Maryland State Board of Barber Examiners v. Kuhn

Levine, J., delivered the opinion of the Court. We are concerned here with the constitutionality of a statutory scheme which permits barbers to cut the hair of both men and women, but restricts cosmetologists, 1 such as appellees, to cutting the hair of women. We thus focus on two statutory provisions. Maryland Code (1957, 1973 Supp.) Art. 43, § 529 (a), under the subtitle, Cosmetologists, currently provides: “(a) The term ‘beauty culture’ includes any and all work done for compensation by any person which work is generally and usually performed by so-called hairdressers, cosmetologists, cosmetologists aides, cosmeticians, beauticians or beauty culturists and demonstrators of beauty ⁴⁹⁹ preparations or equipment, and however denominated in so-called hairdressing and beauty shops ordinarily patronized by women, which work is for the embellishment, cleanliness and beautification of women’s hair, such as arranging, dressing, curling, waving, permanent waving, cleansing, cutting, singeing, arching of eyebrows, dyeing of eyebrows and eyelashes, bleaching, coloring, or similar work thereon and thereabout, and the removal of superfluous hair, and the massaging, cleansing, stimulating, exercising, or similar work upon the scalp, face, arms or hands, 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 of either sex, which enumerated practices shall be inclusive of the term beauty culture but not in limitation thereof” (emphasis added).

Under the subtitle, State Board of Barber Examiners, § 323 of Art. 43 provided prior to July 1,1973: “To shave, trim the beard or cut the hair of any person or to give shampoos, tonics or massages for hire or reward received by the person performing such service, or any other person, shall be construed as practicing the occupation of a barber within the meaning of this subtitle.” (emphasis added). Effective July 1,1973, this statute was amended to read: “Within the meaning of this subtitle, the practicing of the occupation of a barber includes, but is not limited to, shaving, trimming the beard, cutting and razor cutting, styling, relaxing, body waving, shampooing, hair coloring, facial massaging, designing, fitting and cutting of hair pieces for hire or reward received by the person performing the service. These activities must be ⁵⁰⁰ performed by a duly licensed barber or in a duly licensed-barbering school except mere sales of wigs or hairpieces or where in the discretion of the Board, special circumstances merit exemption. This section shall not be construed as a limitation or restriction upon the services which licensed cosmetologists are permitted to perform pursuant to the provisions of this article.” Doubtlessly, the last sentence of this section, as now written, is designed to cushion the possible impact of the increased services currently being offered by barbers.

In any event, we do not think that the expansion of services by barbers has any bearing on the outcome of this case. Nor does the deletion of the words “of any person” from the 1973 enactment suggest to us that the legislature intended any changes or restrictions in the barbers’ clientele. The chancellor (Perrott, J.) declared § 529 (a) unconstitutional as violative of the individual appellees’ rights under the Fourteenth Amendment to the Constitution of the United States and Art. 46 of the Maryland Declaration of Rights. 2 We agree in part with the chancellor’s holding, and therefore affirm. This appeal stems from a bill of complaint brought by the individual appellees in the Circuit Court for Baltimore City against appellants and the Maryland State Board of Cosmetologists.

The latter, being content with the decision of the chancellor, also appears before us as an appellee. In the bill of complaint, the individual appellees alleged that they have “on occasion engaged in the cutting, shampooing and styling of men’s hair, and have built up a substantial clientele of male patrons seeking to have plaintiffs shampoo, cut and style their hair.” It was further alleged that as skilled beauty culturists and hairdressers licensed by the Board of Cosmetology, individual appellees are qualified to perform the services for ⁵⁰¹ which they are licensed upon the hair of male customers, but that appellants have challenged their right to do so by threatening to institute proceedings against them that could result in the loss of their licenses and in criminal prosecution. The proceedings in the circuit court followed an abortive attempt to pursue the same relief in the United States District Court for the District of Maryland, where, following the issuance of a temporary restraining order, a three-judge panel convened for an evidentiary hearing. That court invoked the doctrine of federal abstention, explicating its reasons for doing so in a carefully-considered opinion.

