Maine Beauty Schools, Inc. v. State Bd. of Hairdressers

• Decision Date: 11 January 1967
• Citation: 225 A.2d 424
• Parties: MAINE BEAUTY SCHOOLS, INC. d/b/a Golden School of Beauty Culture and Creative Hair Designs, Inc. d/b/a York Beauty Academy and Clement E. Fortin d/b/a Central Beauty School, v. STATE BOARD OF HAIRDRESSERS of the State of Maine.
• Court: Maine Supreme Court

Page 424

225 A.2d 424

MAINE BEAUTY SCHOOLS, INC. d/b/a Golden School of Beauty Culture and Creative Hair Designs, Inc. d/b/a York Beauty Academy and Clement E. Fortin d/b/a Central Beauty School, v. STATE BOARD OF HAIRDRESSERS of the State of Maine.

Supreme Judicial Court of Maine.

Jan. 11, 1967.

Berman, Berman, Wernick & Flaherty, by Sidney W. Wernick, Portland, for plaintiffs.

Leon V. Walker, Jr., Asst. Atty. Gen., Augusta, for defendant.

Malcolm S. Stevenson, Bangor, amicus curiae.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN and DUFRESNE, JJ.

MARDEN, Justice.

On report. The controversy centers upon an amendment (Chapter 349 P.L.1965) to our statute regulating hairdressers and beauticians (32 M.R.S.A. §§ 1551-1657). The amendment adds three sentences to § 1553, which section prescribes the qualifications for schools of hairdressing and beauty culture, including the study hours required, and a provision that such study hours may include 'practical demonstrations.' The amendment reads as follows.

'Practical demonstrations will include supervised practice which shall consist of rendering service to persons other than fellow students, but such practice shall be of a clinical nature and under the direct supervision of a duly licensed instructor. No such school, nor any student registered therein nor any other person shall charge, either directly or indirectly, or receive any fee for any services rendered on any person acting as a subject for student instruction and training. The State Board of Hairdressers shall make rules and regulations that no school may charge more than the reasonable cost of supplies and materials used, and shall set up a schedule for such charges used in practical demonstrations. This schedule shall be posted at each school approved by the board.'

This amendment was effective September 3, 1965 and seasonably thereafter the State Board of Hairdressers (Board) prepared a schedule of charges to be made in 'practical demonstrations.' The validity of the amendment is challenged constitutionally by the complaining schools of beauty culture contending that (1) the prohibition from charging service fees is without reasonable relationship to the protection of public health and safety under the police power of the State, (2) that the statutory prohibition and proposed schedule of prices are arbitrary, discriminatory and unequal in application, and that apart from the constitutional questions, the schedule of prices proposed under the statute is invalid because it was the action by less than a majority of the duly constituted voting membership of the Board.

Upon the complaint, which sought a declaratory judgment upon the validity of the statute and an injunction against its enforcement by the Board, with prayer for a temporary restraining order, a temporary restraining order was granted, pending which the Maine Beauty Shop Association sought and was granted leave to intervene as amicus curiae. By agreement the restraining order was extended 'until further order of Court' to enable a record to be prepared and the case reported.

Deferring for the moment the constitutional issues, we will dispose of the contention that the Board attempted to act by less than a majority of its duly constituted voting membership.

Before the effective date of the legislative acts of 1961 there had been a board known as the 'State Board of Barbers and Hairdressers' which regulated the barbering and hairdressing industry. Sections 213 et seq., Chapter 25 R.S.1954. As to this board, the appointive members of which were appointed by the Governor with Council concurrence, the statute provided that the tenure of its members 'shall be * * * for a term of 2 years and until his successor is appointed and qualified.' The legislature of 1961 (Chapter 359) separated the two activities, and created a State Board of Hairdressers and a State Board of Barbers. Upon this separation the statute dealing with the State Board of Barbers provided that each member should be similarly appointed for a term of three years 'and until his successor is appointed and qualified.' (Section 4 of Chapter 359 part of which became Section 230-A of Chapter 25 R.S.1954, now 32 M.R.S.A. § 351.) As to the State Board of Hairdressers, however, the statute provided that '(t)he tenure of each board member (similarly appointed) shall be for 2 years.' (Section 1 of Chapter 359, part of which became Section 213 of Chapter 25 R.S.1954, now 32 M.R.S.A. § 1601.) Prior to September 3, 1965 the State Board of Hairdressers consisted of four members, three appointed and the Director of the Bureau of Health ex officio. By Chapter 402 P.L.1965, effective September 3, 1965 the Board was increased to six members, five appointed and the Director of the Bureau of Health ex officio, but without vote.

