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Niang v. Carroll

United States District Court, E.D. Missouri, Eastern Division

September 20, 2016

NDIOBA NIANG and TAMEKA STIGERS, Plaintiffs,
v.
EMILY CARROLL, in her official capacity as Executive Director of the Missouri Board of Cosmetology and Barber Examiners, and WAYNE KINDLE, JACKIE CROW, JOSEPH NICHOLSON, LEATA PRICE-LAND, LORI BOSSERT, LINDA M. BRAMBLETT, LEO D. PRICE, SR., and CHRISTIE L. RODRIGUEZ, in their official capacities as members of the Missouri Board of Cosmetology and Barber Examiners, Defendants.

          MEMORANDUM AND ORDER [1]

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         Introduction

         In this case, the Court must evaluate the constitutionality of a Missouri law requiring practitioners of a unique form of hair care called African Style Hair Braiding (“ASHB”) to be licensed as cosmetologists or barbers. ASHB is a distinctive form of natural hair care that involves braiding, locking, twisting, weaving, or otherwise physically manipulating a person's hair without the use of artificial chemicals.[2]

         Despite its differences from mainstream cosmetology or barbering, the State of Missouri nevertheless requires ASHB practitioners to become licensed in the same manner as traditional cosmetologists or barbers before they can practice their craft on the general public, for money. This means meeting the same educational, training, and testing requirements as traditional cosmetologists or barbers. The State argues that requiring licensure for these professionals serves the State's interests in promoting the public health and protecting consumers from incompetence or fraud by setting educational and testing requirements, and through inspections, as well as the prospect of licensee discipline.

         Ndioba Niang and Tameka Stigers (“Plaintiffs”) argue, however, that the practice of ASHB is not like traditional cosmetology or barbering; that it has a different historical and cultural genesis; and that it uses distinctive techniques. Plaintiffs contend, therefore, that it is irrational for the State of Missouri to require them to obtain a license they consider irrelevant and do not want. Plaintiffs also argue that the educational and testing requirements do nothing to promote competence in hair braiders, and that the State can protect consumers through general business licensing and general consumer protection laws, instead of licensing. Plaintiffs allege that application of the licensing regime to them violates their rights to substantive due process and equal protection, as well as their privileges or immunities under the Fourteenth Amendment.

         To vindicate their rights, Plaintiffs filed this lawsuit. Plaintiffs seek declaratory relief that their constitutional rights have been violated, and injunctive relief prohibiting the State of Missouri from enforcing its licensing regimes against them. Plaintiffs also seek attorneys' fees.

         After discovery in this matter was complete, the parties filed cross-motions for summary judgment. (ECF Nos. 47 and 49) Oral argument on both motions was held on January 19, 2016. Thereafter, the Court stayed this matter until the end of the 2016 Missouri Legislative session because two bills were pending before the Missouri Legislature that might have mooted this matter. (ECF No. 57) Those bills never passed, so the Court lifted the stay. (ECF No. 62) The matter is now ripe for decision. Based on the undisputed facts of this case, and the applicable law, Defendants are entitled to summary judgment. Therefore, the Court will GRANT Defendants' motion for summary judgment, and DENY Plaintiffs' motion for summary judgment.

         I. Background

         A. Factual Background

         1) Plaintiffs

         Plaintiffs are two individuals employed in the traditional practice of ASHB. (Plaintiffs' Statement of Uncontroverted Material Facts) (“PSOMF”) (ECF No. 49-2 at ¶¶ 5, 30)[3] Plaintiffs both own and operate establishments, open to the public, for the provision of their services, for compensation. (Id. at ¶¶ 6, 31) Neither Plaintiff is licensed as a cosmetologist or a barber in the State of Missouri. (Id. at ¶¶ 4, 29)

         The undisputed facts in this case demonstrate that ASHB is a unique form of natural hair care which involves braiding, locking, twisting, weaving, cornrowing, or otherwise physically manipulating a person's hair. (Id. at ¶ 50) ASHB is usually practiced by individuals of African or African-American descent, upon hair that is often described as “tightly textured” or “coily” hair. (Id.) ASHB has geographic, cultural, historical, and racial roots in Africa, where its techniques originated many centuries ago. (Id. at ¶ 51) Practitioners of ASHB typically do not use chemicals to artificially alter hair. (Id. at ¶ 52)

         Although the parties disagree about the extent to which ASHB is taught or learned in professional cosmetology or barbering schools, the parties agree that practitioners usually learn to perform their craft when they are children or teens, and most are “self-taught.” (Id. at ¶¶ 54, 55; ECF No. 52-1 at 20) The parties also appear to agree that many practitioners of ASHB offer only hair-braiding services, as opposed to a wider array of services traditionally provided by full-service cosmetologists or barbers. (PSOMF at ¶ 62; ECF No. 52-1 at 23-24) Almost exclusively, the services offered by Plaintiffs are the intricate hair braiding that is representative of ASHB, as opposed to more traditional cosmetology or barbering services. (PSOMF at ¶ 74, 75, 93, 94)

