Wheeling Barber College v. Roush, 16097

• Decision Date: 17 October 1984
• Docket Number: No. 16097,16097
• Court: West Virginia Supreme Court
• Parties: WHEELING BARBER COLLEGE, etc., et al. v. E.B. ROUSH, etc., et al.

Page 694

321 S.E.2d 694

174 W.Va. 43

WHEELING BARBER COLLEGE, etc., et al. v. E.B. ROUSH, etc., et al.

No. 16097.

Supreme Court of Appeals of

West Virginia.

Oct. 17, 1984.

Syllabus by the Court

1. Until the statutory mechanisms set forth in the Administrative Procedures Act for the promulgation of an agency rule are complied with, any resolution of a regulatory agency governed by the Act remains a nullity providing no one with a clear legal right to judicial relief.

2. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of the respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. of Vanmeter v. W. Va. Dept. of Motor Vehicles, W.Va., 313 S.E.2d 405 (1984).

Jolyon W. McCamic, McCamic & McCamic, Wheeling, for relators.

David Patrick Lombert, Asst. Atty. Gen., Charleston, for respondents.

Stephen D. Herdon, Wheeling, for intervenors.

NEELY, Justice:

This is an original proceeding in mandamus in which the relators ask this Court to compel the State Board of Barbers and Beauticians to insert permanent waving into the curriculum of this State's barber schools and to conduct examinations--to certify instructors to teach and to certify barbers to practice permanent waving. After examining the allegations of the relators and the law in the State regulating barbers and beauticians, we conclude that the relators have failed to establish that they have a clear legal right to the relief sought. Accordingly, we decline to issue the writ of mandamus.

West Virginia regulates barbers and beauticians "as an incident to policing the health and welfare of the citizens of the State." Thorne v. Roush, W.Va., 261 S.E.2d 72, 74 (1979). To this purpose the legislature has enacted statutes controlling the hair-care trade. The Board of Barbers and Beauticians is the administrative agency authorized to "promulgate rules and regulations pertaining to the licensure and qualification of barbers, beauticians ... and curricula and standards of instruction for schools of barbering and beauty culture." W.Va.Code 30-27-1(a) [1980]. Although this power is concurrent with, and limited by, that of the State Department of Health, W.Va.Code 16-14-1 [1977], the day-to-day administration of barbers and beauticians remains with the Board.

The services barbers and beauticians may provide are distinguished in W.Va.Code 16-14-2 [1959] (listing the services that each is entitled to render and authorizing only beauticians to give permanent waves) and W.Va.Code 30-27-7 [1980] (limiting barbering to barbershops and beauty culture to beauty shops). Although W.Va.Code 30-27-3 [1980] authorizes the State Board of Barbers and Beauticians to promulgate rules and regulations to establish a joint barber-beautician license, none has yet been promulgated. A joint license could, presumably, abolish the distinctions of W.Va.Code 16-14-2 [1959]. However, if the Board wishes to combine the tonsorial services of barbers and beauticians, or simply to permit barbers to offer, and barbering schools to teach, permanent waves, the Board must comply with the procedures of the Administrative Procedures Act. W.Va.Code 30-27-8 [1983].

W.Va.Code 29A-3-1, et seq., sets forth the rule-making procedures that an agency must follow before promulgating a new rule. Notice of, a text of, and the reasons for, the proposed rule must be filed in the state Register in the Secretary of State's office. Thereafter, a public hearing, after adequate notice, must be held before the rule is adopted. Judicial review of a new agency rule is provided for in W.Va.Code 29A-4-2 [1982].

The relators assert that the Board of Barbers and Beauticians "usurped and abused" its authority by circulating a memorandum on 7 November 1983 advising barbers that it was illegal for them to offer permanent waves. ¹ In support of their petition for mandamus relief, the relators argue that this letter constitutes an improper retraction of a previous resolution permitting barbers to perform permanent waves. Although the existence of this resolution is hotly contested, determination of that issue is irrelevant. Any resolution of a regulatory agency governed by the Administrative Procedures Act remains a nullity and provides no one with a clear legal right to judicial relief, until the statutory mechanisms set forth in the Act for its promulgation...