IN THE COMMONWEALTH COURT OF PENNSYLVANIA Astou Diop, Tanyita Henry, : and Awa Gaye, : Petitioners : : v. : No. 363 M.D. 2020 : Argued: December 16, 2021 Bureau of Professional and : Occupational Affairs, : State Board of Cosmetology : of The Commonwealth of : Pennsylvania, : Respondents : BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1 HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge OPINION BY JUDGE LEAVITT FILED: March 3, 2022 In this original jurisdiction action, Astou Diop, Tanyita Henry, and Awa Gaye (Petitioners) challenge the constitutionality of certain provisions of the statute commonly known as the Beauty Culture Law (Law),2 which require a license to engage in the commercial practice of natural hair braiding. Petitioners challenge this regulatory regime both facially and as applied to them. Presently before this Court are the preliminary objections of the Bureau of Professional and Occupational Affairs (Bureau) and the State Board of Cosmetology of the Commonwealth of Pennsylvania (Board) (collectively, Respondents). Respondents ask the Court to (1) dismiss the as-applied constitutional claims of Tanyita Henry for lack of standing; (2) dismiss Petitioners’ facial substantive due process challenge as legally 1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court. 2 Act of May 3, 1933, P.L. 242, as amended, 63 P.S. §§507-527. insufficient;3 and (3) dismiss Petitioners’ as-applied and facial equal protection claims as legally insufficient. I. Procedural History On June 18, 2020, Petitioners filed a petition for review in the nature of a complaint for declaratory and injunctive relief, alleging that the provisions of the Law and associated regulations requiring them to obtain a license to engage in commercial natural hair braiding violate their substantive due process right to pursue their chosen occupation under Article I, Section 1 of the Pennsylvania Constitution. PA. CONST. art. I, §1.4 On August 5, 2020, Respondents filed an answer to the petition for review, denying some factual allegations therein and asserting that pending legislation in the General Assembly would address Petitioners’ concerns.5 Respondents also asserted that Petitioners failed to plead facts to show an actual case in controversy and failed to join all indispensable parties, i.e., all individuals who hold a natural hair braiding license and whose property interest in that license would be affected were this Court to declare the licensing scheme unconstitutional. In a 3 Respondents raise an additional objection that Petitioners have failed to “join all active, inactive, and suspended license holders whose rights will be directly affected if the Court provides the declaratory relief sought.” Respondents’ Brief at 9. Respondents ask the Court to address this objection only if it allows Petitioners’ facial substantive due process challenge to proceed. 4 It states: All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. PA. CONST. …
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