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Utah Hair-Braiding Case Echoes S.C.’s Regulatory Debate

A federal judge recently ruled in favor of a Utah woman who sued when faced with that state’s requirements to operate a hair-braiding business. Jestina Clayton braids hair to supplement her family’s income, and Utah law requires she obtain a cosmetology license for public health and safety reasons.

The judge ruled that the state did not adequately prove a cosmetology license for hair braiders was necessary to protect public health. The judge said the state’s requirement that Clayton be licensed in cosmetology was irrelevant to her profession, and deemed it “unconstitutional and invalid” to deny her the right to earn a livelihood based on the state’s arguments.

Closer to home, attorney Pete Strom of the Strom Law Firm in Columbia posted a brief article about Clayton’s case on the firm’s website in order to advertise its professional licensing defense services.

“I think any time there’s a discussion about too much regulation from the government, that (professional licensing) needs to be discussed,” Strom, a former U.S. attorney for South Carolina, told The Nerve in a phone interview.

Several states, including Iowa, Illinois and Wyoming, similarly require hair braiders to be certified in cosmetology.

South Carolina is one of many states that allows hair braiders to apply instead for a specialty license with a $25 registration fee, a six-hour hair-braiding course and a test (with 25 multiple-choice questions) administered by the S.C. Department of Labor, Licensing and Regulation (LLR).

It was not always as easy to obtain a hair-braiding registration in South Carolina.

In 2004, former Gov. Mark Sanford vetoed a bill that would have required 60 hours of training to obtain hair-braiding certification. Sanford’s decision allowed the state cosmetology board’s requirements at that time to stand – that hair braiders complete 1,500 hours of training – before the less onerous certification path was implemented.

Still, such regulations have prompted scrutiny directed at LLR.  

“It’s (hair braiding) a money-making industry,” says licensed cosmetologist and cosmetology instructor Yvonne Brown of Columbia. “The LLR sees these girls making money and they want a piece of it.” Brown says natural braids can run anywhere from $25 to $60, while braids with extensions can cost up to $300.

Brown says maintaining a cosmetology license is expensive, explaining she must pay a booth renter’s fee, licensing fees and money to take additional courses, among other costs.

“There’s been great debate in the last couple of years about all the fees and fines in this state,” says Sen. Kevin Bryant, R-Anderson, who co-sponsored a bill this year to have the General Assembly, instead of occupational boards, control licensing fees

Strom says LLR does serve an important governmental function. “In a situation where a nurse becomes drug addicted, and that’s happened before, the LLR would investigate that,” he says. “They need to investigate and protect the public.”

LLR is a state agency designed to “promote the health, safety and economic well-being of the public through regulation, licensing, enforcement, training and education,” according to its website. Of its four major divisions, the professional and occupational licensing division (POL) contains 40 separate boards, the Board of Cosmetology among them.

Last year, a state Senate panel formed to consider deregulating areas of cosmetology and other licensed industries was met with broad opposition.

The panel focused on LLR’s annual regulatory report, which covers cosmetology, barbering, real estate, residential building, forestry, geology and environmental certification.

Then-LLR director Catherine Templeton, now head of the S.C. Department of Health and Environmental Control, expressed LLR’s intention to reduce fees and burdensome regulations. “We believe the regulatory schemes identified are more restrictive than necessary to protect the health, safety, or welfare of the public,” Templeton wrote in last year’s regulatory report.

Panel member Sen. Shane Massey, R-Edgefield, recalls the tension, especially from the cosmetology side arguing protection of public safety. But for Massey, having the conversation was important.

“It’s important to have that oversight,” he says of the panel’s activities. “It’s an essential function in a legislative body. Generally speaking, we’ve had many of these regulations on the books for decades. They need to be reviewed at the very least … to make sure they’re serving their purpose.”

“There’s a real concern that government gets too involved in people’s lives,” Massey added. “That’s why I think these rules need to be reviewed to determine whether we still need them or if they need to be updated.”

Brown, the Columbia cosmetologist, says she doesn’t think it would be advisable to deregulate the cosmetology industry. “Sanitation is huge,” she says. “If they lessened the hours, and we could get the same amount of education, then that would be fine.”

Brown says most hair braiders should be licensed in cosmetology because “they’re doing it already.”

“They’re adding extensions, using chemicals,” she says. “I see it all the time. They’re going into salons, only registered to braid, and they’re doing whatever they want.”

Bryant, who was on the Senate panel along with Massey, says no legislation was drafted because the “opposition was so fierce.”

“A lot of times these regulations close the market to competition,” he says. “That was never admitted, but that’s my hunch.”

In this year’s legislative session, Bryant co-sponsored S. 1395, a bill that would have given the Legislature control over professional and occupational licensing fees. The bill’s main sponsor, Sen. Joel Lourie, D-Richland, could not be reached for comment.

Although the proposal garnered bipartisan support, passing unanimously and quickly through the Senate, it died in the House Labor, Commerce and Industry Committee when the session ended.

When the Senate reconvenes in January, the bill could be reintroduced.

Co-sponsor Sen. Lee Bright, R-Spartanburg, says he has no definite plans to do so but does not oppose the idea. “I have a problem with agencies we’ve enabled to raise these fees,” Bright says. “We’re overregulated to death in this state.”

Reach Weston at (803) 254-4411 or kelli@thenerve.org.

General Assembly Legislation State Agencies

S.C. Department of Labor Licensing and Regulation Jestina Clayton Sen. Joel Lourie Catherine Templeton Sen. Lee Bright Sen. Shane Massey Sen. Kevin Bryant