Salisbury Beauty Schools v. State Bd. of Cosmetologists

Decision Date07 February 1973
Docket NumberNo. 78,78
CourtMaryland Court of Appeals

Harry S. Shapiro, Towson (Shapiro, Peltz & Aversa, Towson, on the brief), for appellants.

Thomas N. Biddison, J., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellees.

Argued before BARNES, SINGLEY, SMITH and DIGGES, JJ., and WILLIAM J. O'DONNELL, Special Judge.

WILLIAM J. O'DONNELL, Special Judge.

In 1935 the Legislature by Chapter 282 enacted twenty-six new sections to Article 43 (§§ 395-420 inclusive) of the Annotated Code under the title 'Health', Sub-title 'Hairdressers and Beauth Culturists.' 1 The title to the Act proclaimed these sections necessary 'To promote the public health and safety by providing for examination and registration of those who desired to engage in the occupation of Beauty Culture, and to regulate the occupation of hairdressers and beauty culturists; to create a State Board of Hairdressers and Beauty Culturists for the examining and licensing of persons engaged in or teaching said practices, to secure the better education of such practitioners and to provide rules regulating the proper conduct and sanitation of hairdressing so as to prevent the spread of contagious and infectious diseases . . ..'

'Beauty Culture' was described as including: 2

'. . . any and all work done for compensation by any person, which work is generally and usually performed by so-called hairdressers, cosmetologists, cosmeticians, beauticians or beauty culturists and demonstrators of beauty preparations or equipment, and however denominated in so-called hairdressing and beauty shops ordinarily patronized by women, which work is for the embellishment, cleanliness and beautification of women's hair, such as arranging, dressing, curling, waving, permanent waving, cleansing, cutting, singeing, arching of eyebrows, dyeing of eyebrows and eyelashes, bleaching, coloring, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, exercising, or similar work upon the scalp, face, arms or hands, by the use of mechanical or electrical apparatus or appliances or cosmetics, preparations, tonics, antiseptics, creams or lotions or by any other means, and of manicuring the nails of either sex, which enumerated practices shall be inclusive of the term beauty culture but not in limitations thereof.' 3

Included among those enactments was a section captioned 'Student practice upon the public for pay' which prohibited any school of beauty culture from making any charge 'whatsoever for treatment by its students (or) for materials used in such treatment.'

In 1947 the Legislature authorized clinical work by students, after the student had completed 500 hours of fundamental training. The section prohibiting any charge 'whatsoever' for treatment by students in schools of beauty culture-the section here in controversy was amended to read as follows: 'No school of beauty culture shall, directly or indirectly, charge any money whatsoever for treatment by its students any may charge only for the actual cost of materials used in such treatments but no charge shall be made for service supplie(s) (sic).' 4

In 1961 the General Assembly undertook to define a 'student' as one 'engaged in learning or acquiring the knowledge of the practices of hairdressing and beauty culture for tuition or fee in a school duly authorized'; it defined a 'school of beauty culture' as a 'premises . . . wherein instruction . . . is given a student for tuition or a fee.' It discarded the mundane terms of 'hairdressers and beauty culturists' by providing that wherever that terminology had been used in the statute those who pursued such a calling were thereafter to be scientifically classified as 'cosmetologists.' 5

At the same session, in supplementation of the prohibition against such schools of beauty culture charging 'any money whatsoever for treatment by its students,' the General Assembly enacted a new section (Art. 43, § 537(b), Ann.Code (1971 Repl.Vol.)) which provides:

'It shall be unlawful for any school of beauty culture to advertise a list of prices for services to be performed by students other than by posting such a list within the school building.'

Despite this legislative history and revision no steps were apparently taken to enforce Art. 43, § 537(a) until March 6, 1962, when the members of a newly-constituted Board of Cosmetology, by letter, admonished the various private schools of beauty culture within the State 'to reduce their clinic prices to 'cost of materials'.'

