IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and :

Amanda Spillane, :

Petitioners :

:

v. :

:

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, : No. 765 M.D. 2018

Respondent : Argued: June 11, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY 

JUDGE COVEY FILED: August 25, 2020

Before this Court is the Application for Summary Relief (Application) 

filed by Courtney Haveman (Haveman) and Amanda Spillane (Spillane) (collectively, 

Petitioners) filed in this Court’s original jurisdiction. After review, we grant the

Application.

Background

Petitioners are Pennsylvania residents who applied for limited 

cosmetology licenses from the Bureau of Professional and Occupational Affairs, 

State Board of Cosmetology (Board), to become licensed estheticians.1 Although 

 

1 Section 1 of the Act of May 3, 1933, P.L. 242, commonly referred to as the Beauty Culture 

Law (Law), defines “esthetician” as “an individual licensed by the [Board] to practice esthetics.” 

63 P.S. § 507. “Esthetics” is defined therein as “the practice of massaging the face, applying 
2

Haveman and Spillane met all of the other requirements, the Board denied their

applications to sit for the esthetician examination and receive a license because they 

did not demonstrate good moral character as required by Section 5(a) of what is 

commonly referred to as the Beauty Culture Law (Law),2 63 P.S. § 511(a).

3

 

 

cosmetic preparations, antiseptics, tonics, lotions or creams to the face, removing superfluous hair 

by tweezers, depilatories or waxes and the dyeing of eyelashes and eyebrows.” Id.

Section 5(b) of the Law offers limited licenses for estheticians, nail technicians and natural 

hair braiders. Regarding esthetician licenses, Section 5(b)(1) of the Law states:

An applicant for an esthetician license shall have completed three 

hundred hours of instruction in esthetics in a licensed school of 

cosmetology and passed an examination limited to that practice. 

Licensed estheticians may operate a salon limited to that license. An 

applicant may be permitted to apply to take a written examination 

upon completion of at least two hundred fifty hours of instruction in 

esthetics in a licensed school of cosmetology. The examination shall 

include both theoretical and procedural skill questions as prescribed 

by the board. Any applicant may apply and is eligible for licensure 

upon (i) passing the written examination, (ii) completion of the 

required three hundred hours of instruction, and (iii) certification by a 

duly licensed school of satisfactory completion of all program 

requirements.

63 P.S. § 511(b).

2 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§ 507-527.

3 According to the Petition for Review in the Nature of a Complaint for Declaratory and 

Injunctive Relief (Petition), at the time it was filed, Haveman was a 26-year-old stay-at-home 

mother. Between 2011 and 2013, she pled guilty to several misdemeanors stemming from three 

incidents: a driving under the influence (DUI) charge for which she was sentenced to three days in 

jail, illegal possession of paraphernalia for smoking marijuana, and hitting a security guard while 

drunkenly resisting arrest at a casino, for which she was sentenced to two years of probation. After 

the casino incident, Haveman joined Alcoholics Anonymous. She has been sober ever since. See

Petition ¶¶ 12-18. The Board provisionally denied Haveman’s application in July 2016, but notified 

her that she could request a hearing. See Petition ¶¶ 9-10. Haveman did not request a hearing or 

appeal from the Board’s decision; rather, she sent the Board a reconsideration request, which the 

Board did not answer. See Petition ¶¶ 10-11, 39-40. 

When the Petition was filed, Spillane was a 33-year-old waitress who suffered from 

depression, anxiety and bipolar disorders, for which she began to self-medicate in high school and, 

eventually, developed a drug habit. Between 2005 and 2011, she pled guilty to a series of crimes 

including drug possession, DUI, and thefts and burglaries to fund her drug use. At age 26, she was 

incarcerated for two years. While incarcerated, she participated in intensive therapy and classes on 

resocialization and overcoming domestic abuse. She was released from a halfway house in 2013 

and remains on probation until sometime in 2020. Spillane claims that she has turned her life 
3

Facts

On December 11, 2018, Petitioners filed a Petition for Review in the 

Nature of a Complaint for Declaratory and Injunctive Relief (Petition), seeking: (1) a 

declaration that the good moral character requirement of Section 5 of the Law, and all 

rules, regulations, policies and practices of the Board implementing that requirement 

are unconstitutional and facially violate the due process and equal protection clauses 

of the Pennsylvania Constitution; (2) an order permanently enjoining the Board from 

enforcing that provision against Haveman, Spillane or anyone else; and (3) attorney’s 

fees, costs and expenses.4

On February 11, 2019, the Board filed preliminary objections to the 

Petition on the basis that the Petition was not legally sufficient (demurrer), timely or 

ripe for review, and because Petitioners lacked standing and failed to exhaust their

administrative remedies. On March 13, 2019, Petitioners filed their response to the 

preliminary objections. On December 9, 2019, this Court overruled the Board’s 

preliminary objections and directed the Board to answer the Petition. See Haveman

v. Bureau of Prof’l & Occupational Affairs, State Bd. of Cosmetology (Pa. Cmwlth. 

No. 765 M.D. 2018, filed December 9, 2019). In the meantime, the parties conducted 

 

around and has been sober since 2010. See Petition ¶¶ 44-56. The Board provisionally denied 

Spillane’s application. After a hearing, the Board denied Spillane’s application in May 2015, 

stating: “When balancing the frequency and nature of [Spillane’s] criminal convictions against the 

[relatively sparse] mitigating evidence she has offered, this Hearing Examiner finds that [Spillane] 

has not sufficiently demonstrated that she currently possesses the good moral character necessary to 

take the Esthetician Examination and practice the profession.” Appl. Ex. 16 at 29. Spillane did not 

appeal from the Board’s decision.

4 According to the Petition, Petitioners “are not challenging their initial license denials or 

seeking damages based on those denials. They are seeking relief only prospectively, based on the 

unconstitutional burden the good [moral] character requirement is imposing on them now.” Petition 

¶ 122 (emphasis added). Because this action involves solely a facial challenge, Petitioners were not 

required to exhaust their administrative remedies. See Lehman v. Pa. State Police, 839 A.2d 265 

(Pa. 2003); see also Keystone ReLeaf LLC v. Pa. Dep’t of Health, 186 A.3d 505 (Pa. Cmwlth. 

2018).
4

discovery. On January 8, 2020, the Board filed an answer and new matter to the 

Petition. On January 30, 2020, Petitioners filed a reply to the Board’s new matter.

Petitioners filed the Application on December 20, 2019. On January 6, 

2020, the Board opposed the Application. On January 21, 2020, Petitioners filed a 

brief in support of their Application. On February 20, 2020, the Board filed its brief 

in opposition to the Application and Petitioners filed a reply brief on May 22, 2020. 

The parties presented oral argument on June 11, 2020. The matter is ready for this 

Court’s disposition.

 Discussion

[Pennsylvania Rule of Appellate Procedure] 1532(b) 

provides that ‘[a]t any time after the filing of a petition for 

review in an . . . original jurisdiction matter the court may 

on application enter judgment if the right of the applicant 

thereto is clear.’ Pa.R.A.P. 1532(b). ‘An application for 

summary relief is properly evaluated according to the 

standards for summary judgment.’ Myers v. 

Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015). 

That is, in ruling on a[n application] for summary relief, the 

evidence must be viewed in the light most favorable to 

the non-moving party and the court may enter judgment 

only if: (1) there are no genuine issues of material fact; 

and (2) the right to relief is clear as a matter of law.

Flagg v. Int’l Union, Sec., Police, Fire Prof’ls of Am., Local 506, 146 A.3d 300, 305 

(Pa. Cmwlth. 2016) (emphasis added). “An application for summary relief is 

appropriate where a party asserts a challenge to the constitutionality of a statute and no 

material facts are in dispute.” Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 

1205, 1220 (Pa. Cmwlth. 2018).

Here, Petitioners contend that there are no material facts in dispute, and 

they are entitled to relief because the good moral character requirement 
5

(Requirement), on its face,5 violates substantive due process on the basis that: (1) 

cosmetology does not present unique risks of crime; (2) the Requirement irrationally 

discriminates within the beauty industry; (3) the Board’s decisions are arbitrary; and 

(4) in light of the Board’s other powers, the Requirement is unnecessary. Petitioners 

also assert that the Requirement violates the right to equal protection because it 

irrationally distinguishes cosmetology applicants from barbers, other salon employees 

and practicing cosmetologists, and needlessly discriminates against people with 

criminal histories.

The Board responds that genuine issues of material fact exist that 

preclude summary relief in Petitioners’ favor, and Petitioners’ right to relief is not 

clear because the Requirement complies with the substantive due process and equal 

protection mandates in the Pennsylvania Constitution. 

A. Clear Right to Relief

The United States (U.S.) Supreme Court has cautioned: “We must keep 

in mind that ‘‘[a] ruling of unconstitutionality frustrates the intent of the elected 

representatives of the people.’’ Ayotte v. Planned Parenthood of Northern New Eng.,

546 U.S. 320, 329 . . . (2006) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 . . . 

 

5 Constitutional challenges may be facial or as-applied. 

‘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.’ 

Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 16 (Pa. Cmwlth. 

2012) (quotation omitted). In contrast, an as-applied challenge ‘does 

not contend that a law is unconstitutional as written but that its 

application to a particular person under particular circumstances 

deprived that person of a constitutional right.’ Id. (quotation omitted).

E. Coast Vapor, LLC v. Pa. Dep’t of Revenue, 189 A.3d 504, 511 (Pa. Cmwlth. 2018). Here, 

Petitioners assert only a facial challenge in the instant matter. See Petition ¶¶ 3, 121, 123, 126-128, 

132, 136-139, 143-144; see also Haveman, slip op. at 6-7, 18, 23-24; Appl. at 11-12, 30. Because 

Petitioners have not exhausted their administrative remedies, they could not have raised an asapplied challenge.
6

(1984) (plurality opinion)).” Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442, 451 (2008). Accordingly, 

[t]here is a strong presumption in the law that legislative 

enactments are constitutional. Christ the King Manor v. 

Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006) 

(en banc), aff’d per curiam, . . . 951 A.2d 255 ([Pa.] 2008) . 

. . . A court will not declare a statute unconstitutional 

unless the constitutional violation is clear, palpable, and 

plain. Id. The court will resolve all doubts in favor of 

constitutionality. Id. Thus, a party challenging the 

constitutionality of a statute has a heavy burden of 

persuasion. Id.

Phantom Fireworks, 198 A.3d at 1221. “Constitutional challenges to legislative 

enactments present this Court with questions of law . . . .” Germantown Cab Co. v. 

Phila. Parking Auth., 206 A.3d 1030, 1041 (Pa. 2019).

In the instant matter, Petitioners claim that the portion of Section 5(a) of 

the Law, which specifies, in relevant part, that “[a]n applicant for a limited license 

shall . . . be of good moral character,” 63 P.S. § 511(a) (emphasis added), is facially 

unconstitutional because it violates the substantive due process and equal protection 

clauses of the Pennsylvania Constitution.

6

Preliminarily, the parties disagree on the proper standard for a facial

constitutional challenge. Petitioners assert that the plainly legitimate sweep standard 

(i.e., a statute is facially unconstitutional if a substantial number of its potential 

applications are invalid) is applicable. See Petitioners’ Br. at 12; see also Petitioners’ 

Reply Br. at 13-14. The Board contends that the no set of circumstances standard 

 

6 The parties refer to “cosmetology” interchangeably with “esthetics.” Section 1 of the Law 

defines “cosmetologist” as “an individual who is engaged in the practice of cosmetology.” 63 P.S. 

§ 507. “Cosmetology” is defined therein as “also includ[ing] the acts comprising the practice of

nail technology, natural hair braiding and esthetics.” 63 P.S. § 507 (emphasis added). Hence, an 

esthetician’s license is a limited cosmetology license. Moreover, Section 4(a) of the Law similarly 

requires that cosmetology license applicants “shall be . . . of good moral character . . . .” 63 P.S. § 

510(a).
7

(i.e., a statute is facially unconstitutional only if there is no set of circumstances under 

which the statute would be valid; that is, the law is unconstitutional in all of its 

applications) applies. See Board’s Br. at 11-12, 14.

In Germantown Cab Company, the Pennsylvania Supreme Court 

clarified: “A statute is facially unconstitutional only where there are no circumstances 

under which the statute would be valid.” Germantown Cab Co., 206 A.3d at 1041; 

see also Wash. State Grange; Clifton v. Allegheny Cty., 969 A.2d 1197 (Pa. 2009). 

“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.” Peake v. Commonwealth, 

132 A.3d 506, 517 (Pa. Cmwlth. 2015) (quoting Commonwealth v. Brown, 26 A.3d 

485, 493 (Pa. Super. 2011)). Accordingly, our Supreme Court explained: “In 

determining whether a statute is facially invalid, courts do not look beyond the 

statute’s explicit requirements or speculate about hypothetical or imaginary cases.” 

Germantown Cab Co., 206 A.3d at 1041; see also Wash. State Grange.

Because Germantown Cab Company is the Pennsylvania Supreme 

Court’s most recent pronouncement on evaluating facial challenges, the Board is 

correct that the Germantown Cab Company Court’s no set of circumstances standard 

applies in the instant matter. Thus, the Requirement portion of Section 5(a) of the 

Law is facially unconstitutional if, based on its text alone, “there are no circumstances 

under which [it] would be valid.” Germantown Cab Co., 206 A.3d at 1041.

1. Substantive Due Process

The due process clause of the Fourteenth Amendment to the

[U.S.] Constitution provides that ‘[n]o [s]tate shall make or 

enforce any law which shall . . . deprive any person of life, 

liberty, or property, without due process of law.’ U.S.

