TX Eyebrow Threading - Backgrounder

December 2009

Litigation Backgrounder

Hanging by a Thread: Texas Eyebrow Threaders Fight Irrational Licensing

Government Inspectors Announce Regulation of Ancient, All-Natural Grooming Practice by Issuing $2,000 Fines

 

 

The Issue in a Nutshell:

Eyebrow threading is a booming industry in Texas.  But state bureaucrats are trying to make this ancient art impossible to practice.

Threading is booming because it’s cheaper, faster and less painful than waxing.  Plus, it doesn’t involve any chemicals, dyes, or sharp objects and is healthy for the skin  In addition to pleasing consumers, the industry is creating good-paying jobs and exciting opportunities for numerous Texas entrepreneurs.

The Texas Department of Licensing and Regulation (TDLR) is now demanding that eyebrow threaders obtain expensive and irrelevant licenses in Western-style cosmetology.  Threading is not mentioned anywhere in state law, yet TDLR expects threaders with up to 20 years of experience to immediately stop working and spend more than $20,000 obtaining up to 1,500 hours of instruction in government-approved beauty schools that do not even teach threading.  

Further, threaders must pass government-approved cosmetology exams that do not test for threading.  Inspectors have already begun imposing $2,000 fines on threaders who cannot immediately comply. The licensing scheme protects cosmetology companies from honest competition, but does nothing to help consumers.   

Texans have a constitutional right to work in the occupation of their choice without unreasonable government interference. That is why on December 8, 2009, the Institute for Justice Texas Chapter filed suit in Travis County District Court on behalf of eight Texas threading entrepreneurs.  IJ seeks to have the state’s unreasonable and unwritten eyebrow threading requirements declared unconstitutional and to restore economic liberty for entrepreneurs across the state.




Introduction

Eyebrow threading is an ancient grooming technique that uses cotton thread, and nothing else, to shape and remove eyebrow hair. “Threading,” as it is commonly known, has become a booming industry in the United States. For centuries, it has been widely practiced in South Asian and Middle Eastern countries, where threaders learn their art at a young age from family and friends.

Threaders tightly wind a single strand of cotton thread, form a loop in the thread and then quickly brush the thread along the face of a client. This traps unwanted hair in the loop and removes it from its follicles.[1] One American newspaper appropriately described threaders as “play[ing] the part of cosmetic cowboy, lassoing out each hair with the looped ends of the thread.”[2]

State bureaucrats now want to regulate eyebrow threading without bothering to understand what it is. Representatives of the Texas Department of Licensing and Regulation (TDLR) are demanding that threaders obtain expensive and irrelevant licenses in Western-style cosmetology. But threading is not mentioned anywhere in state law.[3]

TDLR has not bothered to ask for a change in the law, to change its own cosmetology rules or to provide any form of guidance to the threading industry. Instead, TDLR inspectors have targeted many threading businesses and individual threaders with harsh monetary penalties of up to $5,000 a day. Inspectors are even demanding that threaders immediately cease practicing their trade.[4] This is no way for the government to act.

It is not even clear which license the government now requires. TDLR enforcers have at times suggested the state’s facialist specialty license and, at other times, its general cosmetology operator’s license. Despite this uncertainty, TDLR is demanding that threaders immediately leave the marketplace and obtain either 750 or 1,500 hours of instruction in a private, government-approved beauty school (depending on which license is required).[5] But these schools do not teach threading. The government’s privately-run cosmetology tests do not test threading either. So there’s no advantage in terms of training.

Meanwhile, complying with the state’s unreasonable licensing demands would cost threaders a small fortune in difficult economic times. Threaders would have to quit work because a cosmetology license requires a minimum of nine-months in beauty school.[6] Despite these challenges, state inspectors have begun issuing $2,000 fines to individual threaders who cannot immediately come into compliance.

Eyebrow threading is safe because, unlike Western-style cosmetology, it does not involve the use of chemicals, dyes or sharp objects. The Texas Constitution prohibits the state from regulating a harmless trade like threading unless the government can come forward with actual evidence of a real threat to the public health and safety.[7] Further, the state constitution requires the government’s means of regulation to bear some relationship to its ends.[8] Here, it makes absolutely no sense to require threaders to get a license that does not require any training in threading.

