M. Thiam t/d/b/a Rama Hair Braiding Salon v. BPOA, State Bd. of Cosmetology

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maimouna Thiam t/d/b/a :

Rama Hair Braiding Salon, :

Petitioner :

:

v. : No. 301 C.D. 2022

: Argued: April 3, 2023

Bureau of Professional and :

Occupational Affairs, State :

Board of Cosmetology, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: July 25, 2023

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

1

Act of May 3, 1933, P.L. 242, as amended, 63 P.S. § 511.

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

2

Article I, section 1 states: “All men are born equally free and independent, and have

certain inherent and indefeasible rights, among which are those of enjoying and defending life and

liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own

happiness.” PA. CONST. art. I, § 1.

3

The Findings of Fact are set forth in the Proposed Adjudication and Order, which can be

found as Item 15 in the Certified Record (C.R.). In its Final Order, the Board adopted the Findings

of Fact set forth in the Proposed Adjudication and Order. (See Final Order at 1, C.R. Item 19.)

4

The Reproduced Record consists of the Certified Record which is not properly paginated

in accordance with Pennsylvania Rule of Appellate Procedure, Pa.R.A.P. 2173.

2

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

3

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

4

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-

5

Eric Edi initially was referred to as “Dr. Eric Edi,” (N.T. at 28), but throughout his

testimony counsel addressed him as “Mr. Edi.” We will use the former designation.

6

Dr. Edi explained AFRICOM “is a coalition of community based on the mission that [it]

created in 2001 to serve, advocate for African and Caribbean immigrants in Philadelphia and now

in the State of Pennsylvania.” (N.T. at 40.)

5

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 of the Law, 63 P.S. § 515, which provides for

7

Petitioner asked Hearing Examiner to take judicial notice of the Commission and of its

recommendation, and Hearing Examiner did so. Petitioner also offered the Commonwealth’s

Bureau of Professional and Occupational License Affairs June 11, 2018, report (Bureau Report),

along with former Governor Wolf’s proposal from his website as exhibits. Those documents were

admitted into evidence without objection as Respondent’s Exhibit 3. (N.T. at 50-51; see Exhibit

(Ex.) R-3 “Review of State Professional and Occupational Licensure Board Requirements and

Processes By direction of [former] Governor Tom Wolf” (Review), Supplemental Record filed

May 5, 2023.)

6

reciprocity. (Id. at 7-8.) Notwithstanding, Hearing Examiner found there was no

requirement that Petitioner complete a program in Pennsylvania, Petitioner never

attempted to pass the required examination based on her training in New York or

sought reciprocity based on her Florida permit, and she never had a licensed

employee oversee the Salon for her. (Id. at 7-8.) Hearing Examiner acknowledged

there have been proposals to eliminate the licensing requirement for natural hair

braiding, but such law had not yet been enacted. (Id. at 8.) Hearing Examiner also

acknowledged Petitioner’s constitutional arguments but explained those were

beyond Hearing Examiner’s and the Board’s review. (Id.) Hearing Examiner

recommended that Petitioner pay a civil penalty of $1,500.00 and that she cease and

desist from the unlicensed practice of cosmetology. (Id. at 10.) In recommending

these sanctions, Hearing Examiner noted that Petitioner had received two prior

citations for maintaining an unlicensed salon and that she was issued a fine for both

citations. (Id.)

On July 1, 2019, the Board filed its Notice of Intent to Review pursuant to

Section 35.226(a)(2) of the General Rules of Administrative Practice and Procedure,

1 Pa. Code § 35.226(a)(2). (C.R. Item 16.) Petitioner filed Exceptions with the

Board on July 31, 2019, wherein she again asserted constitutional challenges and

argued that the penalties recommended by Hearing Examiner were unduly harsh.

(Id. at Item 18.) The Institute for Justice (IJ), which describes itself as “a nonprofit,

public-interest law firm dedicated to defending Americans’ rights to private

property, economic liberty, free speech and educational choice[,]” also filed a letter

in support of Petitioner’s Exceptions. (C.R. Item 17.) It argued that occupational

licensing laws intended to protect the public “have gone too far and are, in too many

instances, denying Americans the opportunity to earn an honest living without any

7

benefit to consumers” and that “[o]ne of the most dramatic examples of excessive

licensing involves natural hair braiding.” (IJ Letter at 1.) As a result of IJ’s efforts,

at least 28 states currently “do not require natural hair braiders to obtain a license to

practice their craft,” which derives from “a rich cultural heritage spanning

millennia.” (Id.) According to IJ, among the states that do not require licensure for

natural hair braiders are the Commonwealth’s neighbors, Delaware, Maryland, and

West Virginia, as well as Vermont, California, Arizona, and Texas. (Id. at 1-2.) IJ

contended that even states that do require a license to braid hair do not have

requirements as onerous as Pennsylvania’s. According to IJ, “[t]hese states (and

their hours requirements) are: Oregon (online module), Missouri (4-6 hour video),

South Carolina (6 hours), Florida (16 hours), Tennessee (16 hours), Alaska (35

hours), New Jersey (40-50 hours), District of Columbia (100 hours), Alabama (210

hours), and Nevada (250 hours).” (Id. at 3 n.3.)

On March 8, 2022, the Board issued its Final Order rejecting Petitioner’s

Exceptions and adopting Hearing Examiner’s Proposed Order in its entirety,

including the Findings of Fact, Conclusions of Law, discussion, and recommended

sanctions. (Final Order at 1.) The Board also added discussion in response to the

Petitioner’s Exceptions. First, the Board stated it did not have the authority to find

the Law and its regulations violate Petitioner’s substantive due process rights. (Id.

at 2.) However, the Board explained that Petitioner had not been charged personally

and, as the owner of the Salon, she had the ability to designate a properly licensed

cosmetologist or natural hair braider to manage the Salon. (Id. at 2-3.) The Board

likewise found no violation of Petitioner’s right to procedural due process because

she had “received reasonable notice of the charges against her and” had been given

the “opportunity to be heard in accordance with [Section 504 of the Administrative

8

Agency Law, 2 Pa.C.S. § 504].”8 (Id. at 3.) To the extent Petitioner claimed she did

not understand the notice, the Board explained the notice states an interpreter may

be requested, which Petitioner’s counsel did request. (Id.) The Board also noted

that Petitioner had been issued two prior citations for the same offense. (Id.)

Next, the Board rejected Petitioner’s claim that the Law denies her equal

protection because the limited licensing requirement cannot be completed by non-

English speakers and fails to recognize hair braiding licenses from other states. (Id.

at 3-4.) The Board again noted it could not consider a constitutional issue but

nonetheless explained that “there is no evidence that [Petitioner] has made any

application to the Board, or that the Board has denied any applications for licensure.

The Board cannot discriminate against an applicant that has not ever sought any

license.” (Id. at 4.) Finally, the Board determined the cease and desist order is not

unduly harsh, for the operation of an unlicensed salon is illegal irrespective of the

financial situation of its operator. (Id.) Viewing itself as having “a vested interest

in deterring” all individuals from operating a cosmetology or a natural hair braiding

salon without a license to protect the health and safety of citizens of Pennsylvania,

the Board found it appropriate to levy the civil penalty recommended by Hearing

Examiner against Petitioner in the amount of $1,500.00. (Id. at 5.) Petitioner

subsequently petitioned this Court for review of the Final Order.9

8

Section 504 states: “No adjudication of a Commonwealth agency shall be valid as to any

party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be

heard. All testimony shall be stenographically recorded and a full and complete record shall be

kept of the proceedings.” 2 Pa.C.S. § 504.

