By Michaela Liesenberg, Volume 104 Staff Member
Nationwide, the wedding industry generates annual revenue of over $78 billion. As weddings are highly photographed events, spouses-to-be spend an average of $225 on hair and makeup services for their special day. In 2019, Minnesota hosted 31,712 weddings and, if every couple who wed utilized hair and makeup services, hair and makeup businesses may have generated more than $7 million in revenue in Minnesota alone. The Minnesota Legislature regulates the hair and makeup artist industry to ensure cleanliness and safety for professionals and clients alike. Recently, the Minnesota Board of Cosmetology interpreted Minnesota Statute § 155A.275 to require any freelance hair or makeup artist (“HMUA”) performing services specifically for a wedding to have a salon manager license. Prior to this interpretation, weddings had been categorized as “unregulated services” akin to hair or makeup services provided for “theatrical, television, film, fashion, photography, or media productions or media appearances.” Obtaining a salon manager license requires first obtaining an active operator license, then completing 2,700 hours of work experience in an existing licensed salon, and then successfully completing the Salon Manager Examination.
Freelance wedding HMUAs argue these new licensing requirements are unnecessary and significantly hurt their business, with some businesses closing completely after being unable to afford the steps required to fulfill the licensing requirements or practically devote the hours required to fulfill the requirements. A complaint has been filed on behalf of several freelance wedding HMUAs and a Minneapolis-based makeup artistry school, claiming the new regulations violate the equal protection clauses of both the Minnesota and United States Constitutions. Constitutional challenges to regulations and licensing requirements are not new and existing case law provides guidance on how the pending suit challenging the Minnesota Board of Cosmetology’s rulemaking may proceed.
The U.S. Supreme Court held in Greene v. McElroy that the liberty and property protections contained in the Fifth Amendment’s Due Process Clause specifically protect the right to “hold specific private employment and to follow a chosen profession free from unreasonable governmental interference.” In cases involving Fifth Amendment protections from burdensome economic regulations, the burden of proof falls on the challenging party to show that the regulation was enacted in an arbitrary and irrational way. The U.S. District Court for the Southern District of California applied Supreme Court jurisprudence protecting private employment from government interference to cosmetology licensing requirements in Cornwell v. California Board of Barbering & Cosmetology. In Cornwell, plaintiffs challenged a full cosmetology licensing regulation to perform African hair braiding, which is similar to the rule being challenged in Minnesota. The plaintiffs argued that only the health and safety component of the coursework required to obtain a cosmetology license applied to African hair braiding. The health and safety component only accounted for 65 hours of the required 1600 hours of the licensing coursework, or 4% of the total hour requirement. The court found that because only a small fragment of the required coursework for full cosmetology licensing applied to African hair braiding, the regulation was not rationally related to the state’s interest in protecting the health and safety of its citizens and therefore violated the Due Process Clause of the Constitution.
This rational basis test for determining whether a regulation is related to the state’s interest in protecting the health and safety of its citizen has been adopted by Minnesota courts. Furthermore, the Minnesota Supreme Court has held that due process of law and equal protections of the law are secured if the challenged law operates equally among affected persons and does not subject an individual to an arbitrary exercise of the powers of government. In the challenge to the Minnesota Board of Cosmetology’s statutory interpretation, the freelance wedding HMUAs have strong facts, in line with those of Cornwell, to demonstrate that the challenged regulation does not operate equally among freelance HMUAs and is not related to the state’s interest.
Under Minnesota regulations, a freelance HMUA would be able to provide hair and makeup services at a beauty counter in a mall, for theater or television, or for a person getting ready to celebrate a birthday or baby shower, but providing the exact same services for a wedding or bridal event would mean they are guilty of a misdemeanor. While the state may have a legitimate interest in ensuring that freelance HMUAs comply with appropriate sanitation and hygiene requirements, the reasons for exempting theater and television services from any licensing requirements are unclear. For a freelance HMUA to qualify for the salon manager license required to secure a special events permit, the HMUA would need to undergo 1,550 hours of cosmetology training. Of those training hours, less than 200 hours are spent on makeup application skills and less than 200 hours are spent on hair styling. The HMUA would then need to undergo 2,700 hours of working in a salon, most likely not providing a majority of clients with special events hair and makeup. Likely less than 5% of the hours necessary for a freelance HMUA to obtain the salon manager license would be hours spent actually performing special event hair or makeup.
While this litigation moves through the judicial system, Representative Karin Housley has proposed a revision to existing law that would create an exemption for freelance HMUAs to perform special events services without requiring a cosmetologist and salon manager license. This legislation would distinguish “cosmetic services” and “hair styling” as distinct services from broadly defined “cosmetology,” allowing HMUAs who only provide makeup application or hair styling services to work without a full cosmetology license. Exemptions for freelance special event HMUAs, whether through legislation or judicial action, would protect a booming Minnesota industry and support the economic prosperity of predominately women-owned businesses.
 Wedding Services Industry in the US – Market Research Report, IBIS World (Dec. 2019), https://www.ibisworld.com/united-states/market-research-reports/wedding-services-industry/.
 Sophie Ross & Maddy Sims, How Much Does Wedding Day Hair and Makeup Cost?, The Knot, https://www.theknot.com/content/average-cost-wedding-hair-makeup.
 2019 Wedding Statistics for Minnesota, Wedding Report, https://wedding.report/index.cfm/action/wedding_statistics/view/market/id/27/idtype/s/location/Minnesota/.
 See Minn. Stat. § 155A (2019).
