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Barber Or Cosmetologist? Only Your Hairdresser Knows for Sure

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Barber Or Cosmetologist? Only Your Hairdresser Knows for Sure FEATURE ARTICLE WBarber or Cosmetologist? *Only Your Hairdresser Knows For Sure k i Crystal Crawford Legislative Purpose hair; giving facials or scalp massages and INTRODUCTION treatments; singeing, shampooing or Bills creating the Board of Barber dyeing hair or applying tonics, applying' Since 1927, California has separately Examiners (BBE) and the Board of Cos- cosmetic preparations, antiseptics, licensed barbers' and cosmetologists.' metology (BC) were introduced within powders, oils, clays or lotions to scalp, The validity and necessity of any such two days of each other in the Assembly face or neck. Section 15 of the Act set 1 3 occupational licensing in the name of and Senate respectively. Both bills pro- forth grounds upon which the BBE consumer protection has often been chal- ceeded through the legislature at the could suspend, revoke, or refuse to issue lenged. 3 The justification for the exist- same pace and were signed by the gover- or renew a barber's certificate of registra- 4 ence of two separate boards-the Board nor on the same day.1 Since the creation tion, including such grounds as felony of Barber Examiners and the Board of of the boards, changes affecting one convictions, malpractice or incompeten- Cosmetology-which license substantial- board have often been shadowed by cy, false advertising, habitual drunken- 5 2 2 ly similar trades has been questioned for changes to the other.' Likewise, legisla- ness or unprofessional conduct. almost as long as the two board9 have tive committee projects generally have Various amendments to the Barber 4 not studied one industry without also Act followed 23 until 1939, when the legis- existed. In spite of the facts that (1) two 6 recent government studies have con- considering the other.' lature repealed the 1927 enactment and, cluded that the two boards should be The similar nature of the two trades through Senate Bill 202 (SB 202), 5 have and the continued "separate but equal" rechaptered the Barber Act as part of the consolidated, and (2) eleven states 4 succeeded in licensing both trades legislative treatment of the two licensing Business and Professions Code.' Like through a single board, 6 attempts to schemes in and of themselves suggest AB 1251, the language and history of SB merge the boards have been stymied by that a merger of the boards may be 202 gives no additional guidance as to those whom the boards were created appropriate. Further, legislative history the legislative purpose underlying the to regulate in the public interest-the reveals that a rational justification for regulation of barbers. two industries. the existence of two separate licensing The first glimmer of such legislative boards has in fact never been articulated. intent appeared with the 1939 introduc- Many industry members remain vehem- Board of Barber Examiners. On tion of AB 1026, which contained amend- ently opposed to the notion of merger, March 30, 1927, Assemblymember ments to existing Barber Act sections citing "enormous" differences between Clowdsley introduced Assembly Bill and the addition of several new sections 7 the occupations. A review of the govern- 1251 (AB 1251). The bill was "[a]n act to the Act as rechaptered in the Business ing statutes reveals that barbers may not prescribing the terms upon which and Professions Code. Most of the new 8 work below the neck, whereas cosme- licenses or certificates of registra- sections dealt with the identification of tologists may work on the upper torso, ion may be issued to practitioners of sanitary violations as justification for hands, or feet, but may not shave the disciplinary action by the BBE. Condi- 9 barbering, creating the state board of face or trim the beard. A focus on the barber examiners and declaring its pow- tions such as unclean premises, unclean occupations' functions as they relate to ers and duties, [and] prescribing penal- cuspidors, and a barber's failure to wash haircare, however, reveals few differen- ties for violation hereof .....,,7 The the hands immediately prior to serving 0 ces.' One 22-year veteran of the barber- proposal proceeded quickly through two each patron became grounds for disci- ing business commented, "The laws Assembly and two Senate committees, pline. 25 AB 1026 passed the Assembly haven't changed with the times.... In the all of which recommended passage with- Committee on Public Health and Qua- old days, men did men and women did out opposition or debate.' 