by The Daily Signal | 4.6.18
John-Michael Seibler is a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Anthony Brooks is a member of the Young Leaders Program at The Heritage Foundation.
Arizona lawmakers and cosmetologists argue that an acceptable cost for a new-age hairstyle is imprisonment. And you can chalk that up to old-school protectionism.
But fortunately, state Rep. Michelle Ugenti-Rita is trying to cut costs for consumers.
Ask yourself, would you pay someone just to wash, dry, and style your hair for you? Many people do. So-called “blowout bars”—which offer a hair wash, blow dry, and styling, but not haircuts or chemical treatments—are growing in popularity and multiplying.
Next ask, would you imprison blowout stylists for not getting licenses designed for their scissor-and-chemical-wielding competitors? Many of Arizona’s licensed cosmetologists would, and, amazingly enough, the law is on their side. And those incumbents are fighting to keep those laws, and their customers, in place.
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Arizona law currently requires people to pay for at least 1,000 training hours, an exam, and various fees to get a license to style someone’s hair. That includes blowout stylists, who gain nothing from the many hours of training on using sharp tools and dangerous chemicals. But they face the threat of six months in prison and fines if they work without the license.
As the late Justice Antonin Scalia would have said, “Stupid but constitutional.”
Fortunately, that law may get a long-overdue trim from a proposed bill, H.B. 2011. If enacted into law, this bill would exempt from those licensing burdens stylists who only “dry, style, arrange, dress, curl, hot-iron, or shampoo and condition hair”—so long as they do not use reactive chemicals, practice cosmetology, and they keep a sign in their business that says their “services are not regulated by the board” of cosmetology.
The blowout bar is big business. But those inapt licensing burdens, according to Ugenti-Rita, pose “an impediment to them hiring.”
So, would-be workers lose job opportunities. One Arizona cosmetologist, Jennifer Ryback, told state lawmakers at a February hearing that not only would she hire someone to handle blow-drying in her salon, she would also expect to see more customers as a result.
Moreover, Wofford College economics professor Timothy Terrell says that customers are also adversely affected by those licensing rules, in part because they “limit the number of practitioners in the occupation and thereby drive up the price.”
So, customers have fewer options and pay more.
Why? Incumbents argue that if people wash, dry, and style hair without a license, the public’s health and safety would be in jeopardy.
“What people don’t take into consideration,” said Cathy Koluch, who runs a cosmetology school business in Arizona, “is sanitation and infection control when you are touching people. You have to be taught procedures so you don’t transmit communicable diseases like lice and ringworm and MRSA and all these different bacteria out there.”
Christina Sandefur, executive vice president of the Goldwater Institute, says that thinking “comes from a good place, the desire to protect the public. But we forget to stop and take a step back and ask, ‘Are you really protecting the public?’”
The rapid expansion of blowout bars indicates that they are getting by just fine, like every human being who washes, dries, and styles their own hair: mostly uninfected.
Unsanitary shops are easily identifiable on Google, Yelp, Foursquare, Angie’s List, and other user review services. They can also be shut down for not following health and safety regulations, and they can be sued for injuring customers.
There are remedies for blowouts gone bad.
But the license law cannot prevent mistakes and misdeeds any more than it can prevent bad haircuts. They can befall even the ritziest salons.
Thus, the real purpose of many occupational licensing laws, including this one, is no secret. As one hairstylist, Diana Ellis, told Arizona lawmakers, “If there are unlicensed stylists that work in these bars, they are going to take a lot of work from us. I think that’s just really unfair.”
Yes—without license rules barring more competition in the marketplace, incumbents might have to work harder to keep customers.
But the whole state would get a little more freedom out of the deal.
In Olff v. East Side Union High School District (1972), in a dissent from the court’s refusal to hear the case, Supreme Court Justice William Douglas wrote the following:
One’s hair style, like one’s taste for food, or one’s liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people.
Olff involved a student challenging his state school’s rule that in order to attend, students must have certain haircuts. Douglas argued that “[h]air style is highly personal, an idiosyncrasy which I had assumed was left to family or individual control and was of no legitimate concern to the state.”
A state can use its police power “to deal with known evils,” Douglas continued. “An epidemic of lice might conceivably authorize a shearing of locks. Other like crises might be imagined.”
But so far, Arizona has experienced no “epidemic of lice.” Any public health and safety crises due to blowouts are only imagined.
The only real crisis is the state’s willingness to prohibit and potentially imprison people for working to earn a living.
Written by The Daily Signal
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