CONST. amend. XIV, § 1. Due process protections also 

emanate from the Pennsylvania Constitution, particularly 

Article I, Sections 1, 9, and 11[, PA. CONST. art. I, §§ 1, 9, 

11]. Khan [v. State Bd. of Auctioneer Exam’rs], 842 A.2d 
8

[936,] 945 [(Pa. 2004)]. Article I, Section 1 of the 

Pennsylvania Constitution provides: ‘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. As this [Supreme] 

Court has explained, substantive due process is the ‘esoteric 

concept interwoven within our judicial framework to 

guarantee fundamental fairness and substantial justice.’

Khan, 842 A.2d at 946 (quoting Commonwealth v. 

Stipetich, . . . 652 A.2d 1294, 1299 ([Pa.] 1995) (Cappy, J., 

dissenting)).

For substantive due process rights to attach, there must be a 

deprivation of a constitutionally protected interest or 

property right. Khan, 842 A.2d at 946. If the statute 

restricts a fundamental right, it is reviewed under strict 

scrutiny. If the statute impacts a protected but not 

fundamental right, then it is subject to rational basis review. 

Khan, 842 A.2d at 946-47; Nixon v. Commonwealth, . . . 

839 A.2d 277, 287 ([Pa.] 2003); cf. Wash[.] v. Glucksburg, 

521 U.S. 702, 721 . . . (1997) (stating that, under federal 

precedent, legislation restricting a right that is not 

fundamental is subject to rational basis review).

Pursuant to Article I, Section 1 [of the Pennsylvania 

Constitution], protected interests include the right of an 

individual to pursue his or her livelihood or profession. 

Khan, 842 A.2d at 945; Nixon, 839 A.2d at 288. . . . 

[A]lthough the right to engage in a licensed profession is an 

important right, it is not a fundamental right. See Nixon, 

839 A.2d at 288 (recognizing that the right to engage in a 

particular occupation is not a fundamental right). 

Germantown Cab Co., 206 A.3d at 1042-43. Accordingly, because Petitioners’ right 

to practice limited cosmetology impacts an important right, the rational basis test 

applies. See Germantown Cab Co.; see also Khan. 

The Pennsylvania Supreme Court has explained:

Due process challenges under the Pennsylvania Constitution

are analyzed ‘more closely’ under the rational basis test 
9

than due process challenges under the [U.S.] 

Constitution.

[FN]15 Nixon [], 839 A.2d at 287-88 n.15. In 

Gambone v. Commonwealth, . . . 101 A.2d 634 ([Pa.] 1954), 

the Pennsylvania Supreme Court succinctly defined the 

rational basis test applicable to substantive due process 

challenges brought under the Pennsylvania Constitution as 

follows:

[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.

Gambone, 101 A.2d at 637 (emphasis added). In Nixon [],

our Supreme Court reaffirmed that for ‘substantive due 

process challenges brought under the Pennsylvania 

Constitution, the rational basis test is that announced by this 

Court in Gambone.’ Nixon [], 839 A.2d at 277-78 n.15. 

This means that the legislature can curtail the right to 

engage in a chosen occupation for an important reason, 

but it may not do so in a way that is overly broad, i.e.,

‘patently beyond the necessities of the case.’ Gambone,

101 A.2d at 637. . . . 

[FN]15 In the rational basis test used in equal

protection and due process challenges brought under 

the [U.S.] Constitution, ‘a court must uphold a 

statute as rational if it can conceive of any 

plausible reason for the statute.’ Nixon [], 839 

A.2d at 287-88 n.15. In those challenges, it matters 

not whether a statutory classification will have some 

inequitable results. Id.
10

Peake, 132 A.3d at 518-19 (bold emphasis added; footnote omitted). “In addition, 

Pennsylvania balances the rights of the individual against the public interest.” 

Germantown Cab Co., 206 A.3d at 1044-45.

Hence, “[r]ational basis review requires this Court to examine whether 

[the Requirement portion of Section 5(a) of the Law] bears a rational relationship to a 

legitimate state purpose.” Germantown Cab Co., 206 A.3d at 1045.

a. State Objective

The parties do not contest the legitimacy of the state purpose. The 

Pennsylvania Supreme Court has declared that “the right to practice one’s chosen 

profession is subject to the lawful exercise of the Commonwealth’s power to protect 

the health, safety, welfare, and morals of the public by regulating the profession.” 

Germantown Cab Co., 206 A.3d at 1044. According to the Board, the Law’s 

preamble states that it is “[a]n Act [t]o promote the public health and safety by 

providing for . . . licensing and granting of permits for those who desire to engage in 

the profession of cosmetology . . . .” Board’s Br. at 17; Board Answer to Petition at 

19. In addition, the Pennsylvania Supreme Court has specifically ruled: “The [act 

commonly referred to as the] Barber License Law[7]and the [Law] have but one 

purpose, and that is the protection of patrons of barber and beauty shops.” Dep’t 

of Licenses & Inspections, Bd. of License & Inspection Review v. Weber, 147 A.2d 

326, 328 (Pa. 1959) (emphasis added); see also Beauty Hall, Inc. v. State Bd. of 

Cosmetology, 210 A.2d 495 (Pa. 1965); King v. Bureau of Prof’l & Occupational 

Affairs, State Bd. of Barber Exam’rs, 195 A.3d 315 (Pa. Cmwlth. 2018); Appl. Ex. 1 

(Notes of Testimony, Chairman Tammy O’Neill (Chairman O’Neill)) at 98 (“Q The 

point of this process is the protection of salon patrons, correct? [Chairman O’Neill]

Correct.”). Accordingly, Section 5(a) of the Law has a legitimate state objective.

 

7 Act of June 19, 1931, P.L. 589, as amended, 63 P.S. §§ 551-567.
11

b. Means to Attain State Objective

Next, we must determine whether the means the General Assembly 

established to attain the objective (i.e., the Requirement) bears a rational (i.e., real and 

substantial) relationship to the objective (i.e., protecting beauty shop patrons). See

Germantown Cab Co.

Petitioners assert in the Petition:

126. The [Requirement] is facially unconstitutional under 

this clause because it lacks a real and substantial 

relationship to the protection of the public health, safety, or 

welfare, or to any other legitimate government interest. It 

thus violates the right of [Petitioners] and many others like 

them to pursue a limited cosmetology license free from 

arbitrary and irrational legislation.

127. The [Requirement] is also facially unconstitutional 

under this clause because it is unreasonable, unduly 

oppressive, and patently beyond the necessities of 

regulating cosmetology, or of any other legitimate 

government interest. It thus violates the right of 

[Petitioners] and many others like them to pursue their 

chosen occupation free from arbitrary and irrational 

legislation.

128. The [Requirement] fails on its face to satisfy any 

standard of constitutional review for substantive due 

process rights, no matter how articulated.

Petition at 24.

In Gombach v. Department of State, Bureau of 

Commissions, Elections & Legislation, 692 A.2d 1127 (Pa.

Cmwlth. 1997), this Court explained:

Although good moral character was not defined by 

the General Assembly, . . . the phrase has been 

made constitutionally certain by our courts in terms 

of a person lacking ‘moral turpitude.’[8]

 

8

“A ‘[d]etermination of whether a crime involves moral turpitude turns on the elements of 

the crime, not on an independent examination of the details of the behavior underlying the crime.’ 

