FEATURE ARTICLE

WBarber or Cosmetologist? *Only Your Hairdresser Knows For Sure k i Crystal Crawford

Legislative Purpose ; giving facials or scalp massages and INTRODUCTION treatments; singeing, shampooing or Bills creating the Board of dyeing hair or applying tonics, applying' Since 1927, California has separately Examiners (BBE) and the Board of Cos- cosmetic preparations, antiseptics, licensed ' 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- -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 lature repealed the 1927 enactment and, cluded that the two boards should be The similar nature of the two trades through Senate Bill 202 (SB 202), 5 have and the continued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 . 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'" or trimming 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; 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. Act was amended on several occasions, in mandamus to compel the BBE to Board of Cosmetology. Like the BBE, followed by the repeal and rechaptering annul its decision suspending his barber- the California Board of Cosmetology of the Act as part of the Business and shop certificate. The trial court issued (BC) was created in 1927. Senator Crow- Professions Code.38 The reenactment of the peremptory writ and the appellate ley introduced SB 875 on March 28, the Cosmetology Act in the Business and court affirmed, noting that "there is 1927 as "[a]n act to regulate the occupa- Professions Code was followed by nothing in either the Barbers Act or the tions and practices of hairdressers and further substantial amendments and Cosmetology Act referring to males or cosmeticians, cosmetologists, and the additions to the Act. On January 25, females. '50 The court also recognized branches of cosmetology; to create the 1939, Senators Phillips and Breed that public health reasons form the basis state board of cosmetology, and to pro- introduced SB 1036 relating to the for the regulation of both barbers and vide for the issuance by said board of practice, training and government of cosmetologists, and that both statutory certificates of registration and licenses cosmetology.3 9 After several committee schemes demand the same standards of entitling the holders thereof to engage in amendments, the bill passed through the sanitation. "Neither [act] makes any and to teach such occupations and prac- legislature and was signed by Governor provision for the segregation of the sexes tices; to insure the better education of Olson, to become effective September and no such segregation appears to us to hairdressers and cosmeticians; to pro- 19, 1939.40 The act clarified qualifica- be constitutionally warranted." 5' The vide for rules regulating the proper con- tions for BC board members as well as Mains court held that section 6522(d) of duct and sanitation of cosmetological requirements for cosmetologist and the Barber Act expressly authorized a 4 establishments, schools of cosmetology, manicurist examinations. ' licensed cosmetologist to operate in a and places where the occupations of On January 14, 1955, Senator Des- barbershop when the cosmetological 52 hairdressers and cosmeticians are prac- mond introduced SB 617, an act adding practices are limited to haircutting. ticed; prescribing penalties for the viola- Section 7326 to the Business and Profes- Following the Mains decision, the tion of the provisions of this act." 3' sions Code and delineating license classi- legislature amended section 6522(d) to As did AB 1251, SB 875 passed quickly fications within the practice of cosme- provide 4 2 that persons licensed to practice through two Senate and two Assembly tology. SB 617 passed both the Senate cosmetology were exempt from having Committees without opposition.32 SB Committee on Business and Professions to obtain a barber's license in order to 875 was signed into law by Governor and the Assembly Committee on Public cut hair, provided that such haircutting C.C. Young on May 31, 1927 and Health. The act was sent to the governor "is performed in a licensed cosmetology became effective on July 30, 1927. 3 3 Like on May 10, 1955 and signed on May 20, establishment which does not represent the BBE bill, any relationship between effective September 7, 1955. Business itself to the public as being primarily the BC and protection of public health, and Professions Code section 7326 engaged in the business of haircutting, or safety, and welfare was unstated and expressly states the legislature's find- which is not primarily engaged in the 53 seems presumed. ing that the various classifications and business of haircutting.