In compliance with the amendment made by Chapter 349 P.L.1965 the Board met on September 15, 1965 to determine the required price controls. Three of the appointed members and the Board's Executive Secretary attended and conducted the hearing. The hearing being incomplete at the end of the day it was continued to November 3, 1965. The appointment of one of the three voting members who conducted the September 3, 1965 hearing, had been made October 4, 1963, and it is contended that her term expired pending the November 3, 1965 continued hearing whereby she had no power either to act on November 3, 1965, or in the adoption and promulgation of the price schedule which resulted, that the price schedule was not established by a majority of the Board and therefore invalid apart from constitutional considerations.

Title 5 M.R.S.A. § 3 has provided since 1947 (Chapter 4 P.L.1947) that:

'All civil officers, other than judicial officers, appointed by the Governor with the advice and consent of the Council and whose terms of office are fixed by law, shall hold office during the term for which they were appointed and until their successors in office have been appointed and qualified, unless sooner removed in accordance with law.'

This statute controls the present situation. The practicalities involved in the effective operation of the multi-various appointive boards, with different periods of office, require a statute such as that cited above. There is no suggestion that the member whose tenure is here questioned had been succeeded or removed. The term of office created by the October 4, 1963 appointment was in effect when the reference price schedule was proposed and in such respect the schedule is valid.

Accepting the membership of the Board as legally competent, the constitutional questions center upon the prohibition against a charge for the services by the student operator, the word operator being used in a broad sense, and the prohibition against a charge of 'more than the reasonable cost' of supplies and materials used. 'A presumption of great strength' supports the constitutionality of the statute and the burden of showing it othewise rests upon the plaintiffs. McGary et al. v. Barrows et al., 156 Me. 250, 163 A.2d 747. That the operation of schools for the training of hairdressers, beauticians and cosmetologists properly concerns police power from the standpoint of the health, safety and welfare of the public, is not questioned. The issue is whether the application of this statute is a proper exercise of the police power, and whether the price controls imposed, vis-a-vis the absence of prohibition against charges for the services of apprentices in beauty shops, is arbitrary and discriminatory. The challenge of the legitimacy of this exercise of the police power is grounded upon the contention that the price control feature bears no reasonable relationship to the purpose for which the police control is justified. Control of prices per se is not unconstitutional. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. The health, safety and welfare of the public is concerned from standpoints of sanitation, minimization or spread of communicable diseases and professional and technical competence of those who propose to practice the profession.

No extensive citation of authority is necessary to reaffirm the principle that for a statute to be sustained as a proper exercise of the police power, it must be evident 'that there is some blear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof,' State v. Union Oil Company of Maine, 151 Me. 438, 447, 120 A.2d 708, 712; that the statute must 'not be unreasonable or unnecessarily arbitrary or discriminatory,' United Interchange, Inc. of Massachusetts v. Harding, 154 Me. 128, 133, 145 A.2d 94, 97; and that valid exercise of the power 'does not permit discriminations by which persons engaged in the same business are subjected to different restrictions or are held entitled to different privileges under the same conditions.' Associated Hospital Service of Maine v. Mahoney, 161 Me. 391, 409, 213 A.2d 712, 722.

The resolution of the current issue turns upon a determination of whether the statutory prohibitions bear any reasonable relation to the purpose for which the reference industry is regulated.

It is understandable that the legislature was impressed by the conflicting economics involved as argued and recorded in the legislative record of the 102nd Legislature beginning on pages 2071, 2236, 2313, 2402, and 2692. The legislature was concerned with contentions on the part of the school operators that the economics of operation did not permit tuition charges to the students to be sufficient to operate the school without income from the 'practical demonstrations,' wherein the public was permitted to come in for beauty parlor work, aware that the operators were students, and for a charge...