The court’s purpose in staying its hand was to enable the parties to pursue in the courts of this state a possible interpretation of the governing statutes that would make it unnecessary to reach the constitutional issues. By stipulation of the parties, the record in this case consists of the evidence presented in the federal court, viz., three textbooks and the affidavits and testimony of two expert witnesses. The witness produced by appellants was Simon V. Avara (Avara), President of the State Board of Barber Examiners, who is an experienced barber and licensed instructor in his own barbering school. Andrew Lombardo (Lombardo), an experienced beauty shop owner and operator with a teacher’s license in cosmetology and ten years’ prior experience as a licensed barber, was a witness for appellees.

Each witness described rather extensively the various techniques that are employed in cutting men’s and women’s hair. Avara pointed out that of the 1200 hours in the required curriculum for barber students, 650 are devoted to the cutting of hair, whereas only 200 of the 1500 hours in the cosmetology course are allotted to such instruction. In sum, he testified that the training in haircutting received by cosmetologists does not qualify them to cut men’s hair. Lombardo testified, on the other hand — and Avara agreed — that licensed cosmetologists are competent to perform upon the hair of female patrons the services for which they are licensed; Avara also conceded that there is no difference ⁵⁰² between male and female hair.

He did not undertake to say that hygienic standards in barber shops are more stringent than those required of cosmetology shops; Lombardo, however, said the opposite is true. In substance, Lombardo testified that although cosmetologists are not qualified to give the “traditional” male haircut — and do not seek to do so — they are trained and competent to provide the same haircuts on men which they are trained and licensed to perform on women patrons. We have studied the record carefully, and nowhere in Avara’s testimony do we find that he actually contradicts Lombardo. Although the former devotes himself to emphasizing the intricacies of cutting male hair, it is apparent that he refers to the more traditional styles of male haircuts such as the “crew cut” and those facets of men’s haircutting which require the use of a straight razor.

Lombardo flatly states that such instruments are not found in cosmetology shops, since they are not used in cutting female hair. Instead, a type of safety razor is used when a particular style requiring it is selected. Nor, for the same reason, is the clipper, the traditional mainstay of every barber shop, found in cosmetology shops. Therefore, the essence of Lombardo’s testimony is that the cosmetologists seek merely to provide the identical haircut for male patrons that they are now trained and licensed to give their female customers; and this is the sole purpose for which male customers patronize their establishments.

As he describes it, some men are currently bypassing barbershops because they fear that barbers, being untrained in the hairstyling techniques that are now allegedly sought by men in growing numbers, “. . . will cut it all off, cut it too short.” In sum, “[t]he men who come into a woman’s beauty shop . . . are seeking the type of care that a woman gets in the beauty shop.” In addition to readily conceding that cosmetologists are not qualified to cut all styles of male haircuts, Lombardo acknowledged that they are not trained to cut the hair of a black male. He explained, however, that they are trained to perform certain styling techniques which are sometimes ⁵⁰³ sought by black female patrons, and that these are available for black male customers with sufficiently long hair. On the strength of this testimony, the chancellor found: “1. There is no intrinsic physical difference between hair on a man’s head and hair on a woman’s head; “2.