A group of eight Texan eyebrow threading entrepreneurs are now standing up to TDLR. With the help of the Institute for Justice Texas Chapter, these brave entrepreneurs have filed a lawsuit in Travis County District Court seeking to put a halt to the state’s misguided and unreasonable attempt to keep eyebrow threading out of the marketplace. Texas has long celebrated economic liberty—the right to work in the occupation of their choosing without unreasonable government interference.[9] By fighting for their economic liberty, these brave entrepreneurs are standing up for all Texans in difficult economic times.

 

The Benefits of Eyebrow Threading

Eyebrow threading is an ancient technique for removing unwanted eyebrow hair using cotton thread and nothing else.[10] Known as khite (“kite”) in Arabic generally and fatlah (“fut-luh”) in Egypt specifically, threading is widely practiced in South Asian and Middle Eastern countries, where threaders learn their art at a young age from family and friends.[11]

Americans’ awareness of the benefits of threading, as compared to waxing and other Western epilatory practices, is increasing. Threading does not irritate the skin like other eyebrow hair removal techniques. Unlike waxing, threading does not risk burning or removing a customer’s skin. It does not involve the use of heat, chemicals, or sharp objects and does not involve skin-to-skin contact between the threader and customer.[12]

While the customer may feel a slight pricking or scraping sensation, threading is painless relative to other forms of eyebrow hair removal and becomes less and less painful with repeated use.[13] 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 or after threading.

Eyebrow threading is also cheaper and faster than waxing and tweezing. Threading costs, on average between $5 and $10 (approximately one-third less money than waxing) and takes between five and ten minutes to complete, depending on how much hair is removed.[14] Unlike tweezing, threading is fast because it removes whole bands of hair at once.[15]

The low cost of threading—for both the threading business and its customer—creates vibrant competition with other epilatory practices, which keeps prices low for consumers of all types of eyebrow removal services.

 

 

 

The Government’s Actions

Since at least 2005, TDLR has been aware of the many threaders operating in the state of Texas;[16] however, prior to April 2009, the agency never enforced state cosmetology laws or its administrative rules against threaders.[17]

Prior to April 2009, the agency never took the position, orally or in writing, that threading constituted the regulated practice of cosmetology. Without any changes in state law or administrative rules, government inspectors now take the position that eyebrow threading is the practice of cosmetology and, therefore, that it requires a government-issued license for individual threaders, their supervisors and the business that employs them.[18] These inspectors are now visiting threading salons around the state and issuing warnings, cease-and-desist letters and administrative penalties based on the unlicensed practice of threading.[19]

State bureaucrats now want to regulate eyebrow threading without understanding what it is. TDLR has imposed administrative fines against eyebrow threaders and threading businesses—most often, the fines are $2,000 for an individual threader and $5,000 for a business per violation, per day. But TDLR has no evidence of any potential for injury to threading customers, nor a single injury in fact, that might justify its decision to enforce the state’s cosmetology laws and rules against threaders.[20]

But threading is not mentioned anywhere in state law. Despite a great degree of specificity in its definition of “cosmetology,” the Texas law does not include the compensated practice of eyebrow threading.[21] 

Eyebrow threading is safe because, unlike Western-style cosmetology, it does not involve the use of chemicals, dyes or sharp objects. Some American dermatologists view the practice as harmless, while others have mild reservations about temporary redness, which would hardly justify state licensure.[22] In fact, dermatologists sometimes recommend eyebrow threading to patients with skin made sensitive by strong acne medications.[23] If the practice were in any way unsafe, you would expect there to be some discussion of injuries in the medial literature on threading, but there is none.[24] Simply, it is an irrelevant license that raises money for the state and private companies, but does nothing at all to protect consumers.

TDLR has not bothered to ask for a change in the law, to change its own cosmetology rules or to provide any form of guidance to the threading industry. Instead, TDLR inspectors have targeted many threading businesses and individual threaders with harsh penalties and demands to immediately cease practicing their trade.[25] This is no way for the government to act in difficult economic times.

 

Attacking Immigrant Entrepreneurship

Eyebrow threaders cannot afford, in terms of money or time, to obtain government-issued cosmetology licenses. Naturally, threaders are predominantly South Asian and Middle Eastern immigrants because the practice of threading is so pervasive in their home countries. Threading presents a great employment opportunity for them because they are already highly skilled in the practice.