9

A day after filing the petition for review, Petitioner filed an “Application to Stay

Administrative Agency Order Pending Determination on Petition for Review and for Expedited

Consideration of the Motion,” which this Court granted following argument. See Thiam t/d/b/a

Rama Hair Braiding Salon v. Bureau of Pro. And Occupation Affairs, State Bd. of Cosmetology

(Pa. Cmwlth., No. 301 C.D. 2022, filed May 5, 2022) (Cohn Jubelirer, J. single-judge op.)

9

II. PARTIES’ ARGUMENTS

Petitioner presents a single claim for this Court’s review: Whether the Law’s

licensing provisions for natural hair braiders violate Petitioner’s due process rights.

Petitioner argues that “[a]rticle I, [s]ection 1 of the Pennsylvania Constitution

protects an individual’s right to pursue a career or occupation,” and her “livelihood

as a natural hair braider is threatened by the [Board]’s order to shut down her” Salon,

which is the “sole source of income for her family[,] due to her lack of a license.”

(Petitioner’s Brief (Br.) at 10.) Petitioner posits that as she uses no chemicals, dyes,

or sharp instruments in the Salon, the limited licensing regime requiring Petitioner

to obtain an onerous 300 hours of expensive schooling and pass an examination in

English is not rationally related to the minimal health and safety risks posed by

natural hair braiding, particularly given her experience and what natural hair

braiding entails. (Id. at 10-11.) Petitioner further maintains the current licensing

scheme for natural hair braiders “adversely impacts African immigrant women” like

her and their “African American . . . clientele seeking a safe and natural alternative

to” other procedures that utilize dangerous chemicals. (Id.)

Relying upon the Pennsylvania Supreme Court’s decision in Ladd v. Real

Estate Commission, 230 A.3d 1096 (Pa. 2020) (Ladd II),10 and the heightened

rational basis test articulated in Gambone v. Commonwealth, 101 A.2d 634 (Pa.

1954), Petitioner argues a limited licensing scheme like the one at issue herein “must

have a real and substantial relationship to a legitimate government end[] and not

impose burdens . . . that are unduly oppressive or patently unnecessary,” and the

Law, as applied to her, is unduly burdensome notwithstanding the alleged state

interest involved. (Petitioner’s Br. at 13-14.) First, Petitioner contends there are

10

Ladd II reversed and remanded this Court’s previous decision in Ladd v. Real Estate

Commission, 187 A.3d 1070 (Pa. Cmwlth. 2018).

10

neither identified health or safety risks involved with natural hair braiding nor any

evidence of complaints against the Salon or Petitioner. (Id. at 15.) Petitioner also

references published statistics that indicate complaints pertaining to natural hair

braiding are infrequent. (Id. at 15-16.) According to Petitioner, 32 states have no

licensing requirements for natural hair braiders, and since 2017, the Commonwealth

has taken steps to eliminate the requirement. (Id. at 17-19). For example,

Petitioner’s counsel asked Hearing Examiner to take judicial notice of the

Governor’s Commission on Licensing Reform from the Governor’s website. (N.T.

at 49- 50, Ex. R-3.) By way of a 2017 Executive Order, former Governor Wolf

directed the Bureau to conduct a comprehensive review of licensing requirements in

the Commonwealth. (Petitioner’s Br. at 17.) On June 11, 2018, the Bureau issued

the Bureau Report that found overburdensome licensing requirements can be

particularly harmful to immigrant communities and observed that only 3 of

Pennsylvania’s 13 regional comparison states impose licensure requirements on

natural hair braiders. (Id. at 17-18.)

Petitioner next maintains that the Law’s current requirement for 300 hours of

study to be followed by a written examination does not bear a real and substantial

relationship to a government interest with regard to an experienced natural hair

braider’s ability to perform hair braiding services. (Id. at 19.) Petitioner discusses

decisions in other jurisdictions wherein courts have examined what Petitioner deems

to be similar natural hair braiding licensing regimes and determined that they do not

have a real and substantial relation to a government interest. (Id. at 19-21, 25-26.)

Petitioner urges that even if this Court were to find the existence of a real and

substantial relationship between the Law and the Commonwealth’s concern with

health and safety, Petitioner has “show[n] that the licensing requirements under the

11

Law and regulations are overly onerous and oppressive.” (Id. at 22.) This is

especially so in light of the fact that courses of study to meet the licensing

requirements are not readily available in Pennsylvania unless one were to enroll in

a 1,250-hour cosmetology program, which would be taught in English, making it

difficult for Petitioner to learn and would require Petitioner and others similarly

situated to learn unnecessary skills. (Id. at 23-24, 26-28.) Petitioner points out that

emergency medical technicians (EMTs) need only pass a competency exam without

any required coursework, and tattoo artists are not required to obtain any

occupational licenses in the Commonwealth. (Id. at 23.) Petitioner did travel to

Florida where she obtained a hair braiding certificate, which she displayed in the

Salon when she returned to Philadelphia. (Id. at 24-25.)

In response to the Board’s assertion that Petitioner’s due process claim fails

as she could employ a licensed individual to manage the Salon, Petitioner argues her

due process rights are still implicated because the pool of licensed salon managers

would be “miniscule” due to the difficulty in obtaining a hair braiding license. (Id.

at 26.) Citing to a filing by the Board with the Independent Regulatory Review

Commission (IRRC), Petitioner asserts there are only 54 licensed natural hair

braiders in the Commonwealth and 3 hair braiding teachers. (Id. at 27.)

The Board argues that “a law passed by the [G]eneral [A]ssembly is presumed

to be constitutional,” and a review of the Law reveals that its limited licensing

requirements for natural hair braiders have not impinged Petitioner’s substantive due

process rights to pursue her chosen occupation. (Board’s Br. at 9-10.) The Board

points out that following the Supreme Court’s remand in Ladd II, this Court, in a

single-judge opinion, held the Real Estate Licensing and Registration Act’s

12

(RELRA),11 broker licensure requirements of hundreds of hours of real estate

coursework[,]” plus a three-year apprenticeship and an examination were

“minimally related, at best,” to the petitioner’s “short-term property management

services” business and “[s]hould the General Assembly believe this type of activity

needs to be regulated, it may consider establishing less rigorous requirements as it

did for other professions falling under RELRA, like time-share salespersons.”

(Board’s Br. at 12-13 (quoting Ladd v. Real Est. Comm’n (Pa. Cmwlth., No. 321

M.D. 2017, filed Oct. 31, 2022), slip op. at 33-34 n.34 (Wallace, J. single-judge

opinion) (Ladd III).)12 The Board reasons that the natural hair braiding limited

license is just the type of modified law that this Court referenced in Ladd III for

requiring 300 training hours in anatomy, scalp care, natural hair braiding, and

sanitation, “directly relate[s] to ensuring that the practice of natural hair braiding is

done in a manner which promotes public health and safety,” and is narrowly tailored

to that practice. (Board’s Br. at 14, 16.) The Board also finds instructive a decision

of the Sixth Circuit, Bah v. Attorney General of Tennessee, 610 F. App’x 547 (6th

Cir. 2015), and distinguishes those decisions of other jurisdictions upon which

Petitioner relies in her brief in support of her arguments. (Id. at 14-16.)

The Board next argues Petitioner’s assertion that the requirements of the Law

are unduly burdensome because the 300-hour program is difficult to find in the

Commonwealth is not supported by the record. The Board states Dr. Edi’s testimony

was not supported by any documentation but, rather, was based on accounts he stated

he had heard from members of the community. (Id. at 17.) Although the Board

11

Act of February 19, 1980, P.L. 15, as amended, 63 P.S. §§ 455.101-455.902.

12

A single-judge opinion of this Court, while not binding, may be cited for its persuasive

value pursuant to Rule 126(c)(2) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.

126(c)(2).

