holding that a cosmetology board license is required to practice eyebrow threading because it constitutes hair removal
How later courts described this case
- holding that a cosmetology board license is required to practice eyebrow threading because it constitutes hair removal
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Senior Judge FRIEDMAN.
I respectfully dissent. The majority holds that “eyebrow threading” falls within the statutory definition of “cosmetology” and, thus, that the State Board of Cosme *302 tology (Board) properly penalized JuS-tringz-Century III Mall, JuStringz-South Hills Village Mall, Shagufta Parveen and Nida Hassan (collectively, Petitioners) for practicing “cosmetology” without a license in violation of section 2 of the Beauty Culture Law (Law). 1 For the following reasons, I disagree.
“Eyebrow threading” consists of looping thread around facial hair and pulling that hair out using the thread. The practice has existed since ancient times in India and in some parts of the Middle East. Section 1 of the Law defines “cosmetology” as follows:
“Cosmetology” includes any or all work done for compensation by any person, [1] which work is generally and usually performed by cosmetologists, [2] which work is for the embellishment, cleanliness and beautification of the human hair ... and the removal of superfluous hair ... which enumerated practices shall be inclusive of the term cosmetology but not in limitation thereof. The term also includes the acts comprising the practice of ... esthetics.
68 P.S. § 507 (emphasis added). “Esthetics” includes the practice of “removing superfluous hair by tweezers, depilatories or waxes.” Id.
The question is whether “eyebrow threading” is generally and usually performed by cosmetologists. In my view, this is a question of fact. Joseph R. Moore, an inspector for the Board, testified that, in his seven years as an inspector, he has never seen a licensed cosmetologist perform “eyebrow threading.” (N.T., 12/3/09, at 30-81, 63, 68; R.R. at 111a-12a, 144a, 149a.) John Campellone, an investigator for the Board, testified that he has never observed a cosmetologist perform “eyebrow threading.” (Id. at 72-73, 91; R.R. at 153a-54a, 172a.) Moore also testified that “eyebrow threading” is not a topic covered on the examination given for cosmetologists. (Id. at 67; R.R. at 148a.) Taheera Edmond, a licensed cosmetologist, testified that: (1) “eyebrow threading” was not covered in her cosmetology education; (2) “eyebrow threading” was not covered on her licensing exam; (3) she knows no licensed cosmetologist who does “eyebrow threading”; and (4) the cosmetology textbook used in cosmetology schools throughout the United States does not address “eyebrow threading.” (Id. at 116, 118-119, 121-22; R.R. at 197a, 199a-200a, 202a-03a.) Given this uncontradicted testimony, I cannot conclude that “eyebrow threading” falls within the statutory definition of “cosmetology.”
The majority ignores the evidence because, in Diwara v. State Board of Cosmetology, 852 A.2d 1279, 1283 (Pa.Cmwlth.2004), this court rejected the argument that “hair braiding” is not generally and usually performed by cosmetologists. However, in Diwara , this court noted that the argument consisted of “a one and one-half page argument made without any citations.” Id. at 1283 n. 6. Moreover, unlike this case, there was no evidence in Diwara addressing whether “hair braiding” was generally and usually performed by cosmetologists.
Furthermore, I cannot interpret the statutory definition of “cosmetology” in such a way that the words “which work is generally and usually performed by cosmetologists” have no meaning. This court is to construe a statute “to give effect to all its provisions.” Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a). Certainly, a practice that is not usually performed by cosmetologists cannot be considered “cosmetology.” *303 Thus, here, an ethnic practice like “eyebrow threading,” which is not generally and usually performed by cosmetologists, is not “cosmetology.”
Accordingly, I would reverse. 2
. Act of May 3, 1933, P.L. 242, as amended, 63 P.S. § 508.
. Because of the difficulties with the statutory definition, I submit that those who perform "eyebrow threading” for compensation have not been given adequate notice that the practice falls within the statutory definition. For that reason, were I to agree with the majority, I would make the majority’s holding prospective in nature.