That plaintiffs, as licensed cosmetologists, are competent to perform their services for the beautification of women’s hair.” As a result, he struck down § 529 (a) as violative of the Fourteenth Amendment of the United States Constitution and Art. 46 of the Declaration of Rights, insofar as it prevents cosmetologists from rendering to males those services which they are licensed to perform upon female patrons. He implemented this declaration by enjoining all licensed cosmetologists from “holding themselves out to the public as barbers”; and by declaring that “. . . licensed cosmetologists may perform those services which they are qualified and licensed to perform as found by [the court] on both male and female patrons, but may not perform those services which only barbers are qualified and licensed to perform, as found by [the court], and set forth in Article 43 [§ 323].” In urging reversal of the chancellor’s decision, appellants contend that § 529 (a) is constitutional, and is violative of neither the Fourteenth Amendment nor Art. 46 of the Maryland Declaration of Rights. The legislature, they say, has merely “. . . constructed a clear pattern of regulation that recognizes the differences and separates the two professions, and that those patterns are constitutional.” Thus, they argue, the legislative classifications are reasonable and justified; and appellees have failed to demonstrate affirmatively the unconstitutionality of the statute. (1) At the threshold, we are obliged to decide whether, as appellees have contended at every stage of these proceedings, § 529 (a) can constitutionally be construed to ⁵⁰⁴ permit cosmetologists to render the same services to male patrons as they are now licensed and trained to furnish to their female customers.

It will be recalled that the federal court abstained from exercising jurisdiction because the statute under attack had never been authoritatively interpreted by the courts of this state. It was of the view that the statute could conceivably be construed so as to avoid entirely a determination of the constitutional question. The chancellor did not agree with that suggestion, nor do we. In contending for a favorable interpretation of the statute that would obviate the need to decide the constitutional issues, appellees assert that § 529 (a) contains “... an open-ended definition which contemplates that beauty shops will be patronized by men as well as women for cosmetology services.” Quoting from the federal court opinion, they focus upon the phrase, “ ‘. . . beauty shops ordinarily patronized by women, ... as an indication that men can procure cosmetology services in hairdressing and beauty shops since the phrase does not read . . . beauty shops exclusively patronized by women.’ ” (emphasis in original).

This argument, however, overlooks the phrase which immediately follows, “which work is for the embellishment, cleanliness and beautification of women’s hair.” (emphasis added). It also ignores the last practice enumerated in § 529 (a), “and of manicuring the nails of either sex.” In short, where the legislature wished to indicate that a service was to be rendered to patrons of both sexes, it encountered no difficulty in expressing that intent in clear and unmistakable language. Nor do we share the view intimated by the federal court that from the final phrase in § 529 (a), “which enumerated practices shall be inclusive of the term beauty culture but not in limitation thereof[,]” one might “reasonably conclude that this provision broadens the statute to include any number of additional cosmetology services.” It matters little whether the list of practices is expanded if it is nevertheless restricted to women patrons. Apart from the language of § 529 (a) itself, which, as we have said, dispels any notion that the legislature intended the “practices” enumerated therein to be performed on ⁵⁰⁵ patrons of both sexes, we think appellees may have overlooked the origin of the statute.

It was initially enacted as part of Ch. 282 of the Laws of 1935. Section 395 (a) of that enactment contained substantially the same language as § 529 (a) does today. To suggest that the legislature in 1935 was so possessed of clairvoyance that it could foresee such phenomena of the 1970’s as the hirsute male and the “unisex” hair salon, simply strains credulity. In rejecting the contention that this statute can be construed favorably to appellees without a resolution of the constitutional issues, we have not been unmindful of the principle of statutory construction that if a legislative act is susceptible of two reasonable interpretations, one of which would not involve a decision as to the constitutionality of the act while the other would, the construction which avoids the determination of constitutionality is to be preferred, City of Baltimore v. Concord, 257 Md. 132, 140 , 262 A. 2d 755 (1970); Sec’y of State v. Bryson, 244 Md. 418, 423 , 224 A. 2d 277 (1966); Middleman v. Md.-Nat.

Comm’n, 232 Md. 285, 289 , 192 A. 2d 782 (1963). We are, however, ineluctably led to the conclusion that any result short of deciding the constitutional issues would produce a strained construction of the statute. (2) As we have noted, the chancellor rested his decision, in part, on Art. 46 of the Maryland Declaration of Rights. Appellants maintain that this is not a case of sex discrimination because those who complain — the