AZ Eyebrow Threading - Backgrounder

June 2011

Litigation Backgrounder

Will Arizona Courts Leave Protection of Individual Liberty Threadbare?

Arizona Eyebrow Threaders Fight Irrational Licensing Scheme

 

The Issue in a Nutshell:

Eyebrow threading is very popular in Arizona.  Threading is a natural and safe method of hair removal that uses a single strand of cotton thread to remove unwanted hair, most commonly from the eyebrows, with no chemicals, dyes, hot wax or sharp objects.  But state officials have decided that threaders cannot practice their trade without first obtaining an unnecessary and expensive government license.

The Arizona Board of Cosmetology is now requiring skilled threaders to obtain an aesthetician license, which requires at least 600 hours of classroom instruction—not one hour of which teaches or tests threading—and that can cost over $10,000.  But threaders do not need full-blown cosmetology training.  The Board’s irrational application of Arizona’s licensing scheme cuts the bottom rungs off the economic ladder for threaders working in a safe and sanitary occupation. 

The Arizona Constitution protects everyone’s right to earn an honest living without first having to obtain a completely unnecessary license.  That is why a group of five threaders have filed Gutierrez v. Aune, a lawsuit to vindicate their economic liberty, which is the right to earn an honest living free from unreasonable government regulation.

This lawsuit continues the Institute for Justice Arizona Chapter’s ten-year fight to vindicate economic liberty as a fundamental and constitutionally protected right under the Arizona Constitution.




What is Eyebrow Threading?

 The first known depiction of thread dates to 20,000 B.C.,[1] and it was a momentous invention.  Thread could be used as a tool for tying things up, it could be woven together to make shelter and clothing, and it could be used for beauty.  A single strand of thread can be wound between the hands to form a loop in a way that, when brushed along the skin, removes hair.  This personal grooming technique dates to antiquity[2] and is still practiced in the Middle East, China, India, and other parts of Asia.[3]

Immigrant entrepreneurs from those regions brought threading to the United States and Arizona, where it has steadily grown in popularity as awareness increases of threading as a safe and sanity hair removal technique.[4]  Threading does not involve any risk of burning or removing a customer’s skin, as do techniques that rely on hot wax or harsh chemicals.  It also does not involve any sharp objects, such as needles, or any skin-to-skin contact between the threader and customer.[5]  

Threaders simply use their skill and a single piece of cotton thread to remove unwanted hair.

While the customer may feel a slight pricking sensation, threading is painless relative to other forms of hair removal and becomes more and more comfortable over time.[6]   Some threaders apply over-the-counter astringents, such as witch hazel, or over-the-counter soothing powders, such as baby powder, to clean or numb hair follicles before and/or after threading.

Threading is also cheaper and faster than other hair removal techniques.  Threading costs, on average, between $5 and $10 (approximately one-third less than waxing) and takes between five and ten minutes to complete, depending on how much hair is removed.[7]   The elegant simplicity of threading creates vibrant competition with other hair removal practices, thus keeping prices low for consumers.

But in 2009, despite the benefits of this safe and all-natural technique to entrepreneurs, workers, and consumers, the Arizona Board of Cosmetology (the “Board”) declared that all threaders must be licensed as aestheticians or cosmetologists.  To get a license, threaders must take 600 hours of classroom instruction at a cost of over $10,000 even though not a single hour teaches or tests threading.  The Board’s decision cuts off the bottom rungs of the economic ladder for talented threaders who rely on their threading skills to support themselves and their families.

 

Arizona’s Cosmetology Regime

Arizona’s cosmetology statutes require anyone who “remov[es] superfluous hair by means other than electrolysis,”[8] to first obtain either a cosmetologist license or an aesthetician license.[9]  On August 14, 2009, the Board officially declared that all threaders must be licensed as aestheticians or cosmetologists.[10]  The law did not change.  Rather, the unelected members of the Board took it upon themselves to regulate threaders.

Getting a license from the cosmetology board is not easy.  An aesthetician license requires at least 600 hours of classroom instruction in a private, Board-licensed beauty school and can cost over $10,000.  A cosmetologist license requires at least 1600 hours of classroom instruction and includes additional requirements related to hair and nails while also encompassing the basic aesthetician requirements.  However, in neither their aesthetician nor cosmetology curriculums do beauty schools teach threading.  Instead, the schools teach students to use hot wax, to perform facials and chemical peels, as well as other Western beauty techniques.  It makes no sense to require threaders to get a license that does not require any training in or knowledge of threading.