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987) I FEATURE ARTICLE

Shortly after this 1967 amendment, Although the Partial Report made no reported findings and recommendations the constitutionality of section 6522 was recommendations, it reviewed several following an examination of the Pro- challenged in Bone v. State Board of October 1955 hearings addressing bar- fessional and Vocational Standards Cosmetology.54 Plaintiff Bone was a bering and cosmetology, during which Department. 74 The Commission recog- licensed cosmetologist who employed consolidation of the boards was one of nized that the central issue in determin- other cosmetologists in two establish- the several issues discussed. 64 The Partial ing the propriety of licensing programs is ments which "specialize[d] in the styling Report's analysis of the Barber and "represent[ation] and protecti[on of] the and cutting of men's hair." 55 The Bone Cosmetology Acts disclosed similar general public interest.' '75 The Commis- court characterized the 1967 amendment legislative objectives administered in the sion's Report also stated that there are to section 6522 as a "clear legislative same manner. many examples of "distortion of the repudiation of the Mains interpreta- During the 1955 hearings, BBE Presi- licensing function" where the licensing tion," 56 and rejected plaintiff's petition dent Harold Luckey was opposed to any program is used to the "special advan- for an injunction to prevent disciplinary plan for consolidation, but refused to tage of the licensed group.'"76 In its action by either of the boards. The court specify his reasons; other barber industry recommendations regarding individual noted that California has always main- members cited wide differences in educa- boards, the Commission specifically tional tained separate licensing systems for requirements and practices as concluded that consideration should 77be cosmetology and barbering, even though reasons for opposition. 65 BC President given to combining the BBE and BC. the statutes recognize some overlap Nancy Knick was also opposed to con- In 1978, the California State Depart- between the professions.5 7 Relying on solidation. When asked about the ment of Consumer Affairs (DCA) re- Williamson v. Lee Optical of Okla- differences between barbering and cos- leased a Regulatory Review Task Force homa,5 8 the court refused to disturb the metology, Ms. Knick replied, "Well, in Report. The independent study was California legislature's decision "that the barber work they are mainly working on commissioned by the DCA to assess and 78 vocations of barbering and cosmetolo- men whereas in cosmetology we are critique California's licensing process. gy...remain distinct and separate." 59 always working on women. And there is The seven-volume Report began as a in my opinion a great deal of difference response to the legislature's 1976 decree Opinions on Merger: between cutting hair and shaving and that DCA bodies seat at least one-third between beautifying a woman...." Ms. public members. 79 This "philosophical Talk, Talk, Talk Knick admitted, however, that any dif- breakthrough" prompted the DCA to Although the notion of merger ferences between the professions were review administrative effectiveness as 8 0 between the barber and cosmetology related to function and not to the sanita- well as the need for each licensing body. 66 boards has been a "hot" issue in the tion aspects of regulation. Volume I of the Report reviews avail- industry for the last several years, it is The Senate Committee made its full able literature- to orient the reader to not a new idea. Interestingly enough, on report to the legislature in 1957.67 The professional and occupational licensing. January 19, 1939, Assemblymember Committee recognized that "efficiency, The independent surveyors succinctly Doyle introduced AB 966, which would economy and general improved govern- described the paradox of licensing: "[o]n have created a Cosmetology-Barber ment" might be achieved by consolida- the one hand, [licensing schemes] pro- Board by consolidating the BBE and BC. tion of the BBE and BC, 68 but preferred mote the public health and welfare by The proposal was sent to the Assembly to defer its recommendations until requiring minimum standards of compe- Committee on Governmental Efficiency further studies were completed, includ- tence for those who provide goods and 69 and held there without further action ing further public hearings. services to the public. At the same time, until June 20, 1939.60 Barber colleges were carefully scrutin- however, such controls lay the ground- Legislative Committee Reports. In ized by a 1961 Senate Fact Finding work for that monopolistic inhibition of 70 1955, Senate Resolution 113 created the Committee on Public Health & Safety; free competition sought by the occupa- Senate Interim Committee on Licensing consolidation of the two licensing tional groups themselves."8' The survey- Business and Professions to ascertain, boards, however, was not an issue. Then ors asserted that public policy requires study, and analyze all facts relating to in 1963, a subcommittee of the Assembly government to ensure that the social the licensing of businesses and profes- Interim Committee on Public Health costs of regulation do not outweigh per- sions in California. 6' In 1956, the Com- released a report entitled "Cosmetology ceived benefits. Hence, government has mittee presented a Partial Report to the in California.'"'7 The Report focused on an ongoing responsibility to continu- legislature. 62 In general, the Partial cosmetology schools and the relation- ously assess the performance and impact Report's introduction noted the diffi- ship of schools to salons. 72 While there is of those agencies it creates, especially culty involved in separating the public no reference to the merger issue, the amidst changing social and economic 8 2 interest from industry interests in the gender factor again surfaced as an under- conditions. licensing process. The Report recognized lying reason for the separate existence of Volumes II and III of the Report con- that a desire to improve practices, stand- the two boards. The Report's introduc- sist of "board studies" on individual ards, and prestige in an industry may tion states that the success of a cosme- agencies; Volume II includes a review of create barriers to entry.63 The Report tology salon depends on "wom[e.n who both the BBE and BC. The Report's observed that a basic criticism against want [their] hair beautified.'73 review of the two boards recognized the licensing boards is that they act pri- Other Studies. Other California agen- "authentic cultural distinction between marily in the interests of their own cies have also evaluated cosmetology the rituals for cutting hair of men and group, and not in the public interest. and barbering, with results made availa- women" that existed in 1927, 83 but con- Proposals to the Committee suggested a ble to the legislature. For instance, in cluded that today, "the difference reorganization of state agencies to better 1967, the Commission on California between the sex of the haircutter and the protect the public's interests and State Government Organization and sex of the client is no longer a relevant improve efficiency. Economy ("Little Hoover Commission") matter either in the industry or in public