13

failed to lodge any objection to Petitioner’s testimony at the time of the hearing

before Hearing Examiner, the Board describes her testimony as “confusing” in that

it does not “establish that she was even personally aware of or that she made any

effort to locate any cosmetology schools that would offer a natural hair braiding

curriculum once she returned to Pennsylvania from Florida.” (Board’s Br. at 18

(citing N.T. at 35-36).) The Board asserts this Court cannot consider the filing by

the IRRC referenced in Petitioner’s brief as it was made “in support of a fee increase

regulation promulgated by the Board unrelated to this case” and was not made a part

of the certified record herein. (Id. at 18.) Notwithstanding, the Board posits it is

impossible from the IRRC filing to determine how many of the 158 licensed

cosmetology schools referenced therein offer a curriculum in natural hair braiding

and that the document, which shows there “are 77,854 licensed cosmetologists

compared to 54 licensed natural hair braiders,” seemingly undercuts Petitioner’s

point that the 300 hours required under the Law “is unduly burdensome when 77,854

individuals” completed “the 1,250 hours required for a full cosmetologist license.”

(Id. at 19.) The Board also explains that Petitioner was not personally issued a civil

penalty for performing natural hair braiding without a license but, rather, she was

cited for permitting another unlicensed individual to work in her Salon. According

to the Board, nothing in the Law or its regulations requires Petitioner as the owner

of the Salon to also be a limited license holder, so long as her employees are licensed;

yet Petitioner presented no testimony in this regard or to support her allegations that

the cost to obtain the limited license is prohibitive. (Id. at 20-21.)

Next, the Board argues that while Petitioner may have training and experience

in natural hair braiding, her skills do not override the Commonwealth’s interest in

ensuring that Petitioner can practice that profession in a way that conforms with the

14

Legislature’s desire to protect the health and safety of the consumers; therefore, the

limited licensing requirements under the Law are rationally related to its stated

purpose. (Id. at 22.) The Board reasons that Petitioner’s arguments pertaining to

other states’ regulation of natural hair braiding do little to advance her as-applied

substantive due process challenge because such arguments fail to show either that

Pennsylvania’s regulation of the procedure is “unreasonable, unduly oppressive, or

patently beyond the necessities of the case” or that the Law does not have a real and

substantial relation to the public interest it seeks to advance when applied to the facts

herein. (Id. at 24-25.) The same holds true for Petitioner’s contention that she has

never had complaints about her services or the Salon, for this fact does not eliminate

the General Assembly’s right to regulate her occupation. Finally, the Board urges

this Court not to give weight “to bald assertions” Petitioner makes in her brief to

articles, including a report by the IJ purporting that there are no safety risks

associated with natural hair braiding and public comments by former Governor Wolf

that the natural hair braiding license should be removed, because those

documents/statements are not contained in the record, nor were they presented

before Hearing Examiner. (Id. at 24-25.)13 The Board finds no relevance to

Petitioner’s argument that because she has never been the subject of a health and

safety complaint, she poses no public safety risk and likens such a claim to a health

practitioner who has never had a complaint filed against him or her feeling no need

to submit for a licensure renewal. (Id. at 26.)

13

These allegations are incorrect for numerous reasons as previously discussed. First, in

her Answer, Petitioner did allege that former Governor Wolf proposed eliminating the licensing

requirements. (See Answer ¶ 11.) In addition, the Commission’s recommendation prepared in

response to former Governor Wolf’s proposal was admitted as Exhibit R-3, without objection from

the Board, at the Hearing. (See N.T. at 50-51.) Also, Dr. Edi testified regarding former Governor

Wolf’s efforts in this regard at the hearing. (Id. at 49-50.)

15

III. DISCUSSION

A. General Legal Principles

This Court’s standard of review from a final order by the Board is “whether

constitutional rights were violated, [whether] an error of law [was] committed, or

whether the findings of fact are supported by substantial evidence of

record.” Diwara v. State Bd. of Cosmetology, 852 A.2d 1279, 1282 n.4 (Pa.

Cmwlth. 2004) (emphasis added).

The Pennsylvania Supreme Court has held that

every citizen has an inalienable right to engage in lawful employment.

While a state may regulate a business which affects the public health,

safety, and welfare, it may not, through regulation, deprive an

individual of his right to conduct a lawful business unless it can be

shown that such deprivation is reasonably related to the state interest

sought to be protected.

Sec’y of Revenue v. John’s Vending Corp., 309 A.2d 358, 361 (Pa. 1973) (citing

Dent v. West Virginia, 129 U.S. 114, 121-22 (1889); Moore v. Jamieson, 306 A.2d

283, 308 (Pa. 1973)).

In Diwara, this Court held that the process of natural hair braiding is

encompassed within the Law’s definition of cosmetology, and beauty salon owners

had failed to establish a licensure requirement for braiding hair violated their

substantive due process and equal protection rights under both the United States and

Pennsylvania Constitutions. Id. at 1285-86. In 2006, the General Assembly

amended the Law to expressly include natural hair braiding and created a limited

licensure requirement for natural hair braiding. See Section 2 of the Act of July 7,

2006, P.L. 704, No. 99. “Natural hair braiding” is defined by the Law as

the practice of utilizing techniques that result in tension on hair roots of

individuals, such as twisting, wrapping, weaving, extending, locking or

braiding of the hair. The term does not include the application of

16

dyes, reactive chemicals or other preparations to alter the color or

to straighten, curl or alter the structure of hair.

Section 1 of the Law, 63 P.S. § 507 (emphasis added).

Section 5(b)(3)(i) of the Law provides, in relevant part, that

[t]he [B]oard shall issue the following limited licenses to qualified

applicants:

....

Natural hair braiding license, which shall authorize the holder to engage

in the practice of natural hair braiding only. An applicant for a natural

hair braiding license shall have completed three hundred hours of

[B]oard-approved subjects relating to sanitation, scalp care,

anatomy and natural hair braiding in a cosmetology school and

passed an examination limited to that practice. Licensed natural hair

braiders may operate a salon limited to that license. An applicant may

be permitted to take a written examination upon completion of at least

two hundred fifty hours of instruction in natural hair braiding in a

licensed school of cosmetology. The examination shall include both

theoretical and procedural skill questions as prescribed by the [B]oard.

Any applicant may apply and is eligible for licensure upon (A) passing

the written examination, (B) completion of the required three hundred

hours of [B]oard-approved subjects, and (C) certification by a duly

licensed school of satisfactory completion of all program requirements.

63 P.S. § 511(b)(3)(i) (emphasis added).

Section 2(2) of the Law provides it is “unlawful for any person to practice or

maintain any place for the practice of . . . natural hair braiding . . . for compensation

without” at least a limited license. 63 P.S. § 508(2). According to the Board’s

regulations, either a licensed natural hair braider or a licensed cosmetologist may

apply for a natural hair braiding salon license, and the owner or designated person

in charge must be present to manage the salon and oversee the braiding service,

17

which must be performed by licensed hair braiders during regular business hours.

49 Pa. Code §§ 7.51, 7.62(b)(3), (d).

The regulations also provide alternatives to limited licensure. For instance,

for a limited time following enactment, a person could have applied for a license

based on experience. Specifically, Section 7.31(c) of the regulations states:

(c) Until January 11, 2010, the Board will issue a natural hair braider

license to an applicant who does the following:

(1) Submits the application adopted by the Board.

(2) Pays the required licensing fee in [Section] 7.2 (relating to

fees).

(3) Provides proof that the applicant has practiced natural hair

braiding for [three] consecutive years immediately prior to the

date of the application for licensure.

(i) Proof of practice requires that the applicant provide tax

records of employment and an affidavit from the applicant

and the applicant’s immediate supervisor, where

applicable, verifying the applicant’s practice of natural

hair braiding for [three] consecutive years immediately

prior to the date of the licensure application.

(ii) The Board will accept the information provided and

will impose no penalty upon the applicant for failure to

comply with the licensing provisions in [S]ection 2 of

[Law] . . . that the applicant committed prior to September

5, 2006 . . . .

