Hair and makeup artists sue Cosmetology Board

Listen to this article

A group of hairstyle and makeup artists is suing the State Board of Cosmetology, charging that its regulatory clampdown on brides-to-be receiving on-site updos is not a good look.

The suit, backed by the civil libertarian Institute for Justice, was filed in Ramsey County District Court on Oct. 22.

It names Minnesota hair and makeup artists Cristina Ziemer, Ellyn Shun, Debra Carlson and Melanie Rivers as plaintiffs. Minneapolis post-secondary hair-and-makeup school Faces Etc. of MN, L.L.C., also is a listed plaintiff.

Their complaint charges the Cosmetology Board with violating the artists’ constitutional due process and equal protection rights.

It does that, plaintiffs contend, by threatening freelance artists with cease-and-desist orders, misdemeanor prosecution and weighty fines if they offer hairdos or makeup at weddings, proms or other special events, without first becoming fully licensed cosmetologists and salon managers.

The artists say that most of the 10,000-plus hours of training the state wants them to take is pointless. They don’t cut hair, do nails or work with chemicals, plaintiffs say. They don’t want to work in or run salons. Their passion, the suit says, is doing hair and makeup at the events where clients — mostly women — demand to have them performed.

The existing regulations aren’t even applied uniformly, the artists claim: Identical services are not regulated when offered to models headed to the runway, guests preparing for TV appearances or fake brides posing for magazine covers.

They’re even OK if performed on-site at weddings and proms for free, according to their complaint.

The suit, signed by defense attorneys John Ella and David Asp, names the Board of Cosmetology, all its members and its executive director as respondents. Repeated attempts to reach board members and Executive Director Gina Fast Wednesday were unsuccessful.

“Is it truly necessary to make them get a salon-manager license to have a very simple startup business, where you help people on-site at weddings or proms?” Ella said in an interview Wednesday. “The answer is no.”

About face

The artists’ complaint suggests that, until recently, the board itself took that view. Then in 2016, a Stillwater hair-and-makeup artist, Mindie Streich, received a public complaint that she was running her business, Makeup by Mindie, without a cosmetology license.

Streich did the same services as the plaintiffs, the suit contends. The Cosmetology Board investigated the complaint and in 2017, Streich was fined $3,000 and issued a cease-and-desist order.

Later, on Dec. 21, 2018, the board issued a public bulletin making clear that on-site bridal makeup services — apparently a hot trend — are “special event services.” That means bridal makeup artists must be fully licensed cosmetologists and obtain a special-event services permit, the bulletin says.

But there’s a catch, Ella said. Before a special services permit is issued, the applicant must earn a salon manager’s license — a license to run a shop that performs services like facials, nails and hair removal, none of which the plaintiffs want to do.

After the bulletin came out, the complaint says, many Minnesota hair-and-makeup artists lost work. Many stopped advertising for fear of being pursued by regulators. Some kept operating the businesses on which their livelihoods depended, but crept into the shadows hoping they didn’t get caught, Ella said.

One plaintiff, Rivers, tried to follow the new demands. She had already heaped up $40,000 in debt to become a fully licensed cosmetologist. A successful artist, she has performed hair and makeup work for CNBC, Minnesota Bride Magazine, Sony Corp., even the Super Bowl.

She also has worked regularly with brides on their wedding days and wants to keep doing that. Yet Rivers runs afoul of the law, as applied by the board, when she works weddings, according to the complaint. She lacks a salon manager’s license and special events work permit.

She has been attempting to log the required 2,700 hours of salon work needed to obtain that license. In the particular shop where she works, Rivers cuts only men’s hair — experience she says is entirely irrelevant to her goals.

“Melanie would much prefer spending this time working to build her business,” the complaint says, “but fears defendants will penalize her if she provides special event hair and makeup services for brides on location without a salon manager’s license.”

Yet, despite all her efforts, the complaint suggests that Rivers might miss a state deadline for completing the requirements.

“If the Board does not change its rule,” the complaint says, “[Rivers] anticipates she will have to spend two more years providing men’s haircuts to qualify for a salon manager’s license — and still may not be able to obtain all of the required hours within the three-year time limit.”

Even if the board waives that rule for Rivers, she still would need to pay for and pass a salon manager’s exam. After that, she’d have to spend time and money getting a special-events permit.

“From an economic standpoint, it’s like, come on!” Ella said. “Let them have a website and not be afraid they’re going to get fined by the state for helping someone with their mascara. I mean, really?”

The case, Ella said, is an example of “the absurdity of over-regulation.”

Braider case

Anthony Sanders, an Institute for Justice lawyer, agrees. His group has litigated a number of similar cases, including one involving hair braiders in Louisiana that in late October survived summary judgment. It is now headed for trial.

“What’s going on, as has been true in many occupational licensing regimes, is that these people are being boxed out of their right to earn an honest living for no good reason,” Sanders said.

The Institute for Justice is not litigating the Minnesota hair-and-makeup artists’ case, but is following it closely and eventually might file an amicus brief, Sanders said.

The Oct. 22 lawsuit, which the Institute calls “the latest salvo for reform,” is similar to the organization’s successful defense of Lillian Awah Anderson, a Cameroonian immigrant and African hair-braiding master in Minneapolis.

In 2005, the Minnesota Board of Barber and Cosmetologist Examiners ordered Anderson to obtain a cosmetologist’s license — at a cost of about $15,000 and 10 months of training. Doing so would mostly have involved instruction that had nothing to do with her practice, which she long ago mastered, Anderson contended at the time.

She won the suit, securing a permanent injunction against the state requiring hair braiders to get cosmetology licenses. A stipulation also required the board to publish administrative rules exempting hair braiders from those regulations. In May 2006, it formally adopted new rules exempting them from its licensing requirements.

Earlier this year, the Legislature formally repealed a requirement that hair braiders register annually with the Cosmetology Board and permanently exempted them from its oversight.

Ella hopes that history plays out twice. He said he has hopes, for example, that the board might voluntarily do away with the salon manager’s license requirement.

He also hopes that a 2019 bill from Sen. Karin Housely, R-St. Marys Point, which would have exempted hair-and-makeup special events artists from board regulation, gets revived and passed next year. That bill got filed after the legislative deadline and was never heard in committee.

Housely, vice-chair of the Senate Commerce and Consumer Protection committee, said in an email early Thursday that she intends to resubmit the bill, which has bipartisan support. It will be heard in 2020, she said.

“You don’t have to have a license to work behind a MAC makeup counter, but you have to have a full-blown cosmetologist’s license to do freelance hair and makeup at a friend’s wedding,” Housley said. “It doesn’t make sense, so you bet I am going to pursue it.”

In the meantime, Ella is going to see what he can accomplish in court.

He said that, unlike the Institute for Justice, he is on no wider anti-regulation crusade. He has been a member of a state medical licensing board in the past, he said, and that system works just fine.

“My mission here is to change the law in some fashion for my clients—the plaintiffs—and anyone else who wants to work in this industry,” Ella said. “If we can accomplish that, I’ll be quite happy.”