But complying with the state’s unreasonable demands would cost threaders a small fortune in difficult economic times. First, you need a high school diploma (or its equivalent) to apply for a cosmetology license.[26] Second, the cost of attending beauty school, applying for the license and taking the test is between $7,000 and $22,000 (again, depending on which license is required).[27] Meanwhile, threaders cannot work to support their families because a cosmetology license requires a minimum of nine-months in beauty school.[28] Despite these challenges, state inspectors have begun issuing $2,000 fines to individual threaders who cannot immediately come into compliance.

Even if threaders completed beauty school, the government would require them to pay $128 to a for-profit, out-of-state company in order to take a written and practical examination of their abilities (again, not including threading).[29] Even if threaders passed the TDLR’s licensing examinations, they would still have to pay $53 to TDLR biannually in order to maintain their license.[30] Before renewing their licenses, threaders would have to complete six hours of private, government-approved continuing education classes at some cost to the threader and profit to the private company.[31]

TDLR is forcing successful eyebrow threaders, many with 20 years of experience or more, to spend more than $20,000 and one year of their lives going to a school that does not teach the trade they practice.

 

Heavy-Handed Enforcement

Threaders face stiff penalties for the unlicensed practice of their trade, which again they have been practicing in Texas without incident for at least ten years. The unlicensed practice of cosmetology is a criminal misdemeanor.[32] TDLR is authorized to impose administrative fines of up to $5,000 per alleged violation, per day for the unlicensed practice of cosmetology.[33]

The Texas Attorney General may even sue a threader for up to $5,000 per alleged violation, per day, plus court costs, attorneys’ fees, investigation costs, witness fees and deposition costs if the threader merely “appears to be in violation” or is “threatening to violate” any occupational law or administrative rule.[34] Because it is illegal to practice threading without a license, to employ someone who does not have a license, or employ a supervisor who does not have a license, threading businesses are at risk of daily fines of no less than $15,000.

TDLR’s executive director is empowered to issue cease and desist orders for the unlicensed practice of cosmetology and may even temporarily close down a business without giving the business an opportunity to be heard.[35]

The Texas Attorney General may seek an injunction to divest an eyebrow threader or threading business of its otherwise lawfully obtained licenses, permits, or certifications.[36]

In fact, TDLR has no discretion to grant a cosmetology license to anyone who has practiced cosmetology without a license.[37] This means that even if threaders relent, attend beauty school, pay the government all the requisite fees and pass all the required examinations, they still may never be able to lawfully practice any form of cosmetology in the state of Texas.

 

A National Controversy

As documented in a new Institute for Justice report, Bureaucratic Barbed Wire: How Occupational Licensing Fences Out Texas Entrepreneurs,[38] the Lone Star State is increasingly requiring every citizen to receive government permission before going to work. Texas has traditionally celebrated economic liberty, but that tradition is at risk when the government attempts to replace our state’s historic presumption of liberty with an unconstitutional presumption of licensing.

The nationwide debate over eyebrow threading is a prime example. To date, only six other states—Florida, Pennsylvania, South Dakota, Tennessee, West Virginia and Wisconsin—require threaders to obtain cosmetology licenses.[39] Of these, only West Virginia has seen fit to amend its laws to make it clear that eyebrow threading requires a cosmetology license.[40] The others, like Texas, have relied on state bureaucrats to decide whether or not threaders have to undergo irrelevant training and licensing.

Three states—California, Indiana and Maryland—have unequivocally rejected the idea that threaders need cosmetology licenses.[41] In California, a three year debate lead to the exemption of eyebrow threaders from the state’s cosmetology laws.[42]

The status of eyebrow threading licensing remains unclear in the remaining 41 states.[43] Texas should not join the group of states that are squelching immigrant entrepreneurs by attempting to regulate a profession that state bureaucrats do not even understand.

 

The Plaintiffs—Immigrant Entrepreneurs Struggling to Realize Their American Dream

Three threading business owners and five individual threaders are now standing up to the two state agencies, the Texas Department of Licensing and Regulation and the Texas Commission of Licensing and Regulation, and the eight state officers responsible for cosmetology licensing.

