Nevada Makeup - Backgrounder

Litigation Backgrounder

Putting a New Face on Liberty:

Nevada Makeup Artists Fight for Their Right to Teach

 

The Issue in a Nutshell

In Nevada, teaching others how to apply makeup without a government-issued license can subject you to up to $2,000 in fines.

Lissette Waugh and Wendy Robin are makeup artists with over 40 of years of combined experience. Lissette opened L Makeup Institute and Wendy opened Studio W in order to train the next generation of makeup artists in the art and artistry of applying makeup for the entertainment and retail industries. But the Nevada State Board of Cosmetology has threatened to silence the two entrepreneurs by shutting down their businesses.

Nevada law recognizes that makeup artists are different from cosmetologists—who focus on cutting and styling hair, cleansing and caring for the skin, and manicures—by exempting them from the state’s cosmetology licensing scheme. Yet both women could face fines of up to $2,000 for doing nothing more than teaching makeup artistry without a cosmetology instructor’s license and not operating their makeup artistry schools as state-licensed schools of cosmetology.
Makeup artistry includes the theory, technique and application of makeup for the retail and entertainment industries. Makeup artistry encompasses a broad range of skills and techniques not taught in cosmetology schools including, but not limited to, advanced color theory, applying different types of stage and high-definition film makeup, and the use of an airbrush machine.

Anyone can practice makeup artistry in Nevada and anyone should be free to teach it. Wendy and Lissette do not teach cosmetology and their classes do not satisfy any of Nevada’s required coursework to obtain a cosmetology license. The Board’s decision to force Lissette and Wendy to obtain cosmetology instructor’s licenses means they would need to spend hundreds of dollars and an additional 700 hours of training in subjects that have nothing to do with makeup artistry. They would also have to convert their schools into full-scale cosmetology schools, meaning that they would have to teach irrelevant courses on things like hair coloring, facials and manicuring and install useless equipment like shampoo bowls, facial chairs and manicure tables.

The government cannot require teachers to spend hundreds of hours in a classroom learning skills that have nothing to do with what they teach. Nor can it impose its mandatory curriculum and equipment requirements on schools that do not teach cosmetology.

That is why on June 19, 2012, Lissette and Wendy teamed up with the Institute for Justice, a national public interest law firm that protects the rights of entrepreneurs, to file a federal constitutional lawsuit against the Nevada State Board of Cosmetology. They seek to vindicate their constitutional rights to teach and to earn an honest living by operating their businesses as they see fit without having to comply with an arbitrarily applied government licensing scheme.

 

Introduction

Lissette Waugh and Wendy Robin are makeup artists based in Las Vegas, Nevada, who have a combined 40 years of experience working in the entertainment industry.  Lissette opened L Makeup Institute and Wendy opened Studio W to teach aspiring makeup artists the art and artistry of applying makeup for the film, television, retail and fashion industries.  But the Nevada State Board of Cosmetology is trying to silence the two entrepreneurs by shutting down their schools.  Nevada law recognizes that makeup artists are different from cosmetologists—who focus on cutting and styling hair, cleansing and caring for the skin, and manicures—by exempting them from the state’s cosmetology licensing scheme.  Yet each woman could be subject to up to $2,000 in fines for doing nothing more than teaching makeup artistry without a cosmetology instructor’s license and not operating her makeup artistry school as a state-licensed school of cosmetology. 

 

If anyone can practice makeup artistry in Nevada, then anyone should be free to teach it.  Wendy and Lissette do not teach cosmetology and their classes do not satisfy any of Nevada’s required coursework to obtain a cosmetology license.  The Board’s decision to force Lissette and Wendy to obtain cosmetology instructor’s licenses means they would need to spend hundreds of dollars and around 700 hours of training in subjects that have nothing to do with makeup artistry.[1]  Additionally, they would have to convert their makeup artistry schools into full-scale cosmetology schools, meaning that they would have to teach irrelevant courses on things like hair coloring, facials and manicuring and install useless equipment like shampoo bowls, facial chairs and manicure tables.[2]  


The Board’s actions do not make any sense because makeup artists are exempt from Nevada’s cosmetology licensing scheme.[3]  Cosmetology is different from makeup artistry and cosmetology schools do not teach makeup artistry.  If the Board has its way, Wendy and Lissette will either have to stop teaching makeup artistry, or they will have to obtain licenses and start teaching classes that have nothing to do with makeup artistry.  But there is no valid reason for the Board to force makeup artistry schools to teach cosmetology.