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987) 0 FEATURE ARTICLE

policy ....[T]he two boards regulate responses to Task Force conclusions, 94 ing a merged board became effective the essentially the same industry. '84 As for and the Commission's own 1967 study.95 next day-without the benefit of any 05 the functional differences between the The Commission, however, did not find regulations to implement the new act.' two vocations which are so often cited by the Task Force results unblemished, and Hence, any state contemplating merger the industries in defense of two separate as a result, severely limited its use of should provide for a grace period during 96 boards, the Task Force stated that for Task Force findings. which the new board can draft and adopt barbers, shaving "accounts for less than Even though the Commission critic- implementing regulations so as to effec- one percent of their work," citing a 1974 ized the Task Force Report for several tuate a smooth transition. BBE Report, 85 and that other functions reasons, including the absence of "stand- Legislative and Administrative exclusive to one trade "do not account ard methodological steps and analytical "Efforts" to Merge. Curiously, in spite of for a substantial portion of most practi- procedures" and the "pervasive use of these studies and reports to and by the tioners' work. '86 The study concluded highly subjective statements" without legislature, and the success of other that the need for two boards has "long premise, 97 the Commission concurred states in regulating both trades through a passed," and that the separate boards with the Task Force's conclusions that: single board, the BBE and BC continue "continue because of inertia of outdated (1) the separate BBE and BC are un- their "separate but equal" regulation of tradition, the existence of entrenched necessary; (2) the great majority of work the beauty industry in California. Recent bureaucratic interests, and the commer- performed by the industry does not legislative attempts to merge the two cial interests of the separate systems of involve any threat to consumer safety; boards have failed. For example, Assem- cosmetological and barber schools. "87 and (3) entrance to the vocation is highly blymember Mori introduced AB 1485 on 98 The Report's review of barbering and over-regulated. March 29, 1979. AB 1485 would have cosmetology included an assessment of The Commission suggested that both provided for a "State Board of Barber existing dangers to the consumer posed boards be subject to legislative review and Cosmetology Examiners." Once 99 by the industries, the need for quality through the "sunset" process, and introduced, the bill was referred to the cost of sanitary inspec- advised the legislature to consider replac- Labor, Employment and Consumer assurance, the 0 6 tions, and the complaint-handling and ing the BBE and BC with a single "Board Affairs Committee. Referring ex- disciplinary systems within the BBE and of Hair Stylists and Cosmeticians" which pressly to the 1978 Task Force Report BC.8 8 The Task Force recommended: (1) would administer two basic types of recommendation that the BBE and BC that the BBE and BC be dissolved and registrations (hairstyling only and cosme- be consolidated as well as the governor's replaced by a single "Board of Haircare"; tician practice). The Commission further 1979 budget proposal for merger, the (2) abolition of certain educational suggested: (a) requiring basic compe- Committee noted "recent studies have of entry tency in shop and tool hygiene along concluded that radical changes in licens- requirements; (3) simplification 1 7 into the occupations by requiring regis- with practical knowledge of the laws ing programs are in order."' The tration without competency exams; (4) a governing this area; (b) requiring special Committee concluded it would be appro- reduction in costly sanitary inspections; certification and a practical exam for priate to delay any proposed changes to hazardous operations such as electrolysis the BBE and BC until a full "sunset" (5) requiring a single test on hygiene for 8 those persons who wish to register as or straight- shaving; (c) two classes review of licensing could be completed.1 "novices"; and (6) retention of strict cer- of registration (apprentice and regular) The Committee also mentioned that AB tification requirements with examination as an additional indicator of compe- 1485 made no changes in the law other for operators who shave with a straight tency; (d) decreasing the Board's role in than the consolidation of the boards. As razor, use heat to curl or straighten, and shaping training school curricula; and (e) such, any savings in expenditures would 8 9 the sanitary inspection function be minimal because the bill contained no perform electrolysis. The Report con- shifting 0 9 cluded that adoption of these recom- to local health departments.100 provision for a reduction in functions. Reform in Other States. Eleven AB 1485 died on January 30, 1980 in mendations would result in substantial 0 savings to California (between $400,000- states-Alaska, Colorado, Connecticut, committee without hearing."1 $600,000), because the budget of one Delaware, New Hampshire, New Jersey, For the past five years, the two boards board would be much less than the pres- New York, Oregon, Utah, Washington, have responded to the increasing politi- ent budgets combined. 90 and West Virginia-successfully regulate cal pressure to merge by reluctantly and In January 1979, the Little Hoover barbers and cosmetologists through a repeatedly "discussing" the issue. In 18 Commission released its evaluation of single board. In recent years, several April 1982, the BBE unanimously agreed the DCA Task Force findings. 91 The of them have consolidated separate to form an ad hoc committee of all BBE Commission discussed its previous Pro- boards while retaining separate licensure and BC board members to consider the 0 2 fessional and Vocational Standards for barbers and cosmetologists; others merger issue. The BC followed suit in report released in 1967,92 and concluded have merged both boards and licen- May 1982."' The ad hoc committee met 103 --that its own study and that of the Task sure. James D. Hanson, Executive on June 11, 1982 and elected a chairper- in approach Secretary to Washington's Cosmetol- son, stated its purpose, and defined its Force were very different 12 and level of detail. While the Commis- ogy/ Barber/Manicurist Division of Pro- area of study. Ironically, the BC voted sion took a general, conceptual fessional Licensing, reports that the to end its participation on July 18, 1982, approach, the Task Force attempted to merger there has resulted in a 25% after only one joint meeting. One public assess the operational effectiveness of decrease in administrative workload, as member of the BC cited lack of industry 93 eighteen particular DCA boards. well as more efficient use of staff time. 104 support as the Board's reason for voting In its 1979 study, the Commission Washington's merger provides a les- to discontinue the ad hoc committee attempted to develop suggestions and son to California and other states effort. 113 recommendations for improving Cali- contemplating merger. The Washington Then, in May 1983, the BBE unveiled fornia's licensing programs using the legislature repealed the old statute on two alternative plans, C(l) and C(2), Task Force Report itself, agency June 30, 1984 and the new statute creat- designed to eliminate an existing Barber