The Board is regulating a practice it does not understand and that is no way for the government to act.  Just because threaders remove unwanted hair does not mean the state can regulate threading as if it were the same as other Western techniques.  A single cotton thread is not the same as hot wax, and regulating it as such has real, harmful effects on real, hardworking people.

Fortunately, the Arizona Constitution prohibits the state from regulating a trade like threading unless the state can show actual evidence of a real threat to public health and safety.  The Constitution also prohibits the state from regulating a profession in an arbitrary manner.  As an initial matter, there is no reason to regulate threading because it is a safe and sanitary method of hair removal.  However, even if the state were to pass some minimal regulations, those regulations must be tailored to fit the practice of threading.

Unlicensed threaders do not pose a risk to consumers, but threaders themselves are at a real risk if they thread without a license.  Being convicted of unlicensed threading could subject them to fines of up to $2,000 for each violation[11] and is a class 1 misdemeanor, punishable by up to six months in prison for each violation of the law.[12]  While Arizona’s cosmetology scheme prevents threaders from earning an honest living, nearby states such as California, Utah, Colorado, and Nevada permit threaders to practice their trade free from arbitrary licensing laws.[13]

 

Arizona Threaders Are Standing Up To Protect Their Economic Liberty

A group of five Arizona threaders with over 50 years of combined threading experience has teamed up with the Institute for Justice to fight for their right to be free from unreasonable government regulation.  They do not have a lot of money or advanced degrees; but they have found gainful employment through honest work and support themselves and their families through their skill in threading.  Using one’s skill and working hard to climb the economic ladder is the essence of the American Dream, but the Board’s application of Arizona’s aesthetician licensing scheme threatens to shatter that dream.

Juana Gutierrez was born in Illinois and has been threading for eight years.  She manages six threading kiosks in the Phoenix-area and just had her first child.  Due to her financial circumstances, she was back at work only one week after her son was born.  She hopes to one day go to work without being harassed or threatened by the Board of Cosmetology.

Rolando “Angel” Martinez was born in the United States and has been threading for 14 years.  What started as a part-time high school job has turned into a career.  He boasts a loyal clientele of nearly 600 people—including many licensed aestheticians.  Angel loves working as a threader and does not want to go to cosmetology school and take completely irrelevant courses.

Francisco Garcia is a Phoenix native and has been threading for two years.  He also has developed a loyal clientele and even trains new threaders from time to time.  He loves seeing the satisfaction in his clients’ eyes and has no desire to learn how to do facials, chemical skin peels, or how to wax his client’s eyebrows.  He simply wants to thread.

Jehan Mamo arrived in the United States in 2008 from Iraq after marrying her husband, a U.S. citizen.  She has been threading for 15 years.  In Iraq, she taught kindergarten and managed a salon for seven years.  She is the sole breadwinner for her husband, who is disabled, and their seven-month-old daughter. 

Kaukab Sohail has been treading for 25 years and learned the trade at a salon in Pakistan.  She is married with three sons—one just graduated from Arizona State University and the other is finishing school with an eye towards medical school.  Her husband is also in school, taking classes in pharmacology.  Kaukab’s job helps support her family and pay for school.

Regardless of whether a threader is an immigrant with few other marketable skills, or an American citizen who finds fulfillment working as a threader, the Board’s decision threatens every threader’s right to use their skill in the occupation of their choice.  The Board wants to regulate threading even though it does not test or require schools to teach threading.  At the same time, complying with the Board’s unreasonable demands would cost threaders a small fortune in already difficult economic times.  Attempting to regulate threaders is a waste of time and money—both for threaders and for the state—because threading does not require full-blown cosmetology training.  The Board’s decision is also detrimental to consumers because the added cost of obtaining a license will only drive up prices.  The Board’s attempt to regulate threading in Arizona is bad public policy.  It is also unconstitutional.

 

Occupational Licensing and Economic Liberty 

In the 1950s, less than five percent of the nation’s workforce was required to obtain government permission through the form of an occupational license in order to work.[14]  Today, the number is approaching 30 percent.[15]  Occupations requiring government licenses include not only the medical, legal and other highly specialized professions, but also professions in which justification for such burdensome restrictions on entry is nonexistent.