Ash Patel, Shazia Hussain and Aziz Satani are entrepreneurs with a vision for eyebrow threading. They own Perfect Browz, a rapidly expanding salon business with new locations in San Antonio, Houston and Corpus Christi. Aziz also owns Browz & Henna, which has two locations in Lakeline and Highland Malls in Austin. TDLR’s unwritten policies are frustrating Ash, Shazia and Aziz’s efforts to operate their existing business and expand their businesses statewide, negotiate contracts and hire competent employees. They believe that the current and future success of their businesses turn on TDLR’s power to regulate eyebrow threading. Five brave eyebrow threaders have joined them in their challenge to TDLR’s unreasonable position.

Nazira Momin, Nasim Rajabali, Vijay Yogi and Minaz Chamadia are employed as eyebrow threaders in San Antonio. The fifth threader, Tahereh Rokhti, worked as an eyebrow threader in Plano until TDLR ordered her to stop practicing her trade and cited her with a $2,000 fine. Tahereh then quit her job and moved to Spring, Texas, outside of Houston, where she remains unemployed. Nazira, Nasim and Vijay also received $2,000 fines from TDLR and are have been forced to defend themselves in TDLR’s administrative court. Minaz has watched her co-workers receive citations from TDLR enforcers and now fears that she will have to quit the job that helps her support her child.

Ash, Aziz, Nazira, Nasim and Vijay are Indian immigrants who came to this country to seek better economic opportunities for themselves and their families. Tahereh emigrated from Iran less than a year ago to likewise seek better opportunities for herself and her two children. Shazia and Minaz are first-generation American citizens born to Indian immigrants also pursuing their American Dream. Each should be given the opportunity to compete in the marketplace without unreasonable government interference.

 

Legal Challenge

All Texans have a constitutional right to economic liberty—the freedom to engage in the occupation of their choosing without unreasonable governmental interference.[44] The Texas Department of Licensing and Regulation’s attempt to regulate eyebrow threaders as conventional cosmetologists violates the Texas Constitution’s economic liberty guarantees—enshrined in the state’s privileges or immunities and due process clauses—because there is no evidence that consumers need protection from unlicensed threaders.[45] Simply put, the government has no legitimate reason for regulating eyebrow threading, and it has a constitutional obligation to have meaningful reasons whenever it uses state power to restrict occupational freedom.

In this case, the Institute for Justice will argue that the Texas Constitution prohibits the regulation of all-natural cosmetology practices like threading and hairbraiding in the absence of actual evidence of a threat to the public health or safety.[46] Establishing more probing judicial scrutiny for economic regulations in Texas stands to reinvigorate the state’s tradition of economic liberty.

Even if the state can supply actual evidence of a threat to the public health or safety (and it cannot), the government still may not constitutionally regulate threaders as conventional cosmetologists. For an economic regulation to be constitutional, a “rational relationship” must exist between the regulation “and its purpose.”[47] Here, the purpose of the regulation is (being generous) sanitation, but the state’s required training provides no instruction in threading-specific sanitation issues. In fact, it does not teach threading at all.

Even if there are legitimate sanitation issues involved in threading, there is no fit between the state’s cosmetology training (either 750 or 1,500 hours of instruction in hair styling, dyeing, perms and nail and facial care, but not a minute of threading training) and the grooming practice it seeks to regulate. Threading, like hairbraiding, is a traditional, all-natural grooming practice that cannot be constitutionally regulated as a Western form of cosmetology. Decisively, there is no apparent evidence of harm arising from the unlicensed practice of threading and no fit between the government’s regulatory objectives and its regulatory methods.

The Institute for Justice and its clients are bringing a unique constitutional challenge to TDLR’s aggressive regulation of eyebrow threading. TDLR’s attempt to regulate eyebrow threading violates the privileges or immunities and substantive due process guarantees[48] because it criminalizes the right of Texans to practice their chosen profession free from undue governmental interference.

Texas’ privileges or immunities guarantee was written into the state’s constitution in 1876, three years after the United States Supreme Court infamously (and illegitimately) wrote the privileges or immunities clause of the Fourteenth Amendment out of the United States Constitution.[49] However, Texas courts have not enforced the state’s privileges or immunities guarantees in an economic liberty case in the more than 133 years of its existence. The fact that Texans added a privileges or immunities guarantee in the face of federal hostility toward economic liberty is strong evidence of Texans’ desire to protect this vital individual right from governmental interference.

Texas courts have also indicated that the Texas Constitution’s substantive due process protections may also provide more protection for economic liberty than the U.S. Constitution.[50] However, the Texas Supreme Court continues to follow federal economic liberty case law.[51] Because economic liberty is a fundamental right under the Texas Constitution, courts have a duty to enforce it against the government, whether or not they have had an opportunity to do so in the past.

