Thiam v. Bureau of Prof'l & Occupational Affairs

301 A.3d 942

Maimouna THIAM t/d/b/a Rama Hair Braiding Salon, Petitioner v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF COSMETOLOGY, Respondent

No. 301 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued April 3, 2023

Decided July 25, 2023

Publication Ordered September 14, 2023

Nadia Hewka, Philadelphia, for Petitioner.

Sean C. Barrett, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER

Maimouna Thiam t/d/b/a Rama Hair Braiding Salon (Petitioner or the Salon) petitions for review of the Final Adjudication and Order (Final Order) of the Bureau of Professional and Occupational Affairs (Bureau), State Board of Cosmetology (Board), issued on March 8, 2022, ordering Petitioner to cease and desist from the unlicensed practice of cosmetology including natural hair braiding and levying a civil penalty against Petitioner in the amount of $1,500.00. On appeal, Petitioner argues that Section 5 of the statute commonly known as the Beauty Culture Law (the Law), ¹ which requires a limited license to engage in the commercial practice of natural hair braiding, violates Petitioner's due process rights under article I, section 1 of the Pennsylvania Constitution, PA. CONST. art. I, § 1. ² Following our review, we reverse.

I. BACKGROUND

Petitioner, a single parent of six children, emigrated from Senegal to the United States in 1993. Although she is taking English classes, Petitioner speaks Wolof and French, and she reads very little English. (Findings of Fact (FOF) ¶¶ 5-6.) ³ When she was a teenager, Petitioner learned from her mother how to braid hair using a methodology requiring no chemicals or hot iron, only the use of her hands. ( Id. ¶¶ 3, 7-8.) In 1993, Petitioner "earned a certificate in hairdressing and cosmetology from Wilfred Academy of Hair and Beauty Culture in New York," and she "obtained a license to practice as a hair braider in Florida" in 2014. ( Id. ¶¶ 10-11.) Prior to 2011, Petitioner purchased the Salon in Philadelphia where she had worked as a natural hair braider for many years. ( Id. ¶ 9.) In 2014, Petitioner attempted to complete the educational requirements for a cosmetology degree. (Petitioner's Answer to Order to Show Cause and Request for Hearing (Answer) ¶ 4, Certified Record (C.R.) Item 4.) ⁴ She enrolled in a 150-hour program at Divine, a cosmetology school in Philadelphia, but because the course was taught in English, Petitioner had difficulty understanding the instructors and had to use computer translation. (FOF ¶¶ 12-13.) Before withdrawing from Divine, Petitioner purchased materials and attended classes for two months, but she found the required courses were not relevant to her natural hair braiding practice. (Answer ¶ 5.) Petitioner did not complete the program or take the examination because she became ill, and the school closed before she could return. (FOF ¶ 14.) Due to a health condition, Petitioner is no longer able to braid hair herself or do other types of work, such as restaurant work. ( Id. ¶ 15.)

Petitioner has never held a natural hair braiding license from the Board for herself or for the Salon, nor has she obtained any other authorization to practice a profession or occupation by the Board. ( Id. ¶ 1.) Petitioner was not aware that she could obtain a limited license as a natural hair braider because the Board never explained this to her in its written communications or through its agents during the in-person inspections at the Salon. (Answer ¶ 6.) On December 11, 2017, while the Salon was open, an inspector for the Department of State (Department) conducting an inspection of the Salon "observed a female employee braiding the hair of a female customer for compensation." (FOF ¶ 2.) There was no evidence of any heat irons or chemicals on the premises. ( Id. ¶ 3.) Petitioner was previously cited by the Board in 2011 and 2014 for maintaining the Salon without a license. ( Id. ¶¶ 16-17.) However, neither the Board nor its agents have ever attempted to communicate with Petitioner about the charges filed against her in a language she could understand. (Answer ¶ 7.)

Based on the December 2017 inspection, the Board issued an order to show cause charging Petitioner with violating Section 2 of the Law, 63 P.S. § 508, by operating the Salon without a license. (FOF ¶ 18; Order to Show Cause ¶¶ 12-16, C.R. Item 1.) In her Answer, Petitioner admitted to all the factual allegations, and argued, among other things, that she is otherwise qualified to engage in natural hair braiding but is unable to obtain a license due to a language barrier, that her practice does not threaten the public's health and safety as she does not wash hair or use any chemicals, and that closing her Salon would result in significant hardship. (Answer ¶¶ 1, 10, 12-13.) Petitioner also asserted several constitutional challenges including arguments that the Law violates her substantive and procedural due process rights and her equal protection rights. ( Id. ¶¶ 12-14.)