49 Pa. Code § 7.31(c).14

14

Notably, this regulation makes no mention of an applicant’s need to complete a course

of 150 hours as found by Hearing Examiner. (Proposed Order at 7 n.5.). Also, this option was not

available to Petitioner in 2017 at the time she was issued the citation which gave rise to the instant

appeal.

18

The Law and the regulations also provide for reciprocity. In this regard,

Section 7.31(b) of the regulations states “[a]n individual who meets the criteria for

licensure by reciprocity under [S]ection 9 of the [Law] . . . may obtain a license

without examination.” 49 Pa. Code § 7.31(b). In addition, Section 9 of the Law

reads:

Any person who has practiced or taught cosmetology under a

certificate, license or permit, for not less than two years in another state,

territory, or the District of Columbia, may secure the license required

by this [Law] without an examination or compliance with other

requirements as to age or education: Provided, [t]hat the Board shall

be satisfied that the standards provided for licensure under the laws of

the place wherein the applicant’s license was issued are the same or

substantially the same as those provided for hereunder, that similar

privileges are accorded persons licensed under the laws of the

Commonwealth, that the applicant holds a valid license from the place

wherein he is entitled to practice, and that all the terms and conditions

prescribed by the Board are complied with by the applicant. Such

application shall be accompanied by an affidavit of a licensed physician

that the applicant was examined and is free from all contagious and

infectious diseases, and the license fee required by this [Law].

Students, upon graduating from licensed schools of cosmetology, may

apply for, and receive from the [D]epartment, a temporary license to

practice in the field of cosmetology until the next regular examination

held by the [D]epartment under the provisions of this [Law].

63 P.S. § 515.

Petitioner presents an as-applied constitutional challenge to the Law herein.

This Court has explained the two types of constitutional challenges, facial and as-

applied, as follows:

A facial attack tests a law’s constitutionality based on its text alone and

does not consider the facts or circumstances of a particular case. An

as-applied attack, in contrast, does not contend that a law is

unconstitutional as written but that its application to a particular person

19

under particular circumstances deprived that person of a constitutional

right.

Peake v. Commonwealth, 132 A.3d 506, 516-17 (Pa. Cmwlth. 2015) (citations

omitted). “[A]n as-applied challenge will not necessarily invalidate a law given that

a law ‘may operate in an unconstitutional way as to one particular individual or

company, as to which it may be declared void, and yet may, as to others still be

effective.’” Nigro v. City of Philadelphia, 174 A.3d 693, 700 (Pa. Cmwlth. 2017)

(quoting Pa. R. Co. v. Driscoll, 9 A.2d 621, 632 (Pa. 1939)).

In support of her argument that the Law as applied to her is unduly

burdensome, Petitioner relies in part upon Ladd II, wherein the Pennsylvania

Supreme Court held that, as “a matter of first impression, a short-term vacation rental

manager raised a colorable claim” that the broker licensing requirements codified in

the RELRA “were unconstitutional as applied to her services,” and the Court’s

application therein of the heightened rational basis test first articulated in Gambone.

Id. at 1096, 1115.

The Gambone rational basis test provides:

[A] law which purports to be an exercise of the police power must not

be unreasonable, unduly oppressive or patently beyond the necessities

of the case, and the means which it employs must have a real and

substantial relation to the objects sought to be attained. Under the guise

of protecting the public interests the legislature may not arbitrarily

interfere with private business or impose unusual and unnecessary

restrictions upon lawful occupations.

101 A.2d at 637. In Nixon v. Commonwealth, our Supreme Court stated that to

determine whether one’s substantive due process rights have been violated, a court

must undertake a two-step analysis to determine 1) whether the licensing

requirements are “unreasonable, unduly oppressive, or patently beyond the

20

necessities of the case and” 2) whether those requirements bear “a real and

substantial relation to the objects sought to be obtained,” when applied to the

individual under the circumstances presented in the case. 839 A.2d 277, 287 (Pa.

2003).

Recently, this Court in Ladd III applied the Gambone test in relation to the

real estate broker licensing requirements in RELRA – apprenticeship, instructional

coursework, examinations, and a brick-and-mortar location. Ladd III, slip op. at 28.

The Court recognized the RELRA sought to advance the public interest of protecting

citizens from the fraudulent conduct of individuals engaged in the business of the

real estate trade. Id. The Court further found that some statements of the Supreme

Court in Ladd II remained true. For example, the Court observed that those “who

manage and facilitate rentals of lodging in apartment complexes and duplexes on

behalf of owners are completely exempt from the statute’s broker licensing

requirements,” and individuals “who manage and facilitate rentals in hotels do not

fall under the terms of [the] RELRA at all.” Id. at 33 (quoting Ladd II, 230 A.3d at

1114). The Court found the petitioner’s “business model [was] more closely

analogous to services provided by the[] exempt individuals than to those of a broker,

despite the fact that the statutory definition of ‘broker’ technically catches [the

petitioner] in its net.” Id. (quoting Ladd II, 230 A.3d at 1114) (alterations added).

The Court ultimately held:

[The] RELRA’s broker licensure requirements of hundreds of hours of

real estate coursework, a three-year apprenticeship, and the broker

examination are all minimally related, at best, to [the petitioner]’s short-

term property management services. [The] RELRA’s requirements are

well beyond the necessities of this case. Forcing [the petitioner] to

comply with [the] RELRA’s requirements in no way advances the

General Assembly’s goal of public protection. As a result, this Court

concludes that, as applied to [the petitioner]’s short-term property

21

management services, [the] RELRA’s licensure requirements do not

bear a real and substantial relation to the statutory goal of protecting

“the public from abuse by those who are engaged in the business of

trading real estate.”

Ladd III, slip op. at 33-34 (quoting Ladd II, 230 A.3d at 1106) (alterations added).

This Court also recently considered a facial constitutional challenge to the

Law in Diop v. Bureau of Professional and Occupational Affairs, State Board of

Cosmetology, 272 A.3d 548 (Pa. Cmwlth. 2022), which was brought in the Court’s

original jurisdiction. Specifically, the petitioners in Diop brought facial and as-

applied substantive due process challenges and facial and as-applied equal protection

challenges to the Law’s limited licensing requirements. They argued that as skilled

natural hair braiders who have spent many years honing their craft, they should not

have to pay high tuition costs or suffer a loss of income to earn a license which would

require them to learn techniques that they have previously “mastered or skills that

do not relate to natural hair braiding.” Id. at 557. The petitioners also argued the

Law and its associated regulations deprived them and other natural hair braiders of

the ability to pursue their calling and prevented them from maintaining or expanding

their businesses because they could not find qualified, licensed braiders to meet their

clientele’s demand. As a result, the petitioners raised a facial challenge to the Law’s

limited licensing requirements for natural hair braiders and contended that the Law’s

requirements, as applied to them, also violated their substantive due process rights

as guaranteed in article I, section 1 of the Pennsylvania Constitution. The Diop

petitioners asserted that the Law’s licensing requirements for natural hair braiders

bore “no substantial relationship to the protection of public health, safety, welfare,

or any other legitimate government interest,” and, instead, “serve[d] only

illegitimate economic protectionism.” Id. at 558. Also, in support of their claim that

22

the Law’s licensing requirements for natural hair braiders violated the equal

protection guarantee in article I, section 26 of the Pennsylvania Constitution, PA.

CONST. art. I, § 26,15 both facially and as applied to them, the petitioners further

argued “that the Law treats similarly situated persons differently by allowing

licensed cosmetologists, who lack any training in natural hair braiding, to provide

the service, while denying experienced, but unlicensed, natural hair braiders the

same right.” Diop, 272 A.3d at 558.

The Bureau and Board filed preliminary objections challenging the legal

sufficiency of the petitioners’ claims.16 In ruling on the preliminary objections, this

Court first acknowledged that “[l]egislation enacted by the General Assembly enjoys

a presumption of constitutionality,” and a statute will be declared unconstitutional

only where “it clearly, palpably, and plainly violates the Constitution.” Id. at 563

(quoting Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa.