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987) FEATURE ARTICLE

Act prohibition against barbers and cite for violations of either Act with the regulating 265,000 cosmetologists/shops cosmetologists working in the same licentiate's board following through on and only 27,000 barbers/shops would 122 shops. 14 Under both plans, a cosmetol- the citation. The BC opposed SB 2203 inevitably overlook the interests of the ogist could perform "acts of cosme- because the bill permitted barbershops barbers. BC Executive Director Harold tology" (but not "acts of barbering") in a to employ cosmetologists without having Jones also testified at the hearing in barbershop without the then-required to obtain a cosmetology establishment favor of merger, warning that current partition to separate a barbershop from license, while beauty shops employing legislative sentiment favors merger, and a cosmetology shop. Both proposals barbers had to obtain a barbershop stating that it would be to the agencies' license as well as a cosmetology estab- advantage to negotiate an agreeable required a participating cosmetologist 23 to secure a special certificate from the lishment license. 1 administrative merger, rather than be SB 2203 forced to accept a possibly-unfavorable BBE, and authorized the BBE to disci- In spite of BC's opposition, 32 pline that certificate. The only real dif- was signed by the governor on August legislative mandate. ference between the two plans lay in Plan 19, 1984, to become effective January 1, Why Not Consolidate? C(2)'s requirement that a cosmetologist 1985.124 After passage, the BC imme- complete a 100-hour training course on diately began preparing urgency legisla- As exemplified by the 1986 passage of barber laws and regulations in order to tion to clarify the inconsistent treatment AB 183 (Johnson), which abolished the obtain a certificate to practice in a bar- created by SB 2203.125 As as result, Sena- state Board of Dry Cleaning and Fabric 33 bershop. In both proposals, the BBE tor Montoya introduced SB 180 on Jan- Care, the time has come to reduce claimed the certification procedure uary 15, 1985. The bill, which was signed administrative regulation of occupations would eliminate the need for BBE and by the governor on July 12, 1985, deleted which may be policed largely by consu- BC consolidation."15 the exemption for barbershops created mers and the normal functioning of In September 1983, the BBE endorsed by SB 2203 by providing that a cosme- the marketplace. plan C(l) as more workable. 116 On tologist may practice in a barbershop Momentarily assuming the validity of November 6, 1983, the BC voted to only if the barbershop is licensed by the continued regulation of barbers and oppose Plans C(I) and C(2) even though BC as a cosmetological establishment, cosmetologists, consolidation of the the BC confirmed its continued interest and a barber may practice in a cosmetol- BBE and BC is a practical and necessary in consolidation. 117 The cosmetology ogy shop only if the shop is licensed as a alternative to the outmoded, costly, and industry remained opposed to merger on barbershop by the BBE.126 Thus, instead confusing tradition of two boards regu- two grounds: (1) a combined board of simplifying the licensing scheme and lating the same industry. Well-drafted would be too large to function effec- decreasing the hidden costs of doing bus- merger legislation would likely save Cali- tively; and (2) combination could result iness which are inevitably passed on to fornia taxpayers one-half million dollars 34 in increased educational requirements consumers, SB 2203 and SB 180 have per year, streamline state government for cosmetologists."18 resulted in a costly and wasteful dual operations, reduce consumer confusion The BBE and BC held another special licensure situation for individuals and about the complaint process, and elimi- February 1984 to discuss establishments practicing essentially the nate licensee confusion about ambiguous joint session in 127 consolidation. An administrative merger- same trade. and overlapping licensing requirements consolidation of the two boards with AB 2268, introduced by Assembly- and enforcement authority. Such legisla- retention of separate license classifica- member Elder on March 8, 1985 and tion should establish a nine-member tions for barbers and cosmetologists- signed by the Governor on October 2, board composed of five public members was discussed as a possible solution to 1985,128 further eroded the functional and, at most, four industry members. consumer concerns, enforcement prob- distinction between the two trades by, The legislation should add barbering to lems, and duplicative regulatory efforts. inter alia, specifying that chemical the list of existing licensing categories BBE President Raymond Stults stated waving (once the exclusive province of under the jurisdiction of the combined that the BBE had not taken a position on cosmetologists) may now be performed board, and eliminate dual licensure 135 the issue, but two other BBE members by barbers. 129 Obviously, the increas- problems. A transition period of verbally expressed support. The BC ing statutory equality of functions twelve to eighteen months should be voted unanimously to seek an adminis- between the trades argues persuasively provided so that California may avoid trative merger of the two boards.'1 9 for merger. the problems experienced by Washing- 36 While this administrative jockeying- In recent months, both the BBE and ton and New Hampshire. Most impor- for-political-position continued, legisla- BC have sought industry comment on tantly, the proposal should expressly tion was introduced to reduce many the merger issue. The BC confirmed its define the legislature's intent underlying of the prohibitions against barbers commitment to merger by voting in the regulation of the haircare industry, favor of merger with the BBE at its so that the scope of agency action is con- and cosmetologists working together. 37 Senator Montoya, Chair of the Senate August 24, 1986 meeting.1 30 On October fined to that intent. Business and Professions Committee, 19, 1986, however, the BC opened the "Since Delilah sheared Samson's flow- introduced SB 2203 on February 17, floor for public comment on the issue, ing tresses, with rather disastrous conse- (especially school quences to his potency, hair cutting has 1984.120 The California Barber College and industry members 138 Association originally sponsored the bill, owners) expressed strong opposition to been infused with sexual symbolism."' which proposed amendments to the the idea.' 3' Likewise, the BBE held a Notwithstanding industry denials, it is Barber and Cosmetology Acts which public hearing on November 24, 1986, to clear that the original separation in the would allow both practices to occur on again discuss the notion of merger with regulation of the haircare industry is the same premises without structural BC. Many barbers and owners of barber steeped in anachronistic and legally- barriers.' 21 The bill also proposed to colleges testified in opposition to the irrelevant sexual stereotype rather than eliminate duplicative inspections by proposal, claiming they would lose con- in permissible concern for public health allowing an inspector of either board to trol over their craft and that an agency and safety. In the area of haircare, public

