Untitled Texas Attorney General Opinion ( 1978 )


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  •                       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.
    
    
    
    
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    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
    
    
    
    
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                    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
    
    
    
    
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