Startzel v. Department of Education, . . . 562 A.2d 1005, 1007 ([Pa. Cmwlth.] 1989).” Garner v. 
12

Good moral character is defined, in part, as 

including ‘an absence of proven conduct or acts 

which have been historically considered as 

manifestation of moral turpitude.’ [Black’s Law 

Dictionary] 693 (6th ed. 1990). Our courts have 

defined moral turpitude as ‘anything done 

knowingly contrary to justice, honesty or good

morals.’ Foose [v. State Bd. of Vehicle Mfrs., 

Dealers & Salespersons, 578 A.2d 1355, 1357 (Pa. 

 

Bureau of Prof’l & Occupational Affairs, State Bd. of Optometry, 97 A.3d 437, 440 (Pa. Cmwlth. 

2014) (footnote omitted). In Bowalick v. Dep’t of Educ., 840 A.2d 519 (Pa. Cmwlth. 2004), this 

Court concluded: “Considering . . . the cases addressing moral turpitude in different statutory 

contexts, . . . a crime of moral turpitude requires a reprehensible state of mind or mens rea.” Id. at 

523-24. 

The Board has declared, relative to the type of crimes for which Petitioners were convicted, 

that assault and thefts are crimes of moral turpitude, see Appl. Exs. 8, 14, 17, 20, while DUI, drug 

possession, and possession of drug paraphernalia are not crimes of moral turpitude. See Appl. Exs. 

9, 17.

The Court acknowledges that Governor Wolf signed the Act of July 1, 2020, P.L. 545 (Act 

53), which specifies how licensing boards and commissions under the Bureau of Professional and 

Occupational Affairs, including the Board, shall consider criminal convictions when determining 

whether an individual qualifies for a professional license. In particular, Section 3113 of Act 53 

prohibits the Board from disqualifying license applicants based on criminal convictions without first 

determining whether the convictions relate directly to the subject occupation and whether licensing 

the individual would pose a substantial risk to his/her clients’ health and safety or substantial risk of 

further criminal convictions. See 63 Pa.C.S. § 3113, effective in 180 days (i.e., December 28, 

2020). Because the instant case involves a facial challenge, Act 53 does not expressly repeal the 

Requirement portion of Section 5(a) of the Law (such that the Requirement may still be a bar to 

applicants without criminal convictions), and the applicable portion of Act 53 is not currently 

effective, the enactment of Act 53 does not affect the Court’s analysis or ruling herein. 

In her Dissent, Judge McCullough states that “[t]he Board requests that we review the 

impact of Act 53 to assess whether the legislation has rendered Petitioners’ constitutional claims 

moot.” Haveman v. Bureau of Prof’l & Occupational Affairs, State Bd. of Cosmetology (Pa. 

Cmwlth. No. 765 M.D. 2018, filed August 25, 2020), slip op. at 2. However, the Board 

merely notified the Court of Act 53 “as a change in status of authorities.” July 7, 2020 Letter; see 

Pa.R.A.P. 2501(b) (change in status of authorities). In its letter, the Board did not request the Court 

to review the impact of Act 53. Further, Judge McCullough does not cite any authority for the 

Court to conduct such a review since Act 53 is not effective until December 28, 2020. Because 

only the current statute is before the Court, any ruling on Act 53 before its effective date would be 

purely advisory. See Borough of Marcus Hook v. Pa. Mun. Ret. Bd., 720 A.2d 803, 804 (Pa. 

Cmwlth. 1998) (“It is well established that a judicial determination that is unnecessary to decide an 

actual dispute constitutes an advisory opinion and has no legal effect.”). 
13

Cmwlth. 1990)] (quoting Moretti [v. State Bd. of 

Pharmacy, 277 A.2d 516, 518 (Pa. Cmwlth. 

1971)]). From these definitions it is apparent that 

the two phrases, good moral character and moral

turpitude, are often used together or to define each 

other.

Id. at 1130. 

Garner v. Bureau of Prof’l & Occupational Affairs, State Bd. of Optometry, 97 A.3d 

437, 440 (Pa. Cmwlth. 2014). “Based on Foose and Moretti, we hold that good

moral character has been sufficiently defined by judicial interpretation, custom 

and usage so as to survive constitutional challenge. If a person has committed 

an act of moral turpitude, it may be determined whether that person is of good

moral character.” Gombach, 692 A.2d at 1131 (emphasis added; quotation marks 

omitted).

This Court “‘must uphold [the Requirement] as rational if it can 

conceive of any plausible reason for [it].’ Nixon [], 839 A.2d at 287-88 n.15.” 

Peake, 132 A.3d at 518 n.15. The Board proffered in its brief:

It is important for a potential limited licensee, who will 

come into direct contact with a person’s body, to be of good 

moral character. There is an inherent level of trust involved 

when a client of an esthetician, nail technologist or natural 

hair braider lets a stranger touch a part of [his/her] body. 

This trust is due to the knowledge of that client that the 

stranger touching [him/her] has been vetted by the licensing 

process and that the General Assembly fulfilled its duty of 

public protection when fashioning that process. The result 

is that a man or woman can be in a rather compromising 

position with an esthetician but feel a level of comfort 

knowing that the esthetician is of good moral character.

Board’s Br. at 15. This Court agrees with the Board that, based on the statutory 

definitions of cosmetology and esthetics, that patrons seeking the services of a 

cosmetologist and/or esthetician place themselves in vulnerable situations. Under the 
14

circumstances, there is a plausible reason for the Requirement.9 Thus, even if the 

Requirement “will have some inequitable results[,]” Peake, 132 A.3d at 518 n.15, it 

represents a real and substantial means to attain the state objective.

Because the Requirement bears a rational relationship to its objective of 

protecting beauty shop patrons, Petitioners have failed to state a viable claim that the 

Requirement, on its face, violates substantive due process. Accordingly, Petitioners 

do not have a clear right to relief on their substantive due process claim.

2. Equal Protection 

Section 1 of the Fourteenth Amendment to the U.S. Constitution 

provides, in relevant part, that “[n]o State shall . . . deny to any person within its 

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Article 

I, Section 26 of the Pennsylvania Constitution declares: “Neither 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. 

 

9 This Court acknowledges that Section 13(a) of the Law provides, in relevant part: 

The [B]oard shall have the power to refuse, revoke, refuse to renew 

or suspend licenses, upon due hearing, on proof of violation of any 

provisions of this [Law], or the rules and regulations established 

by the [B]oard under this [Law], or for gross incompetency or 

dishonest or unethical practices, or for failing to submit to an 

inspection of a licensee’s salon during the business hours of the salon. 

63 P.S. § 519(a) (emphasis added). This Court has recognized that Section 13(a) of the Law does 

not reference criminal convictions and, thus, allows the Pennsylvania Department of Corrections to 

offer cosmetology training to eligible inmates. See Abruzzese v. Bureau of Prof’l & Occupational 

Affairs, State Bd. of Cosmetology, 185 A.3d 446 (Pa. Cmwlth. 2018); see also Bentley v. Bureau of 

Prof’l & Occupational Affairs, State Bd. of Cosmetology, 179 A.3d 1196 (Pa. Cmwlth. 2018). 

