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Board must justify good moral character requirement

The Commonwealth Court of Pennsylvania, in a December 9 decision, rejected a request by the state cosmetology board to dismiss a suit brought by two former license applicants seeking to invalidate the state's requirement that cosmetology licensees be of good moral character.

(Haveman v. Department of Professional and Occupational Affairs)

Pennsylvania’s State Board of Cosmetology denied cosmetology licenses to the two plaintiffs in the case on the grounds that their past criminal histories indicated a lack of good moral character. One had been convicted of a series of misdemeanors, while the other had convictions relating to drug crime.

Having turned their lives around somewhat, both applicants had finished cosmetology education programs and had been offered jobs, and both claimed not to be able to afford a lawyer to appeal their denials.

Faced with the prospect of an unfavorable appellate process, the plaintiffs filed suit, arguing that the board’s denials of any license application on the grounds of lack of good moral character resulting from past criminal convictions not otherwise connected to fitness to practice cosmetology are in violation of the Pennsylvania Constitution because such denials are unreasonably oppressive and the state has no legitimate state interest in making them.

Before a state Commonwealth Court, the board filed a preliminary objection seeking to dismiss the case on several different grounds, but the court rejected the motion, holding that the board was obligated to answer the plaintiffs’ claims.

In response to the board’s argument that the plaintiffs’ claims were not ripe because they no longer had license applications pending, the court disagreed. It held that because the plaintiffs had made a broad constitutional challenge and were not appealing the denial of their own applications, and because they were challenging a policy that the board was actively enforcing and it would cause hardship to them were they to re-apply, their claim was ripe and did not require further development.

“The Board argues that Petitioners cannot establish harm because they do not currently have applications pending before the Board,” wrote Justice Renée Cohn Jubelirer, “but this overlooks the relief Petitioners seek, which is a declaration that this requirement is unconstitutional and a prohibition against the Board from using the requirement when reviewing applications in the future.”

Regarding the plaintiffs’ standing to bring a case, the judge wrote that the time and financial hardships facing the plaintiffs were such as to make their interest in the case substantial and that the board’s likely enforcement of the moral character requirement, as evidenced by its past enforcement, was direct and immediate enough to harm the plaintiffs if their constitutional argument was correct.

The board also challenged the suit on the grounds that the plaintiffs were making an inappropriate collateral attack on the denials of their applications, and that they should have brought the arguments made in the current suit to the attention of the board in response to its denials of their application, and then made a direct appeal if they did not succeed.

However, the court noted that the board would not actually have had the authority to declare the moral character requirement unconstitutional, and thus the outcome of the administrative process leading to the denial of the plaintiffs’ applications could not prevent the suit challenging the requirement here. The suit simply did not seek to litigate the issues that were up for challenge in the denial of their applications, the court said.