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987) FEATURE ARTICLE

health requires-at most-standards to 9. Business and Professions Code sec- 1603; Act of June 22, 1937, ch. 484, 1937 guard against unsanitary conditions and tion 7321. Cal. Stat. 1441. incompetent practitioners who are in a 10. See infra text accompanying notes 24. Act of Feb. 3, 1939, ch. 35, 53d position to cause irreparable harm. Pub- 22, 35. Sess., 1939 Cal. Stat. 372. lic health does not require protection of 11. San Francisco Examiner, June 20, 25. Act of May 9, 1939, ch. 118, 1939 industry traditions which unreasonably 1982, at B1. Cal. Stat. 1230-32. prevent commonsense legislative re- 12. The scope of this article does not 26. Final Calendar of Legislative Bus- sponses to social change. There is no address the fundamental question iness, 53d Sess., Assembly Final rational justification for the continua- whether regulation of these industries is Calendar, at 313 (1939). tion of "separate but equal" licensing of justified at all. See generally Fellmeth, A 27. Act of May 19, 1941, ch. 317, 1941 barbers and cosmetologists in California. Theory of Regulation: A Platform for Cal. Stat. 1469. Senate Bill 235 was also State Regulatory Reform, California introduced to add Article 4.5 to the Bus- Regulatory Law Reporter Vol. 5, No. 2 iness and Professions Code. The bill 0 (Spring 1985) p. 3. passed both houses but was pocket- FOOTNOTES 13. Final Calendar of Legislative Bus- vetoed by the governor on July 19, 1941. iness, 47th Sess., Senate Final History, 28. Act of May 19, 1941, ch. 317, sec. 1. The California Barber Act, Busi- at 263 (1927); Final Calendar of Legisla- i, 1941 Cal. Stat. 1469. ness and Professions Code sections 6500- tive Business, 47th Sess., Assembly Final 29. Act. of Aug. 27, 1973, ch. 319, sec. 6651 (derived from 1927 Cal. Stat. 1748). History, at 378 (1927). 27, 1973 Cal. Stat. 737. California barbers were originally sub- 14. Senate Final History, supra note 30. 25 Cal. App. 3d 1014, 102 Cal. ject to regulation beginning in 1901. 13, at 263; Assembly Final History, Rptr. 368 (1972). The Fourth District Problems, however, resulted in the supra note 13, at 378. Court of Appeal based its decision on repeal of the law in 1903. See II Califor- 15. See, e.g., Act of Feb. 3, 1939, 1939 State Board v. Thrift-D-Lux Cleaners, nia State Department of Consumer Cal. Stat. 372, repealingthe Barber Act, 40 Cal. 2d 436, 254 P.2d 29 (1953), in Affairs, Regulatory Review Task Force and Act of Feb. 3, 1939, 1939 Cal. Stat. which the California Supreme Court Report F-29 (May 31, 1978) (hereinafter 411, repealing the Cosmetology Act. ruled that statutory provisions setting "Task Force Report"). Both Acts were rechaptered as additions minimum prices for dry cleaners were 2. The California Cosmetology Act, to the Business and Professions Code. unconstitutional as violating due process Business and Professions Code sections See infra text accompanying notes 24, 38. and as constituting an unlawful delega- 7300-7446 (derived from 1927 Cal. Stat. 16. See, e.g., Senate Interim Com- tion of legislative powers to an adminis- 17110). mittee on Licensing Business and Pro- trative agency. 