and 11 [, PA. CONST. art. I, §§ 1, 9, 11 ]. Khan [v. State Bd. of Auctioneer Exam'rs , 577 Pa. 166], 842 A.2d [936,] 945 [ (2004) ]. Article I, Section 1 of the Pennsylvania Constitution provides: ‘All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life

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