2019)). Noting that for substantive due process rights to attach, an individual must

have been deprived of a constitutionally protected interest or property right and one’s

right to engage in a licensed profession is not a fundamental right, we applied the

Gambone test to the petitioners’ substantive due process challenge and found the

Law, on its face, was not unconstitutional. Diop, 272 A.3d at 563-64. In doing so,

we observed

the legitimacy of the state purpose is undisputed. The title of the Law,

as amended, is “[t]o promote the public health and safety by providing

for examination, licensing and granting of permits for those who desire

to engage in the profession of cosmetology[.]” Act of July 7, 2006, P.L.

15

Stating “[n]either the Commonwealth nor any political subdivision thereof shall deny to

any person the enjoyment of any civil right, nor discriminate against any person in the exercise of

any civil right.” PA. CONST. art. I, § 26.

16

Preliminary objections also were filed challenging standing and failure to join

indispensable parties, neither of which is at issue here.

23

704, No. 99, § 1. Our Supreme Court has also observed that the Law

and its counterpart commonly referred to as the Barber License Law[,

Act of June 19, 1931, P.L. 589, as amended, 63 P.S. §§ 551-567,] “have

but one purpose, and that is the protection of patrons of barber and

beauty shops.” Dep[’]t of Licenses [&] Inspections, B[]d[.] of License

Inspection [&] Rev[.] v. Weber, . . . 147 A.2d 326, 328 ([Pa.] 1959).

Thus, we consider whether the licensing requirements for natural hair

braiders bear a rational, i.e., “real and substantial,” relationship to the

health and safety of hair salon patrons.

We agree with [the r]espondents that [the p]etitioners have not

demonstrated that the Law, on its face, clearly violates the Pennsylvania

Constitution. Prior to 2006, one seeking to practice natural hair

braiding was required to obtain a cosmetology license with 1,250 hours

of instruction. In 2006, the General Assembly created a limited license

tailored to the practice of natural hair braiding; currently, an applicant

is required to pass a written examination and complete only 300 hours

of Board-approved instruction in professional practices, including

sanitation; sciences, including scalp care and anatomy; and cognitive

and manipulative skills related to natural hair braiding. . . . 63 P.S.

§ 511(b)(3)(i); 49 Pa. Code § 7.129(f). Ensuring that individuals who

offer natural hair braiding services to the public have basic knowledge

of sanitation, scalp care and anatomy is reasonably related to protecting

the safety and health of patrons of hair salons. These licensing

requirements, and the requirement that licensees have training in the

cognitive and manipulative skills related to their chosen profession, are

not “unreasonable, unduly oppressive or patently beyond the

necessities of the case[.]” Gambone, 101 A.2d at 637.

Id. at 564–65 (first, second, and last alteration in original).17 Accordingly, we

sustained the preliminary objection to the facial substantive due process challenge.

Id. at 565. However, and important herein, we held the petitioners’ substantive due

17

With regard to the petitioners’ facial and as-applied equal protection challenges, this

Court observed that “licensed cosmetologists, unlike [the p]etitioners and other unlicensed natural

hair braiders, must receive substantial instruction in various cosmetology skills, including skills

related to natural hair braiding. The two groups are not similarly situated and, thus, [the

p]etitioners’ equal protection claims must fail.” Diop, 272 A.3d at 566.

24

process claim, as applied to them, would continue and directed the respondents to

file an answer.18

B. Application of the Gambone Test

Mindful of the aforementioned statutory authority and caselaw, we consider

the Gambone factors as explicated in Nixon as to whether the Law’s requirement for

Petitioner, who has practiced the art of natural hair braiding for most of her life and

who does not utilize any chemicals or hot irons, to enroll in and finance a course for

300 hours of training and pass an examination in English, is “unreasonable, unduly

oppressive, [and] patently beyond the necessities of the case” as applied to her.

Nixon, 839 A.2d at 287; Gambone, 101 A.2d at 637. The United States Supreme

Court has long held that the government may not arbitrarily interfere with one’s

fundamental right “to follow any lawful calling, business, or profession [she] may

choose[.]” Dent, 129 U.S. at 121. This is because the denial of a license to practice

one’s profession can deprive her of that liberty interest if the reasons for the denial

offend due process. Id. However, when ruling on the constitutionality of

professional licensing requirements for physicians in Dent, the United States

Supreme Court cautioned that occupational licensure is not without constitutional

limits. Government is free to mandate requirements “appropriate to the calling or

profession,” but not those that “have no relation to such calling or profession”

because that would “deprive one of [her] right to pursue a lawful vocation.” Id. at

122. The Dent case continues to be cited nationally and in Pennsylvania for the

proposition that licensing restrictions must have a reasonable connection to an

18

The respondents filed an answer and new matter, to which the petitioners have replied.

There has been no docketed activity in Diop since the filing of the reply to new matter on April 6,

2022.

25

applicant’s fitness or capacity to perform the required work. See, e.g., United States

of America v. Hopkins, 927 F. Supp. 2d 1120 (D.N.M. 2013); Tandon v. State Bd.

of Med., 705 A.2d 1338, 1347-48 (Pa. Cmwlth. 1997).

Petitioner has presented sufficient evidence that the Law’s requirements as

applied to her are unreasonable, the first prong of the Gambone test. Petitioner has

been a natural hair braider since she was a teenager, and this is the only profession

she has ever known. (N.T. at 23-24.) It is likely that Petitioner, who has practiced

her craft for most of her life, would have as much, if not more, skill in the art of

natural hair braiding than the instructors under whose tutelage the Law currently

requires her spend hundreds of hours and to whom she must pay thousands of dollars

to obtain a license. For this reason, much of the time and money Petitioner is

required to spend taking courses to teach her skills she already knows, if she is

fortunate enough to find a course specific to natural hair braiding, or skills entirely

unrelated to natural hair braiding, if she is forced to take a broader cosmetology

course, is unnecessary. Computer literacy also complicates learning for Petitioner.

(N.T. at 45-46.) This is compounded by the fact that the classes are taught in

English, in which Petitioner is not fluent. (N.T. at 34.)

Petitioner also has established the Law as applied to her is unduly oppressive,

another factor in the first prong of the Gambone test, in that without a license her

livelihood will be erased, and she has no other financial resources upon which to

rely if the Salon is forced to close. (N.T. at 36.) Both Petitioner and Dr. Edi, the

latter of whom the Hearing Examiner described as “a witness with expertise in the

culture of the community engaged in natural hair braiding and the availability of

formal training,” (Prop. Order at 2), spoke to the unavailability and cost-prohibitive

nature of schooling for natural hair braiders, (N.T. at 34-35, 43-45, 48-49). For this

26

reason, although Petitioner has not been prohibited from operating the Salon so long

as she employs licensed natural hair braiders, finding natural hair braiders to operate

and work in the Salon is hampered by the same lack of training facilities and

language barriers applicable to her.19 Three hundred hours of education followed by

an examination in English is also beyond necessity for Petitioner, who has been

braiding hair for years and has never had any complaints about the Salon or the

manner in which she braids hair. (N.T. at 25.)

The Bureau Report is relevant to Petitioner’s due process claim and supports

her repeated suggestion that the limited licensing requirements under the Law

unduly burden her because there are few schools in Pennsylvania and no schools in

the Philadelphia area that offer the necessary 300-hour natural hair braiding

program. (Petitioner’s Br. at 11, 19, 23, 27.) As the Bureau Report makes evident,

any concerns the Bureau may have for patrons of natural hair braiding services can

be addressed with less stringent licensing requirements. Former Governor Wolf’s

Executive Order 2017-03 led to the creation of a Commission on Licensing Reform,

which

directed the commissioner of [the Bureau] to work with each board and

commission to undertake a critical and comprehensive review of the

following for each profession licensed:

• The number of regional states that require the same or

equivalent license as Pennsylvania;

• Processes, licensing and renewal fees, training, and continuing

education requirements;

• Whether the above referenced requirements and fees are set in

statute, regulation, or policy;

and

19

At the time of the hearing, Petitioner explained she had a health issue related to her hands

that have become distorted due to her years of braiding hair. (N.T. at 36.)