8 Governor rantine as well as the Senate Committee women.... The law should be brought up C.C. Young received AB 1251 on April on Governmental Efficiency and was to date. After all, hair is hair."'' 29, 1927 and signed the proposal on May approved by the governor on May 9, This article examines the California 31, to become effective on July 30, 1939, effective September 19, 1939.26 In Boards of Barber Examiners and Cos- 1927.19 spite of the fact that no specific intent is metology from their creation, including A review of AB 1251's progression as articulated in Assembly or Senate Jour- a review of legislative history, committee reported in the Journals of the Assembly nals, it seems reasonable to infer legisla- findings, and judicial opinions concern- and Senate does not reveal any justifi- tive concern for public health, safety, ing both trades. What rationale justified cation for the bill's introduction or and welfare from the increased emphasis the original dichotomy? Is that justifica- passage, or for the regulation of barber- on sanitary practices. tion still valid? Do concdrns for public ing in general. 20 The bill simply created a Finally in 1941, the legislature express- health, safety, and welfare require the scheme for registering barbers, including ly declared the relationship of the Barber continued existence of both boards, or minimum qualifications and a standard- Act to health, safety, and welfare. 27 AB would the consuming public be better ized exam.2 1 Barbering was defined as 67, as introduced by Assemblymember 2 served by one "Board of Haircare'" shaving or trimming beards or cutting Bashore on January 9, 1941, added Arti- The California Regulatory Law Reporter Vol. 7, No. I (Winter 1987) 0FEATURE ARTICLE cle 4.5 to the Barber Act and established The Cosmetology Act created a qualifications for cosmetology licensure a minimum price schedule. The bill scheme for licensing all beauty shops, are "vital and necessary to protect the passed the Assembly Committee on schools, and any person engaged beauty 34 public health, safety, and welfare of the Judicial Codes and the Senate Commit- in acts constituting cosmetology. Cos- people. "43 tee on Business and Professions. In set- metology was defined as the arranging, None of these bills nor their legislative ting forth its findings which purported to dressing, curling, waving, cleansing, cut- history, however, provide any hint of a justify minimum price scheduling, the ting, singeing, bleaching, tinting, or justification for the separate cosmetolo- legislature stated that "[a]s the barber coloring the hair of a person by hand or gist/ barbering licensing scheme. business affects the health, comfort and with mechanical appliances; massaging Judicial Decisions Exploring Legisla- well-being of our citizens, and of the the scalp, face, neck, arms, bust or upper tive Intent. Since the legislative history public..., in order to promote the public torso with or without the use of cosmetic fails to disclose reasons for the separate welfare, health and safety, and to pre- preparations; hair removal by electroly- BBE and BC, a review of judicial deci- vent the transmission of disease, in view sis or depilatories; and the manicuring of sions affecting either board is helpful. of the personal touch and contacts nails. 35 Section 21 of the Act set forth Although the first two California cases manifested and exercised in the barber grounds for refusal, revocation or sus- to discuss the BBE and its functions, business, ...the barber profession is here- pension of a license. The grounds cited Ganley v. Claeys44 and Doyle v. Boardof by declared to be a business affecting were similar to those in the Barber Barber Examiners,45 generally addressed the public health, public interest and Act, and sought to prevent unsanitary the validity of barber regulation for pub- public safety. '28 This declaration has conditions, false advertising, fraud, lic health reasons,46 neither court had furnished the only express statement of spread of disease, habitual drunkenness, occasion to comment 36 on the separate reasons for regulating the barbering and drug use. BBE/ BC licensing scheme. industry in California. Curiously, neither the Barber Act nor Finally in 1967, the Third District In 1973, however, the legislature re- the Cosmetology Act as enacted in 1927 Court of Appeal addressed the relation- pealed Article 4.529 after a state court explained the necessity for two separate ship of barbering to cosmetology. In 47 declared the price-fixing scheme uncon- boards. There is no indication of any Mains v. Board of Barber Examiners, stitutional in Allen v. California Board significant difference between the profes- the BBE had suspended the barbershop of Barber Examiners.30 While the repeal sions, except for the broader scope of license of Mains, a licensed cosmetolo- of Article 4.5 arguably does not change cosmetological practices; nor is there any gist practicing cosmetology in his bar- the relationship of barbering to public explicit indication that the distinction bershop.4 8 The Board claimed that health, safety, and welfare, we are was based on the then-prevalent male "Mains, who [was] not a licensed barber, once again left with no express justi- and female orientation of the respective 'on the premises of aforesaid barber- fication for the regulation of barbering professions. shop...did cut the hair of a male patron or the creation of the Board of Barber Like the Barber Act, the Cosmetology therein."'49 Mains brought a proceeding 37 Examiners.
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