Visage Express, Inc. v. State Board of Cosmetologists

679 A.2d 525, 342 Md. 605, 1996 Md. LEXIS 66
CourtCourt of Appeals of Maryland
DecidedJuly 25, 1996
DocketNo. 44
StatusPublished
Cited by2 cases

This text of 679 A.2d 525 (Visage Express, Inc. v. State Board of Cosmetologists) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Visage Express, Inc. v. State Board of Cosmetologists, 679 A.2d 525, 342 Md. 605, 1996 Md. LEXIS 66 (Md. 1996).

Opinion

OPINION

ELDRIDGE, Judge.

The State Board of Cosmetologists is an administrative agency governed by Maryland Code (1989, 1995 Repl.Vol., 1995 Cum.Supp.), § 5-101 et seq. of the Business Occupations and Professions Article and COMAR 09.22.01.01 et seq. Among other responsibilities, the Board grants, denies and suspends licenses to practice cosmetology and inspects beauty salons to determine whether they are in compliance with established statutory and regulatory requirements. Visage Express, Inc. is a corporation that owns and operates beauty salons in Maryland, Virginia and the District of Columbia. The dispositive issue on appeal is, in an enforcement proceeding initiated by the Board against Visage for a failure to employ licensed cosmetologists, whether Visage may properly defend on the ground that the Board had wrongfully denied cosmetology licenses to its employees.

I.

Visage sponsored eight French nationals who wished to practice their chosen occupation, cosmetology, in the United States pursuant to the Mutual Educational and Cultural Exchange Act, 22 U.S.C. § 1431, et seq.1 In early 1993 all eight [607]*607French nationals received licenses from the District of Columbia Board of Cosmetology without taking an examination. Pursuant to the District of Columbia Code provisions in effect at that time, the District of Columbia Board granted licenses to the French cosmetologists absent an examination based on the Board’s determination that the training and examination requirements in France were substantially equal to those in the District of Columbia.2

On the following day, the French cosmetologists applied to the Maryland State Board of Cosmetologists for licenses. The French nationals attempted to waive into Maryland without taking a Maryland examination based upon their status as licensed cosmetologists in the District of Columbia pursuant to Maryland Code (1989, 1995 Repl.Vol.), § 5-308 of the Business Occupations and Professions Article.3

[608]*608Initially, the State Board returned the applications because the reciprocity information was not authenticated with the requisite seal from the District of Columbia Board. Thereafter, Visage resubmitted the applications with the appropriate seal. Visage assumed that the reciprocity rules would apply to the French cosmetologists with District of Columbia licenses and further assumed that the licenses from the State Board would be forthcoming. In response to a sudden and unrelated employee shortage, Visage permitted several of the French cosmetologists to work in Maryland before the Board acted with regard to the applications.

Upon resubmission of the applications with the appropriate seal, the Board denied licenses to all eight French nationals. Neither Visage nor the individuals who were denied licenses sought a contested case hearing before the Board as provided by Code (1989, 1995 Repl.Vol., 1995 Cum.Supp.), § 5-315 of the Business Occupations and Professions Article.4 Thus, there was a failure to exhaust administrative remedies and a failure to seek judicial review of a final administrative decision.

Despite the Board’s denial of the applications, Visage continued to employ the unlicensed cosmetologists in its Maryland salons in violation of Maryland law. In April 1993 a Board inspector, acting on a complaint that Visage employed unlicensed cosmetologists, discovered five unlicensed French nationals working at the Visage salon in Chevy Chase, Maryland. The inspector also determined that the salon was not using a [609]*609fumigant to sanitize its instruments. He therefore prepared violation notices and left copies of the notices at the salon.

A few days later, the Board met with the President of Visage to discuss the violations. Thereafter, in response to Visage’s argument that the French cosmetologists were entitled to Maryland licenses without taking the examination, the Board on April 19, 1993, sent a letter to the President of Visage, explaining that, pursuant to § 5-308 of the Business Occupations and Professions Article, the Board could not issue licenses to the French cosmetologists unless they had passed an examination in Maryland or another state (including the District of Columbia) with at least equivalent licensing requirements to Maryland. The Board acknowledged (1) that the French cosmetologists were licensed in the District of Columbia, (2) that the training requirements in the District are equivalent to those in Maryland, (3) that the Board regularly grants reciprocal licenses to District cosmetologists who have taken the District examination and have not taken a Maryland examination, and (4) that the “requirements of training and examination in France are more stringent than those in Maryland.” Despite the foregoing, the Board went on to explain that the absence of a state-given examination required the denial of cosmetology licenses because Maryland law required an examination in one of the States of the United States or the District of Columbia. In its letter, the Board also advised Visage that it rejected a proposed agreement whereby the French cosmetologists could work in Maryland until they passed the Maryland examination. The Board’s letter stated that if Visage wanted the French cosmetologists to take the Maryland examination, interpreters could be utilized. The Board advised Visage that it would continue to investigate Visage salons in Maryland to ensure compliance with the Maryland licensing law.

After receipt of the Board’s April 19th letter, Visage continued to employ unlicensed cosmetologists in its Maryland salons in violation of § 5-301 of the Business Occupations and [610]*610Professions Article of the Code5 and COMAR 09.02.02D.6 During Board inspections on June 18, July 20, September 29, and October 7, 1993, Visage received violation notices for employing the unlicensed French cosmetologists.7

In February 1994, pursuant to § 5-523 of the Business Occupations and Professions Article, and Code (1984, 1995 RepLVol.), § 10-201 et seq. of the State Government Article, the Board conducted a contested case hearing to consider what action it should take regarding Visage’s violations of Maryland law. Although the notice of the hearing stated that the sole purpose of the hearing was to determine what, if any, action the Board should take because of Visage’s violations, Visage defended on the ground that the French nationals had been wrongfully denied Maryland reciprocity licenses. After the hearing, the Board found that Visage had violated the statute and regulations, ordered $1800.00 in fines, and suspended Visage’s Maryland salon licenses for 90 days. In addition, the Board stated that, under Maryland law, the French cosmetologists were not eligible for Maryland cosmetology licenses absent proof that they had taken the Maryland examination or a another state’s examination that was equivalent to Maryland’s.

Visage filed an action in the Circuit Court for Montgomery County for judicial review of the Board’s decision. After a hearing, the circuit court affirmed the order of the Board, [611]*611although the court reduced the fine to $1500.00. Visage took an appeal to the Court of Special Appeals.

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Bluebook (online)
679 A.2d 525, 342 Md. 605, 1996 Md. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visage-express-inc-v-state-board-of-cosmetologists-md-1996.