The government cannot require teachers to complete hundreds of hours in a classroom learning skills that have nothing to do with what they teach before they can set foot in a classroom.  Nor can it impose its mandatory curriculum and equipment requirements on schools that do not teach cosmetology.


That is why on June 19, 2012, Lissette and Wendy teamed up with the Institute for Justice, a national public interest law firm that protects the rights of entrepreneurs, to file a federal constitutional lawsuit against the Nevada State Board of Cosmetology.  They seek to vindicate their constitutional rights to teach and to earn an honest living by operating their businesses as they see fit without having to comply with an arbitrarily applied government licensing scheme. 

 


Nevada’s Cosmetology Licensing Scheme

Under Nevada’s cosmetology licensing scheme, the term “cosmetology” encompasses a broad range of occupations including skincare specialists, manicurists and hair stylists.  The licensing scheme mandates that these occupations may only be taught in state-licensed cosmetology schools.  Those schools must follow the state-approved cosmetology curriculum, which may only be taught by state-licensed instructors.  But none of the cosmetology occupations include makeup artistry and makeup artistry is not part of Nevada’s cosmetology curriculum and not taught in cosmetology school.[4]


According to the Nevada State Board of Cosmetology, makeup artists are considered skincare specialists—a cosmetology sub-specialty known as “aesthetics”—because Nevada’s definition of aesthetics includes a reference to “applying cosmetics.”[5]  But aestheticians receive only limited instruction in cosmetic application and only as it relates to salon and skincare services.[6]


Makeup artistry encompasses a broad range of skills and techniques not taught in cosmetology schools and not practiced by licensed cosmetologists.  Aspiring makeup artists must master color theory, layering, blending and applying different types of makeup—such as makeup for stage, special effects and high-definition film— as well as contouring and highlighting and how to apply makeup using an airbrush machine.  Makeup students do not need to learn about hair styling, hair cutting or any of the various skin treatments (such as facials and waxing) that they might learn in cosmetology school.


In contrast to the world of makeup artistry, aesthetics is devoted primarily to skincare and includes services such as facials, facial massage and hair removal using hot wax and other chemical treatments.  Aestheticians are not taught the makeup application skills a makeup artist needs to succeed in the demanding, fast-paced and varied industries that rely on talented and trained makeup artists.

 


Teaching a New Generation of Makeup Artists

Lissette and Wendy recognized that aesthetics and cosmetology schools do not teach makeup artistry.  That is why they opened their own schools:  to prepare aspiring makeup artists to work in the entertainment, print-photography, advertising and retail industries. 


Lissette opened L Makeup Institute in April 2010.  She learned makeup artistry at a specialized makeup artistry school in California, and over the past 20 years she has had a successful career as a celebrity makeup artist at fashion shows and photo shoots in Las Vegas.  She was also the makeup director at the Bellagio and has worked with many high-profile clients including Salma Hayek, Paris Hilton and Arnold Schwarzenegger, among others. 


Wendy opened Studio W in Honolulu, Hawaii, in 2003, and she opened a second, temporary location in Henderson, Nev., in 2010 with plans to move into a larger permanent location.  Wendy trained as a makeup artist in Hollywood and has over 20 years of experience working with celebrities, including Matt Damon, Carmen Electra and James Earl Jones.  She has also worked on many television shows, movies, and music videos, including “Indiana Jones and the Kingdom of the Crystal Skull,” “Forgetting Sarah Marshall” and “Beverly Hills: 90210.”[7]   


 

Shut Up, or Shut Down

Even though Wendy and Lissette do not teach cosmetology at their schools—and even though their graduates can practice makeup artistry without cosmetology licenses—the Nevada State Board of Cosmetology is trying to require them to obtain cosmetology instructor’s licenses and turn their makeup artistry schools into cosmetology schools.  The Nevada State Board of Cosmetology told Lissette and Wendy that they are violating Nevada’s cosmetology licensing laws by teaching aesthetics without an instructor’s license and that if they continue to teach and offer makeup artistry classes that their businesses must be licensed as cosmetology schools.[8]  But the exemptions present in Nevada’s cosmetology licensing scheme allow for an absurd solution:   Lissette and Wendy may advertise their businesses as retail cosmetics establishments and offer free demonstrations to individuals who purchase makeup from their “stores.”[9]  In other words, Lissette and Wendy are free to “demonstrate” makeup application techniques, but they are not free to “teach” individuals how to apply makeup.  Lissette and Wendy do not operate retail cosmetics stores or merely offer demonstrations about how to apply cosmetics.  Rather, they both operate schools that train individuals to work as makeup artists.