27

• Any automatic criminal history bans, specifying the crime or

conviction trigger and the length of the licensure ban.

For all of the above, the Executive Order directs the commissioner to

benchmark Pennsylvania requirements against regional averages. As

defined in the Executive Order, regional states include Ohio, West

Virginia, Maryland, Delaware, New Jersey, New York, Massachusetts,

Rhode Island, Connecticut, New Hampshire, Vermont, and Maine. In

any case where Pennsylvania exceeds the regional average, additional

information is provided on the Commonwealth’s requirements and

whether they are necessary to protect the health and safety of residents.

(Bureau Report at 4-5.) The examination resulted in the preparation of the 600-page

Bureau Report, which included, inter alia,

• The number of disciplinary actions imposed on licensees each year

for the past five years, including fines, penalties, license

suspensions, and other disciplinary actions;

• The ten most frequent disciplinary actions resulting in a fine;

• Interstate Compacts or Reciprocity Agreements; and

• Demographic information about the composition of the boards and

commissions and the licensed population.

(Id. at 5.) The Commission stressed that

while licensure is the strictest form of occupational regulation, there are

a variety of other options—ranging from private certifications, to

bonding and insurance requirements, to registration and certification—

which can be utilized to help protect the public and ensure high quality

delivery of services, without creating an unnecessary bar to entry to a

profession.

(Id.) Yet, while the trend nationally is for states to examine the need for existing

licensing requirements, the General Assembly has introduced licensure bills in

recent legislative sessions to register additional occupations. (Id. at 11.)

With regard to natural hair braiding, the Bureau Report revealed that in early

2017 “South Dakota Governor Dennis Daugaard signed legislation to exempt natural

28

hair braiding from the practice of cosmetology, becoming the 21st state to deregulate

this occupation.” (Id.) In a similar vein, since the 2012 release of a report

commissioned by Michigan Governor Rick Snyder, “Michigan has de-licensed eight

professions . . . and has eliminated requirements in” other areas, including the

number of training hours necessary to obtain a barber’s license. (Id.) Nebraska also

has reformed the licensing process for hair braiders. (Id. at 10). Hair braiders in

Connecticut are not required to obtain a cosmetology license. (Id. at 62.)

Pennsylvania is one of only four states in the regional comparison group that requires

hair braiders to obtain a cosmetology license, albeit a limited license, along with

Massachusetts, New Jersey, and Vermont. (Id. at, 62.)20

Since the publication of the Bureau Report cited by Petitioner, legislation was

reintroduced in 2021 to eliminate licensing requirements for natural hair braiders in

Pennsylvania. See S.B. 60 (Reg. Sess. 2021-2022) and H.B. 591 (Reg. Sess. 2023-

2024). The stated purpose of the latter proposed legislation seeks to “reform

Pennsylvania’s approach to occupational licensing and create jobs and opportunities

for small business entrepreneurs across the state.” H.B. 591 Memorandum (Reg.

Sess. 2023-2024). Noting that “overregulation stifles the industry’s potential[]” by

requiring all beauty professionals to spend thousands of dollars and hours to attend

cosmetology programs in areas where practitioners are already skilled and have a

client base, the bill seeks to allow niche practitioners to “be able to use their skills

to fully realize their small business aspirations and pay taxes instead of being forced

to work in underground economies.” Id.

20

The Board indicates that since the report was issued, both Vermont and Massachusetts

have eliminated the requirement for natural hair braiding licensure, and New Jersey instituted

limited licensure requirements. (Board’s Br. at 23 n.2.)

29

When discussing the Ladd line of cases, the Board acknowledged that “[i]t is

clear from the holding by [this] Court in granting Ladd’s challenge that if [the]

RELRA had included a specific limited licensing provision narrowly tailored to

Ladd’s chosen profession, her claim would have failed.” (Board’s Br. at 13.) In

light of all of the foregoing, we find the requirement for Petitioner to enroll in a

course for 300 hours of training and pass an examination in English is not narrowly

tailored to Petitioner’s chosen profession of natural hair braiding. Rather, Petitioner

has shown them to be excessively onerous, cost prohibitive and/or unavailable, and

unnecessary for a natural hair braider with Petitioner’s expertise in the craft.

Gambone, 101 A.2d at 637; Ladd III, slip. op at 33. As Petitioner has demonstrated

the Law’s limited licensing requirements for natural hair braiders is “unreasonable,

unduly oppressive, or patently beyond the necessities of the case,” as applied to her,

we next must determine whether those requirements bear “a real and substantial

relation to the” public interest they seek to advance. Nixon, 839 A.2d at 287.

The General Assembly’s enactment of Section 5(b)(3)(i) of the Law evinces

an understanding that the amount of training necessary for natural hair braiding does

not rise to the level of training needed to be a fully licensed cosmetologist.

Notwithstanding, in carving out limited licensure requirements under the Law for

natural hair braiders, the Legislature did not do so in a way that is reasonably tailored

to meet the State’s health and safety interests in protecting the clientele who will

seek the type of service that Petitioner provides, Ladd III, slip op. at 33-34, nor do

the limited licensing requirements for 300 hours of education bear a “real and

substantial relation” to the public interest they seek to advance. Nixon, 839 A.2d at

287. First, the Board has not provided sufficient evidentiary support to show natural

hair braiding poses significant health or safety risks to consumers or the public that

30

can be served by the requirements of the Law. The Board presented no evidence to

contradict Petitioner’s testimony that there have been no complaints against either

her or the Salon, nor did it present evidence of health risks associated with hair

braiding or pertaining to the frequency of complaints against natural hair braiding

facilities in general. In fact, the majority of states have no requirements for natural

hair braiders. (Bureau Report at 11, 62.) Conversely, Petitioner’s inability to

continue to operate the Salon for lack of a license will rob her of the only profession

she knows. Certainly, the state has an interest in protecting the health and safety of

patrons and of assuring that those who offer natural hair braiding have some basic

knowledge of sanitation. However, the Board’s licensing requirements for Petitioner

to take a 300-hour course devoted to scalp care, anatomy, and training in the

cognitive and manipulative skills of natural hair braiding and pass an examination

in English to engage in a trade which requires no chemicals, heat, sharp instruments,

or dyes, and which Petitioner has practiced without complaint for decades, is not

rationally related to the advancement of that interest.

C. Other Jurisdictions’ Holdings

Our decision in this regard can be guided by the holdings in other jurisdictions

upon which Petitioner relies. For example, Petitioner cites the holding in Cornwell

v. Hamilton, 80 F. Supp. 2d 1101, 1108 (S.D. Cal. 1999), wherein a California

district court granted summary judgment in favor of an African hair braider whose

technique of “locking” hair for compensation was similar to that of hair braiding.

The plaintiff asserted an as-applied challenge to California’s Barbering and

Cosmetology Act,21 claiming “that the regulatory scheme treats persons performing

21

Cal. Bus. & Prof. Code §§ 7301-7368, 7389-7389.5, 7395.1-7427.