This case therefore presents an opportunity to breathe new life into the Texas Constitution’s protections for economic liberty. 

 

The Defendants

The defendants in this case are the two state agencies, the Texas Department of Licensing and Regulation and the Texas Commission of Licensing and Regulation, and the eight state officers responsible for cosmetology licensing. The executive director of the Department, William H. Kuntz, Jr., is sued in his official capacity, along with the members of the Commission, Chairman Frank Denton, Vice-Chairman Mike Arismendez, Lewis J. Benavides, LuAnn Roberts Morgan, Fred N. Moses, Lilian Norman-Keeney and Deborah A. Yurco, each of whom is sued in his or her official capacity.

 

Litigation Team

The lead attorney in this case is Wesley Hottot, a staff attorney with the Institute for Justice Texas Chapter. Wesley litigates under the United States and Texas constitutions in the areas of economic liberty, free speech, property rights and school choice. He is joined in the litigation by Matt Miller, executive director of the Institute for Justice Texas Chapter.

 

The Institute for Justice: A History of Protecting Economic Liberty

The Institute for Justice (IJ) litigates in support of constitutionally enshrined individual rights, including the freedom to pursue your chosen occupation free from unreasonable government interference. IJ’s headquarters and state chapters have scored significant victories on behalf of individuals and businesses throughout the nation, including hairbraiding entrepreneurs harassed by state cosmetology officials. A few of these important economic liberty victories include:

 

  • Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers. Vintner entrepreneurs Juanita Swedenburg and David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York. The case raised issues of Internet commerce, free trade among the states and regulations that hamper small businesses and the consumers they seek to serve. 
  • Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—In March 2005, after being sued by the Institute for Justice Washington Chapter (IJ-WA) just seven months earlier, state bureaucrats exempted hairbraiders from discriminatory cosmetology licensing requirements. 
  • Armstrong v. Lunsford—The Institute for Justice opened the hairbraiding profession in Mississippi in 2005 when the state Legislature responded to this lawsuit, filed in federal court in 2004, by allowing IJ’s clients to continue their entrepreneurship without obtaining a needless government license. 
  • Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme. 
  • Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an absurd ordinance that prohibited booksellers from selling books on city sidewalks without a government-issued permit. 
  • Clutter v. Transportation Services Authority—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. 
  • Cornwell v. California Board of Barbering and Cosmetology—In 1999, the Institute for Justice defeated California’s arbitrary cosmetology licensing requirement for African hairbraiders. 
  • Ricketts v. City of New York—The Institute for Justice successfully defended commuter van entrepreneurs in 1999 in a fight against the government bus monopoly that would not allow any jitney entrepreneurs to provide service to consumers in underserved metropolitan neighborhoods in New York City. 
  • Jones v. Temmer—In 1995, the Institute for Justice helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ used this victory to help break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati. 
  • Uqdah v. D.C. Board of Cosmetology—In 1993, the work of the Institute for Justice in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders.

 

The Institute for Justice

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 secures protection for individual liberty and extends the benefits of freedom to those whose full enjoyment is denied by the government.

The Institute for Justice Texas Chapter is located in Austin 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 Texas, IJ has state chapters in Arizona, Washington and Minnesota, as well as a Clinic on Entrepreneurship at the University of Chicago Law School. 

For more information, contact:

Wesley Hottot
Staff Attorney
Institute for Justice Texas Chapter
816 Congress Ave, Suite 960
Austin, TX 78701
(512) 480-5936 ext. 301
whottot@ij.org

 

Bob Ewing
Assistant Director of Communications
Institute for Justice
901 N. Glebe Rd., Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 206
bewing@ij.org



[1] See Helen R. Bickmore, ed., Milady’s Hair Removal Techniques: A Comprehensive Manual (Thomson Learning, 2004) at 79-81.

[2] Tamara Ikenberg, Unwanted hair can be thrown for a loop without chemicals, Baltimore Sun, Feb. 13, 2000, at Sec. N, p. 1.

[3] Despite a great degree of specificity in its definition of “cosmetology,” the Texas law does not include the compensated practice of eyebrow threading. See Tex. Occ. Code § 1602.002 (listing, for example, weaving, braiding, shampooing, servicing a person’s wig or artificial hairpiece, and treating a person’s mustache or beard).

