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


                   Honorable D. R. “Tom” Uher, Chairman                 Opinion No. H-1137
                   State Affairs Committee
                   House of Representatives                             Re: Separation  of barber shop
                   Austin, Texas                                        and beauty shop housed in the
                                                                        same building.

                    Dear Mr. Uher:

                          You ask for an opinion on the constitutionality   of article 8402, V.T.C.S.,
                     which relates to the jurisdiction   of the State Board of Barber Examiners and
                    the Cosmetology    Commission.     It provides in part:

                              In order that the public may fix responsibility                   for
                              services,      acts, or treatments        performed      by persons
                              licensed by the State Board of Barber Examiners vis-a-
                              vis 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 of cosmetology         and to
                              avoid confusion          of the public as well as avoiding
                              conflicts      of jurisdiction       between      such board and
                              commission        which might impede effective          administra-
                              tion or enforcement          of the 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 cosme-
                              tology 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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Honorable   D. R. “Tom” Uher        -    Page 2    (H-1137    )



The Barber Board and the Cosmetology      Commission have interpreted      this provision
to require a solid partition separating a beauty salon from a barber shop housed in
the same building.    You ask whether the Legislature may constitutionally      place this
restriction on business ventures.

       The regulation of barbering and cosmetology      is necessary 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 ling whether a police 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. 364 F. SUDD. 961 (E.D. La.973), ,aff’d,
505 F.2d 1023 (5th Cir. 1974). See also Williamson v. Lee Optical of Oklahoma, Inc.,
348 U.S. 483 (1955); State v. Spartan’s Industries, 447 S.W.2d 407 (Tex. 1969). There
is a strong presumotion   in favor of the VInlidity of police power enactments.    Texas
State Board of Barber 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,  S  4(b); art.  8451a,
S l(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). In addition, the
statutory    standards for licensing barber shops differ slightly from those for beauty
parlors.     Compare art. 8407a, S 3, with art. 8451a, SS 23, 42. Thus there are still
differences      between  the two profans         and possibly between       the premises       in
which each is practiced.

        Article 8402 reflects     a legislative   determination     that separation     of cosme-
tology premises from barbering premises will aid the enforcement                 of each licensing
system.     In view of the differences      between the two vocations, we cannot say that
the separation of premises bears no relation to this goal. The enforcement                  of such
licensing systems is of course related to the public health and safety.                See Lackey
v. State Board of Barber Examiners, 113 S.W.2d 968 (Tex. Civ. App. - Austm 1938,
no writ). “The necessity or reasonableness          of particular    regulations    imposed under
the police power is a matter            addressed     to the legislative      department     whose
determination      in the exercise of a sound discretion       is conclusive upon the courts.”
Texas State Board of Barber Examiners v. Beaumont Barbers College, Inc., s                       at
732.

       A California  Court of Appeals upheld a statute providing that a COsmetolo~
license did not authorize the holder to work in a barber shop. Bone v. State Board
of Cosmetology,     80 Cal. Rptr. 164 (Ct. App. 1969).      It found that California




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                Honorable   D. R. “Tom” Uher     -   Page 3    (H-1137)



                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 of Barber Examiners, 57 Cal. 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 a valid police power
                            regulation.

                                                              _Very truly yours,




                                                              Attorney    General   of Texas

                APPROVED:




                C. ROBERT HEATH, Chairman
                Opinion Committee

                jst




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