31

different skills as if their professions were one and the same, i.e., it attempts to

squeeze two professions into a single, identical mold.” Id. at 1103. Applying a

rational basis test, the district court held that in light of the “almost nonexistent”

threat of injury or disease the practice posed and the fact that very few hours of the

required training were devoted to health concerns, California’s requirement for an

African hair stylist to take a 1600-hour cosmetology course and pass a licensing

exam was not rationally related to a legitimate government interest as applied to

plaintiff. Id. at 1107, 1113, 1118-19.22 Petitioner also looks to Clayton v. Steinagel,

885 F. Supp. 2d 1212 (D. Utah 2012), which cites to and relies upon Cornwell’s due

process analysis. Id. at 1215, n.9. Therein, an unlicensed African hair stylist who

only braided hair brought an action challenging the constitutionality of Utah’s

cosmetology/barber school’s curriculum and licensing scheme as applied to her. In

finding an insufficient rational relationship between public health and safety and the

required regulatory scheme as applied to the plaintiff, the court found, inter alia, that

“[i]t was undisputed [therein] that the legislature never considered African hair

braiding when creating its licensing scheme” and that “[b]y the state’s own

admission, 1400 to 1600 of the 2000 hours of the mandatory curriculum are

irrelevant to African hair braiding, yet [the plaintiff] is still required to take those

classes, and be tested on those topics, in order to braid hair.” Id. at 1214-15.

22

The Ninth Circuit overturned the Cornwell court’s equal protection analysis in Merrifield

v. Lockyer, 547 F.3d 978, 985 (9th Cir. 2008). Therein, the plaintiff engaged in “non-pesticide

animal damage prevention and bird control,” as opposed to most pest controllers, who used

pesticide-based practices, and challenged the application of California’s pest control license

requirements claiming that he should be exempt from such license requirements because he did

not use pesticides. Id. at 980. Citing Cornwell, he argued that treating him the same as pesticide-

based pest controllers violated his rights to equal protection. Id. at 980, 984. The Ninth Circuit

rejected this argument, distinguishing the cases on their facts, but essentially upheld Cornwell’s

substantive due process analysis. Notwithstanding, clearly, the concern with working with

pesticides is distinguishable from our focus on natural hair braiding.

32

The Board argues the facts herein are more analogous to those presented in

Bah. Therein, African hair braiders in Tennessee were required to complete 300

hours or 9 credit hours of training to obtain a natural hairstylist cosmetology license.

Bah, 610 F. App’x at 549. Like Petitioner, the Bah plaintiffs argued that the

requirements were unduly burdensome as applied to them because they were well

skilled in their art, which they performed safely and without the need for chemicals,

and were cost prohibitive, which prevented them from pursuing their chosen

livelihood. Applying a rational basis test, the court found the fact that the plaintiffs

already knew “how to perform their craft” did “not negate Tennessee’s legitimate

interest in public health and safety.” Id. at 551. The court opined that professionals

sometimes are already skilled in their craft before attending formal schooling and

attaining licensures, but that fact “alone does not negate the state’s interest in

ensuring that [those] professionals receive training before they are unleashed onto

the public.” Id. The court also found that the plaintiffs’ pleading of facts that

African hair braiding is safer than alternative chemical treatments and declaring “in

a conclusory fashion that African hair braiding is generally ‘safe’ do not factually

negate Tennessee’s legitimate interest in public health, safety, and welfare.” Id. at

552 (citation omitted).

Of course, this Court is not bound by the Bah decision whose logic is less

convincing herein where the Legislature has established onerous requirements for

the licensure of natural hair braiders, but, ironically, requires no training for one to

hold oneself out as a tattoo artist, which necessarily involves the use of sharp objects,

chemicals, and dyes, or for EMTs, who are responsible for others’ lives on a daily

basis. While we acknowledge the Commonwealth’s interest in protecting the health

and safety of Petitioner’s clientele, we find the rigors of the Law as applied to

33

Petitioner, who is well skilled in her craft which requires the use of only one’s hands,

does not bear a substantial relation to that interest. Nixon, 839 A.2d at 287;

Gambone, 101 A.2d at 637. In fact, as applied to Petitioner, the Law works in

contravention to the state’s professed interest in health and safety. For example,

being required “to spend scarce time and resources on learning irrelevant skills,[]

actually impedes development of knowledge in their own craft. Thus, it aggravates

the very harms the State seeks to avoid.” Cornwell, 80 F. Supp. 2d at 1112.

IV. CONCLUSION

In light of the foregoing and upon applying the Gambone test, we hold that

Petitioner has presented sufficient evidence to establish that the Law’s limited

license requirements set forth in Section 5(b)(3)(i) are unconstitutional as applied to

her as they are violative of Petitioner’s constitutional right to pursue her chosen

occupation under article I, section 1 of the Pennsylvania Constitution. While it may

be reasonable for the Legislature to regulate the natural hair braiding industry, the

requirement for 300 hours of training and an examination in English to ensure

Petitioner, who has practiced the art of natural braiding for most of her life, is

properly trained in basic areas like sanitation, anatomy, and scalp care and possesses

the cognitive and manipulative skills necessary to braid hair is unduly burdensome.

Petitioner and Dr. Edi testified regarding the difficulty Petitioner and others in the

Philadelphia area face in finding a school to meet the Law’s requirements, which

will make it nearly impossible for Petitioner to hire licensed natural hair braiders to

operate the Salon. They also spoke of the costliness of such training and the

unavailability of accommodations to address Petitioner’s language barrier.

Moreover, the Law is not reasonably related to protecting the safety and health of

34

patrons of the Salon, where Petitioner uses no chemicals, dyes, or heat, and she has

been practicing her craft for most of her life without complaint. Nixon, 839 A.2d at

287; Gambone, 101 A.2d at 637. For these reasons, we reverse the Board’s March

8, 2022 Order.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

35

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maimouna Thiam t/d/b/a :

Rama Hair Braiding Salon, :

Petitioner :

:

v. : No. 301 C.D. 2022

:

Bureau of Professional and :

Occupational Affairs, State :

Board of Cosmetology, :

Respondent :

ORDER

NOW, July 25, 2023, the Final Adjudication and Order of the Bureau of

Professional and Occupational Affairs, State Board of Cosmetology, dated March 8,

2022, is REVERSED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maimouna Thiam t/d/b/a :

Rama Hair Braiding Salon, :

Petitioner :

:

v. :

:

Bureau of Professional and :

Occupational Affairs, State :

Board of Cosmetology, : No. 301 C.D. 2022

Respondent : Argued: April 3, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE FIZZANO CANNON FILED: July 25, 2023

Notwithstanding the majority’s careful analysis, I respectfully dissent.

Although I am sympathetic to Ms. Thiam’s need to earn a living, I believe the facts

as proposed by the Hearing Officer (HO) and found by the State Board of

Cosmetology (Board) preclude this Court from sustaining an as-applied

constitutional challenge to the licensing statute here.

Ms. Thiam asserts only an as-applied constitutional challenge to

Pennsylvania’s statutory natural hair-braiding license requirement. A challenge to

the constitutionality of a licensing statute is subject to rational basis analysis. See

Diwara v. State Bd. of Cosmetology, 852 A.2d 1279, 1283-84 (Pa. Cmwlth. 2004).

A rational basis for the licensing requirement is not hard to discern. Section 1 of the

statute commonly known as the Beauty Culture Law1 defines “natural hair braiding”

as “the practice of utilizing techniques that result in tension on hair roots of

individuals, such as twisting, wrapping, weaving, extending, locking or braiding of

the hair . . . .” 63 P.S. § 507. It is easy to see that safe and healthy practices should

be followed by those engaging in techniques that cause tension on hair roots and,

thus, on the scalp. Similarly, beyond the safety of the braiding techniques

themselves, the need for sanitary practices, including cleanliness of hands and

surfaces, is self-evident, and the legislature has an interest in promoting such

practices. A licensing requirement clearly bears a rational relation to that interest.

See Diwara, 852 A.2d at 1284 (explaining that in conducting a rational basis

analysis, “the reviewing court is free to hypothesize reasons which the legislature

could have had for the classification, i.e., the courts are free to hypothesize a

legitimate state goal which the classification serves [and] the legislature is not

required to provide evidence to justify its classification”).

