Diop v. Bureau of Prof'l & Occupational Affairs

272 A.3d 548

Astou DIOP, Tanyita Henry, and Awa Gaye, Petitioners

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, State Board of Cosmetology of the Commonwealth of Pennsylvania, Respondents

No. 363 M.D. 2020

Commonwealth Court of Pennsylvania.

Argued December 16, 2021

Decided March 3, 2022

John W. Shaw, Wilmington, DE, for Petitioners.

Nicole R. DiTomo, Sr., Deputy Attorney General, Norristown, for Respondents.

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge,¹ HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE LEAVITT

In this original jurisdiction action, Astou Diop, Tanyita Henry, and Awa Gaye (Petitioners) challenge the constitutionality of certain provisions of the statute commonly known as the Beauty Culture Law (Law),² which require a license to engage in the commercial practice of natural hair braiding. Petitioners challenge this regulatory regime both facially and as applied to them. Presently before this Court are the preliminary objections of the Bureau of Professional and Occupational Affairs (Bureau) and the State Board of Cosmetology of the Commonwealth of Pennsylvania (Board) (collectively, Respondents). Respondents ask the Court to (1) dismiss the as-applied constitutional claims of Tanyita Henry for lack of standing; (2) dismiss Petitioners’ facial substantive due process challenge as legally insufficient;³ and (3) dismiss Petitioners’ as-applied and facial equal protection claims as legally insufficient.

I. Procedural History

On June 18, 2020, Petitioners filed a petition for review in the nature of a complaint for declaratory and injunctive relief, alleging that the provisions of the Law and associated regulations requiring them to obtain a license to engage in commercial natural hair braiding violate their substantive due process right to pursue their chosen occupation under Article I, Section 1 of the Pennsylvania Constitution. PA. CONST. art. I, § 1.⁴ On August 5, 2020, Respondents filed an answer to the petition for review, denying some factual allegations therein and asserting that pending legislation in the General Assembly would address Petitioners’ concerns.⁵ Respondents also asserted that Petitioners failed to plead facts to show an actual case in controversy and failed to join all indispensable parties, i.e. , all individuals who hold a natural hair braiding license and whose property interest in that license would be affected were this Court to declare the licensing scheme unconstitutional. In a reply to new matter filed August 18, 2020, Petitioners denied the allegations in Respondents’ answer.

In August 2020, the parties began to engage in discovery. On April 16, 2021, Petitioners, with Respondents’ consent, filed their first amended petition for review. In a new Count II, Petitioners asserted that the licensing requirements for natural hair braiders violate the equal protection guarantee in Article I, Section 26 of the Pennsylvania Constitution.⁶ The first amended petition also clarified that, in Counts I and II, Petitioners were challenging the Law both facially and as applied to them.

On May 7, 2021, Respondents filed preliminary objections to the first amended petition for review. On May 18, 2021, based on Respondents’ preliminary objections and pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(1),⁷ Petitioners filed a second amended petition for review (Petition) as of course. On June 15, 2021, Respondents filed new preliminary objections to the Petition. On July 6, 2021, Petitioners filed an answer in opposition to the preliminary objections.

II. Petition for Review

A. Factual Averments

The Petition avers the following facts. Natural hair braiding is a method of haircare with historical and cultural roots in African and African American communities. Petition ¶¶2, 19-20. The practice of natural hair braiding "refers to twisting, wrapping, weaving, extending, locking or braiding of hair" by hand and, at times, with the use of simple tools, such as clips, combs and hairpins. Id . ¶¶11-12.⁸ Natural hair braiding incorporates both traditional and modern styling techniques, and sometimes includes the use of extensions, decorative beads and other hair accessories. Id . ¶¶13-14. Natural hair braiding does not involve the use of dyes, reactive chemicals or other preparations to alter the color of hair or to straighten, curl or alter the structure of hair. Id . ¶15. It does not require the use of heated tools, such as a curling iron or flat iron. Id. ¶28. It is dramatically different from general hair braiding and other types of hairstyling. Id . ¶21. The hair braiding practiced by Petitioners is "complex and labor intensive," often taking multiple hours or even days to complete. Id . Persons of African descent regularly learn to braid hair as children or teens, and "[f]or many people the choice of natural hair braiding over other styles is as much a cultural statement and expression of self-identity as it is an aesthetic concern." Id . ¶¶20, 22.

