ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before the undersigned pursuant to the appeal of Saundra Mack, Felicia
Dunham, Jamesha Gerald, Joyce Bradley, Danielle Brown, Diane Sanders, and Chelsea’s Hair and
Beauty Supplies (“Appellants”) from the Final Order of the South Carolina Department of Labor,
Licensing, and Regulation, State Board of Cosmetology (“Respondent” or “Board”), dated
November 14, 2002. In its Final Order, the Board found that braiding hair falls within the definition
of cosmetology and that its Citations and Notices to Appellants to cease and desist from those
practices were properly issued. Appellants appealed the Final Order to the Administrative Law
Judge Division on December 5, 2002.
FACTUAL BACKGROUND
Saundra Mack is the owner of Chelsea’s Hair and Beauty Supplies located at 36 North Main
Street, Sumter, South Carolina (“location”). Chelsea’s is a licensed retail business which operates
during regular business hours and sells packaged synthetic and human hair, wigs, hair care products
and supplies, as well as other related items. Additionally, there is a separate section inside Chelsea’s
which contains chairs (“work stations”) used for customers who request to have their hair braided.
There is sterilizing solution for combs and brushes located nearby. Felicia Dunham, Jamesha Gerald,
Joyce Bradley, Danielle Brown, and Diane Sanders are employed by Ms. Mack to braid hair at the
location. They receive compensation for their services. None of the Appellants are licensed by the
State of South Carolina to practice cosmetology.
Investigators from the Department visited the location on February 8, 2002 and again on
March 20, 2002. During each visit the investigators saw employees of Ms. Mack (four on February
8, 2002 and two on March 20, 2002) braiding hair for customers at their work stations. Ms. Mack
was present when the second visit was made. During the first visit, an investigator issued written
citations to Appellants Dunham, Bradley, Sanders, Brown, Gerald and Mack, over the business name
of Chelsea’s, charging them with the unlicensed practice of cosmetology pursuant to S.C. Code Ann.
§ 40-13-110 (2001 & Supp. 2002). The citations were attached to Notices to Cease and Desist from
the practice.
During the second visit, an investigator cited Appellants Chelsea’s, Saundra Mack, Felicia
Dunham, and Joyce Bradley with a violation of S.C. Code Ann. § 40-13-110 and issued Notices to
Cease and Desist from braiding for hair for compensation. Thereafter, a contested case hearing was
held by the State Board of Cosmetology on October 21, 2002 at its offices in Columbia, South
Carolina.
At the hearing, Saundra Mack testified that:
1. no chemicals or cream are placed on the clients’ hair;
2. clients are required to shampoo their hair prior to coming into the boutique;
3. she inquired with the Board prior to opening her business to determine if the State of
South Carolina offered a license to braid hair;
4. the braiding performed at Chelsea’s is not taught by schools in South Carolina that offer
cosmetology as a art of its curriculum.
The Board issued its Final Order on November 14, 2002. In its order, the Board found that
Appellants were engaging in the practice of cosmetology, as defined in the Board’s Practice Act,
when they engaged in the practice of braiding hair. Further, it found that Appellants must be properly
licensed if they are to continue offering these services to the public. Also, the Board ruled that the
Citations and Notices to Cease and Desist were properly issued by its investigators. No fines were
levied.JURISDICTION AND STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to S.C.
Code Ann. § 1-23-600 (Supp. 2002) and § 40-1-160 (2001). The provisions of the South Carolina
Administrative Procedures Act (“APA”) govern an appeal from a Final Order of the Board.
A final decision of the Board may be reversed or modified if substantial rights of the appellant
have been prejudiced because the administrative findings or decision are clearly erroneous in view of
the reliable, probative and substantial evidence on the whole record, are arbitrary or capricious, are
in violation of constitutional or statutory provisions, are made upon unlawful procedure, or are
affected by other error of law. S.C. Code Ann. § 1-23-380(A)(6)(a), (c), and (d) (Supp. 2002). See
Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981).
“Substantial evidence” is that evidence which, in considering the record as a whole, would
allow reasonable minds to reach the conclusion that the administrative agency reached. Jennings v.
Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (1999). It is “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Midlands Utility, Inc. v. S.C.
Dep’t of Health and Environmental Control, 298 S.C. 66, 69, 378 S.E.2d 256, 258 (1989). The
possibility of drawing two inconsistent conclusions from the evidence will not mean the agency’s
conclusion was unsupported by substantial evidence. Palmetto Alliance, Inc. v. S. C. Public Service
Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).
Where there is a conflict in the evidence, the agency’s findings of fact are conclusive. Id.; see
Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994). This court
cannot substitute its judgment for that of the Board upon a question as to which there is room for a
difference of intelligent opinion. Chemical Leamen Tank Lines v. S.C. Pub. Serv. Comm’n, 258 S.C.