         A typical customer interaction with Plaintiff Ndioba Niang begins by Niang asking customers about their past hair braiding experience; whether they have any scalp sensitivities or scalp conditions; and whether they have had any chemical hair treatments such as coloring, hair relaxing, or perm. (Id. at ¶ 78) Niang then examines the customer's scalp and hair prior to performing any braiding. (Id. at ¶ 79) Niang does not cut or color hair, or use chemicals, heat, or chemical relaxers to style hair. (Id. at ¶ 80) Niang does not wash hair. (Id. at ¶81)

         In braiding her customers' hair, Niang uses combs, brushes, hair clips, hair extensions, scissors, lighters or candles (to seal the end of artificial hair extensions). In the past, Niang used flat irons, blow dryers, or hood dryers for certain braided hair styles, but she claims she does not use those items anymore, because they are “not necessary” for ASHB services. (Id. at ¶¶ 83-86) Niang cleans and sanitizes the combs, brushes, and hair clips that she uses with soap and water and/or Barbicide prior to use on each customer. (Id. at ¶ 87)

         Plaintiff Tameka Stigers provides ASHB services at an establishment in St. Louis called “Locs of Glory”. (Id. at ¶¶ 92, 93) Specifically, she uses a locking style known as Sisterlocks.[4](Id. at ¶ 93) Locs of Glory offers a range of services, including cosmetology, barbering, and esthetics, and employs licensed practitioners, but Stigers herself does not provide those services. Rather, Stigers confines her practice to providing Sisterlocks services. (Id. at ¶98-100)

         In providing braiding services, Stigers uses a “hook tool, ” similar to a crochet hook, that is specifically designed for Sisterlocks. (Id. at ¶ 103) Stigers sanitizes the hook tool multiple times throughout the day with hand sanitizer, which is the same cleaning process used by the licensed practitioners at Locs of Glory. (Id. at ¶ 104) In addition, Stigers periodically uses a hair dryer to dry customers' hair. Stigers also uses thread snips to help untangle customers' hair if the hair is tangled, so that she can properly section the hair on customers' scalps for braiding. (Id. at ¶¶ 105, 107) Stigers also provides instructions to clients on how to maintain their Sisterlocks at home, including instructions on how to re-tighten Sisterlocks. (Id. at ¶ 37) Stigers does not use other equipment such as flat irons, curling irons, or hood dryers. (Id. at ¶ 106)

         Stigers admits that the services she provides are more complex than the basic plaits and simple braids that may be taught to students during the course of a traditional cosmetology or barbering education. (Id. at ¶ 94) Stigers does, however, sometimes provide the basic plaits and simple braid services. When she does do these simpler services, she usually performs them on children. (Id. at ¶ 95)

         Plaintiff Niang avers that if she was sued for the unlicensed practice of cosmetology, she would be unable to keep her business open, and that if this lawsuit is unsuccessful, she will be forced to close her business. (ECF No. 49-58 at ¶ 35) Niang further avers that she is unable to afford to attend a licensed cosmetology or barbering school, and that even if she could afford it, she would be forced to be around what she considers to be “potentially hazardous chemicals, ” that she would not otherwise handle. (Id. at ¶¶ 36-38)

         Plaintiff Stigers avers that if this lawsuit fails, she will be forced to spend thousands of hours and tens of thousands of dollars to attend cosmetology or barber school, or complete a 3, 000 hour cosmetology or 2, 000 hour barber apprenticeship in order to stay in business. Stigers states that she cannot afford this tuition, and that she might have to close her business if the licensing requirement remains. Stigers also argues that, if Missouri's licensing regime is not struck down, she will have to handle hazardous chemicals that she does not want to handle, and would not otherwise handle. (ECF No. 49-61 at ¶¶ 32-37)

         2) Missouri Licensing and Educational Regimes

         The State of Missouri licenses hair care professionals under two statutes-one relating to cosmetology, and the second relating to barbering. Section 329.010(5)(a) of the Missouri Revised Statutes defines cosmetology as performing, or offering to engage in, any of the following acts:

arranging, dressing, curling, singeing, waving, permanent waving, cleansing, cutting, bleaching, tinting, coloring or similar work upon the hair of any person by any means; or removing superfluous hair from the body of any person by means other than electricity, or any other means of arching or tinting eyebrows or tinting eyelashes…. [A]ny person who either with the person's hands or with mechanical or electrical apparatuses or appliances, or by the use of cosmetic preparations, antiseptics, tonics, lotions or creams engages for compensation in any one or any combination of the following: massaging, cleaning, stimulating, manipulating, exercising, beautifying or similar work upon the scalp, face, neck, arms or bust [is engaged in cosmetology].

