Bone v. State Board of Cosmetology

275 Cal. App. 2d 851, 80 Cal. Rptr. 164, 1969 Cal. App. LEXIS 1991

• Court: California Court of Appeal
• Decided: August 26, 1969
• Docket: Civ. 33194
• Status: Published

Opinions

FILES, P. J.

This is an appeal from a judgment dismissing plaintiff’s complaint for an injunction against the State Board of Barber Examiners and the State Board of Cosmetology. The trial court sustained defendants’ demurrer without leave to amend, upon the ground that the complaint failed to state a cause of action.

The sole issue is the constitutionality of Business and Professions Code section 6522, as amended in 1967, which provides that a cosmetologist’s license does not authorize the holder to cut hair in an establishment which is primarily engaged in haircutting—i.e.—a barbershop.

Plaintiff is a licensed cosmetologist. He operates two eosmetological establishments under the business name of “Sherman’s Shapers” which specialize in the styling and cutting of men’s hair. He alleges that the defendants have threatened to enforce section 6522 against him “civilly, administratively and criminally,” and will thereby force him to discontinue his business unless defendants are enjoined by the court. Although he does not allege the fact, the parties and the trial court appear to have assumed that plaintiff is not a licensed barber, and his business establishments are not managed by a licensed barber.

Enforcement of the statute would make it impossible for plaintiff to continue to operate a business which is essentially a barbershop, using only licensed cosmetologists instead of licensed barbers.

California has long maintained separate licensing systems for cosmetology and for barbering. Each is administered by its own professional board, under its own statute.¹ Business and Professions Code section 6520 defines the practice of barbering² and section 7321 defines the practice of cosmetology.³

Except under certain exclusions and exceptions provided in the statute, it is a misdemeanor to practice barbering or cosmetology without a license to do ⁴

The two licensing boards have prescribed quite different courses of instruction and training as a qualification for licensing.⁵ Cosmetologists are trained in several subjects not. required of barbers. Student barbers are required to perform 550 operations of haircutting and shaping, as opposed to 75 operations required of cosmetology students.

The statutes recognize that there is some overlapping between the two vocations. Section 7324, in the Cosmetology Act, exempts, among others, “Barbers, insofar as their usual and ordinary vocation and profession is concerned” when engaged in certain enumerated practices. The Attorney General has ruled that this exception does not authorize a licensed barber to practice his profession in a cosmetological establishment. (39 Ops.Cal.Atty.Gen. 66 (1962).)

Section 6522, in the barbering law, read as follows prior to the 1967 amendment: “The provisions of this chapter do not apply to: (a) Persons authorized by the law of this State to practice medicine and surgery or osteopathy or chiropractic or persons holding a drugless practitioner certificate under the laws of this State, (b) Commissioned medical or surgical officers of United States army, navy or marine hospital service, (c) Registered nurses, (d) Persons practicing beauty culture.

“However, the provisions of this section do not authorize any of the persons exempted to shave or trim the beard, or cut the hair of any person for cosmetic purposes except that persons included in subdivision (d) may cut the hair. ’ ’

That section was the subject of comment and judicial interpretation in Mains v. Board of Barber Examiners (1967) 249 Cal.App.2d 459 [57 Cal.Rptr. 573]. Mains was not a registered barber, but held a certificate (under Bus. & Prof. Code, § 6549) authorizing him to conduct a barbershop. He was a licensed cosmetologist, and he engaged in cutting hair in his shop. The hoard suspended the barbershop certificate upon the ground that an unlicensed barber was cutting hair therein. It was the board’s position that although the phrase “Persons practicing beauty culture” in section 6522 meant “persons licensed to practice cosmetology,” the exception granted by section 6522 did not apply to a cosmetologist who was cutting hair in a barbershop. The majority of the appellate court disagreed, holding that “section 6522 expressly authorizes a licensed beauty-culturist-cosmetologist- to operate in a barbershop. . . .” (249 Cal.App.2d at p. 465.)

1 Barber Law, Business and Professions Code section 6500 et seq. Cosmetology Act, Business and Professions Code section 7300 et seq.

2 Business and Professions Code section 6520; “The practice of barbering embraces any of or any combination of the following practices for hire or reward.

(a) Shaving or trimming the beard or cutting the hair.

(b) Giving facial and scalp massages or treatments with oils, creams, lotions or other preparations either by hand or mechanical appliances.

(c) Singeing, shampooing, arranging, dressing, curling, waving or dyeing the hair or applying hair tonics, but waving does not include permanent waving.

(d) Applying cosmetic preparations, antiseptics, powders, oils, clays or lotions to scalp, face or neck.”

3 Business and Professions Code section 7321: “The art of cosmetology includes any and all and any combination of the following practices:

(a) Arranging, dressing, curling, waving, machineless permanent waving, permanent waving, cleansing) cutting, singeing, bleaching, tinting, coloring, straightening, dyeing, brushing, beautifying or otherwise treating by any means the hair of any person.

(b) Massaging, cleaning or stimulating the scalp, face, neck, arms, bust or upper part of the human body, by means of the hands, devices, apparatus or appliances, with or without the use of cosmetic preparations, antiseptics, tonics, lotions or creams.

(c) Beautifying the face, neck, arms, bust or upper part of the human body, by use of cosmetic preparations, antiseptics, tonics, lotions or creams.

(d) Removing superfluous hair from the body of any person by the use of electrolysis or by the use of depilatories or by the use of tweezers, chemicals, preparations or by the use of devices or appliances of any kind or description, except by the use of light waves, commonly known as rays.

(e) Cutting, trimming, polishing, tinting, coloring, cleansing or manicuring the nails of any person. (f) Massaging, cleansing, treating or beautifying the hands of any person. ’ ’

4 Barbering: Business and Professions Code section 6523. Cosmetology: Business and Professions Code section 7320.

5 See title 16, California Administrative Code sections 217 (barbering) and 916 (cosmetology).