Section 9124 of the Criminal History Record Information Act, 18 Pa.C.S. § 9124, further authorizes 

the Board to refuse, revoke or not renew the license of a cosmetologist/esthetician based on the 

applicant/licensee’s felony convictions or trade-related misdemeanors. However, the fact that the 

Board has this additional authority at its disposal does not render the Requirement unconstitutional 

on its face.
15

Const. art. I, § 26. “Together, [Article I, Section 1 and Article I, Section 26 of the

Pennsylvania Constitution] are understood to establish a right to equal protection of 

the laws equivalent to that established in the [U.S.] Constitution.”

10

 Smires v. 

O’Shell, 126 A.3d 383, 393 n.7 (Pa. Cmwlth. 2015). “Our Supreme Court has held 

that ‘[t]he Equal Protection Clause . . . does not obligate the government to treat all 

persons identically, but merely assures that all similarly situated persons are treated 

alike.’” Garrison v. Dep’t of Corr., 16 A.3d 560, 564 (Pa. Cmwlth. 2011) (quoting 

Small v. Horn, 722 A.2d 664, 672 (Pa. 1998)).

Petitioners assert in the Petition:

134. Applicants for limited cosmetology licenses are 

similarly situated to applicants for barber’s licenses.

135. Applicants for limited cosmetology licenses are 

similarly situated to applicants for unlicensed jobs at spas 

and salons.

136. Requiring good character of applicants for limited 

cosmetology licenses but not of applicants for barber’s 

licenses and unlicensed jobs at spas and salons facially

violates equal protection because it bears no real and 

substantial relationship to the protection of the public 

health, safety, or welfare, or to any other legitimate

government interest.

137. Requiring good character of applicants for limited 

cosmetology licenses but not of applicants for barber’s 

licenses and unlicensed jobs at spas and salons facially

violates equal protection because it is unreasonable, unduly 

oppressive, and patently beyond the necessities of 

regulating cosmetology, or of any other legitimate

government interest.

138. Requiring good character of applicants for limited 

cosmetology licenses but not of applicants for barber’s 

 

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).
16

licenses and unlicensed jobs at spas and salons facially

violates equal protection because it bears no rational 

relationship to any legitimate government interest.

139. The [Requirement] fails on its face to satisfy any 

standard of constitutional review for equal protection, no 

matter how articulated.

Petition at 25-26.

Chairman O’Neill acknowledged that, although salon receptionists, 

cashiers, make-up technicians and shampooers work alongside licensed 

cosmetologists and estheticians in salons, often with the same patrons and with 

similar access to their belongings, those other salon employees are not subject to the 

Requirement. See Appl. Ex. 1 at 97-99. Moreover, the General Assembly did not 

subject barbers to the Requirement. 

Despite that the Barber License Law’s purpose “is [likewise] the 

protection of patrons of barber . . . shops[,]” Weber, 147 A.2d at 328; see also King, 

the Barber License Law

does not [similarly] prohibit licensure based on a prior 

conviction of any kind, nor does it require that applicants 

demonstrate that they are of good moral character. [See

Section 3 of the Barber License Law,] 63 P.S. § 553 . . . . 

Instead, the Barber License Law requires only that 

applicants be at least 16 years old, have at least an eighthgrade education, have a specified amount of training and 

experience, and pass the applicable examinations. [See] 63 

P.S. § 553.

King, 195 A.3d at 326. 

Section 2.1 of the Barber License Law11 defines “barbering,” in relevant 

part, as follows:

To shave or trim the beard; to cut, shape, trim or blend the 

hair with the proper tools or instruments designed for this 

purpose; to shape the eyebrows, to give facial and scalp 

massaging, facial and scalp treatment, with any 

 

11 Added by Section 4 of the Act of June 30, 1984, P.L. 494.
17

preparations made for this purpose, either by hand or 

by mechanical or electrical appliances; to singe and 

shampoo the hair or apply any makes of hair cream, hair 

lotions or hair tonics; to dye, color or bleach the hair and 

to perform any service on a wig or hairpiece; to style and to 

render hair straightening, hair processing, hair weaving, hair 

waving and curling, with such methods as: manual, 

mechanical, chemical or electrical with the proper devices 

or proper chemical compounds developed and designed for 

this purpose. 

63 P.S. § 552.1 (emphasis added). 

Like estheticians, licensed barbers are permitted to shape/tweeze 

eyebrows, dye hair (including eyelashes and eyebrows), and give facial treatments 

and massages. See 63 P.S. § 507. Like cosmetologists, licensed barbers are 

permitted to clean, cut, color, process and remove hair, and massage the face and 

scalp. See id. Board administrator Kelly I. Diller (Diller) testified that there are 

salons in which both barbers and cosmetologists work. See Appl. Ex. 5 at 31. Yet, in 

its answer to the Petition, the Board acknowledged: “A barber practicing within his or 

her scope of practice by using tweezers to shape the eyebrows or a straight razor to 

shave or trim a beard is not required to be of good character.” Answer to Petition ¶ 

94.

Notably, Section 17 of the Law declares, in pertinent part: “Nothing in 

this [Law] is intended to be inconsistent with the [Barber License Law.]” 63 P.S. § 

523. The Pennsylvania Supreme Court has further explained:

The Barber License Law and the [Law] are in effect 

legislative [conjoined] twins. It is true they were born two 

years apart, but in the life of a commonwealth, and certainly 

in the life of the general welfare of a people, two years may 

be but a moment. The kinship between these two creatures 

of the Legislature was recognized in the [Law] by the 

language:

‘Nothing in this [Law] is intended to be inconsistent with 

the [Barber License Law],’ . . . 63 P.S. § 523.
18

It is a cardinal rule of statutory construction that a statute 

must never be read, unless the text impels so extraordinary 

a reading, as to impart to it an absurd intent. 

Weber, 147 A.2d at 328. 

When Chairman O’Neill was asked “What about good character is 

relevant to the practice of cosmetology?,” she responded: “Serving the public. It’s a 

major part of their job, [] dealing with the public, serving the public, communicating 

with the public, as well as their overall success.” Appl. Ex. 1 at 72. When asked: 

“Do you think that there’s anything about cosmetology that offers specific risks of 

certain kinds of crime?,” Chairman O’Neill responded: “No.” Appl. Ex. 1 at 74-75.

However, despite that the Law was not intended to be inconsistent with 

the Barber License Law, 63 P.S. § 523, the long-standing conjoined twin kinship 

between the Barber License Law and the Law, see Weber, and the similarity in the 

services barbers and cosmetologists/estheticians are authorized to provide –

sometimes in the same setting – the Requirement is imposed on 

cosmetologists/estheticians, but not barbers or other unlicensed salon employees. 