Applying a rational basis analysis here, I am forced to conclude that the

Board was correct in determining that the evidence was insufficient to sustain Ms.

Thiam’s burden of proving that the licensing statute was unconstitutionally

oppressive as applied to her. The Board may use an HO to take evidence, although

the Board itself is the ultimate fact finder. Bentley v. Bureau of Pro. & Occupational

Affs., State Bd. of Cosmetology, 179 A.3d 1196, 1201 (Pa. Cmwlth. 2018) (citing

Pellizzeri v. Bureau of Pro. and Occupational Affs., 856 A.2d 297, 301 (Pa. Cmwlth.

2004)). Here, the Board adopted the HO’s proposed findings of fact. Reproduced

1

Act of May 3, 1933, P.L. 242, as amended; 63 P.S. §§ 507-527 added by the Act of July

7, 2006, P.L. 704.

CFC - 2

Record (RR), Item #20 at 1-2.2 Those facts, as found by the Board, are insufficient

to sustain Ms. Thiam’s as-applied constitutional challenge. Most notably, the Board

found as a fact that Ms. Thiam failed to show that she was unable to get a natural

hair braiding license, either for her salon or individually. Ms. Thiam failed to show

that she ever applied for either license but was denied by the Board. Id. at 4 & App.

A at 7. The record also fails to establish that such an application would have been

futile.

Additionally, regarding an individual license, although Ms. Thiam

asserted that she does not speak much English, the Board’s examiner routinely deals

with language issues. RR, Item #20, App. A at 7. Thus, the Board implicitly rejected

Ms. Thiam’s argument that her language hardship precluded her from obtaining a

license. Id., Item #20 at 1-2 (adopting the HO’s findings of fact).

Ms. Thiam also failed to show that her New York cosmetology

certification was insufficient to support granting her a Pennsylvania limited license.

She entered into evidence a certificate that she completed a cosmetology course at

an academy in New York. RR, Item #20, App. A at 3. However, the record is bare

of evidence concerning what subjects were covered in that course, how many hours

of study and practical training it entailed, whether it satisfied the requirements to

obtain a limited natural hair braiding license – or even a full cosmetology license –

in Pennsylvania, or whether Ms. Thiam ever submitted it with an application to the

Board. See Section 5(b)(3)(ii) of the Beauty Culture Law 63 P.S. § 511(b)(3)(ii)

(requiring 300 hours of instruction in “[B]oard-approved subjects relating to sanitation,

scalp care, anatomy and natural hair braiding in a cosmetology school . . .”).

2

The reproduced record is not properly paginated as required by Rule 2173 of the

Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173. Citations here to the reproduced

record are in accord with the numbering and designations used therein.

CFC - 3

Notably, the statute does not specifically require that the instruction be taken in a

Pennsylvania cosmetology school. See 63 P.S. § 511(b)(3)(ii); RR, Item #20, App.

A at 7. Thus, the record fails to establish that Ms. Thiam’s New York certification

was insufficient to qualify her to seek a natural hair braiding license in Pennsylvania.

Ms. Thiam similarly entered into the record a copy of her registration

to practice natural hair braiding in Florida. RR, Item #20, App. A at 11-12. Section

9 of the Beauty Culture Law contains a reciprocity provision that allows anyone who

has practiced any form of cosmetology for at least two years under a license from

another state to obtain a Pennsylvania license if the Board is satisfied that the

standards provided for licensure under the laws of the other state are substantially

the same as in Pennsylvania. 63 P.S. § 515. However, Ms. Thiam offered no

evidence of how long she practiced hair braiding in Florida. Thus, she failed to offer

any evidence to demonstrate whether or not her Florida license would have allowed

her to become licensed in Pennsylvania. RR, Item #20, App. A at 8.

Further, the HO rejected Ms. Thiam’s claim that the course of

instruction she took in Philadelphia in 2013 was not relevant to hair braiding. Cf.

Diwara, 852 A.2d at 1285 (Pa. Cmwlth. 2004) (concluding that natural hair braiders

had not met their burden of proof in an as-applied constitutional challenge to the

licensing statute, where there was insufficient evidence that cosmetology schools do

not provide instruction rationally related to natural hair braiding). In that regard,

there was evidence that Ms. Thiam’s difficulties with English and some health issues

were the primary reasons for her failure to complete that course and obtain a limited

natural hair braiding license. RR, Item #20, App. A at 4.

Moreover, the HO observed that Ms. Thiam could have obtained a

Pennsylvania limited license prior to 2010 without any education or examination

CFC - 4

requirement, but she did not do so. RR, Item #20, App. A at 7 n.5. Under Section

5(b) & (c) of the Beauty Culture Law, the instruction and examination requirements

for a natural hair braiding license were inapplicable to anyone who applied for a

license within a year after promulgation of the Board’s applicable regulations and

provided proof of at least three consecutive years of natural hair braiding practice

immediately prior to submitting the application; the licensee then had two years to

complete 150 hours of cosmetology instruction including “scalp care, hygiene and

occupational safety.” 63 P.S. § 511(b) & (c).3 The Board adopted its final

regulations in January 2009. 39 Pa. Bull. 219 (2009). Thus, Ms. Thiam had until

January 2010 to apply for a license without having to take courses or take an

examination. Thereafter, she could have taken half the number of hours of courses,

spreading them out over two years, and she still would not have needed to take the

examination. However, she did not take advantage of that opportunity, and the

record contains no explanation for her failure to do so.

In short, overall, the HO gave very little mitigating weight to Ms.

Thiam’s asserted challenges in trying to get a license. RR, Item #20, App. A at 10;

see also Bentley, 179 A.3d at 1200 n.3 (Pa. Cmwlth. 2018) (noting that “[t]he weight

to be given to evidence of mitigating circumstances is a matter of agency

discretion”). The HO weighed the evidence and found it insufficient to sustain Ms.

Thiam’s burden of proof, and the Board adopted that finding. In light of the facts as

found by the HO and adopted by the Board, I am forced to agree with the Board that

the record does not support a conclusion that the licensing statute is

unconstitutionally oppressive as applied to Ms. Thiam. Rather, the findings of fact

3

Section 7.43 of the Board’s subsequently enacted regulations specified that the 150 hours

of education must include 50 hours on scalp care, 50 hours on hygiene, 25 hours on occupational

safety, and 25 hours on natural hair braiding techniques. 49 Pa. Code § 7.43.

CFC - 5

indicate that Ms. Thiam’s failure to obtain a natural hair braiding license are fairly

attributable to her own inaction rather than any unavoidable language barrier or other

hardship. I believe, therefore, that the only way to reach a conclusion of as-applied

unconstitutional oppression would be through factual findings that would

impermissibly contradict those of the Board.

In addition, although we are told legislation is pending that would

alleviate the licensing burden for natural hair braiders, it has not yet been enacted,

and its pendency does not render the existing licensing statute unconstitutional. As

this Court recently observed in rejecting a facial constitutional challenge to the

natural hair braiding license requirement, “[t]he legislature has decided to regulate

natural hair braiding services, and it is for the legislature, not this Court, to decide

whether deregulation of such services is warranted.” Diop v. Bureau of Pro. &

Occupational Affairs, State Bd. of Cosmetology, 272 A.3d 548, 564 (Pa. Cmwlth.

2022).4

For these reasons, I believe that the Board’s decision must be affirmed.

Accordingly, I respectfully dissent.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

4

Diop was brought in this Court’s original jurisdiction. We sustained preliminary

objections to the petitioners’ facial constitutional challenge but allowed part of the as-applied

challenge to survive preliminary objections. However, there has been no docket activity in the

case since the last pleading was filed in April 2022. Thus, there has been no final as-applied ruling

in Diop.

CFC - 6