Justringz-Century III Mall v. Bureau of Professional & Occupational Affairs, State Board of Cosmetology

22 A.3d 298, 2011 Pa. Commw. LEXIS 226, 2011 WL 1758768
CourtCommonwealth Court of Pennsylvania
DecidedMay 9, 2011
Docket2114 C.D. 2010
StatusPublished
Cited by2 cases

This text of 22 A.3d 298 (Justringz-Century III Mall v. Bureau of Professional & Occupational Affairs, State Board of Cosmetology) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Justringz-Century III Mall v. Bureau of Professional & Occupational Affairs, State Board of Cosmetology, 22 A.3d 298, 2011 Pa. Commw. LEXIS 226, 2011 WL 1758768 (Pa. Ct. App. 2011).

Opinions

OPINION BY

Judge SIMPSON.

In this administrative agency appeal, JuStringz-Century III Mall, JuStringz-South Hills Village Mall (JuStringz), Sha-gufta Parveen (Parveen) and Nida Hassan (Hassan) (collectively, Petitioners) ask whether the State Board of Cosmetology (Board) erred in determining they violated Section 2 of the Beauty Culture Law (Law),1 by practicing cosmetology without a license. The Board determined Petitioners’ practice of “eyebrow threading,” which involves the removal superfluous facial hair, falls within the Law’s definition of “cosmetology,” and, therefore, requires a license. Petitioners assert the Board erred in determining eyebrow threading falls within the definition of cosmetology. Upon review, we affirm.

JuStringz operates kiosks throughout Pennsylvania where it offers eyebrow threading services for compensation. JuS-tringz employed Parveen and Hassan2 to [299]*299perform eyebrow threading services in the Century III and South Hills Village Malls, respectively, in the Pittsburgh area. Petitioners do not dispute they are not licensed under the Law.

The practice of eyebrow threading removes superfluous facial hair and is an alternative to waxing. Eyebrow threading consists of looping thread around facial hair and pulling that hair out using the thread. According to JuStringz’ literature for its customers, eyebrow threading has been practiced since ancient times in the Indian subcontinent and in some parts of the Middle East.

After an investigation, an inspector for the Pennsylvania Department of State, Bureau of Enforcement and Investigation issued citations to Petitioners. The Bureau of Professional and Occupational Affairs (Bureau) imposed a $1,000 civil penalty against Sid Biranth, the listed owner of JuStringz at the time of the citations, for maintaining two unlicensed cosmetology salons3 and assessed Parveen and Hassan civil penalties in the amount of $500 each for practicing cosmetology without licenses.

Petitioners requested a hearing. The Bureau consolidated the citations and held a hearing. At the hearing, JuStringz, represented by counsel, offered the testimony of several corporate representatives and a licensed cosmetologist. Parveen and Has-san did not attend the hearing.

After the hearing, the hearing examiner issued an order sustaining the citations. Petitioners filed an application for administrative review, which the Board denied. Petitioners then appealed to this Court.

On appeal,4 Petitioners generally assert the Board erred in determining the practice of eyebrow threading is within the purview of the Law so as to require a cosmetology license.

Section 1 of the Law states:

“Cosmetology” includes any or all work done for compensation by any person, which work is generally and usually performed by cosmetologists, which work is for the embellishment, cleanliness and beautification of the human hair, such as arranging, braiding, dressing, curling, waving, permanent waving, cleansing, cutting, singeing, bleaching, coloring, pressing, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, manipulating, exercising, or similar work upon the scalp, face, arms or hands, or the upper part of the body, by the use of mechanical or electrical apparatus or appliances or cosmetics, preparations, tonics, antiseptics, creams or lotions, or by any other means, and of manicuring the nails, which enumerated practices shall [300]*300be inclusive of the term cosmetology but not in limitation thereof. The tern also includes the acts comprising the practice of nail technology, natural hair braiding and esthetics.

63 P.S. § 507 (emphasis added).

Petitioners first argue eyebrow threading is not “generally and usually performed by cosmetologists;” therefore, the Board erred in determining eyebrow threading is included in the definition of cosmetology. Petitioners argue the practice of eyebrow threading is rare, and the subject is not included in the curriculum at cosmetology schools. Certified Record (C.R.), Item # 23, Notes of the Testimony (N.T.), 12/03/09, at 63, 67-69, 91, 118-119.

The definition of cosmetology is to be liberally construed. 1 Pa.C.S. § 1928; Diwara v. State Bd. of Cosmetology, 852 A.2d 1279 (Pa.Cmwlth.2004). The object of statutory construction is to ascertain and effectuate the Legislature’s intent and to give effect to all of a statute’s provisions. 1 Pa.C.S. § 1921; Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 603 Pa. 452, 985 A.2d 678 (2009). Generally, courts defer to an agency’s interpretation of the statutes it administers. Rosen v. Bureau of Prof'l & Occupational Affairs, State Architects Licensure Bd., 763 A.2d 962 (Pa.Cmwlth.2000).

Here, the Board determined:

The General Assembly, in enacting the [Law], defined cosmetology in terms of the nature of the work generally and usually performed by cosmetologists, not the precise practices. This makes sense, since historically the range of practices offered by cosmetologists has expanded and incorporated new techniques as technologies advanced, new fashions emerged, and older practices, common in other parts of the world, spread to the Commonwealth. Driving home that point, the Board notes that the [Law] notes that the “enumerated practices” are “inclusive of the term cosmetology but not in limitation thereof.”

Bd. Order, 09/21/10, at 4 (emphasis in original). We agree with the Board.

The plain language of the Law’s definition of “cosmetology” defines that term with reference to the work performed, not the method used to perform it. See 63 P.S. § 507; Diwara (cosmetology included hair braiding prior to the amendment specifically including it in the definition).

Of particular significance here, in Diwara, we rejected the argument that natural hair braiding was not generally and usually performed by cosmetologists because this argument “ignore[d] the fact that [the petitioners’] work does provide a service that comes under the definition of cosmetology as stated.” Id. at 1283. Given the ruling in Diwara, we reject Petitioners’ similar argument here.

Specifically, cosmetology, as defined by the Law, includes the removal of superfluous hair. The work of removing superfluous hair is generally and usually performed by cosmetologists. Because the practice of eyebrow threading involves the work of removing superfluous hair, it is within the Law’s definition of cosmetology.

Petitioners next argue the Legislature omitted the practice of eyebrow threading from the Law. As a result, the Board erred in expanding the Law to include it. They assert the Legislature did not intend eyebrow threading to be regulated because it neither expressly included the technique in its 2006 amendments to the Law, nor included a broader phrase, such as “or similar procedures” in the definition of “esthetics.” See 63 P.S.

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22 A.3d 298, 2011 Pa. Commw. LEXIS 226, 2011 WL 1758768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/justringz-century-iii-mall-v-bureau-of-professional-occupational-pacommwct-2011.