New York State Hairdressers & Cosmetologists Ass'n, Inc. v. Cuomo

• Decision Date: 16 June 1975
• Parties: NEW YORK STATE HAIRDRESSERS & COSMETOLOGISTS ASSOCIATION, INC., on behalf of its members and on behalf of all others engaged in the Practice of Hairdressing and Cosmetology and in the ownership of Beauty Parlors in the State of New York who are similarly situated, and Anthony P. Zibella, Jr., on behalf of himself and all others engaged in the Practice of Hairdressing and Cosmetology and in the ownership of Beauty Parlors in the State of New York who are similarly situated, Plaintiffs, v. Mario CUOMO, as Secretary of State of the State of New York, Defendant, and New York State Association of Barbers, Intervenor-Defendant.
• Court: New York Supreme Court

Page 965

369 N.Y.S.2d 965

83 Misc.2d 154

NEW YORK STATE HAIRDRESSERS & COSMETOLOGISTS ASSOCIATION INC., on behalf of its members and on behalf of all others engaged in the Practice of Hairdressing and Cosmetology and in the ownership of Beauty Parlors in the State of New York who are similarly situated, and Anthony P. Zibella, Jr., on behalf of himself and all others engaged in the Practice of Hairdressing and Cosmetology and in the ownership of Beauty Parlors in the State of New York who are similarly situated Plaintiffs, v. Mario CUOMO, as Secretary of State of the State of New York Defendant, and New York State Association of Barbers, Intervenor-Defendant.

Supreme Court, Individual Calendar, New York County, Part 11.

June 16, 1975.

Joseph Eisinger, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. (David R. Spiegel, New York City, of counsel), for defendant.

Bernard Davis, New York City, for intervenor.

SIDNEY H. ASCH, Justice:

Plaintiffs in this action are an individual and an alleged class of licensed hairdressers (cosmetologists) and beauty shop owners in New York State who assert that their constitutional rights are violated by a restriction in Article 27 of the General Business Law which permits them to cut the hair of females only (id. § 401, subd. 5). A trial of plaintiffs' claims was held on April 8 and 9, 1975.

The New York State Hairdressers and Cosmetologists Association is an organization comprised of licensed cosmetologists in New York State who number approximately 100,000. Intervenor-defendant, the New York State Association of Barbers, represents a group of licensed barbers numbering 24,000 in New York State. In addition, there are 2,400 barber apprentices.

In order to be licensed as a cosmetologist, a person must attend a duly licensed beauty school and take 1,000 hours of instruction to train him/her in the practice of cosmetology. Included in these 1,000 hours are 92 hours of haircutting. At the conclusion of their course work, prospective cosmetologists take an examination which includes a written and practical part.

In order to be licensed as a barber a candidate must take 1,000 hours of instruction at a duly licensed barber school, and thereafter fulfill an 18-month apprenticeship. In lieu of the going to barber school, the candidate may simply extend his apprenticeship for six months.

The barber courses include 400 hours on haircutting. At the end of the course work/apprenticeship period barber license candidates take a practical examination.

Individuals may also take a combination barber/beauty program in order to receive licenses in barbering And cosmetology. This requires the taking of 1,500 hours of courses covering the highlights of the separate barber and beautician program. In all other respects, the joint program has the same requirements as those needed for obtaining individual barbering and cosmetology licenses. It should be noted that a person who already has a barber or cosmetology license receives 1,000 hours advance credit in the combined program.

Plaintiffs claims herein concern the constitutionality of General Business Law, Sections 401, subd. 5, 431, subd. 4(a), only insofar as these sections restrict a cosmetologist from cutting the hair of males, but permit a barber to cut the hair of persons of both sexes.

The statute provides that a barber may perform his services on the hair of 'humans' (Gen.Bus.Law, sec. 431, subd. 4(a)) while hairdressers are limited to perform their servic on the head of a 'female person'. (Gen.Bus.Law, sec. 401, subd. 5).

Plaintiffs claim that this scheme of classification violates the United States Constitution in that: (1) it denies to the hairdressers equal protection under the law, as it discriminates against them in relation to the right to cut the hair of males; (2) it discriminates against male patrons and denies them due process of law by denying them the freedom of choice as to where, how and by whom they may have their hair cut; and (3) it denies due process of law to the hairdressers since it deprives them of the right to pursue the occupation of cutting men's hair for financial gain.

Within this decade, decisions declaring unconstitutional similar statutory schemes dealing with the rights of cosmetologists and barbers to cut have become endemic. One of these was Bolton v. Texas Board of Barber Examiners, 350 F.Supp. 494 (N.D.Texas 1972), affirmed by the United States Supreme Court without opinion in 409 U.S. 807, 93 S.Ct. 52, 34 L.Ed.2d 68.