3. See Rose, Occupational Licensing: fessions, 1956 Partial Report to the 31. Act of May 31, 1927, ch. 845, 1927 A Frameworkfor Analysis, 1979 ARIZ. Legislature (1956); Assembly Interim Cal. Stat. 1711. ST. L.J. 189, 190 (1979). See also Gell- Committee on Public Health, Subcom- 32. 1927 Journal of the Assembly, horn, The Abuse of Occupational mittee on Cosmetology, Cosmetology in 47th Sess., at 1974, 1992, 2099, 2220, Licensing, 44 U. CHI. L. REV. 6 (1976); California (1961-63). 2316; 1927 Journal of the Senate, 47th Wallace, Occupational Licensing and 17. Final Calendar of Legislative Bus- Sess., at 1153, 1384, 1406, 1693, 2078, Certification: Remedies for Denial, iness, 47th Sess., Assembly Final His- 2328. 14 WM. & MARY L. REV. 46 (1972); tory, at 378 (1927). 33. Final Calendar of Legislative Busi- Barron, Business and Professional 18. The bill passed the Assembly ness, 47th Sess., Senate Final History, at Licensing- California, A Representative Committee on Public Health and Qua- 263 (1927). Example, 18 STAN. L. REV. 640 (1966). rantine, the Assembly Ways and Means 34. Act of May 31, 1927, ch. 845, sec. 4. See infra text accompanying notes Committee, the Senate Committee on 3, 47th Sess., 1927 Cal. Stat. 1712. 60, 74-98. Public Health and Quarantine, and the 35. Id. at sec. 2, 1927 Cal. Stat. at 5. Commission on California State Senate Finance Committee. 1711. Government Organization and Economy 19. Final Calendar of Legislative Bus- 36. Id. at sec. 21, 1927 Cal. Stat. at ("Little Hoover Commission"), Com- iness, 47th Sess., Assembly Final His- 1722. ments and Recommendations Regarding tory, at 378 (1927). 37. See Act of Apr. 20, 1933, ch. 123, Professional and Business Licensing 14 20. 1927 Journal of the Senate, 47th 50th Sess., 1933 Cal. Stat. 576; Act of (Jan. 1979) (hereinafter "1979 Little Sess., at 1748, 1883, 2045, 2052, 2177; June 14, 1933, ch. 931, 50th Sess., 1933 Hoover Commission Report"); Task 1927 Journal of the Assembly, 47th Cal. Stat. 2458. Force Report, supra note 1, at F-29. Sess., at 1337, 1499, 1535, 1604, 1673, 38. Act of Feb. 3, 1939, ch. 38, 53d 6. See infra text accompanying notes 1964, 2471, 2648. Sess., 1939 Cal. Stat. 396-411. 101-103. 21. Act of May 31, 1927, ch. 853, 1927 39. Final Calendar of Legislative Bus- 7. For example, as of May 1985, the Cal. Stat. 1748-56. iness, 53d Sess., Senate Final History, at California Barber College Association, 22. Act of May 31, 1927, ch. 853, sec. 320 (1939). the California State Association of Jour- 2, 1927 Cal. Stat. 1749, 1752-53. Argua- 40. Act of May 19, 1939, ch. 168, 53d neyman Barbers, Hairdressers, Cosme- bly, only "malpractice or incompetency" Sess., 1939 Cal. Stat. 1399 (effective tologists, Masseurs and Guilds, and the has anything to do with protecting pub- Sept. 19, 1939). California Association of Schools of lic health, safety, and welfare. 41. Id. Cosmetology were all opposed to a 23. Act of May 18, 1929, ch. 302, 1929 42. Act of May 20, 1955, ch. 501, 1955 merger between the barber and cosme- Cal. Stat. 606; Act of June 19, 1931, ch. Reg. Sess., 1955 Cal. Stat. 970. tology boards. 1116, 1931 Cal. Stat. 2367; Act of June 7, 43. Business and Professions Code 8. Business and Professions Code sec- 1935, ch. 297, 1935 Cal. Stat. 1015; Act section 7326. tion 6520. of July 15, 1935, ch. 526, 1935 Cal. Stat. 44. 2 Cal. 2d 266, 40 P.2d 817 (1935).

