Baffoni v. State, Department of Health

373 A.2d 184, 118 R.I. 226, 1977 R.I. LEXIS 1450
CourtSupreme Court of Rhode Island
DecidedMay 13, 1977
Docket75-75-Appeal
StatusPublished
Cited by8 cases

This text of 373 A.2d 184 (Baffoni v. State, Department of Health) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baffoni v. State, Department of Health, 373 A.2d 184, 118 R.I. 226, 1977 R.I. LEXIS 1450 (R.I. 1977).

Opinions

[229]*229Paolino, J.

This is an appeal by the plaintiff from a judgment in a declaratory judgment action.1 The plaintiff, Carolyn J. Baffoni, brought a petition for declaratory judgment and injunctive relief after her application to take the electrolysis examination in Rhode Island was denied by the Rhode Island Department of Health, Division of Professional Regulation, the department which regulates the practice of electrolysis.2 Her application was rejected because she did not comply with the provisions of G.L. 1956, §5-32-4(4), as amended by P.L. 1969, ch. 166, §1, which provides that certificates to engage in the practice of electrolysis “shall be issued to such applicants as comply with the following requirements”:

“4. Shall have satisfactorily completed a course of training and study in electrolysis as a registered apprentice under the supervision of a duly licensed Rhode Island electrologist who is qualified to teach electrolysis to apprentices as set forth in §5-32-17 of this chapter. And such apprenticeship .shall include at least six hundred and fifty (650) hours of study and practice in the theory and practical application of electrolysis within a term of nine (9) months; provided, however, such apprentice shall register with said division upon beginning his course of instruction [230]*230and the licensed person with whom he shall serve such apprenticeship shall keep a record of the hours of such instruction and upon the completion of such apprenticeship shall so certify to said board.”

The action was heard before a justice of the Superior Court on the following agreed statement of facts. On September 3, 1973, plaintiff, a resident of this state, enrolled as a student in the Hair Removal Training Center in Chicago, Illinois, which is a duly licensed training school in that state. As of December 22, 1973, she completed 694 hours of the course and passed her examination with an average of 98.5 and was certified as a fully qualified operator, trichologist, in the field of permanent hair removal, She paid tuition of $4,000 for her training at the Chicago Training Center. On February 1, 1974, she received notification from defendants that she was ineligible to take the examination for a certificate to practice electrolysis in this state because she had not complied with the provisions of §5-32-4(4).

The plaintiff argued in the Superior Court, as she does here, that §5-32-4(4) is unconstitutional and void because it represents an abuse of the state’s police power since it does not bear a "real and substantial” relationship to the general health, safety, and welfare of the public. She also argues that the statute deprives her, without due process of law, of the right to take the examination and to engage in a lawful occupation for which she is well-fitted.3

The trial justice held that §5-32-4(4) had a substantial relation to the public health and safety and therefore was not arbitrary and unreasonable. He concluded that the statute constituted a valid exercise of the police power and was therefore constitutionally valid.

[231]*231The plaintiff challenges the constitutionality of §5-32-4(4) on two grounds that more of less merge with each other. First, she argues that the section represents an abuse of the state’s police power in that conditions for taking the examination are more stringent than the general health, safety, and welfare of the public require and in fact are designed to exclude otherwise qualified individuals for the benefit of electrologists already practicing in Rhode Island.

Second, she argues that §5-32-4(4) is arbitrary, capricious and discriminatory and thus denies her the right to engage in a lawful occupation without due process. She contends that the section is arbitrary because it requires her to repeat her training, is not in the public interest, and is designed for the advantage of those persons already in the profession. It is also capricious and discriminatory, she argues, because the exclusion of competent individuals from taking the test unless they have trained under a Rhode Island electrologist has no relation to permissible police power objectives.

The Department of Health responds that this court has the authority only to determine if the statutory scheme is a reasonable exercise of the police power. Here, the department argues, the General Assembly has chosen a rational and thus constitutional method of regulation and any question as to whether another method would be preferable must be resolved in the Legislature, not the courts.

Insofar as plaintiff can be understood to argue that this type of regulation is .beyond the police power of the state, she is clearly incorrect. By the very nature of the process, electrolysis is intimately involved with the human body [232]*232and its physical functions.4 Even more than barbering or other forms of cosmetic therapy, electrolysis is a potential hazard to the health of the person being treated. The profession is thus subject to reasonable regulation by the state under its police power. See Berger v. State Bd. of Hairdressing, 118 R.I. 55, 371 A.2d 1053 (1977); State v. Conragan, 54 R.I. 256, 171 A. 326 (1934). Under the police power, the state has the authority to take measures to protect the public from improperly trained electrologists, from unsafe and unsanitary procedures, and from the possible spread of contagious skin diseases. Berger v. State Bd. of Hairdressing; State v. Conragan, both supra; Minnesota Bd. of Barber Examiners v. Laurance, 300 Minn. 203, 218 N.W.2d 692 (1974). Such measures can include regulating the training of preprofessionals and establishing educational standards for entry into the profession. Lee v. Delmont, 228 Minn. 101, 36 N.W.2d 530 (1949); see also Annot., 56 A.L.R.2d 879, 898, 1901 (1957) for a collection of cases upholding state approval of barber and cosmetology schools and regulation of teachers and courses of study.

This power to regulate, though necessarily broad, is not without limitation, however. It must be exercised within the bounds established by our Federal Constitution, including the requirement that liberty and property not be taken from a person unless due process of law is accorded •him. Avella v. Almac’s Inc., 100 R.I. 95, 211 A.2d 665 (1965); see also Creditors’ Service Corp. v. Cummings, 57 R.I. 291, 190 A. 2 (1937).

Our duty to review statutes which are attacked as denying due process does not include deciding if the particular regulation is in the public interest, nor does it include [233]*233deciding whether an alternative method of regulation would be preferable. These decisions are for the Legislature to make, not the judiciary. Morrison v. Lamarre, 75 R.I. 176, 185-87, 65 A.2d 217, 222-23 (1949); Williamson v. Lee Optical of Oklahoma, Inc.,

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Baffoni v. State, Department of Health
373 A.2d 184 (Supreme Court of Rhode Island, 1977)

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Bluebook (online)
373 A.2d 184, 118 R.I. 226, 1977 R.I. LEXIS 1450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baffoni-v-state-department-of-health-ri-1977.