Haveman and Spillane v. Bureau of Professional and Occupational Affairs – Cmwlth. Court – en banc – reported
http://www.pacourts.us/assets/opinions/Commonwealth/out/765MD18_8-25-20.pdf?cb=2
The 5-2 majority held that the “good moral character” clause, on its face, violates the equal protection mandates of the Pennsylvania Constitution.
From Harrisburg Patriot News – August 26, 2020
COMMONWEALTH COURT
Morality clause in esthetician licensing rules is unconstitutional, court says
Matt Miller mmiller@pennlive. Com
A section of state law that requires estheticians to be of “good moral character” before they can obtain licenses to work in beauty salons is unconstitutional and discriminatory, a sharply divided Commonwealth Court panel ruled Tuesday.
The majority opinion by Judge Anne E. Covey marks a win for not only two aspiring estheticians who have criminal records, but also for anyone else who wants to get into that profession but has some sort of criminal record in their past.
The decision could be appealed to the state Supreme Court, however.
The issue before Commonwealth Court was a challenge to part of the state Beauty Culture Law filed by Courtney Haveman and Amanda Spillane. Both had brushes with the law in the past and claim to have reformed.
The state Board of Cosmetology cited their criminal records in refusing to grant them licenses to become estheticians, specialistswho perform facial massages and other skin care treatments. The cosmetology board determined the two failed the good moral character test.
On appeal to Commonwealth Court, Haveman and Spillane argued that the good character requirement violates their constitutional right to due process of law, “discriminates within the beauty industry” and “needlessly discriminates against people with criminal histories.”
State officials countered that the good moral character provision is justified to protect patrons of salons and barber shops.
Covey concluded that the provision is in fact unconstitutionally discriminatory because it is not imposed for the licensing of others in the profession, such as barbers.
Judge Ellen Ceisler filed her own opinion backing the ruling in favor of the women. She called the moral character provision “unconstitutionally imprecise and arbitrary.”
“Good character has nothing to do with protecting beauty salon patrons. Indeed, the Board admits that it has no evidence that the good character requirement protects salon customers,” Ceisler wrote.” In fact, the board already has separate authority to withhold licenses for misbehavior that is related to cosmetology.”
Judges P. Kevin Brobson and Patricia A. McCullough filed dissenting opinions.
Brobson contended Haveman and Spillane should have pursued appeals with the cosmetology board before going to court. So, he said, the case was not yet ripe to even be considered by Commonwealth Court. McCullough claimed the majority decision is premature and that her court should have waited to evaluate whether the dispute was addressed by a revision made to the Beauty Culture Law this year.
But see n. 10 –
10 Accordingly, “[o]ur Supreme Court has held that the equal protection provisions of the Pennsylvania Constitution are analyzed under the same standards used by the [U.S.] Supreme Court when reviewing equal protections claims under the Fourteenth Amendment to the [U.S.] Constitution.” Muscarella v. Commonwealth, 87 A.3d 966, 972 n.8 (Pa. Cmwlth. 2014)
