Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
March 16, 1978
JOHN L. HILL
Attorney General
Honorable D. R. “Tom” Uher, Chairman Opinion No. H-1137
State Affairs Committee
House of Representatives Re: Separation of barber shop
Austin, Texas and beauty shop housed in the
same building.
Dear Mr. Uher:
You ask for an opinion on the constitutionality of article 8402, V.T.C.S.,
which relates to the jurisdiction of the State Board of Barber Examiners and
the Cosmetology Commission. It provides in part:
In order that the public may fix responsibility for
services, acts, or treatments performed by persons
licensed by the State Board of Barber Examiners vis-a-
vis those performed by persons licensed by the Texas
Cosmetology Commission, to promote the efficient
and orderly administration of laws regulating barbers
and the practice of barbering and the laws regulating
cosmetologists and the practice of cosmetology and to
avoid confusion of the public as well as avoiding
conflicts of jurisdiction between such board and
commission which might impede effective administra-
tion or enforcement of the laws under their respective
jurisdictions, from and after January 31, 1976, no
person licensed by the barber board shall perform,
offer, or attempt to perform any act, service, or
treatment by authority of any such license on the
premises of any beauty parlor, beauty salon, specialty
salon, beauty culture school or college, or any location
under the jurisdiction of the Texas Cosmetology
Commission, and no person licensed by the cosme-
tology commission shall perform, offer, or attempt to
perform any act, service, or treatment by authority of
any such license on the premises of any barber shop,
specialty shop, barber school or college, or any
location under the jurisdiction of the State Board of
Barber Examiners.
P. 4631
‘. ,
Honorable D. R. “Tom” Uher - Page 2 (H-1137 )
The Barber Board and the Cosmetology Commission have interpreted this provision
to require a solid partition separating a beauty salon from a barber shop housed in
the same building. You ask whether the Legislature may constitutionally place this
restriction on business ventures.
The regulation of barbering and cosmetology is necessary to the public health
and a prope; subject for the exercise of the pc%ce power. Texas State Board of
Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex. 1970);
Gerard v. Smith, 52 S.W.2d 347 (Tex. Civ. App. - El Paso 1932, writ ref’d). In
determin ling whether a police power regulation violates the due process clause, U.S.
Const. amend. XIV: Tex. Const. art. 1, § 19, the court considers whether it bears a
rational relation to the protection of .the public health and safety. See Pavone v.
Louisiana State Board of Barber Examiners. 364 F. SUDD. 961 (E.D. La.973), ,aff’d,
505 F.2d 1023 (5th Cir. 1974). See also Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483 (1955); State v. Spartan’s Industries, 447 S.W.2d 407 (Tex. 1969). There
is a strong presumotion in favor of the VInlidity of police power enactments. Texas
State Board of Barber Examiners v. Beaumont Barbers College, Inc., w.
With these principles in mind, we consider the relation between this provision
and the public health and safety. Barbers and cosmetologists are licensed to
perform substantially identical services. See
- V.T.C.S. art. 8407a, S 4(b); art. 8451a,
S l(3); Bolton v. Texas Board of Barber Examiners, 350 F. Supp. 494 (N.D. Tex.),
aff’d D, 409 U.S. 807 (1972). Arguably, there are minor differences between the
aces the two licenses authorize their holders to perform. Attorney General
Opinion M-1270 (1972); see Attorney General Opinion H-1066 (1977). In addition, the
statutory standards for licensing barber shops differ slightly from those for beauty
parlors. Compare art. 8407a, S 3, with art. 8451a, SS 23, 42. Thus there are still
differences between the two profans and possibly between the premises in
which each is practiced.
Article 8402 reflects a legislative determination that separation of cosme-
tology premises from barbering premises will aid the enforcement of each licensing
system. In view of the differences between the two vocations, we cannot say that
the separation of premises bears no relation to this goal. The enforcement of such
licensing systems is of course related to the public health and safety. See Lackey
v. State Board of Barber Examiners, 113 S.W.2d 968 (Tex. Civ. App. - Austm 1938,
no writ). “The necessity or reasonableness of particular regulations imposed under
the police power is a matter addressed to the legislative department whose
determination in the exercise of a sound discretion is conclusive upon the courts.”
Texas State Board of Barber Examiners v. Beaumont Barbers College, Inc., s at
732.
A California Court of Appeals upheld a statute providing that a COsmetolo~
license did not authorize the holder to work in a barber shop. Bone v. State Board
of Cosmetology, 80 Cal. Rptr. 164 (Ct. App. 1969). It found that California
P. 4632
. . f
1
Honorable D. R. “Tom” Uher - Page 3 (H-1137)
maintained separate licensing systems with separate standards for barbers and
cosmetologists. and concluded that the statute had a reasonable basis in the
legislative~determination that the two vocations remain distinct. Contra, Mains v.
Board of Barber Examiners, 57 Cal. Rptr. 573 (Ct. App. 1967) (dicta). See also Mans
Look, Inc. v. Florida Barbers’ Sanitary Comm’n, 292 So. 2d 387 (Fla. Dist. Ct.%
19741. In our opinion, the courts would probably uphold article 8402, V.T.C.S., as
construed to require the separation of barber’s premises from cosmetologist’s
premises.
SUMMARY
The courts would probably find article 8402, V.T.C.S.,
requiring the separation of a beauty salon from a barber
shop housed in the same building, to be a valid police power
regulation.
_Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
jst
p. 4633