Typically, licensing boards are comprised of members of the regulated profession, with the coercive power of government at their disposal.  As a result, licensing requirements often exceed valid public health and safety objectives, and instead are used to reduce competition from newcomers.  As economist Walter Williams observes, these laws and regulations “discriminate against certain people,” particularly “outsiders, latecomers and the resourceless,” among whom members of minority and immigrant groups are disproportionately represented.[16]

Occupational licensing laws are proper only when they legitimately protect public health and safety, but today’s regulations all too often infringe the individual right to earn an honest living.  Indeed, the right to earn a living in the occupation of one’s choice is among the most fundamental rights a person possesses.  Economic liberty, as the right to earn an honest living is often called, traces to the classical liberalism of America’s founders.[17]  It is a basic right that neither derives from nor is conferred by the state.  Rather, it flows from “the dignity and worth of human personality.”[18] 

The Arizona State Constitution was designed to protect economic liberty.  And indeed, Arizona courts once robustly protected economic liberty from legislative overreach by closely scrutinizing government action.[19]  In no uncertain terms the Arizona Supreme Court declared, “It will not prosper the community or other lines of business or trade to limit the number of those who may engage in the business . . . [T]he police power, broad and comprehensive as it is, may not be used to prevent a person from . . . the right to earn a living.”[20] 

Unfortunately, in more recent cases, Arizona courts have deferred to legislative whims and refused to strike down economic regulations.[21]  The need for Arizona’s courts to strike down economic regulations that exceed the government’s legitimate interest in health and safety is crucially important because the Supreme Court of the United States has failed to protect our economic liberty for the last seventy-five years.[22]  

The Institute for Justice’s goal in this case is to restore the right to earn an honest living as a fundamental right in Arizona, and we need judges to protect that right through a meaningful standard of judicial review.  As history shows, individual rights and constitutional limits on government power become meaningless unless judges enforce them. 

 

The Legal Challenge

For ten years, one critical part of IJ-AZ’s mission has been to restore economic liberty as a fundamental civil right under the state constitution.  This case continues that mission by challenging the Board’s decision to regulate threaders as if they were aestheticians or cosmetologists.  Our goal is to create a rule of law whereby governments must affirmatively demonstrate that restraints on entry into businesses or professions actually further legitimate public health and safety objectives.  Another IJ case, Cornwell v. Hamilton,[23] which invalidated California’s cosmetology license requirements for African hair braiders, illustrates this approach. 

As in Cornwell, there is no rational fit here between the state’s aesthetician training[24] and threading.  Threading, similar to African hair braiding, is a traditional, all-natural grooming practice that cannot be constitutionally regulated as a chemical-based form of aesthetics or cosmetology.  There is no evidence of harm arising from the unlicensed practice of threading and no fit between the government’s regulatory objectives and its regulatory methods.  This case, Gutierrez v. Aune, is filed in the Maricopa County Superior Court. 

IJ-AZ’s efforts will not cease until the right of every Arizonan to earn an honest living is secure.

 

Litigation Team

IJ-AZ Executive Director Tim Keller will lead the litigation team, assisted by co-counsel Paul Avelar, a staff attorney at the Institute for Justice Arizona Chapter.

 

The Institute for Justice Arizona Chapter: Protecting Economic Liberty for 10 Years

The Institute for Justice is a public interest law firm that advances a rule of law under which individuals can control their destinies as free and responsible members of society. Through litigation, communication, outreach and strategic research, IJ extends the benefits of freedom to those whose full enjoyment is denied by the government and secures protection for individual liberty, including the freedom to pursue an honest living free from unreasonable government interference.  

IJ-AZ has scored significant victories on behalf of individuals and businesses in Arizona, including hairbraiding entrepreneurs harassed by state cosmetology officials.  In 2004, as a result of IJ-AZ’s lawsuit Farmer v. Arizona Board of Cosmetology, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.  Also in 2004, IJ-AZ’s threat of litigation induced the Arizona Structural Pest Control Commission to completely reverse its earlier position that teenage entrepreneur Christian Alf must have a license to install wire mesh over pipes and vents to prevent roof rats from entering attics—even though he did not use pesticides or try to capture or kill the rodents.  Similarly, after IJ-AZ filed suit in Rissmiller v. Arizona Structural Pest Control Commission, Arizona passed legislation that allows gardeners and landscape maintenance workers the freedom to spray weeds without first jumping through unreasonable regulatory hoops.  And more recently in Bell v. Pinal County Board of Supervisors, IJ-AZ scored a victory in court when it defeated a ridiculous government demand that forced entrepreneur Dale Bell to ban dancing outside his Country & Western steakhouse, San Tan Flat, or else face fines of almost $200,000 a year.