518, 189 S.E.2d 296 (1972). The factual findings of an administrative agency are presumed to be
correct and will be set aside only if unsupported by substantial evidence. Kearse v. State Health and
Human Finance Commission, 318 S.C. 198, 456 S.E.2d 892 (1995). Applying the “substantial
evidence rule,” an appellate court may not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact. S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 2002);
Toussaint v. State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991).
Finally, Appellants have the burden of convincingly proving that the agency’s final
administrative decision is unsupported by substantial evidence. Waters v. South Carolina Land
Resources Conservation Commission, 321 S.C. 219 , 467 S.E.2d 913 (1996).
DISCUSSION
S.C. Code Ann. § 40-13-20 (2)(a) (Supp. 2002) reads:
(2) “Cosmetology” means engaging in any of these practices or a combination of these practices when done for compensation either directly or indirectly:
(a) arranging, styling, thermal curling, chemical waving, pressing, shampooing,
cutting, shaping, chemical bleaching, chemical coloring, chemical relaxing, or similar
work, upon the hair, wig, or hairpiece of any person, by any means, with hands or
mechanical or electrical apparatus or appliances;
(Emphasis added).
Chapter 13 of Title 40 of the South Carolina Code of Laws governs the licensing of
cosmetology and cosmetologists in the State of South Carolina. The provisions in this chapter
provide for the appointment of the Board, which is to adopt rules governing its proceedings and to
promulgate regulations necessary to carry out the provisions of the chapter. See S.C. Code Ann. §
40-13-10 (Supp. 2002). Further, the Department must investigate complaints concerning violations
of these statutory provisions and present its results to the Board. The Board is authorized to issue
cease and desist orders or it may petition an administrative law judge for injunctive relief or other
equitable relief. See S.C. Code Ann. §§ 40-13-80 through 40-13-100 (2001).
An applicant for a cosmetologist’s license in South Carolina must comply with certain
statutory provisions, including the requirement that the applicant take an examination. See S.C. Code
Ann. §§ 40-13-230 and 40-13-240 (2001 & Supp. 2002). Also, there are statutory provisions in
South Carolina which must be met before a salon may be licensed. S.C. Code Ann. § 40-13-300
(2001). Chapter 1 of Title 40 sets forth provisions authorizing boards to hold hearings on alleged
violations of the statutes and regulations, including allegations that a person is practicing a profession
or occupation without a license. See S.C. Code Ann. §§ 40-1-90 and 40-1-100 (2001). In
accordance with this authority, the Board issued the cease and desist orders in this matter and
conducted the contested case hearing.
The Board takes the position that an individual who participates in the practice of braiding
hair for compensation must be licensed as a cosmetologist. Appellants allege that the statutory
provisions do not require such a license and that there is no curriculum in South Carolina for teaching
or training individuals to braid hair. Thus, the court must decide if there is sufficient evidence in the
record to support the decision of the Board that the braiding of hair for compensation falls within the
definition of “styling and arranging” as defined in S.C. Code Ann. § 40-13-20 (2)(a) (Supp. 2002).
African hair styling has been defined as “a highly specialized artistic and cultural form of hair
styling and hair care whose main techniques include hair braiding, locking, twisting, weaving, and
cornrows.” Cornwell v. California Board of Barbering and Cosmetology, 962 F. Supp. 1260
(S.D.Cal. 1997). These techniques developed centuries ago in Africa and were brought by Africans
to the United States where the methods have expanded. It is a form of natural hair care where no
chemicals are used. The technique uses cream, hair grease and the physical manipulation of the hair.
It is labor intensive and includes instruction. All Appellants in this case, excepting Saundra Mack,
attended schools in the Atlanta area and were certified in hair braiding in Georgia.
The word “arrange” is defined as “to put in correct, proper or suitable order” or “to make
ready; prepare or plan.” Webster’s New World College Dictionary, Third Ed. , 1997, p. 76. Also,
it has been defined as putting into “a specific order or relation.” The American Heritage Dictionary,
Third Ed., 2000, p. 75. “Styling” is “the way in which something is said, done, expressed, or
performed.” It involves “a quality of imagination and individuality expressed in one’s actions and
tastes.” The American Heritage Dictionary, Third Ed., 2000, p. 1349. The Hon. Ralph King
Anderson III in South Carolina Department of Labor, Licensing and Regulation, State Board of
Cosmetology v. Roxanna Robbins, d/b/a For Girls Only Braid Salon, Docket No. 98-ALJ-11-0576-IJ
(S.C., April 16, 1999) found that the words “arrange” and “styling,” which are included in the
definition of “cosmetology” as incorporated in S.C. Code Ann. § 40-13-20 (2) (a) (Supp. 2002),
includes the practice of hair braiding. In his Order, Judge Anderson specifically found and held that
the Respondent therein was “performing ‘cosmetology’ at her African hair braiding establishment
because her business” involved the “arranging and styling of hair.” Further, he found and held that
Respondent and her employees were “engaged in the unlicensed practice of cosmetology.” Courts
in other jurisdictions have also concluded that braiding constitutes the practice of cosmetology under
similar statutes. See, e.g., Cornwell v. Cal. Bd. of Barbering and Cosmetology, 962 F. Supp. 1260,
1275 (S.D. Cal. 1997); Uqdah v. District of Columbia, 785 F. Supp. 1015 (1992).