This Court agrees with Petitioners that it is absurd that, where “[e]ven if they have 

identical criminal records, even if they will perform similar services, even if they will 

stand one salon chair apart, the [L]aw requires good character of only the 

cosmetology applicants . . . and not the barber applicants . . . .” Petitioners’ Br. at 19-

20. Similarly situated licensed professionals and individuals in close contact with 

salon patrons and their belongings are not similarly restricted. Because there is no set 

of circumstances under which the Requirement would be valid in this context, the 

Requirement, on its face, violates the equal protection mandates of the Pennsylvania 

Constitution. Germantown Cab Co.

Accordingly, since Petitioners have made a viable claim that the

Requirement, on its face, violates equal protection, they have a clear right to relief.
19

B. Genuine Issues of Material Fact

The Board argues that there are outstanding issues of material fact that 

preclude this Court from granting judgment in Petitioners’ favor. Specifically, the 

Board asserts that “[a] genuine issue of material fact also exists as to Petitioner[s’] 

assertion that the Board has a ‘mission to ensure good salon experiences[,]’ 

[Petitioners’] Br. [at] 9[,]” rather than to promote patron safety. Board’s Br. at 9. 

The Board further claims that the absence of studies, interviews or testimony that 

good moral character protects salon patrons, raises a factual issue to be resolved at 

trial. See Board’s Br. at 9. In addition, the Board contends that the details of other 

Board decisions included with Petitioners’ Application raise factual issues related to 

whether there is no circumstance under which the Requirement would be valid. See

Board’s Br. at 7. The Board also maintains that “determining the ability of the Board 

to apply the provisions in a constitutional manner requires resolution of disputed 

facts.” Board’s Br. at 8. Further, the Board argues that Petitioners’ declaration that 

applicants with the wrong criminal history cannot become cosmetologists is an 

outstanding factual issue, since the Board routinely grants licenses to applicants with 

criminal histories. See Board’s Br. at 10. However, there is no factual dispute that 

the Requirement’s purpose is patron protection. Moreover, because Petitioners assert 

a facial challenge, and these purported factual issues concern the constitutionality of 

the Requirement as applied, they are not material to this Court’s decision.

12

 

The Board further asserts that Petitioners’ allegation that there is nothing 

unique about cosmetology to justify character reviews, and the differences between 

barbers and other salon employees as compared to cosmetologists must also be 

 

12 The record is clear that the Board approves the majority of cosmetology applications, but 

relies on the Requirement to scrutinize those with criminal histories and, even then, approves most 

of them. Notwithstanding, the Requirement’s constitutionality does not turn on the number of 

applicants the Requirement affects. Rather, the question is whether the Requirement is rationally 

related to protecting salon patrons. These issues need not be presented to a factfinder for resolution.
20

resolved. See Board’s Br. at 10. However, the Law specifies what services 

cosmetologists and estheticians are authorized to perform, and the Barber License 

Law details what services barbers may provide. Chairman O’Neill declared that there 

is nothing about cosmetology that offers specific risks of certain kinds of crime, and 

Diller detailed that there are other salon employees and barbers, and even prospective 

applicants, working in salons who are not subject to the Requirement. Therefore,

these material facts are not in dispute. 

Accordingly, there are no genuine issues of material fact that would 

preclude this Court from granting summary relief.

Conclusion 

Based on the foregoing, because the Requirement, on its face, violates 

the equal protection mandates of the Pennsylvania Constitution, this Court grants 

Petitioners’ Application.

___________________________

ANNE E. COVEY, Judge

Judge Fizzano Cannon did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and :

Amanda Spillane, :

Petitioners :

:

v. :

:

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, : No. 765 M.D. 2018

Respondent :

O R D E R

AND NOW, this 25th day of August, 2020, the Application for Summary 

Relief filed by Courtney Haveman and Amanda Spillane is GRANTED. Section 5(a)

of what is commonly referred to as the Beauty Culture Law, Act of May 3, 1933, P.L. 

242, as amended, 63 P.S. § 511(a), is hereby declared unconstitutional and 

unenforceable, and the Bureau of Professional and Occupational Affairs, State Board 

of Cosmetology, is hereby enjoined from enforcing the good moral character 

requirement contained therein.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and :

Amanda Spillane, :

Petitioners :

:

v. : No. 765 M.D. 2018

: Argued: June 11, 2020

Bureau of Professional and :

Occupational Affairs, State :

Board of Cosmetology of the :

Commonwealth of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION

BY JUDGE BROBSON FILED: August 25, 2020

Petitioners Courtney Haveman (Haveman) and Amanda Spillane (Spillane)

(collectively, Petitioners) have criminal records. Because of those criminal records, 

Respondent Bureau of Professional and Occupational Affairs, State Board of 

Cosmetology (Board), denied Petitioners’ applications for a limited license to 

practice esthetics under what is commonly referred to as the Beauty Culture Law or 

Cosmetology Law (Law).1 Specifically, based on the convictions, and only based 

 

1 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§ 507-527.
PKB-2

on the convictions,

2

the Board determined that Petitioners lacked the “good moral 

character” required for a limited license.3

Petitioners both had available administrative remedies to address the Board’s 

separate decisions to decline their applications based on their criminal histories. 

Haveman, however, elected not to proceed with a hearing before the Board. The 

Board issued a final adjudication, denying her application on October 7, 2016. 

Spillane requested a hearing and received an adverse adjudication from the Board 

on November 4, 2015, but chose not to appeal the adjudication to this Court. 

Roughly two and three years later, respectively, Spillane and Haveman initiated this 

action in our original jurisdiction.

I agree with the Honorable Bonnie Brigance Leadbetter, who, in her 

dissenting opinion on December 9, 2019, would have sustained the preliminary 

objections of the Board to our exercise of original jurisdiction in this matter. 

Haveman v. Bureau of Prof’l and Occupational Affairs, State Bd. of Cosmetology

(Pa. Cmwlth., No. 765 M.D. 2018, filed Dec. 9, 2019) (Leadbetter, S.J., dissenting). 

Petitioners actively participated in an administrative process that, had they seen 

through to fruition, would have allowed this Court to address their alleged facial 

 

2

(See Petition for Review ¶¶ 1, 2, 26-42, 68, 69.) Petitioners also purport to advance the 

interests of others whose applications the Board routinely denies “under the good[ ]character 

requirement . . . because of criminal convictions.” (Id. ¶ 75; see id. ¶ 77.)

3 Section 5(a) of the Law, 63 P.S. § 511(a).
PKB-3

constitutional challenge, as well as an as applied challenge,4 perhaps even within the 

two or three years prior to initiating this original jurisdiction action.5

For this reason, I would deny Petitioners’ Application for Summary Relief 

and dismiss this matter for lack of original jurisdiction.6

P. KEVIN BROBSON, Judge

 

4

I believe that the claim in this action, while couched as a facial constitutional challenge, 

is, in reality, an as applied challenge to how the Board is applying the “good moral character” 

requirement to bar Spillane and Haveman from receiving licenses due to their respective criminal 

histories.

