Laufenberg v. Cosmetology Examining Bd. of Wisconsin Dept. of Regulation and Licensing

• Citation: 274 N.W.2d 618,87 Wis.2d 175
• Decision Date: 30 January 1979
• Docket Number: 76-192,Nos. 76-191,s. 76-191
• Parties: Patricia LAUFENBERG, Petitioner-Appellant, v. COSMETOLOGY EXAMINING BOARD OF the WISCONSIN DEPARTMENT OF REGULATION AND LICENSING, Respondent. William MORRILL, Petitioner-Appellant, v. BARBER'S EXAMINING BOARD OF the WISCONSIN DEPARTMENT OF REGULATION AND LICENSING, Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 618

274 N.W.2d 618

87 Wis.2d 175

Patricia LAUFENBERG, Petitioner-Appellant, v. COSMETOLOGY EXAMINING BOARD OF the WISCONSIN DEPARTMENT OF

REGULATION AND LICENSING, Respondent.

William MORRILL, Petitioner-Appellant, v. BARBER'S EXAMINING BOARD OF the WISCONSIN DEPARTMENT OF

REGULATION AND LICENSING, Respondent.

Nos. 76-191, 76-192.

Supreme Court of Wisconsin.

Argued Oct. 2, 1978.

Decided Jan. 30, 1979.

Donald S. Eisenberg and Eisenberg, Giesen & Ewers, Madison, on brief, for petitioners-appellants; John P. Louderman, III, Madison, argued.

John J. Glinski, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., and John W. Calhoun, Asst. Atty. Gen., for respondents.

HANSEN, Justice.

This is an appeal from a judgment entered by the circuit court for Dane county in a chapter 227, Statutes, review proceeding.

The Cosmetology Examining Board of the Wisconsin Department of Regulation

and Licensing revoked the managing cosmetologist's license issued to Patricia A. Laufenberg for a period of one year effective December 10, 1975.

The Barber's Examining Board of the Wisconsin Department of Regulation and Licensing, suspended the barber shop manager's license of William Morrill for a period of ninety days, effective thirty days after October 29, 1975.

On review before the circuit court and on this appeal, the two cases are consolidated. The circuit court entered judgment affirming the decisions of the respective boards and dismissing the petitions for review.

Laufenberg and Morrill, as petitioners, have appealed. An undertaking to stay the execution of the judgment pending appeal has been filed.

In both cases the parties filed stipulations of facts with their respective licensing boards. The result was that no hearing was held and no testimony or evidence was otherwise presented. Review on appeal is thus limited to the facts set forth in the stipulations.

In the proceeding before the Cosmetology Examining Board, Laufenberg and the board entered into the following stipulation of facts:

1. That Patricia A. Laufenberg at all times pertinent hereto is duly licensed as a cosmetologist under ch. 159 of the Wisconsin statutes.

2. That from November 29, 1974, to the present (April 28, 1975), Patricia A. Laufenberg has been employed as a cosmetologist at a business establishment known as the Captain's Chair Barber Shop, 199 Cottage Grove Road, Madison, Wisconsin, which establishment has been approved as a barber shop under ch. 158, Wisconsin Statutes.

3. That the Captain's Chair Barber Shop is not licensed as a beauty salon under ch. 159.

4. That the manager of the Captain's Chair Barber Shop, William Morrill, is a licensed master barber under ch. 158 and further that he is a licensed cosmetologist under ch. 159.

5. That William Morrill at all times pertinent hereto is not licensed as a managing cosmetologist.

Based upon this stipulation, the Cosmetology Board found that Laufenberg practiced cosmetology and thus operated a "beauty salon" as defined by sec. 159.01(3), Stats., on a premise not licensed as a beauty salon under ch. 159 and in violation of sec. 159.09(1); that she was practicing cosmetology outside of a licensed beauty salon in violation of the provisions of sec. H11.04, Wisconsin Administrative Code; and that she practiced cosmetology while not under the supervision and direction of a manager licensed pursuant to ch. 159, in violation of sec. 159.12(2).

In the proceeding before the Barber's Examining Board, Morrill and the board entered into the following stipulation of facts:

1. That William Morrill at all times pertinent hereto was duly licensed as a master barber who in addition thereto holds a shop manager's license under sec. 158.12, Stats., for the premises located at 199 Cottage Grove Road, Madison, Wisconsin.

2. That William Morrill does not hold a manager's license as a practicing cosmetologist under sec. 159.08(2), Stats., ¹ nor is the barber shop licensed as a beauty salon under sec. 159.09.

3. That William Morrill has permitted the employment of a licensed cosmetologist, Patricia Laufenberg, to cut hair of male patrons at the barber shop from October 29, 1974, until the present (April 28, 1975), even though said Patricia Laufenberg is not licensed as a barber as defined in sec. 158.04, Stats.