[4] Open records request to TDLR, June 10, 2009, on file with the Institute for Justice Texas Chapter.

[5] See Tex. Occ. Code §§ 1602.257 (facialist’s license), 1602.254 (cosmetology operator license).

[6] Tex. Occ. Code § 1602.254(b)(3).

[7] See Legal Challenge section at p. 7 below.

[8] Id.

[9] See Wesley Hottot, “Bureaucratic Barbed Wire: How Occupational Licensing Fences Our Texas Entrepreneurs,” Institute for Justice, October 2009, at 4-5, online at http://www.ij.org/2895.

[10] See Quynh-Giang Tran, Ancient technique raising—and shaping—area eyebrows, Chicago Tribune, Sept. 9, 2001, at sec. C p. 2; Bickmore, n. 1 above.

[11] See Katya Kazakina, Noticed: An Age-Old Way to Arch Your Brows, New York Times, Nov. 24. 2002, at Sec. 9, p. 11, online at http://www.nytimes.com/2002/11/24/style/ noticed-an-age-old-way-to-arch-your-brows.html (all Internet content was current as of Dec. 7, 2009); 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); Rebecca Neal, Threading for beauty: Old method of hair removal has new fans, Indianapolis Star, June 7, 2006, at 1W.

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

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

[14] See, e.g., Tran, n. 10 above; Bickmore, n. 1 above; Nguyen, n. 13 above.

[15] Id.; Jamie Rogers, Beauty by a thread, Florence Morning News (South Carolina), Nov. 17, 2008.

[16] See Cosmetologist Commission Strategic Planning Process: Comments Received, July-August 2005, online at http://www.license.state.tx.us/cosmet/cosmetstratplan.htm (industry repeatedly suggested threading regulation).

[17] Open records request to TDLR of June 10, 2009, on file with the Institute for Justice Texas Chapter.

[18] Id.

[19] Id.

[20] Id.

[21] See Tex. Occ. Code § 1602.002 (listing, for example, weaving, braiding, shampooing, servicing a person’s wig or artificial hairpiece, and treating a person’s mustache or beard).

[22] See, e.g., Lisa Millegan, Threading Different Way to Get Rid of Facial Hair, Modesto Bee, Jan. 11, 1998, at F-1 (quoting dermatologist as saying threading “seems to me this is a cultural way of plucking hair [...] I see nothing dangerous about it [...] it would be just like taking a tweezer and plucking our a hair”); Kazakina, n. 11 above (“threading can cause redness and irritation”).

[23] See Bickmore, n. 1 above (threading “does not tramatize the skin” and is a “good alternative for those unable to tolerate waxing”); Kazakina, n. 11 above (describing threading as “the best inexpensive hair removal alternative for patients who take Accutane or use topical retinoid creams”).

[24] See, e.g., 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); Michael J. Scott, Jr., Michael J. Scott, III & Anola M. Scott, Epilation, 46 Cutis 216-17 (1990).

[25] Open records request to TDLR of June 10, 2009, on file with the Institute for Justice Texas Chapter.

[26] Tex. Occ. Code § 1602.254(b)(2).

[27] Texas House Comm. on Gov’t Reform Interim Report, p. 47 (81st Leg., R.S., Jan. 2009); Eilene Zimmerman, As Beauty Schools Grow, Chemistry Joins Curlers, New York Times, June 7, 2009 at BU10, online at http://www.nytimes.com/2009/06/07/jobs/07beauty.html?_r=1.

[28] Tex. Occ. Code § 1602.254(b)(3).

[29] See http://www.license.state.tx.us/cosmet/cosmetexam.htm#candidateinfo (Cosmetologist Exam Information).

[30] 16 Tex. Admin. Code § 83.80(a).

[31] See Tex. Occ. Code § 1602.354; 16 Tex. Admin. Code § 83.25.

[32] See Tex. Occ. Code § 1602.554.

[33] See Tex. Occ. Code § 51.302.

[34] See Tex. Occ. Code § 51.352 (emphasis added).

[35] See Tex. Occ. Code § 1603.455-.456.

[36] See Tex. Occ. Code § 1603.451.

[37] See Tex. Occ. Code § 1603.401; cf. Tex. Occ. Code § 51.353.

[38] Online at http://www.ij.org/2895.