5

In this regard, the administrative process did not pose too great of a burden on Petitioners. 

Petitioners cannot credibly argue that this Court should hear this matter as a “pre-enforcement 

review.” See Robinson Twp. v. Cmwlth., 83 A.3d 901, 990-91 (Pa. 2013) (noting defenses to 

original jurisdiction pre-enforcement action include concerns that “issues or facts . . . not 

adequately developed” and “whether [the] adversary will suffer any hardships if review is 

delayed”). Here, Petitioners, not the administrative process, delayed judicial review. The Board 

already enforced the statute against Petitioners, perhaps improperly so. Petitioners, however, 

abandoned the administrative process and their appeal remedies. While we have exercised our 

original jurisdiction in pre-enforcement reviews, I question the wisdom of using our original 

jurisdiction, rather than our appellate jurisdiction, in post-enforcement reviews of agency 

decisions. See Pocono Manor Investors, LP v. Dep’t of Envtl. Prot., 212 A.3d 112, 116 (Pa. 

Cmwlth. 2019) (en banc) (“[E]xhaustion is not a necessary prerequisite to obtaining judicial 

review if ‘[the challenged law] itself causes actual, present harm’ prior to its enforcement.”

(emphasis added) (quoting Concerned Citizens of Chestnuthill Twp. v. Dep’t of Envtl. Res., 

632 A.2d 1, 3 (Pa. Cmwlth. 1993), appeal denied, 642 A.2d 488 (Pa. 1994))).

6 Alternatively, in light of the passage of the Act of July 1, 2020, P.L. 575, No. 53 (Act 53), 

I would invite the parties to brief the issue of mootness before ruling on Petitioners’ Application.

On July 17, 2020, the Board submitted a letter to the Court, pursuant to Pa. R.A.P. 2501, advising 

the Court of the passage of Act 53 and in which the Board, inter alia, contends that the passage of 

Act 53 “materially affects the authoritative status” of Section 5(a) of the Law.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and Amanda :

Spillane, :

Petitioners : No. 765 M.D. 2018

v. :

: Argued: June 11, 2020

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION 

BY JUDGE McCULLOUGH FILED: August 25, 2020

Here, the Bureau of Professional and Occupational Affairs, State Board 

of Cosmetology of the Commonwealth of Pennsylvania (Board) denied the 

applications of Courtney Haveman and Amanda Spillane (Petitioners) for licensure 

as estheticians on the basis that they did not satisfy the “good moral character” 

requirement of section 5(a) of the statute known as the Beauty Culture Law,1 63 P.S. 

§511(a). Thereafter, Petitioners did not petition this Court for review. Instead, 

Petitioners filed the instant action in our original jurisdiction as a petition for review 

 

1 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§507-527.
PAM - 2

in the nature of declaratory and injunctive relief, seeking an order decreeing that the 

“good moral character” requirement is unconstitutional on its face. 

While I agree that there are significant constitutional issues that would 

be applicable here, I believe we must first address the issue of mootness for failure 

to exhaust administrative remedies, a procedure which, if pursued through its natural

course, could have provided Petitioners with an adequate remedy. 

 Although petitioners need not avail themselves of or even exhaust 

administrative remedies when they lodge a facial constitutional challenge to a 

statutory provision, see East Coast Vapor, LLC v. Pennsylvania Department of 

Revenue, 189 A.3d 504, 511 (Pa. Cmwlth. 2018) (en banc), Petitioners here decided 

to apply for licensure and elected to pursue the administrative process with and 

through the Board. Yet, along with that administrative channel and procedure came 

an automatic right to file a petition for review with this Court. See Pittman v. 

Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017). In 

Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003), our Supreme Court 

explained that petitioners’ “facial challenges to a statute’s constitutionality need not 

be raised before the administrative tribunal to be reviewed by an appellate court.” 

Id. at 275. In so deciding, our Supreme Court confirmed that this Court could have 

entertained Petitioners’ constitutional claims on direct appeal from the Board. 

However, Petitioners chose to not file a petition for review with this 

Court from the Board’s order denying their applications. During the pendency of 

this appeal, on July 17, 2020, the Board filed a submission with this Court, 

contending that the enactment of the Act of July 1, 2020, P.L. 575, No. 53 (Act 53), 

severely altered its authority to implement the “good moral character” requirement 

of section 5(a), namely the manner in which it may or can take into consideration 

past criminal convictions when deciding to grant licensure. The Board requests that 
PAM - 3

we review the impact of Act 53 to assess whether the legislation has rendered 

Petitioners’ constitutional claims moot. Because I believe the parties must first 

address the effect that this Act may have on section 5(a), see Department of 

Environmental Resources v. Jubelirer, 614 A.2d 204, 211-212 (Pa. 1992), I must 

respectfully dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Courtney Haveman and Amanda :

Spillane, :

Petitioners :

:

v. : No. 765 M.D. 2018

: ARGUED: June 11, 2020

Bureau of Professional and :

Occupational Affairs, State Board of :

Cosmetology of the Commonwealth :

of Pennsylvania, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION 

BY JUDGE CEISLER FILED: August 25, 2020

I agree with the outcome of this case and the majority’s determination that 

rational basis review applies to this matter, pursuant to our Supreme Court’s holding 

in Germantown Cab Co. v. Philadelphia Parking Authority, 206 A.3d 1030, 1041 

(Pa. 2019). I also concur fully in the majority’s well-reasoned conclusion that the 

“good moral character” requirement of Section 5(a) of the statute known as the 

Beauty Culture Law,1 63 P.S. § 511(a) (Section 5(a)), violates the equal protection 

provisions of both the United States and Pennsylvania Constitutions. Additionally, 

I agree with the majority’s determination that there are no genuine issues of material 

fact to be resolved.

 

1 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§ 507-527.
EC - 2

I respectfully dissent, however, from that portion of the majority’s opinion 

concluding that Section 5(a) does not facially violate the substantive due process 

rights of Courtney Haveman and Amanda Spillane (Petitioners) pursuant to the 

Fourteenth Amendment of the United States Constitution, U.S. CONST. amend XIV, 

§ 1 (“[n]o state shall . . . deprive any person of life, liberty, or property, without due 

process of law”), and Article I, Section 1 of the Pennsylvania Constitution, PA.

CONST. art. I, § 12(“[a]ll 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”). In my view, Section 5(a)’s requirement that 

applicants for limited cosmetology licenses be of “good moral character” violates 

substantive due process requirements and is facially unconstitutional for this 

additional reason.

I. Background

Petitioners are two women who want to become estheticians, which are

cosmetologists who focus on skincare. This requires only a limited license rather 

than a full cosmetology license, but the State Board of Cosmetology (Board)

applies the “good moral character” requirement equally to both types of licenses. 63 

P.S. § 511(a). Petitioners have criminal records from when they were younger and 

struggling with substance abuse, but they have turned their lives around. Both have 

been clean/sober and successful for years. Both graduated from beauty school and 

received job offers from salons. Ms. Spillane even went through a humiliating 

hearing before the Board to prove she is a good person. Under the good character 

requirement, however, the Board rejected both Petitioners’ license applications, even 

 

2 See Germantown Cab Co. v. Phila. Parking Auth., 206 A.3d 1030, 1042-43 (Pa. 2019)

(citing PA. CONST. art. I, § 1 as a source of substantive due process rights). 
EC - 3

though Petitioners’ criminal histories have nothing to do with cosmetology.