The plaintiff Bolton, and the Texas Hairdressers and Cosmetologists Association had brought suit in the Northern District, U.S. District Court of Texas against the Texas Board of Barber Examiners and others, to declare unconstitutional a statutory scheme closely resembling the statutory scheme here involved.

The District Court held those portions of the statute creating the classification to be null and void as being in violation of the Fourteenth Amendment of the United States Constitution.

Upon appeal to the U.S. Supreme Court, the judgment was affirmed in all respects (409 U.S. 807, 93 S.Ct. 52, 34 L.Ed.2d 68).

In a number of jurisdictions, similar statutes have been reviewed by the courts. Except for one state, it has been uniformly held that such classification violates the constitution (Alexander v. Jefferson County, U.S.D.C., N. District of Alabama, 1975 (no official citation); Tuozzoli v. Killian, et al., U.S.D.C., District of Connecticut, 386 F.Supp. 9 (1974); People v. Taylor, District Court of Colorado, 18 Jud.Dist., decided March 30, 1974, Case C--3612 (no official citation); Pavone v. Louisiana, 505 F.2d 1022 (5th Cir.); Maryland State v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973); Mains v. Board of Barber Examiners, 249 Cal.App.2d 459, 465, 57 Cal.Rptr. 573; Johnson v. Ervin, Minn., 285 N.W. 77; Minnesota v. Laurence, Minn., 218 N.E.2d 692 (1974); Official opinion of the Pennsylvania Attorney General dated September 27, 1971; Official opinion of the Arizona Attorney General dated January 19, 1972, Law opinion #72--3(R 22); Official opinion of the Wisconsin Attorney General, dated October 15, 1971).

The only decision to the contrary is Green v. Shaman, 217 N.W.2d 547, an Iowa case, which by a divided court held such a scheme to be constitutional.

Although the decided cases in foreign jurisdictions may be persuasive, they are not authoritative in New York. It is well established law that in a suit such as the present one, involving the constitutionality of a state statute, plaintiffs must transcend a heavy burden. They must show that there is no rational foundation whatsoever for the contested provision. Simon, et al., v. Myerson, et al., 36 N.Y.2d 300, 367 N.Y.S.2d 755, 327 N.E.2d 801 (1975); Neale v. Hayduk, 35 N.Y.2d 182, 359 N.Y.S.2d 542, 316 N.E. 861 (1974); I.L.F.Y. Co. v. Temporary State Housing Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822, 825 (1961). In the context of the present action this means that plaintiffs must establish in essence that the statutory restriction on haircutting by cosmetologists lacks a rational connection to the public health, safety, or well-being and is not a valid exercise of the state's police power. (See North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); People v. Automobile Transportation Welfare Fund, 17 A.D.2d 448, 235 N.Y.S.2d 702 (1st Dept. 1962), aff'd 13 N.Y.2d 814, 242 N.Y.S.2d 345, 192 N.E.2d 222 (1963), cert. den. 376 U.S. 908, 84 S.Ct. 661, 11 L.Ed.2d 607 (1964).) Furthermore, it is usually incumbent on a trial court to approach constitutional attacks on statutes with circumspection.

The defendant argues that the restriction at issue here does not involve sex discrimination, but rather serves the function of promoting the public health, safety and welfare. More specifically, defendants contend that although all human hair is chemically similar, there are vital differences in the way the hair of a man and a woman grows. In particular, men's facial hair, side hair and back hair grow in a different fashion than the corresponding hair on a woman's scalp; in addition, men have a tendency to go bald. Defendants further contend that men's hair styles are separate and distinct from those of women and require special knowledge and experience, particularly in the skills of using a straight razor. These arguments are not persuasive to this Court.

Defendants concede that chemically all human hair, male or female, is the same. The defendants, however, assert that there is a difference in human hair, apart from chemical. Accordingly, defendant states that the hair of a male grows in or around the area of the ears, while females' hair does not; that males have receding hair while females generally do not; that hair grows on the lips and chins of males, while generally that is not the case with females. The differences do not seem significant. If a hairdresser is trained and qualified to cut the hair of a female, he is qualified to cut the admittedly chemically similar hair of males.

The desire of many males to have the same right to receive a haircut from hairdressers because they prefer to have the benefit of the experience of hairdressers, particularly in cutting and shaping long hair, was referred to in Mains v. Board of Barber Examiners, 57 Cal.Rep. 573 (3rd District Court of Appeals 1967). There the court noted the prevalence of a vogue under which many males had acquired a 'penchant for long tresses'; and that a great many members of the younger generation have elected to choose hairdressers to administer their haircuts in order to be adorned by the long-hair vogue adapted to the hair of both males and females. That vogue constitutes just one of the many types of haircut which hairdressers have been trained to administer...