In order to comply with the Board’s demands, Wendy and Lissette would have to spend hundreds of hours and thousands of dollars obtaining irrelevant cosmetology instructor’s licenses and installing useless equipment in their schools that has nothing to do with makeup artistry.


Wendy closed her temporary location in Nevada because of the Board’s demands, and now offers only small classes in rented space at irregular intervals.  Despite the interest in and popularity of her class, Wendy could not risk investing in a large permanent location under the Board’s looming threat to shut her down.  Absent the Board’s actions, Wendy would secure a permanent location and begin offering classes again on a regular basis. 

 


Government Needs to Get Out of the Way

Imposing Nevada’s cosmetology requirements on Lissette and Wendy makes no sense because they do not teach—and do not want to teach—cosmetology.  Sadly, lawmakers often impose occupational licensing laws like Nevada’s that broadly define a regulated occupation and give state boards the power to enforce these licensing schemes.  Even more troubling, state boards are controlled by members of the licensed industry who have a financial incentive to enforce the law to fence out any new business they perceive as a competitive threat.[10] 


Examples of this all-too-common phenomenon include traditional African hairbraiding and eyebrow threading.  These safe and natural centuries-old techniques are not taught in cosmetology schools, but state cosmetology boards often require braiders and threaders to obtain cosmetology licenses to practice.  Overbroad licensing laws like Nevada’s cosmetology licensing scheme force entrepreneurs out of business by requiring them to comply with onerous, arbitrary and unnecessary requirements.   By cutting the bottom rungs off the proverbial economic ladder, occupational licensing stifles creativity and entrepreneurship and prevents individuals—especially women and minorities[11]—from climbing to the top.


A 2012 Institute for Justice report titled License to Work[12] examined state occupational licensing laws for low- and moderate-income occupations.  It found that Nevada ranks among the nation’s most burdensome places to work.[13]  The report, which examined 102 licensed occupations, including makeup artists,[14] in all 50 states and the District of Columbia, measured the burdens imposed by these licensing laws and concluded that the licensing of lower-income occupations is not only widespread and onerous but also irrational and arbitrary.[15] 


Nevada requires a license for 55 of the 102 occupations the Institute studied, making it one of the most broadly and onerously licensed states.[16]  The report found that Nevada is the most expensive state in which to work in a licensed low-or moderate-income occupation, with average fees of $505.[17]  It also requires an average of 601 days of education and experience and two exams, resulting in the third most burdensome licensing laws.[18]  Oftentimes, the severity of the licensure requirements is not warranted by the nature of the work.   

 


Legal Challenge:  Defending Freedom of Speech and Economic Liberty

Lissette and Wendy have the right to teach makeup artistry for a living—a right that is protected by the First and Fourteenth Amendments to the U.S. Constitution.  Under those constitutional provisions, the government may not require a person to get a license in order to speak and it may not restrict a person’s right to pursue his or her chosen livelihood unless there is a “rational basis” for that restriction that furthers a legitimate government interest.


The First Amendment protects individuals’ right to speak freely, which includes the right to teach.  Under the First Amendment, the government may not burden the right of individuals to speak—and teach—without a compelling reason for doing so.  Nevada has no compelling reason for requiring Lissette and Wendy to obtain instructor’s licenses in order to teach makeup artistry or for requiring them to teach its state-mandated cosmetology curriculum—including classes on manicuring, massage and how to cut hair—in order to stay in business.


Furthermore, makeup artistry is distinct from cosmetology and not taught in cosmetology schools, so it doesn’t make sense to force makeup artist instructors and schools to conform to Nevada’s cosmetology licensing scheme.  Forcing makeup artist instructors to obtain a cosmetology instructor’s license at a high financial cost and an additional 700 hours of training—only a tiny fraction of which conceivably relates to makeup—and requiring makeup artistry schools to provide instruction in the entire panoply of cosmetology subjects does not rationally further any legitimate state interest.


The Constitution was designed to prevent runaway government like we have today.  But constitutional limits on government power are meaningless unless judges enforce them.  Federal courts should take seriously challenges to laws that irrationally infringe the right to economic liberty and to speak freely.  Fortunately, some courts do take them seriously, and the Institute for Justice has been successful litigating to protect the right to economic liberty.  In Cornwell v. California Board of Barbering and Cosmetology,[19] a federal district court struck down California’s arbitrary cosmetology licensing requirement as applied to traditional African hairbraiders.  In its decision, the district court noted that California’s cosmetology laws dealing with instructors’ licenses were “irrational” because the laws required hundreds of hours of instruction “not in braiding, but instruction in how to teach the required cosmetology curriculum.”[20]  And in St. Joseph Abbey v. Castille, a federal district court in Louisiana struck down the irrational requirement that individuals be licensed as funeral directors in order to sell a casket—just  an empty wooden box.[21]


Just as in those cases, Lissette Waugh and Wendy Robin are asking a federal district court to declare that, under the U.S. Constitution, Nevada’s cosmetology licensing scheme as applied to makeup artistry instructors and schools violates their right to earn an honest living and speak freely without arbitrary and irrational government interference.