The appellants, comprising fifteen (15) separate privately operated schools of beauty culture and the Maryland Association of Beauty Schools, Inc., on March 15, 1963, in the Circuit Court No. 2 of Baltimore City, filed a petition requesting that Art. 43, § 537, be declared unconstitutional and the Board of Cosmetology be enjoined from enforcing it. After a hearing the lower court (Jones, J.), on April 10, 1963, without prejudice, issued an interlocutory injunction (and maintained the status quo) against the enforcement by the Board of the statute, pending decision on the merits. See Md. Rule BB70 c.

After a demurrer on behalf of the Board had been overruled (Perrott, J.) and its Answer filed, both the appellants and the Board filed Cross-Motions for Summary Judgments-each alleging that there was 'no genuine disqute as to material fact.'

After a hearing on the respective motions-but before they were decided-the appellants, on January 12, 1972, filed a petition to amend their complaint and to ask, by way of alternative relief, that the court pass an order construing the phrase 'the cost of materials', 'so as to allow a reasonable schedule of prices to be charged by the beauty school clinics.' 6

The Chancellor (Cardin, J.) on January 17, 1972 by his memorandum and decree, denied the appellants' Motion for Summary Judgment, granted the Board's Motion and declared that the provisions of Art. 43, § 537(a) were constitutional. At the same time, 'at the request of counsel', the court retained jurisdiction over the subject-matter relating to any 'schedule of prices' and referred that issue to the Board 'in order that they may promulgate rules and regulations by which the 'cost of materials' may be determined.'

The appellants, from the decree upholding the constitutionality of the statute, here contend: (a) that it was error for the trial court to have denied their Motion for Summary Judgment because the pleadings 'established a genuine dispute as to material facts', (b) that it was error to grant the Board's Motion for Summary Judgment upon the uncontroverted facts presented by the pleadings, (c) that Art. 43, § 537(a), limiting the charges made in beauty school clinics to 'cost of materials' is unconstitutional and invalid, and (d) that the State Board of Cosmetology is estopped, or barred by laches, from enforcing the statute 'by virtue of the prior rules, regulations and policy of the Board.'


The appellants, in support of their contention that their Motion for Summary Judgment was improperly denied and the Board's Motion erroneously granted, contend that no allegations of facts were made by the Board attempting to controvert the allegations set forth in their petition; that the 'regulations and practice of the Board should have been given weight in view of the reliance (thereon) by the beauty school industry for a period of twenty-eight years'; and that the Board had failed to controvert the appellants' allegations that they had expanded their facilities, made improvements and established new schools in reliance upon the practice authorized by the Board, nor was their allegation controverted that in the event they were limited to charging the 'cost of materials', then tuition would have to be increased.

The Board, by its Answer, admitted the majority of the allegations made by the appellants, but denied that it 'by its rules and regulations had allowed the schools to reflect in their charges the cost of administration and the cost of materials.' It was further denied that the provisions of Art. 43, § 537, were not a valid exercise of the police power and denied that the appellants would suffer 'irreparable injury.' As to the remainder of the appellants' allegations, the Board pleaded that it was 'without knowledge'-amounting to a denial, under Maryland Rule 372 a 2. 6a The appellants earnestly argue that the Answer filed by the Board established a genuine dispute as to material facts and it was thus error to grant the Board's Motion; by the same logic-though they allege the pleadings establish a genuine dispute as to material facts-they contend that they were entitled to summary relief.

The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not an issue of fact is to be tried and if there is none, to cause judgment to be rendered accordingly. Greenwell v. American Guaranty Corp.,262 Md. 102, 277 A.2d 70 (1971); Trustees of Broadfording Church of Brethren v. Western Maryland Railway Co., 262 Md. 84, 277 A.2d 276 (1971). The purpose of the hearing on the motion, at the trial level, is to decide if real dispute as to material facts does exist and if the pleadings, depositions, admissions and affidavits (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. Brown v. Suburban Cadillac, Inc.,260 Md. 251, 272 A.2d 42 (1971).

A bare allegation in a general way that there is a dispute as to material facts is never sufficient to defeat a motion for summary judgment. Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971); nor is the mere filing of an Answer to a bill of complaint...

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