         The State of Missouri, through its Board of Cosmetology and Barber Examiners (“Board”) construes this definition of cosmetology to include the practice of ASHB. (Doc No. 41 at ¶ 31) The Board argues that, “[b]y its nature, African-style hair braiding falls within the definition of ‘cosmetology, ' as it involves ‘arranging, dressing, … cutting, … or similar work upon the hair of any person.'” (ECF No. 48 at 3-4) Furthermore, the Board argues that “[h]air braiding is, by its very nature, a form of hair care and styling” because it “involves the manipulation of hair for aesthetic effect.” (Id. at 4)

         Because the Board considers the practice of ASHB to be cosmetology, state law requires ASHB practitioners to be licensed by the State. In particular, § 329.030 provides that it is “unlawful for any person in this state to engage in the occupation of cosmetology or to operate an establishment … of cosmetology, unless such person has first obtained a license.” Furthermore, Missouri law provides that the practice of cosmetology without a license is a class C misdemeanor, punishable by criminal penalties and fines of $300. See § 329.250 RSMo.[5]

         In order to become a licensed cosmetologist, an applicant must meet the requirements of § 329.050 RSMo., including passing a background check, satisfying an educational requirement, and sitting for an exam. In order to sit for the cosmetology exam, an applicant must satisfy the educational requirement in one of three ways: (1) graduate from a licensed school with no less than 1, 500 hours of training or the equivalent credit hours, with the exception of public vocational technical schools in which a student shall complete no less than 1, 220 hours; (2) complete a cosmetology apprenticeship under the supervision of a licensed cosmetologist of no less than 3, 000 hours; or (3) graduate from a cosmetology school or apprenticeship program in another State which has substantially the same requirements as Missouri law. See § 329.050 RSMo.

         The mandatory curriculum for licensed cosmetology schools, and the apprenticeship program includes: shampooing of all kinds, hair coloring, bleaches, rinses, hair cutting and shaping, permanent waving and relaxing, hair setting, pin curls, fingerwaves, thermal curling, combouts and hair styling techniques, scalp treatments and scalp diseases, facials, eyebrows and arches, manicuring, hand and arm massage and treatment of nails, cosmetic chemistry, salesmanship and shop management, sanitation and sterilization, anatomy, state law, and additional optional topics selected by the schools. See § 329.040.4 RSMo.

         The cosmetology exam (like the barbering exam, discussed below) is developed by an independent third party contractor, called Professional Credential Services, Inc. (“PCS”), which administers the National Interstate Council's cosmetology and barber licensing exams. (PSOMF Id. at ¶ 143-44) The Board does not select or control the content of the cosmetology (or barbering) exam, other than by contracting with PCS to administer the exam. (Id. at ¶ 148) The exam consists of 110 questions, only 100 of which are scored. The content of the written exam is drawn from material contained in two of the main textbooks used in cosmetology schools-the Milady textbook, and the Pivot Point textbook.[6] (Id. at ¶¶ 149, 154, 156)

         The facts demonstrate that these two textbooks focus on traditional, mainstream cosmetology, and do not contain specific instruction on ASHB. (Id. at ¶¶ 252-54) In fact, less than 50 pages of the nearly 3, 000 pages of the Milady and Pivot Point cosmetology (and barber) textbooks contain information about any kind of braiding. (Id. at 254) Even when the textbooks do discuss braiding, it is not focused on ASHB, but instead, on traditional braiding which is outside of the scope of services normally provided by Plaintiffs and other ASHB practitioners. (Id. at 256) Because the content of these textbooks form the basis of the licensing exams, the facts show that only a small percentage of the licensing exam focuses upon hair braiding.

         As to the barbering statute, according to Missouri law, a barber is anyone who “is engaged in the capacity so as to shave the beard or cut and dress the hair for the general public.” § 328.010(1) RSMo. Section 328.020, meanwhile, provides that it is “unlawful for any person to practice the occupation of a barber in this state, unless he or she shall have first obtained a license.” The unlicensed practice of barbering is a class C misdemeanor. See § 328.160 RSMo.

         In order to become a licensed Missouri barber, an applicant must complete a written and practical exam pursuant to §§ 328.070-328.080 and 20 CSR[7] 2085-5.010(10). In order to sit for the barbering exam, an applicant must: (1) study for no less than 1, 000 hours in a period of not less than six months in a licensed barber school under the direct supervision of a licensed instructor; or (2) complete no less than 2, 000 hours under the direct supervision of a licensed barber apprentice supervisor. See § 328.080 RSMo.