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987 10 FEATURE ARTICLE I

45. 219 Cal. App. 2d 504, 33 Cal. 63. Id.at 9-11. jectionsfrom 1974 Barber Board Survey, Rptr. 349 (1963). 64. The barbering hearings addressed: at 15. 46. Id. at 507-08, 53 Cal. Rptr. at 352 (1) the feasibility of a full-time board; (2) 86. II Task Force Report, supra note ("[ft]he general validity of such a statu- minimum price law; (3) discipline; (4) 1,at F-I (emphasis original). tory licensing system cannot seriously be administrative regulations; (5) mis- 87. Id.at F-2. questioned. Public health, sometimes demeanor provisions of the act; (6) 88. Id. at F-3 through F-25. described in terms of sanitation, or safe- examinations; (7) extension of grand- 89. Id. at F-19. These operations were guards against communicable disease, is father privileges; (8) reciprocity; and (9) perceived as potentially hazardous by regarded as the police power objective consolidation of board functions. The the Task Force. which justifies licensing of barbers"). cosmetology hearings addressed: (1) reg- 90. Id.at F-27. 47. 249 Cal. App. 2d 459, 57 Cal. ulation of ; (2) cosmetology 91. 1979 Little Hoover Commission Rptr. 573 (1967). schools; (3) discipline; (4) policy rules Report, supra note 5, at 1. 48. The Board suspended Mains' bar- and directives of the board; (5) curtail- 92. See supra text accompanying bershop license under Business and Pro- ment of junior operators licenses; and (6) notes 74-77. fessions Code section 6522, which set consolidation of boards. 93. 1979 Little Hoover Commission forth certain exemptions to the licensing 65. 1956 Partial Report, supra note Report,supra note 5, at 2. provisions of the Barber Act. In 1967, 62, at 51-52. 94. Id. at Letter of Transmittal and under section 6522(d), "persons practic- 66. Id. at 70. Summary p. 1. ing beauty culture" were exempt from 67. California Senate Interim Com- 95. ld.at 1. the barber licensure requirement; "how- mittee on Licensing Business and Profes- 96. Id. at 3. The Commission did not ever, the provisions of this section do not sions, 1957 Report to the Legislature, at find the 1978 Task Force Report to be "a authorize any of the persons exempted 13-15, 2 Appendix to the Journal of the source of reliable or unbiased evidence." to shave or trim the beard, or cut the hair Senate, 1957 Reg. Sess. (1957). 97. Id. at 4. of any person for cosmetic purposes 68. Id. at 35-36, 58-59. 98. Id.at 9. except that persons included in [section 69. id. at 13-15. 99. See California Regulatory Law 6522] subdivision (d) may cut the hair." 70. Senate Fact Finding Committee Reporter Vol. 1, No. 2 (Summer 1981) Id. BBE interpreted this proviso to mean on Public Health & Safety, Report on p. 2 for explanation of the "sunset" that "persons practicing beauty culture" Sandwiches, Hearing Aids, Barber Col- concept. (i.e., cosmetologists) could "cut the hair" leges and Cemeteries, 2 Appendix to the 100. 1979 Little Hoover Commission in cosmetological establishments, but Journal of the Senate, 1961 Reg. Sess. Report, supra note 5, at 14-15. not in barbershops. (1961). 101. California Board of Cosmetol- 49. 249 Cal. App. 2d at 461, 57 Cal. 71. Assembly Interim Committee on ogy, A Survey of States That Have Rptr. at 573 (emphasis original). Mains Public Health, Subcommittee on Cos- Merged Boards for the Purposes of was not accused of shaving or trimming metology, Cosmetology in California, Licensing Both Barbers and Cosmetolo- the beard. Id. at 463, 57 Cal. Rptr. at I Appendix to the Journal of the Assem- gists (October 1986) (hereinafter "BC 574. bly, 1963 Reg. Sess. (1963). Survey'). 50. 249 Cal. App. 2d at 464-65, 57 Cal. 72. Id. at 7. 102. For example, Alaska (1980), Rptr. at 576. 73. Id. at 8. The Report also com- Colorado (1977), Connecticut (1980), 51. Id. at 466, 57 Cal. Rptr. at 576. mented on the large number of bills Delaware (1981), New Hampshire (1980), 52. Id. at 465, 57 Cal. Rptr. at 576. introduced in recent legislative sessions and Washington (1984) have recently 53. Business and Professions Code that related to cosmetology. accomplished an administrative merger section 6522 (1967). 74. Commission on California State of two boards. The West Virginia Board 54. 275 Cal. App. 2d 851, 80 Cal. Government Organization and Econo- of Barbers and Beauticians has been reg- Rptr. 164 (1969). my, An Examination of the Department ulating both trades since 1934. New 55. Id. 852-53, 80 Cal. Rptr. at 165. of Professional and Vocational Stand- York has also licensed both trades, along 56. Id. at 855, 80 Cal. Rptr. at 167. ards (Sept. 1967). with many other professions, through its 57. Id. at 853-54, 80 Cal. Rptr. at 75. ld. at 7. Division of Licensing Services since 1946. 165-66. 76. Id. at 8. For example, entry may 103. New Jersey's State Board of 58. 348 U.S. 483 (1955). Williamson be restricted so that competition is Beauty Culture Control and Oregon's held that courts must defer to legislative reduced and the profession's status is Board of Barbers and Hairdressers issue decisions so long as there is any reasona- advanced without public benefit. a single hairdresser license. Utah legisla- ble basis in fact to support the enactment. 77. Id. at 24-25. tion passed in 1981, which appeared to 59. Bone, 275 Cal. App. 2d at 856, 80 78. Task Force Report, supra note I. merge the state's haircare licenses, is still Cal. Rptr. at 167-68. 79. See Act of Sept. 22, 1976, ch. 1188, being interpreted to determine whether 60. Final Calendar of Legislative Bus- 1976 Cal. Stat. 5338 (1976). the boards and licenses have been iness, 53d Sess., Assembly Final History, 80. Task Force Report, supra note 1, merged. at 302 (1939). at Departmental Preface. 104. Letter from James D. Hanson to 61. SR 113, 2 Journal of the Senate 81. I Task Force Report, supra note 1, Crystal Crawford (Mar. 11, 1985). 4320, 1955 Reg. Sess. (1955) (adopted as at A-21. 105. BC Survey, supra note 101. New amended June 8, 1955). 82. Id.at A-5. Hampshire also experienced organiza- 62. California Senate Interim Com- 83. II. Task Force Report, supra note tional difficulties when its barbering and mittee on Licensing Business and Pro- 1, at F-I. cosmetology laws were repealed on June fessions, 1956 Partial Report to the 84. Id. 30, 1980, and emergency laws were Legislature, I Appendix to the Journal 85. California State Board of Barber adopted pending formulation of a com- of the Senate, 1956 Reg. Sess. (1956). Examiners, Report of Findingsand Pro- bined scheme.