A hearing was conducted before a Hearing Examiner on June 4, 2019, at which time Petitioner, represented by counsel, testified on her own behalf with the benefit of a French interpreter. (FOF ¶¶ 19-20.) Petitioner stated she had been braiding hair since she was 18 years old. (Notes of Testimony, Hearing, 6/4/19, (N.T.) at 23, C.R. Item 14.) Throughout the years she has worked at the Salon, Petitioner never received any complaints from customers about health, safety, hair loss, hygiene, or scalp issues. ( Id. at 25.) When Petitioner was issued a citation on September 12, 2013, she could not understand what it meant without the assistance of counsel, and the person who cited her spoke to her in English. ( Id. at 30-31.) She was told she would have to "refer to the court" regarding the citation. ( Id. at 31.) Petitioner also needed a lawyer's assistance to understand the 2017 citation at issue herein. ( Id. at 32.) No one explained to Petitioner the difference between a cosmetology license and a natural hair braiding license, and, in an effort to comply with licensing requirements for hair braiders, she enrolled in Divine in 2014. ( Id. at 31, 33.) To attend Divine for a 150-hour course, Petitioner paid over $1,000.00 for a "recession fee" and recommended books, and an additional $25 each day, three days per week. ( Id. at 33-34.) The courses at Divine were taught in English, and Petitioner could not finish the coursework due to an illness. ( Id. at 34.) When she was able to return, Divine had closed. ( Id. ) Petitioner would have returned to school if she had been able to find a school in the Philadelphia area that offered a course of study in natural hair braiding. ( Id. at 35.)

Eric Edi, ⁵ a lecturer at Jefferson University and founding member and the chief operating officer (COO) of the Coalition of African Communities in Philadelphia (AFRICOM), ⁶ testified on behalf of Petitioner as follows. Dr. Edi is "[v]ery" familiar with immigrant women from West Africa, many of whom do not speak fluent English and are involved in the business of professional hair braiding. ( Id. at 40-41.) Since about 2001, Dr. Edi has been involved with issues surrounding citations of natural hair braiders in the Philadelphia area in his capacity as COO of AFRICOM. ( Id. at 42-43.) Dr. Edi was unaware of any programs in the Philadelphia area to accommodate the licensing requirements for natural hair braiders, although he personally knew of at least 20 women in search of such programs and had heard of others. ( Id. at 43, 49.) Some women, who are confused about the requirements for cosmetology and natural hair braiding licensure, have spent about $3,000.00 to obtain a cosmetology license, though the course of study offered them no training for natural hair braiding. ( Id. at 44-45, 47-48.) For Petitioner and others similarly situated, a language barrier and computer illiteracy create problems in passing the required examination for licensure. ( Id. at 45-46.) Dr. Edi was aware of efforts to open a specialty school for hair braiding in the Philadelphia area four to five years prior to the hearing, which would have enabled hair braiders to become compliant with licensure requirements and allow them to train others in the craft. ( Id. at 48-49.) Dr. Edi was familiar with former Governor Tom Wolf's Commission on Licensing Reform (the Commission) wherein former Governor Wolf called for the total abolishment of the natural hair braiding licensing requirement. ( Id. at 49-50.) ⁷

Following the hearing, Hearing Examiner issued a Proposed Adjudication and Order (Proposed Order) on June 28, 2019, including the findings of fact set forth above. Hearing Examiner concluded that Petitioner violated Section 2 of the Law "by maintaining a place for the practice of natural hair braiding for compensation without being licensed to do so." (Proposed Order (Prop. Order), Conclusion of Law (COL) ¶ 3, C.R. Item 15.) Hearing Examiner rejected Petitioner's argument that she cannot obtain a license, explaining this "is not an appropriate ground to waive" the licensing requirement and noted Petitioner has never attempted to obtain a license. ( Id. at 7.) Despite finding that illness prevented Petitioner from completing the 150-hour course at Divine before the school's closure in 2014, (FOF ¶¶ 12, 14), Hearing Examiner stated that when natural hair braiding was first added to the Law, Petitioner could have obtained a license by demonstrating she had three years of consecutive experience and completed a 150-hour program within two years of initial licensure, but she did not do so. ( Id. at 7 n. 5). Hearing Examiner did not opine as to whether there was sufficient record evidence that the Board would have been "satisfied with the standards provided for licensure" in either New York or Florida as required by Section 9...