[39] See http://www.myfloridalicense.com/DBPR/pro/cosmo/documents/cosmo_faq.pdf (Florida Board of Cosmetology Frequently Asked Questions, page 10); http://www.dos.state.pa.us/bpoa/lib/bpoa/20/ cosm_board/03_july_09_cosmo.pdf (Pennsylvania State Board of Cosmetology Newsletter, July 2009); http://dol.sd.gov/bdcomm/cosmet/newsletters/ccnewsletter09a.pdf (South Dakota Cosmetology Commission 2009 Annual News); http://tennessee.gov/commerce/boards/cosmo /documents/May42009-CosmoMinutes.pdf (Tennessee State Board of Cosmetology May 4, 2009 meeting minutes); W. Va. Code § 30-27-3(a)(4) (2009), online at http://www.legis.state.wv.us/Bill_Status/bills_text.cfm? billdoc=HB2531%20ENR%20SUB.htm&yr=2009&sesstype=RS&i=2531; In the Matter of the Unlicensed Practice by Tanveer Naseeruddin, Wisconsin Department of Regulation and Licensing Case No. 07 UNL 028 (Aug. 6, 2008), online at http://drl.wi.gov/dept/decisions/docs/20080806Threading.htm.

[40] See W. Va. Code § 30-27-3(a)(4) (2009), n. 39 above.

[41] 2008 Cal. Legis. Serv. Ch. 187 (A.B. 518) (2008); Ind. Code §§ 25-8-2-5, 25-8-2-9.5, 25-8-2-19 (2009), online at http://www.in.gov/pla/files/SBCE_January_2009_EDITION(1).pdf (Indiana State Board of Cosmetology Examiners 2009 Licensure Laws and Regulations, pp. 5-6); http://mlis.state.md.us/asp/statutes_Respond.asp? article=gbo&section=5-101&Extension=HTML (Maryland State Board of Cosmetologists, June 2, 2008 meeting minutes).

[42] Tony Mendoza, “Governor Signs Threading Bill Expanding Services Offered By The Beauty Care Industry,” July 22, 2008, online at http://democrats.assembly.ca.gov/members/a56/ News_Room/Press/20080722AD56PR01.aspx (assembly member press release); Edwin Garcia, California weighs whether to regulate practice of ‘threading’, San Jose Mercury News, March 21, 2007; Paul Herrera, Hair-threading bill vetoed, The Press-Enterprise (Riverside, Calif.), Oct. 12, 2005; Paul Herrera, Cutting red tape for threaders, The Press-Enterprise (Riverside, Calif.), July 26, 2005.

[43] See, e.g., http://oregon.gov/OHLA/COS/docs/COS_position_statements/ Threading_Position_Statement.pdf (Oregon Health Licensing Agency has said that threading “may be provided by certified estheticians” but has not stated whether a threader must be licensed, only that threading may be provided by certified estheticians).

[44] http://www.ij.org/index.php?option=com_content&task=view&id=2895 at 4-5.

[45] See Tex. Const. art. I, § 19 (“[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land”).

[46] See, e.g., Fulfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351, 353 (Tex. Civ. App.—San Antonio 1965, writ ref’d n.r.e.) (“[a]ny ordinance or statute which prevents any person from engaging in a lawful business cannot be upheld unless protection of life, health, or property makes it reasonably necessary”).

[47] Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 938 (Tex. 1998).

[48] See Tex. Const. art. I, § 19.

[49] See The Slaughterhouse Cases, 83 U.S. 36 (1873). For a taste of criticism of the United States Supreme Court’s decision in Slaughterhouse, from all points along the political spectrum, see, e.g., Akhil Reed Amar, The Bill of Rights, at 209-10 (1998); (discussing contemporary legal opinion); Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, at 503 (1988) (arguing that the Slaughterhouse majority’s conclusions “should have been seriously doubted by anyone who read the Congressional debates of the 1860s”); Michael Kent Curtis, No State Shall Abridge, at 171-73 (1986) (noting widespread support among lower courts prior to Slaughterhouse for “a libertarian reading of the amendment”); Kimberly C. Shankman & Roger Pilon, Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government, 3 Tex. Rev. L. & Pol. 1, 33 (1998).

[50] See Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 525 (Tex. 1995).

[51] See, e.g., Tex. Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454, 464 (Tex. 1997) (health and safety regulations will be upheld so long as they are “rationally related to a legitimate state interest”).


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