# The Attorney General of Texas
March 16, 1978 JOHN L. HILL Attorney General

Honorable D.R.“Tom” Uher, Chairman State Affairs Committee House ofRepresentatives Austin, Texas Opinion No. H-1137 Re: Separation of barber shop and beauty shop housed in the same building. Dear Mr.Uher: You ask for anopinion onthe constitutionality ofarticle 8402, V.T.C.S., which relates to the jurisdiction ofthe State Board of Barber Examiners and the Cosmetology Commission. Itprovides inpart:

In order that the public may fix responsibility for services, acts, or treatments performed by persons licensed by the State Board ofBarber Examiners vis-avis those performed by persons licensed by the Texas Cosmetology Commission, to promote the efficient and orderly administration of laws regulating barbers and the practice of barbering and the laws regulating cosmetologists and the practice ofcosmetology and to avoid confusion of the public as well as avoiding conflicts of jurisdiction between such board and commission which might impede effective administration orenforcement ofthe laws under their respective jurisdictions, from and after January 31, 1976, no person licensed by the barber board shall perform, offer, or attempt to perform any act, service, or treatment by authority of any such license on the premises of any beauty parlor, beauty salon, specialty salon, beauty culture school or college, or any location under the jurisdiction of the Texas Cosmetology Commission, and no person licensed by the cosmetology commission shall perform, offer, or attempt to perform any act, service, or treatment by authority of any such license on the premises of any barber shop, specialty shop, barber school or college, or any location under the jurisdiction of the State Board of Barber Examiners.

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The Barber Board and the Cosmetology Commission have interpreted this provision to require asolid partition separating abeauty salon from abarber shop housed in the same building. You ask whether the Legislature may constitutionally place this restriction onbusiness ventures. The regulation ofbarbering and cosmetology isnecessary to the public health and a prope; subject for the exercise of the pc%ce power. Texas State Board of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729 (Tex. 1970); Gerard v. Smith, 52 S.W.2d 347 (Tex. Civ. App. - El Paso 1932, writ ref’d). In determin lingwhether apolice power regulation violates the due process clause, U.S. Const. amend. XIV: Tex. Const. art. 1,§19,the court considers whether it bears a rational relation to the protection of .the public health and safety. See Pavone v. Louisiana State Board of Barber Examiners. 364F. SUDD. 961(E.D. La.973), ,aff’d, 505 F.2d 1023(5th Cir. 1974). See also Williamson v.Lee Optical ofOklahoma, Inc., 348 U.S. 483 (1955);State v.Spartan’s Industries, 447 S.W.2d 407 (Tex. 1969). There isastrong presumotion in favor ofthe VI nlidity ofpolice power enactments. Texas State Board ofBarber Examiners v. Beaumont Barbers College, Inc., w. With these principles in mind, we consider the relation between this provision and the public health and safety. Barbers and cosmetologists are licensed to perform substantially identical services. See V.T.C.S. art. 8407a, S4(b); art. 8451a, - Sl(3); Bolton v. Texas Board of Barber Examiners, 350 F. Supp. 494 (N.D. Tex.), aff’d D, 409 U.S. 807(1972). Arguably, there are minor differences between the aces the two licenses authorize their holders to perform. Attorney General Opinion M-1270 (1972);see Attorney General Opinion H-1066 (1977). Inaddition, the statutory standards for licensing barber shops differ slightly from those for beauty parlors. Compare art. 8407a, S3,with art. 8451a, SS23, 42. Thus there are still differences between the two profans and possibly between the premises in which each ispracticed. Article 8402 reflects a legislative determination that separation of cosmetology premises from barbering premises will aid the enforcement ofeach licensing system. Inview of the differences between the two vocations, we cannot say that the separation ofpremises bears no relation to this goal. The enforcement ofsuch licensing systems is of course related to the public health and safety. See Lackey v. State Board of Barber Examiners, 113S.W.2d 968 (Tex. Civ. App. - Austm 1938, no writ). “The necessity or reasonableness ofparticular regulations imposed under the police power is a matter addressed to the legislative department whose determination inthe exercise ofasound discretion is conclusive upon the courts.” Texas State Board ofBarber Examiners v. Beaumont Barbers College, Inc., s at 732. ACalifornia Court of Appeals upheld astatute providing that a COsmetolo~ license did not authorize the holder to work inabarber shop. Bone v.State Board of Cosmetology, 80 Cal. Rptr. 164 (Ct. App. 1969). It found that California

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maintained separate licensing systems with separate standards for barbers and cosmetologists. and concluded that the statute had a reasonable basis in the legislative~determination that the two vocations remain distinct. Contra, Mains v. Board ofBarber Examiners, 57Cal. Rptr. 573(Ct. App. 1967)(dicta). See also Mans Look, Inc. v. Florida Barbers’ Sanitary Comm’n, 292 So.2d 387 (Fla. Dist. Ct.% 19741. In our opinion, the courts would probably uphold article 8402, V.T.C.S., as construed to require the separation of barber’s premises from cosmetologist’s premises. SUMMARY

The courts would probably find article 8402, V.T.C.S., requiring the separation of a beauty salon from a barber shop housed in the same building, to be avalid police power regulation. _Verytruly yours,

Attorney General ofTexas APPROVED:

C. ROBERT HEATH, Chairman Opinion Committee jst

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