Pursuant to the good character requirement, the Board routinely scrutinizes 

applicants because of irrelevant criminal convictions. Then, for an applicant whose 

application is initially denied and who agrees to undergo a hearing to continue 

pursuing licensure, the hearing process is grueling. Applicants are required to reveal 

intensely personal and painful experiences to the Board. Moreover, the process of 

considering the applicant’s character can easily take a year, while the applicant is 

waiting and unable to practice her chosen career.

II. Due Process and the “Good Moral Character” Requirement

Article I, Section 1 of the Pennsylvania Constitution guarantees “an 

individual’s right to engage in any of the common occupations of life.” PA. CONST. 

art. I, § 1; Johnson v. Allegheny Intermediate Unit, 59 A.3d 10, 20 (Pa. Cmwlth. 

2012) (en banc). “[T]he legislature can curtail the right to engage in a chosen 

occupation for an important reason, but it may not do so in a way that is overly 

broad.” Peake v. Commonwealth, 132 A.3d 506, 519 (Pa. Cmwlth. 2015) (en banc). 

“‘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.’” Id. (quoting Gambone v. Commonwealth, 101 A.2d 634, 637 

(Pa. 1954)) (emphasis in Peake).

Petitioners contend the statutory “good moral character” requirement deprives 

them of their chosen occupations and thereby violates their substantive due process 

rights. The sole purpose of Pennsylvania’s cosmetology laws is to protect patrons 

of beauty salons. Dep’t of Licenses & Inspections, Bd. of License & Inspection

Review v. Weber, 147 A.2d 326, 328 (Pa. 1959). As Petitioners correctly point out, 
EC - 4

Section 5(a)’s good character requirement facially lacks a “real and substantial 

relation” to that purpose. Peake, 132 A.3d at 519. 

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. See Appl. for Summary Relief, Ex. 7 (Board could not

identify evidence that the requirement serves a purpose). In fact, the Board already 

has separate authority to withhold licenses for misbehavior that is related to 

cosmetology. 

Moreover, the good character requirement is unconstitutionally imprecise and 

arbitrary. “The touchstone of due process is protection of the individual against 

arbitrary action of the government.” Peake, 132 A.3d at 518 (quoting Nixon v. 

Commonwealth, 839 A.2d 277, 287 (Pa. 2003)); see also Johnson, 59 A.3d at 20 

(“The substantive protections of due process are meant to protect citizens from 

arbitrary and irrational actions of the government.”). By definition, arbitrary laws 

do not advance state interests. 

The Board argues Petitioners cannot sustain a facial challenge because they 

cannot show the statute is invalid in all circumstances. The Board posits that its 

decisions granting licenses to some applicants with criminal records demonstrate 

that the statute is constitutional as applied in those cases. However, the Board’s 

uneven application of its prejudice against former criminals is not relevant to 

whether the statute is facially unconstitutional.

The Board also argues that good moral character may be important to 

eligibility for professional licenses. The Board points to this Court’s approval of 

such a requirement for notaries and asserts it has applied the “good moral character” 

standard of Section 5(a) similarly. Again, this is not relevant to whether that 
EC - 5

standard is constitutionally permissible for estheticians. Moreover, the standard’s 

importance for notaries is self-evident; the same is not true for cosmetologists. 

Rational basis review “require[s] an individual challenging legislation to show 

either that the legislation does not further a legitimate state interest[] or that the 

legislation is not rationally related to this legitimate state interest.” Germantown 

Cab Co., 206 A.3d at 1044 (citing Washington v. Glucksburg, 521 U.S. 702, 728 

(1997), and Romer v. Evans, 517 U.S. 620, 635 (1996)). “In addition, Pennsylvania 

balances the rights of the individual against the public interest.” Germantown Cab 

Co., 206 A.3d at 1044-45.

Here, there is facially no rational relation between the “good moral character” 

requirement of Section 5(a) and the legislature’s asserted interest in public health 

and safety. Further, Petitioners persuasively argue that their individual rights 

outweigh any indeterminate public interest. In this regard, it is notable that the Board 

simply asserts that the “good moral character” requirement of Section 5(a) bears a 

rational relation to the public interest because the legislature is presumed to make 

decisions based on the public interest. This circular argument does not support the 

Board’s contention that the public interest outweighs that of Petitioners for purposes 

of rational basis review.

Finally, the Board contends good moral character is important because clients

must be able to trust their estheticians, as estheticians are in physical contact with

clients. The Board asserts, with absolutely no supporting evidence, that clients may 

find themselves “in a rather compromising position” with an esthetician (although

apparently not with a barber using a straight razor) and need the comfort of knowing 

the person touching them is of good moral character. This bald assertion is simply 

without record support. Thus, the Board has failed to point to any specific set of 
EC - 6

circumstances in which Section 5(a) would bear a rational relation to the legislative 

purpose of protecting beauty salon patrons.3

For these reasons, I conclude that Section 5(a) facially violates constitutional 

rights of substantive due process, as well as equal protection rights, under rational 

basis review. I would grant Petitioners’ requested relief on this additional basis.

Therefore, I respectfully dissent from that portion of the majority’s decision 

concluding that Section 5(a) does not facially violate Petitioners’ substantive due 

process rights.

__________________________________

ELLEN CEISLER, Judge

 

3 Significantly, the legislature recently amended statutory licensing requirements to

eliminate the consideration of a cosmetology license applicant’s criminal history in determining 

good moral character. Specifically, under Section 3113(a) and (a.1) of the Act of July 1, 2020, 

P.L. 53 (Act 53), licensing boards can no longer determine “good moral character” of cosmetology 

license applicants in conjunction with criminal convictions. See 63 Pa. C.S. § 3113(a) & 

(a.1). Instead, the legislature has provided detailed analytical guidelines under which the relevant

licensing board must first determine whether the applicant’s prior criminal conviction is directly 

related to the ability to perform the licensed activity. That direct relation is to be determined 

objectively by whether the criminal statute at issue is included in a statutory list (which is yet to 

be developed). 63 Pa. C.S. § 3113(b)(1). If the criminal conviction is not directly related to the 

occupation at issue, the licensing board will proceed to determine whether the requested licensure 

would pose a substantial risk to the applicant’s patients or clients. 63 Pa. C.S. § 3113(b)(2).

Act 53 also provides a mechanism by which a prospective license applicant can obtain a 

preliminary opinion from a licensing board, in order to determine the board’s position on the 

applicant’s prior criminal conviction and its likely effect on licensure, before the applicant expends 

time and money in seeking training in the prospective occupation. 63 Pa. C.S. § 3115. The 

inability to obtain such advance information was a consideration asserted by Petitioners here.