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987) 0 FEATURE ARTICLE I

106. Assembly Final History, 1979-80 quired in order to practice; and DCA Reg. Sess., at 935 (1980). views dual licensure as discretionary 107. Assembly Committee on Labor, within the haircare industry. Telephone Employment, and Consumer Affairs, Interview with Neil Fippin, DCA Chief 1980 Report on AB 1485, at 1 (1980). of Administration (Dec. 5, 1986). Not- 108. Id. at 2. The Committee was refer- withstanding DCA's views, the introduc- ring specifically to the then-pending AB tion and passage of AB 1328 is a clear 46 (McCarthy), which called for a com- indication that the validity and necessity prehensive review of the structure and of outmoded and overlapping licensing performance of California's licensing requirements remains a topic of legisla- boards. AB 46 died on August 18, 1980. tive concern. 109. Assembly Committee Report, 128. Assembly Weekly History, 1985- supra note 107, at 1-2. 86 Reg. Sess., at 1089 (Jan. 30, 1986). 110. Assembly Final History, 1979-80 129. Business and Professions Code Reg. Sess., at 935 (1980). section 6520 (1986). 111. California Regulatory Law 130. See California Regulatory Law Reporter Vol. 2, No. 3 (Summer 1982) at Reporter Vol. 6, No. 4 (Fall 1986) p. 34. 37, 40-41. 131. See infra agency report on Board 112. Id., Vol. 2, No. 4 (Fall 1982) at 36. of Cosmetology. 113. Id. at 40. 132. See infra agency report on Board 114. Id., Vol. 4, No. I (Winter 1984) at of Barber Examiners. 34, 39-40. 133. See California Regulatory Law 115. Id. at 39. The reasoning underly- Reporter Vol. 6, No. 4 (Fall 1986) p. 35. ing this assertion is unclear. 134. See supra text accompanying 116. Id. note 90. 117. Letter from BC President Joyce 135. See supra note 127. Seymour to BBE President Raymond 136. See supra text accompanying Stults (Nov. 22, 1983). note 105 and n.105. 118. California Regulatory Law Re- 137. On December 5, 1986, Assemb- porter Vol. 4, No. I (Winter 1984) p. 40. lymember Elder introduced AB 86, 119. Minutes from Special Joint BBE which would repeal the provisions of law and BC Session at 12 (Feb. 13, 1984). creating the BC and transfer BC's pow- 120. Senate Recess History, 1983-84 ers and duties to BBE. As introduced, Reg. Sess., pt. 3, at 821 (1984). the bill makes no changes to the struc- 121. Senate Committee on Business ture or composition of the BBE, thus and Professions, 1984 Report on SB allowing for no cosmetologist represen- 2203, at 1 (1984). tation on the Board. Further, AB 86 122. Id. provides no expression of legislative 123. California Regulatory Law intent justifying the regulation of the Reporter Vol. 4, No. 4 (Fall 1984) p. 37. haircare industry. Rather than making 124. Act of Aug. 29, 1984, 1983-84 meaningful changes or improvements to Reg. Sess., ch. 816, 1984 Cal. Stat. the present scheme, AB 86 may create (1984). more problems than it solves. 125. California Regulatory Law 138. New York State Hairdressers & Reporter Vol. 4, No. 4 (Fall 1984) p. 37. Cosmetologists Association, Inc. v. 126. SB 180, 1985-86 Reg. Sess. Cuomo, 83 Misc.2d 154, 369 N.Y.S.2d (1985); Senate Weekly History, 1985-86 965 (N.Y. Sup. Ct. 1975). Reg. Sess., at 140 (Jan. 30, 1986). 127. "Dual licensure" occurs when individuals are required to possess two or more separate licenses for the perfor- mance of a single function or service. On September 17, 1985, Governor Deukme- jian signed AB 1328 (Johnson), which required the DCA to conduct a study of its agencies to determine the number and type of licensees subject to dual licen- sure, and develop a plan to eliminate the need for more than one license. The Department reported its findings to the legislature on January 1, 1987, and failed to address the barbering/cosmetology licensing scheme. DCA interpreted AB 1328 to mandate a study of occupations where two or more licenses are re-

The California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987)