Leetham v. McGinn
| Decision Date | 26 June 1974 |
| Docket Number | No. 13368,13368 |
| Citation | 524 P.2d 323 |
| Parties | Vonnie Ray LEETHAM, Plaintiff and Respondent, v. Floy W. McGINN, Director, Department of Registration, State Department ofBusiness Regulation, State of Utah, Defendant and Appellant. |
| Court | Utah Supreme Court |
Vernon B. Romney, Atty. Gen., G. Blaine Davis, Ronald K. Fielding, Asst. Attys. Gen., Salt Lake City, for defendant and appellant.
Robert D. Maack, Salt Lake City, for plaintiff and respondent.
Plaintiff is a licensed cosmetologist, Chapter 11, Title 58, U.C.A.1953. She has fulfilled the special requirements of Section 58--11--4, U.C.A.1953, and her license includes the right to cut hair. An investigator, employed by the Department of Registration of the State Department of Business Regulation, filed a formal complaint, charging plaintiff with cutting the hair of a male patron in violation of Section 58--11--12(2)(c), U.C.A.1953. Upon a formal hearing before defendant, Chairman of the Department, plaintiff's license to practice cosmetology was revoked for a period of ninety days.
Plaintiff filed a petition for review in the district court and for an order staying the revocation of her license. Subsequently, plaintiff filed a motion for summary judgment on the ground that the provision of the statute prohibiting her from trimming and cutting a male patron's hair was unconstitutional. The trial court vacated and declared null and void the order of the Department of Business Regulation revoking plaintiff's license to practice cosmetology. The trial court ruled that Section 58--11--12(2)(c), U.C.A.1953, was unconstitutional insofar as it has been interpreted to prohibit a licensed cosmetologist from the cutting of hair of males.
Defendant appeals and urges that the provision of the statute constituted a valid exercise of the police power by establishing reasonable rules and regulations to protect the public health, safety and welfare. Furthermore, the statute established a reasonable classification, preserving the distinctions between the professions of barbering and cosmetology.
Section 58--11--12(2)(c), U.C.A.1953, provides that a cosmetologist may perform in his practice: 'Cutting, clipping or trimming the hair of women or girls only by the use of scissors, shears, clippers or other appliances.'
Section 58--11--19, U.C.A.1953, provides that barbers licensed under the laws of this state are exempted from the chapter concerning cosmetologists.
Section 58--4--10, U.C.A.1953, provides:
To . . . cut the hair, . .. shall constitute practicing the occupation of barbering; provided, that persons duly licensd to practice as hairdressers and cosmeticians are exempted from the provisions of this chapter.
Plaintiff urged successfully before the trial court that this statutory scheme, which permits barbers to cut the hair of both men and women but restricts cosmetologists to cutting the hair of girls and women, was unconstitutional. 1
A legislative classification is never arbitrary or unreasonable so long as the basis for differentiation bears a reasonable relation to the purposes or objectives to be accomplished by the act. If some persons or transactions, excluded from the operation of the law, were as to the subject matter of the law in no differentiable class from those included within its operation, the law is discriminatory in the sense of being arbitrary and unconstitutional. 2 In Maryland State Board of Barber Examiners v. Kuhn, 3 the court held that to the extent that the challenged statute prohibited cosmetologists from rendering to male patrons the same services they might lawfully provide to female customers, it violated the Equal Protection Clause, for the classification established by the statute was without any reasonable basis and was, therefore, purely arbitrary. The court emphasized that the cosmetologists sought permission only to render the same services for men's hair that they already lawfully and competently provided for women's hair. The cosmetologists neither sought nor would they be permitted to hold themselves out as barbers. In performing the same services and techniques upon men's hair that they already use on women's hair, the cosmetologists would employ the same instruments and not those which only barbers are trained to use in providing 'conventional male...
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...Gilsonite Co., 12 Utah 2d 357, 366 P.2d 974 (1961); Carter v. State Tax Commission, 98 Utah 96, 96 P.2d 727 (1939). Cf. Leetham v. McGinn, Utah, 524 P.2d 323 (1974). Laws that have so many exceptions that "they in effect change the nature of the act" and result in only a small number of per......
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