In 2004, this Court held that natural hair braiding falls within the Law's definition of "cosmetology" and, thus, the Board was authorized to require hair braiders to be licensed as cosmetologists. Petition ¶51 (citing Diwara v. State Board of Cosmetology , 852 A.2d 1279, 1283, 1286 (Pa. Cmwlth. 2004) ). In 2006, the General Assembly amended the Law to create a limited license for natural hair braiding that requires 300 hours of training and a license examination. Id. ¶¶52, 54; see Section 5(b)(3) of the Law, 63 P.S. § 511(b)(3).⁹ Relatedly, the Board's regulations recommend that 125 hours of the required instruction, or 42% of the total, cover "[c]ognitive and manipulative skills related to natural hair braiding." Id . ¶¶191-92 (quoting 49 Pa. Code § 7.129(f) ).¹⁰ Respondents are charged with enforcing the educational and licensing requirements for natural hair braiding. Id. ¶55.

The Petition alleges that the Law's educational and licensing requirements are onerous because few Pennsylvania cosmetology schools offer a 300-hour course specific to natural hair braiding. Petition ¶¶145-55. Further, their instruction on "cognitive and instructional skills related to natural hair braiding" approved by the Board is only tangentially related to natural hair braiding. Id . ¶194. Board-approved instruction focuses on braiding of straight, European style hair and the braiding of shampooed and straightened circle shape hair, neither of which relate to natural hair braiding. Id . ¶195. Moreover, the instruction on "professional practices" and "sciences" is only tangentially related to natural hair braiding because it includes training on shampoos, chemical treatments and hair straightening tools. Id . ¶196.

The statutorily mandated natural hair braiding examination must "include both theoretical and procedural skill questions as prescribed by the Board." Petition ¶197 (quoting Section 5(b)(3)(i) of the Law, 63 P.S. § 511(b)(3)(i) ). Petitioners allege that natural hair braiding techniques comprise a small quantity, if any, of the computer administered examination required to obtain a natural hair braiding license. Id . ¶201. The examination tests on multiple subjects that are not relevant to natural hair braiding, including storage of chemical products, use of thermal appliances, shampooing and scalp treatments. Id . ¶¶202, 206.

Petitioners further allege that in a 2017 executive order, Governor Tom Wolf directed the Bureau to identify overly broad or burdensome licensing requirements. Petition ¶¶56-63. On June 11, 2018, the Bureau issued a report (Bureau Report) finding that overburdensome licensing requirements can be particularly harmful to, inter alia , immigrant communities, and identifying Pennsylvania as "only one of two states in the regional comparison group of 12 states and only one of 15 states nationwide" that impose licensure requirements on natural hair braiders. Id. ¶¶67, 70. The Bureau Report identified no public health or safety justification for the 300 hours of training required under the Law to obtain a limited license for natural hair braiding, nor did it identify any instance of discipline imposed for practicing natural hair braiding without a license. Id. ¶¶74, 76. Three days after issuance of the Bureau Report, Governor Wolf recommended the elimination of the natural hair braiding limited license because no forms of registration, certification, or examination for natural hair braiders are necessary to protect public health and safety. Id. ¶¶77-81. Ian Harlow, Commissioner of Professional and Occupational Affairs, publicly concurred in the Governor's recommendation and called for the deregulation of natural hair braiders. Id. ¶82. Commissioner Harlow identified only a single instance, from 2003, of discipline imposed for practicing natural hair braiding without a license. He also stated that the Bureau has never received a consumer complaint arising from natural hair braiding. Id. ¶84.

Petitioners are skilled practitioners of natural hair braiding. Petition ¶2. Astou Diop learned braiding by practicing on family, friends and herself and considers braiding an essential part of her cultural identity. Id . ¶112. She is currently the manager of a natural hair braiding shop in Philadelphia. Id . ¶109. She has had difficulty finding braiders to meet the demand for her shop's services because most skilled braiders in Pennsylvania do not have a license. Id . ¶121. Diop has considered securing a limited license for herself but the curriculum at the cosmetology school she visited taught techniques that are not relevant to natural hair braiding. Id . ¶125.

Tanyita Henry learned how to braid hair as a child and, as an adult, braids her own hair, her daughter's hair and occasionally the hair of other family members and friends. Id . ¶¶133-34. She does not currently braid hair for compensation and, as of the date of the Petition, was laid off from her work as a surgical technician. Id . ¶¶135, 137. She aspires...