4. William Morrill at all times pertinent hereto was duly licensed as a cosmetologist under ch. 159, Wisconsin Statutes.

Based upon these stipulated facts the Barber's Examining Board found that Morrill was duly licensed as a master barber; that he held a barber shop manager's license issued pursuant to sec. 158.12, Stats.; that he was not licensed as a managing cosmetologist pursuant to ch. 159; that his barber shop was not licensed as a beauty salon pursuant to sec. 159.09; that he employed Laufenberg, a licensed cosmetologist, at his barber shop; that he permitted her to cut hair at his barber shop; that Laufenberg did not hold a master barber's license or an apprentice permit card issued pursuant to ch. 158.

Considering the facts presented to the respective boards by the stipulations, their findings were inescapable.

On appeal the petitioners, Laufenberg and Morrill, raise the following issues:

1. Whether sec. 159.09(1), Stats., and Wisconsin Administrative Code H11.04 (now C1.08(1)), which limit the practice of cosmetology to licensed beauty salons, are unreasonable regulations violative of the due process and equal protection clauses of the state or federal constitutions?

2. Whether sec. 159.12(2), Stats., which requires that a licensed cosmetologist practice only under the supervision of a licensed managing cosmetologist, is an unreasonable regulation violative of the due process and equal protection clauses? ²

3. Whether sec. 158.04(2), Stats., which prohibits a barber shop manager from employing a person who is not a licensed barber to cut hair, is an unreasonable regulation violative of the due process and equal protection clauses?

4. Whether the three-year barber apprenticeship required by sec. 158.09, Stats., as a condition for a journeyman's barber's license and sec. 158.10 are unreasonable regulations violative of the due process and equal protection clauses?

In a ch. 227, Wisconsin Statutes, review case, this court is to review the judgment of the circuit court. The only issue is whether the circuit court erred in that review. Sec. 227.21, Stats.; Clintonville Transfer Line v. Public Service Comm., 248 Wis. 59, 76, 77, 21 N.W.2d 5 (1945).

". . . If the trial court applied correct principles of law and accorded the findings of the Commission the weight to which they were entitled under the statute, the determination of the trial court must be upheld unless it is clearly wrong. This court determines questions of law for itself." Wisconsin Telephone Co. v. Public Service Comm., 232 Wis. 274, 321, 287 N.W. 122, 145 (1939).

A question of law, therefore, is reviewable by both the circuit court and the Supreme Court. Pabst v. Department of Taxation, 19 Wis.2d 313, 324, 120 N.W.2d 77 (1963).

Statutes are presumed to be constitutional. To overcome this presumption a challenger must bear the heavy burden of proving that no basis exists for the classification made by the legislature. State ex rel. Real Est. Exam. Bd. v. Gerhardt, 39 Wis.2d 701, 711, 159 N.W.2d 622 (1968).

The petitioners here must prove the statute is unconstitutional beyond a reasonable doubt. We will not weigh the relative merits of the legislation. Courts are not concerned with the overall merits or wisdom of legislative enactments, but become judicially concerned where it has been shown that a statute "clearly contravenes some constitutional provision." Chicago & N. W. R. Co. v. La Follette, 27 Wis.2d 505, 521, 522, 135 N.W.2d 269 (1965).

The licensing and regulation of occupations is within the police power of the state.

". . . '. . . in the exercise of its police power to require licenses, a state may make any reasonable classification which it deems necessary to the police purpose intended to be attained by the legislation. . . .' . . . '. . . the legislature may, without denial of equal protection of the laws, classify businesses and occupations for purposes of regulation, provide different rules for different classes, limit a regulation to a particular kind of business, extend to some persons privileges denied to others, or impose restrictions on some but not on others, where the classification or discrimination is based on real differences in the subject matter and where the classification or the discrimination is reasonable, and the legislation affects alike all persons pursuing the same business under the same conditions.' . . .

"The discretion of the legislature in making these classifications is great. The court is not required under the law to find a proper basis of classification, but the classification made by the legislature is presumed to be valid unless the court can say no state of facts can reasonably be conceived that would sustain it." Gerhardt, supra, 39 Wis. at 709, 710, 159 N.W.2d at 627.

In Gerhardt, supra, at 710, 711, 159 N.W.2d 622, we repeated these five well-established standards for proper classification:

(1) All classifications must be based upon substantial distinctions which make one class really different from another.

(2) The classification adopted must be germane to the purpose of the law.

(3) The classification must not be based upon existing circumstances only. It must not be so constituted as to preclude addition to the numbers included within a class.

(4) To whatever class a law may apply, it must apply equally to each member thereof.

(5) That the characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.

". . . A classification in police power means will be sustained if...