This court agrees with the finding of the Board. The braiding of hair involves “arranging” and
“styling” within the meaning of S.C. Code Ann. § 40-13-20(2)(a), and therefore constitutes the
practice of cosmetology. Appellants cannot continue to braid hair without first obtaining a license
from the Department to practice as a cosmetologist in South Carolina. Further, neither Appellants
Chelsea’s nor Saundra Mack may employ individuals to braid hair who are not licensed
cosmetologists in South Carolina. The orders issued by the Board were well within its authority and
there is substantial evidence in the record to support its findings and conclusions.
Our courts have consistently held that a reviewing court must accord “the most respectful
consideration” to “the construction of a statute by the agency charged with its administration” and
should not overrule its decision “absent compelling reasons.” Dunton v. South Carolina Bd. of
Examiners in Optometry, 291 S.C. 221, (1987). This court agrees with the interpretation of the
Board concerning the definition of “cosmetology” and finds no compelling reason to overrule the
Board’s decision and findings in this matter. The findings of the Board are affirmed and are
supported by the evidence in the record. No compelling reasons have been shown to the court by
Appellants to reverse the Board’s decisions.
Appellants argue that there are no statutes or regulations in South Carolina which set forth
educational requirements for braiding. However, there was evidence in the record that braiding is
taught in cosmetology classes. Appellants also note that there is no certification in South Carolina
for hair braiding. The court notes that statutory law confers discretion on the Board to establish
criteria for issuing and renewing licenses. See S.C. Code Ann. § 40-1-70 (3) (2001). The Board has
not chosen to create separate certification requirements for every activity falling within the scope of
the practice of cosmetology; instead, it has established one general requirement for all licensees. The
Board correctly concluded that hair braiding and adding extensions to hair for compensation
constitute the practice of cosmetology within the meaning of S.C. Code Ann. § 40-13-20 (2)(a).
Appellant Mack also argues that she made a due diligence effort to ascertain whether she
needed a license to engage in the practice of hair braiding for profit by talking with staff at the
Department. She states that her investigation showed no requirement in South Carolina to obtain
a permit or license for hair braiding. However, there is no evidence in the record that Appellant Mack
clarified to the Board staff that she was not already licensed to practice cosmetology. Accordingly,
the Board staff could have reasonably concluded that Ms. Mack was simply inquiring whether she
needed to obtain an additional special permit to practice hair braiding.
Appellant Mack further argues that she relied upon these representations made by staff, that
they were material representations, and that the Board is estopped from finding that Appellants are
now engaged in the unauthorized practice of cosmetology. However, this argument is without merit.
A party seeking to assert equitable estoppel must prove “a lack of knowledge and of the
means of knowledge of the truth regarding the facts in question.” Binkley v. Rabon Creek
Watershed Conservation District of Fountain Inn, 348 S.C. 58, 558 S.E.2d 902 (2001). Further,
there must be reliance and a prejudicial change in position. However, if Appellants had actual or
constructive notice of the licensure requirement, the Board may not be equitably estopped from
asserting its jurisdiction.
“Everyone is presumed to have knowledge of the law and must exercise reasonable care to
protect his interests.” Smothers v. United States Fidelity and Guaranty Co., 322 S.C. 207, 210, 470
S.E.2d 858, 860 (Ct. App. 1996). In the instant case, Appellants had constructive notice of the
language of S.C. Code Ann. § 40-13-20 (2)(a), which can reasonably be read to include hair braiding.
Accordingly, equitable estoppel does not apply in this case.
Furthermore, as a general rule, estoppel does not lie against the government to prevent the
due exercise of its police power or to thwart the application of public policy.” Binkley, 348 S.C. at
70. A limited exception to this rule is that government entities may be subject to estoppel for acts
of government agents acting within the scope of their authority. However, “unauthorized conduct
or statements do not give rise to estoppel.” Id. There is certainly no evidence in the record that the
oral statements by staff were in the form of a legal opinion. Further, the record is ambiguous
concerning what they stated to Appellants. Appellants do not allege that any of the oral statements
by employees or staff of the Department amounted to an intentional misrepresentation. Any
statements staff made concerning special permits or licenses for hair braiding were truthful since the
Department does not require a specialized permit or license, beyond a general cosmetologist’s license,
for such. Since Appellants had constructive notice of the statute and that it included the terms
“arranging” and “styling” under the definition of cosmetology, any oral statements made by staff at
the Department could not be understood in such a manner to give rise to equitable estoppel.
ORDER
For all the foregoing reasons, it is hereby:
ORDERED that the Board’s Final Order dated November 14, 2002 is affirmed.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
July 25, 2003
Columbia, South Carolina |