 

Litigation Team

The litigation team will be led by Institute attorney Doran Arik with the assistance of Institute attorneys Tim Keller and Robert McNamara.  The Institute is working with local counsel Matthew D. Saltzman and Matthew T. Dushoff with the Nevada law firm Kolesar and Leathem.


Founded in 1991, the Institute for Justice has vindicated the rights of entrepreneurs nationwide in their fights against arbitrary government regulation, including right here in Nevada.  In 2001, the Institute for Justice defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.  And in nearby California and Arizona, as well as in Mississippi and Washington, DC, the Institute for Justice opened the African hairbraiding market by challenging the application of cosmetology licensing laws to traditional African hairbraiders, enabling them to continue their entrepreneurship without obtaining a needless government license.

 

For more information contact:

 

Shira Rawlinson
Communications Coordinator
901 N. Glebe Road, Suite 900
Arlington, VA  22203
(703) 682-9320 ext. 229
srawlinson@ij.org                                            

 

 



[1] Nev. Rev. Stat. § 644.1955.

[2] Id. §§ 644.190, .080, .395, .400, .117, .380. 

[3] Id. § 644.190(4) (“A person employed to render cosmetological services in the course of and incidental to the production of a motion picture, television program, commercial or advertisement is exempt from the licensing requirements of this chapter if he or she renders cosmetological services only to persons who will appear in that motion picture, television program, commercial or advertisement.”); id. § 644.460(d), (e) (exempting from the cosmetology licensing scheme “[r]etailers, at a retail establishment . . . when engaged in the demonstration of cosmetics” and “[p]hotographers or their employees . . . if the photographer or his or her employee does not advertise cosmetological services and provides cosmetics without charge to the customer.”).

[4] Id. § 644.024; Nev. Admin. Code §§ 644.115, .117.

[5] Nev. Rev. Stat. § 644.0205(b).

[6] Catherine Frangie et al., Milady Standard Cosmetology at 758-90 (Milady 2012) (devoting just 3% of cosmetology textbook to cosmetics and basic makeup application); Salon Fundamentals Cosmetology at 638-65 (Pivot Point International 2011) (devoting just 4% of cosmetology textbook to makeup).

[7] Wendy’s entire resume is available online at http://www.studiowofhonolulu.com/files/resume.pdf.

[8] Under Nevada law, an individual must be a licensed cosmetology or aesthetics instructor to teach any branch of cosmetology in a licensed cosmetology school.  Nev. Rev. Stat. §§ 644.190, .193.  But makeup artistry is not a branch of cosmetology. 

[9] Id. § 644.460(d).

[10] Nevada statute mandates that the Board of Cosmetology “must consist of four cosmetologists, one nail technologist, one aesthetician and one member representing customers of cosmetology” appointed by the Governor.  Id. § 644.030.  Each member of the Board must be licensed in accordance with the cosmetology licensing scheme.  Id. § 644.040.  The Board is responsible for adopting regulations governing cosmetology schools and cosmetology licensure.  Id. § 644.110.  Every schools of cosmetology is required to pay a fee to the Board of Cosmetology for each student enrolled in the school.  Id. § 644.393.

[11] Cf.  David Harrington, Designed to Exclude:  How Interior Design Insiders Use Government Power to Exclude Minorities & Burden Consumers 8-9 (2009) (finding that interior design licensing laws disproportionately impact minorities and individuals seeking to change careers later in life).

[12] Dick Carpenter, Lisa Knepper, Angela Erickson & John Ross, License to Work:  A National Study of Burdens from Occupational Licensing (2012).

[13] License to Work at 92.

[14] Thirty six states license makeup artists, usually by including makeup artistry in the definition of either cosmetology or aesthetics.  Only one state—Louisiana—has a separate license specifically for makeup artists.  Id. at 165. 

[15] Id. at 33.

[16] Id. at 92.

[17] Id.

[18] Id.

[19] 80 F. Supp. 2d 1101 (S.D. Cal. 1999).

[20] Id. at 1118.

[21] See No. 10-2717, 2011 U.S. Dist. LEXIS 79327 (E.D. La. 2011). 


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