Entrepreneurs hang by a thread in Texas Supreme Court case
02/25/2014 6:26 PM
02/25/2014 6:28 PM
Does the government have the power to make entrepreneurs do useless things?
It sounds ludicrous, but the Texas Supreme Court will soon answer that very question when it considers whether the state can require eyebrow threaders to learn conventional cosmetology — like waxing, chemical peels and facial massage — before they can go to work.
Eyebrows have been threaded in the Middle East and South Asia for centuries. In the United States, threading is becoming an increasingly popular method of removing unwanted hair.
Instead of harsh chemicals or painful waxes, threaders merely use a simple, tightly wound cotton strand, loop it around their fingers and brush the thread across a client’s face.
Threading is both cheaper than waxing and hurts less than using tweezers. It’s a win-win for small businesses and consumers.
But the Texas Department of Licensing and Regulation (TDLR) is cracking down on threaders, smacking them with $2,000 fines unless they obtain a cosmetologist license.
Unlike cosmetologists, these entrepreneurs do not use any chemicals, dyes, or even sharp objects in their trade.
As a result of the regulatory policy, threaders are forced to take 750 hours of classes at a beauty school, learning skills they have no intention of using in their careers.
Even worse, none of those required hours actually teach how to thread eyebrows.
All that cosmetology coursework can be expensive too: Some schools cost upwards of $20,000.
As additional perspective, an emergency medical technician only needs a month of training to be licensed.
To protect their economic freedom, three threaders and two threading business owners have partnered with the Institute for Justice, the national law firm for liberty, to sue the state for requiring cosmetology licenses.
Together, the threaders have almost four decades of experience. All five either work in or own licensed salons.
Now their case has reached the Texas Supreme Court, which is scheduled to hear oral arguments on Thursday. There are two potent arguments for why threaders should not be considered cosmetologists.
First, these unnecessary mandates violate the Texas Constitution. The due process clause protects the right to earn an honest living free from unreasonable government interference.
Compelling threaders to waste months of their time and thousands of dollars on cosmetology coursework is hardly reasonable.
In other words, the government has no power to make entrepreneurs do useless things. The Texas Department of Licensing and Regulation should not be the Ministry of Silly Walks.
Second, under what’s known as the “real and substantial” test (which has been used by some Texas courts and 20 state high courts), regulations can only be upheld in court if there is a real and substantial connection between a regulation and its stated objective, like protecting consumer health and safety.
But the TDLR has failed to prove how unlicensed eyebrow threaders are a menace to society. Testifying in a lower court hearing, a physician who runs a medical spa explained just one hour of common-sense sanitation training would suffice for eyebrow threaders. That’s a far cry from the mandated 750 hours mentioned earlier.
The Texas Supreme Court decision could have major ramifications for job creation. Over the past decades, the number of workers who need an occupational license has skyrocketed.
A victory for the threaders would set an important precedent to free even more entrepreneurs.
Wesley Hottot is an attorney at the Institute for Justice and lead counsel on the case. Nick Sibilla is a writer at the institute. www.ij.org/tx
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