The Institute for Justice Arizona Chapter is located in Tempe and litigates under the state and federal constitutions to reinvigorate economic liberty, preserve property rights, promote educational choice and defend the free flow of information essential to politics and commerce.

The Institute for Justice is based in Arlington, Virginia.  In addition to Arizona, IJ has state chapters in Texas, Washington and Minnesota, as well as a Clinic on Entrepreneurship at the University of Chicago Law School.

 

For more information, please contact:

 

Bob Ewing

            Assistant Director of Communications

            Institute for Justice

901 N. Glebe Rd # 900
Arlington, VA 22203-1854

            (703) 682-9320

bewing@ij.org

 

            or

 

            Timothy D. Keller

            Executive Director

            Institute for Justice Arizona Chapter

398 S Mill Avenue Ste 301
Tempe, AZ 85281-2840
(480) 557-8300

tkeller@ij.org 



[1] Elizabeth Wayland Barber, Women’s Work, The First 20,000 Years: Women, Cloth, and Society in Early Times 44-45 (1995).

[2] Richard F. Wagner, Jr., Mamdouh M. Abdel-Gawad & Ibrahim A. Abdel-Hamid, Khite: A Non-Western Technique for Temporary Hair Removal, 36 International Journal of Dermatology 217 (1997).

[3] Victoria Sherrow, Encyclopedia of Hair: A Cultural History 118 (2006).

[4] See, e.g., Joyce Bertschy, An Age-Old Beauty Treatment, Arizona Daily Star, Oct. 8, 2009, http://azstarnet.com/news/local/northwest/article_dbec943b-9a1b-5953-8ca1-42db63955930.html; Susan Tully, Hair Stories, Phoenix New Times, Jun. 3, 2004, http://www.phoenixnewtimes.com/2004-06-03/culture/hair-stories/1/.

[5] See, e.g., George C. Ford, Eastern (Iowa) Practice, The Gazette (Cedar Rapids, Iowa), June 18, 2009.

[6] See, e.g., Katherine Nguyen, Ancient Indian Technique for Removing Facial hair Is Catching on in U.S., Orange County Register, Feb. 3, 2004.

[7] See, e.g., id.; Quynh-Giang Tran, Ancient Technique Raising—and Shaping—Area Eyebrows, Chicago Tribune, Sept. 9, 2001, at sec. C p. 2; Milady’s Hair Removal Techniques: A Comprehensive Manual 79-81 (Helen R. Bickmore, ed. 2004).

[8] A.R.S. § 32-501(2)(c)

[9] A.R.S. § 32-571.

[10] Arizona State Board of Cosmetology, Meeting Minutes, Aug. 14, 2009, available at http://www.azboc.gov/Calendar/minutes/2009/08-14-09%20Minutes.pdf.

[11] A.R.S. § 32-571.

[12] A.R.S. §§ 32-574(C), 13-707(A)(1).

[13] Cal. Stat. § 7316(d)(3); Utah Stat. § 58-11a-102(25)(c); Nev. Stat. § 644.023(2).

[14]  Morris M. Kleiner, Licensing Occupations: Ensuring Quality or Restricting Competition 1 (2006).

[15]  Morris M. Kleiner & Alan B. Krueger, Analyzing the Extent and Influence of Occupational Licensing on the Labor Market, NBER Working Paper Series #14979, available at http://www.nber.org/papers/w14979.

[16]  Walter Williams, The State Against Blacks xvi (1982).

[17] Timothy Sandefeur, The Right to Earn an Honest Living: Economic Freedom and the Law 39 (2010).

[18] Martin Luther King, Jr., The American Dream, Negro History Bulletin, May 1968, at 10-15.

[19] See Buehman v. Bechtel, 57 Ariz. 363, 376, 114 P.2d 227, 240 (1941) (striking down photography licensing and practice requirements as unconstitutional); Edwards v. State Bd. of Barber Exam’rs, 72 Ariz. 108, 114 (1951) (invalidating a statute that fixed prices in the barbering industry).

[20] Buehman, 57 Ariz. at 372, 114 P.2d at 236.

[21] Arizona Downs v. Arizona Horsemen’s Foundation, 130 Ariz. 550, 637 P.2d 1053 (1981).

[22] See United States v. Carolene Products Co., 304 U.S. 144 (1938).

[23] Cornwell v. Hamilton, 80 F. Supp. 2d 1101 (S.D. Cal. 1999).

[24] Ariz. Admin. Code. § 4-10-303.


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