         The mandatory curriculum for licensed barbers schools, and the apprenticeship program include: history, professional image, bacteriology, sterilization, sanitation, and safe work practices; implements, tools and equipment; properties and disorders of the skin, scalp, and hair; treatment of hair and scalp, along with facial massage and treatments, shaving, haircutting, hairstyling, mustache and beard designs, permanent waving, chemical hair relaxing and soft curl permanents, hair coloring, hairpieces, chemistry, anatomy, physiology, salesmanship, establishment management, and state law. See 20 CSR § 2085-12.030. The mandatory barbering curriculum does not appear to include any specific ASHB instruction, and the barbering exam has very few questions directly relevant to hair braiding.

         Missouri currently licenses 97 schools of barbering and cosmetology. (Defendants' Statement of Uncontroverted Material Facts at ¶ 17) (“DSOMF”) Total tuition (for all 1500 hours) at a licensed Missouri cosmetology/barber school costs between $3, 800 and $21, 450, with an average of $11, 570. (ECF No. 49-47 at 1; PSOMF at ¶ 157)

         3) Application of State Licensing Laws to African Style Hair Braiders

         As discussed above, and as agreed by the parties in this lawsuit, the Board has determined that the practice of ASHB falls within the statutory definition of either cosmetology or barbering, and therefore, all those practicing ASHB must be licensed as cosmetologists or barbers. (PSOMF at ¶¶ 120, 133; ECF No. 35 at ¶ 31)

         As a result of this determination, the Board has undertaken several enforcement actions against practitioners of ASHB in Missouri operating without a license. (ECF No. 49-4 at 12-13) See, e.g., State Board of Cosmetology and Barber Examiners v. Salimato Kouyate, d/b/a African Sisters Hair Braiding, Case No. 09-1544 CB; and State Board of Cosmetology and Barber Examiners v. Anani Kodjo Adzoh and Ayawa Fiadonou, d/b/a/ Pauline African Hair Braiding, Case No. 10-1753 CB.[8] In its response to interrogatories, Defendants acknowledged at least 18 enforcement actions in the ASHB context. (ECF No. 49-4 at 12-13) The punishment in these cases has usually been in the form of discipline against the license of the businesses, due to the presence of unlicensed individuals providing ASHB services. There appear to have been no criminal prosecutions brought against unlicensed practitioners.

         Defendants-pursuant to their inspection regime-have presented evidence from two Board inspectors who have inspected ASHB establishments. (ECF No. 48-13 at 10-18; and ECF No. 48-14 at 7-17) In at least some instances, inspectors have found sanitation violations at ASHB establishments, including unpackaged hair left out, unclean work areas, trash and hair on the floor and general uncleanliness in the salons. (Id.) It appears that these enforcement actions were undertaken in response to complaints filed against these establishments.[9] (ECF No. 49-13 at 310-313)

         B. Procedural History

         On June 16, 2014, Plaintiffs filed a three-count complaint against Emily Carroll (“Carroll”), Executive Director of the Missouri Board of Cosmetology and Barber Examiners (“Board”), in her official capacity. (ECF No. 1) Plaintiffs also sued six Board members in their official capacities (collectively, “Defendants”).[10] On April 15, 2015, Plaintiffs filed an Amended Complaint, in which they added references to the State's barbering license, because Defendants determined during the course of discovery that Plaintiffs could be regulated under the barbering regime in addition to the cosmetology licensing regime. (ECF Nos. 30, 36)

         In Count I of the Amended Complaint, Plaintiffs allege that enforcement of either the cosmetology or barber licensing regime against them violates their right to substantive due process by violating their “right to earn a living.” (ECF No. 36 at 28-29) Plaintiffs claim that forcing them to undergo “at least 1, 500 hours of irrelevant cosmetology training or at least 1, 000 hours of irrelevant barbering training” is not rationally related to any legitimate government interest. (Id. at 29) In Count II, Plaintiffs claim that the licensing regime deprives them equal protection of the law, in violation of the Fourteenth Amendment, arguing that “the right to equal protection protects not just similarly situated people from being treated differently, but also differently situated people from being treated similarly.” (ECF No. 36 at 30) Plaintiffs claim that they “cannot be subject to the same regulations and licensing requirements as cosmetologists or barbers.” (Id.) In Count III, Plaintiffs allege that the licensing regime violates the Privileges or Immunities Clause of the Fourteenth Amendment, which they claim “protects the right to earn a living in the occupation of a person's choice subject only to reasonable government regulation.” (ECF No. 36 at 31)

         Plaintiffs seek declaratory and injunctive relief. They want: (1) a declaratory judgment that application of the Missouri licensing regime to Plaintiffs and ASHB practitioners generally is unconstitutional;[11] (2) a permanent injunction prohibiting Defendants from enforcing the licensing regime against Plaintiffs and ASHB practitioners generally; and (3) ...


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