 Minn. R. 2105.0410, subp. 2 (2019) (“Licensees with an active manager’s license may apply online for a special events permit.”). See Minn. Stat.§ 155A.275 (2019) (“No person shall perform special event services without first obtaining a special event services permit from the board. To be eligible for a special event services permit, a person must have a valid manager’s license issued by the board under the authority of section 155A.27.”); Briana Bierschbach, Freelance Wedding Makeup Artists Push Back Against New State Regulations, MPR News (Nov. 13, 2019, 10:05 AM), https://www.mprnews.org/story/2019/11/13/freelance-wedding-makeup-artists-push-back-against-new-state-regulations.
 Minn. R. 2105.0010, subp. 13. (2019) (changing the definition of “unregulated services” from the historical definition of “those services not defined as the practice of cosmetology under Minnesota Statutes, section 155A.23, subdivision 3, and which are exempt from regulation by the board.”).
 An active operator license requires graduating from a cosmetology program that trains students in cosmetic hair care services, cosmetic skin care services, and cosmetic nail care services and passing three different exams. Minn. Board of Cosmetology, Frequently Asked Questions Practitioner Licenses: First Time Applicants (2019), (https://mn.gov/boards/cosmetology/faq/practitioners/faq-practitioners-applicants.jsp). Cosmetology school requires 1,550 hours of schooling. Minn. R. 2105.0145 (2019).
 Assuming a forty-hour work week, completing 2,700 hours of work experience would take over a year and three months of full-time salon work to complete.
 Minn. Board of Cosmetology, Frequently Asked Questions Practitioner Licenses: General (2019), (https://mn.gov/boards/cosmetology/faq/practitioners/general.jsp). The salon manager’s examination costs $48 and is a one-hour exam. The exam covers topics such as types of salons, salon supervision, salon operational requirements, and salon inspections. Candidate Information Bulletin, Minn. Board of Cosmetology (Mar. 13, 2020) (https://candidate.psiexams.com/bulletin/display_bulletin.jsp?ro=yes&actionname=83&bulletinid=704&bulletinurl=.pdf).
 See Bierschbach, supra note 5; Nick Sibilla, New Lawsuit Wants to Legalize Wedding Hair and Makeup in Minnesota, Forbes (Nov. 5, 2019, 9:40 AM), https://www.forbes.com/sites/nicksibilla/2019/11/05/new-lawsuit-wants-to-legalize-wedding-hair-and-makeup-in-minnesota/#7736b2392ce6; E-mail from Jacquelyn Burt to author (Mar. 4, 2020, 4:45 PM CST) (on file with author) (“Alongside hundreds of other entrepreneurs in the state of Minnesota, the existing rules for onsite special event hair and makeup professionals as they are currently being interpreted and enforced by the MN Board of Cosmetology mean that I lost a multi-award-winning business, a significant portion of my family’s income, and my status as a business owner and entrepreneur.”).
 See Sibilla, supra note 10.
 Greene v. McElroy, 360 U.S. 474, 492 (1959).
 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 3 (1976) (“It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”).
 Cornwell v. Cal. Bd. of Barbering & Cosmetology, 962 F.Supp. 1260, 1271–72 (1997).
 Id. at 1273.
 Skeen v. State, 505 N.W.2d 299, 316 (Minn. 1993) (“Under the rational basis test, legislative classifications will be upheld if they are at least rationally related to a legitimate state interest. . . It must only be shown (1) that there was a legitimate purpose for the challenged legislation, and (2) that it was reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose.”) (citation omitted).
 Minn. Wheat Growers’ Co-op. Mktg. Ass’n. v. Huggins, 203 N.W. 420, 420 (1925).
 See Minn. R. 2105.0010, subp. 11k (2019) (“‘Special event’ means an event held for any purpose other than the provision of licensed services, where a participant in the event may receive the limited cosmetology services described in part 2105.0410, subpart 2, at a location not in a licensed salon.”); Minn. Board of Cosmetology, Frequently Asked Questions Practitioner Licenses: General (2019), (https://mn.gov/boards/cosmetology/faq/ practitioners/general.jsp) (“A Special Event Permit (SEP) enables a licensed salon manager to offer limited cosmetology services outside of a licensed salon. Examples of events include weddings, bridal events, school events, or fairs.”); see also Burt, supra note 10 (“. . . a former bridal client reached out to me and wanted me to apply makeup for her for her baby shower. So I sanitized and packed my kit, drove to her home, applied makeup products in the comfort of her own living room as a trusted vendor, and when we were finished, she left for her baby shower. The service I provided was perfectly legal under current law. Yet if I had done the exact same thing with the exact same products and techniques and my client had left for her wedding instead of her baby shower, I am then a criminal.”).
 Minn. Stat. § 155A.36 (2019).
 About Our Cosmetology Program, Minn. Sch. of Cosmetology, https://www.msccollege.edu/program/cosmetology/ (last visited Mar. 19, 2020).
 Minn. Board of Cosmetology, Frequently Asked Questions Practitioner Licenses: General (2019), (https://mn.gov/boards/cosmetology/faq/practitioners/general.jsp).
 Senator Housley Introduces Legislation to Protect Freelance Hair and Makeup Artists, Minn. Senate Republican Caucus (Nov. 7, 2019), https://www.mnsenaterepublicans.com/housley-legislation-protect-freelance-hair-makeup-artists/; see also S.F. 2898, 91st Leg., Reg. Sess. (Minn. 2019).
 See S.F. 2898, 91st Leg., Reg. Sess. (Minn. 2019).
 Hairdressers, Hairstylists, & Cosmetologists, Data USA, https://datausa.io/profile/soc/hairdressers-hairstylists-cosmetologists (last visited Mar. 19, 2020) (“90.7% of Hairdressers, hairstylists, & cosmetologists are Female, making them the more common gender in the occupation.”).