When I handle civil litigation against the government, my clients face unique challenges. The procedures can be quirky and the government can be frustrating to deal with. Issues with government units, such as licensing and property concerns, are very common.
These issues are highlighted by a recent Minnesota case. Frustrated makeup artists have sued the Minnesota Board of Cosmetology for violating their constitutional rights. They ask: why do I need a license do wedding makeup, but no license for photography makeup?
This article looks at the Minnesota Makeup Lawsuit and the broader issue of civil litigation against the government.
Cease and Desist Letters
State law authorizes the Minnesota Board of Cosmetology to enforce laws and administrative rules for cosmetology services, such as hair, skin, and makeup.
Under that authority, the Board reportedly began sending Cease and Desist Letters to private hair and makeup artists in late-2017. Basically, these artists had to stop services or face criminal issues. Here is an example of their Cease and Desist Agreement:
The Board has continued its action against non-licensed makeup artists that do weddings and other events. However, the rules are confusing and harsh. Many people have likely suffered hardships because hair and makeup services are their only source of income. Getting a cosmetology salon license would apparently require 4,000+ hours of training, which is not feasible for many people.
One makeup artist explained the confusing standards for licensing:
“If I do bridal hair and makeup for a photoshoot that's going to be published in a bridal magazine, that's not illegal. I'm not working illegally. But if I do a wedding, without those licensures, I'm working illegally[.]”
Simply put, the government's heavy-handed approach to questionable licensing rules has created a controversy. While this case involves cosmetology, many businesses and people experience similar licensing issues. If so, this is a case to keep an eye on.
Minnesota Cosmetology Laws and Rules
To fully understand the dispute, let's take a look at the laws.
Cosmetology laws are primarily located in Chapter 155A of Minnesota Statutes. Minn. Stat. § 155A.21 explains why a Cosmetology Board is needed:
The legislature finds that the health and safety of the people of the state are served by the licensing of the practice of cosmetology because of infection control and the use of chemicals, implements, apparatus, and other appliances requiring special skills and education. To this end, the public will best be served by vesting these responsibilities in the Board of Cosmetologist Examiners.
Keep in mind that it is “unlawful for any person to engage in cosmetology, or to conduct or operate a cosmetology school or salon, except as [otherwise provided].” Minn. Stat. § 155A.22. Violations can result in a misdemeanor conviction.
Minnesota also has detailed Administrative Rules in Chapter 2105 that expand on the statute. For instance, Rule 2105.0010, subd. 13 defines “unregulated services” that could be exempt from regulation:
Unregulated services are ear piercing; body art; body painting; henna tattoos and permanent tattoos; eyebrow embroidery; eyebrow microblading; permanent hair removal; permanent makeup; tanning by UV radiation and spray tanning units; injectables; services for theatrical, television, film, fashion, photography, or media productions or media appearances; mortuary services; massage; body wraps and lymphatic drainage when performed by a massage therapist; the practice of medicine as defined in Minnesota Statutes, section 147.081, subdivision 3; and hair braiding, hair braiding services, and hair braiders, as defined in subparts 10a to 10c; and threading as defined in Minnesota Statutes, section 155A.23, subdivision 13. Ordinances by local units of government that prohibit hair braiding, hair braiding services, or hair braiders, as defined in subparts 10a to 10c, or regulate any matter relating to licensing, testing, or training of hair braiding, hair braiding services, or hair braiders are preempted by this part.
To try and clarify their regulations, the Board published this rules flyer:
There have been recent legislative pushes to change the law and let private makeup artists do private events without the need for a license or permit. However, those proposed changes were unsuccessful, so the controversial rules remain in place.
The Makeup Lawsuit
Private hair and makeup artists became fed up with the confusing rules and the Board's enforcement actions. They filed a civil lawsuit against the Board of Cosmetologist Examiners and agency leaders. The case is titled Ziemer, et. al. v. Minnesota Board of Cosmetologist Examiners, et. al. (Ramsey County District Court File 62-CV-19-7607).
Here is a summary of the Plaintiff's constitutional claims from their Complaint:
- Count 1 – Due Process Violation under Art. 1, Sect. 7 of the MN Constitution: The Plaintiffs' theory is that the Board is unconstitutionally requiring licenses that are not reasonably related to their chosen occupation. They claim that the license rules violate their due process right to earn a living free from arbitrary and unreasonable government interference.
- Count 2 –Equal Protection Violation under Ar. 1, Sect. 2 of the MN Constitution: The Plaintiffs' theory is that the Board is making “arbitrary and fanciful” distinctions between activities that do and do not require licenses. They claim that this violates their equal protection rights.
- Count 3 –Substantive Due Process Violation under the 14th Amendment to the U.S. Constitution: The Plaintiffs' theory is that the Board is unreasonably prohibiting them from pursuing their chosen livelihood by forcing them to get an irrelevant license. They claim that this diminishes their due process right to economic liberty under the U.S. Constitution.
- Count 4 – Violation of Federal Equal Protection Clause: The Plaintiffs' theory is that the Board is unconstitutionally requiring irrelevant cosmetology training that is not rationally related to public health or safety. They claim that this violates their equal protection rights under the U.S. Constitution.
The Board has filed an Answer in which it denies the allegations. The case will likely proceed to legal arguments before a Ramsey County judge and ultimately to appeals courts.
Private makeup artists argue that it is arbitrary to require a license for weddings and events but no license for tv, fashion, photography, or similar purposes. I tend to agree with them.
It doesn't seem unreasonable to require some cosmetology services to be done safely, and to require training on issues such as infection control. This licensing requirement protects consumers. But should a person be prosecuted or fined for providing bridal makeup and charging a few bucks? No.
On the other side, the problem with waiving rules for unlicensed providers is that many people spent time and money to become licensed. They followed the law and made sacrifices to become compliant. Why punish them and take away their competitive advantage for respecting the law?
The legislature and Board need to simplify the law and use evidence to support their rules. If not, they will continue to be susceptible to constitutional lawsuits, as discussed below.
Broader Issue: Civil Litigation Against the Government
You would be surprised at how often people encounter disputes with a government unit (township, city, state, federal government, agency).
Common issues include:
- Zoning and land use (conditional use permits, zoning enforcement actions, variances, septic compliance, building permits);
- Licensing (contractor licenses, daycare licenses, professional licenses, liquor licenses, license revocations, license suspensions, license terminations, etc.);
- Property tax and assessment appeals;
- Building inspection and code violations;
- Employment and disability discrimination;
- Police abuse;
- Constitutional violations (free speech, religious freedom, civil rights);
- Property damage (flooding, drainage problems, sewage overflow); and
- Personal injury claims.
Tips for Government Litigation
People are often able to resolve simple disputes with local government entities without having to hire an attorney. But in other cases, the government is inflexible and you may need an attorney.
In my civil litigation experience against government units, here are some helpful tips:
- Consider Immunities: Immunity means that the agency or official cannot be sued. Sometimes the government unit may be immune from your lawsuit, so your attorney should research this issue up front. Common immunities include legislative immunity, statutory discretionary immunity, common law immunity, recreational immunities for places like public parks, judicial immunity, and other immunities. These are challenging legal questions that must be resolved early in the case.
- Know the Specialized Rules: Normal civil litigation is governed by the Minnesota or Federal Rules of Civil Procedure. When a government unit is involved, there may be special rules and procedures. If you do not follow these rules, your claim may be dismissed. These rules are heavily dependent on the specific type of case and the applicable agency.
- Understand Administrative Court: Your case against the government may be heard in administrative court or in a non-court setting. For example, zoning issues are sometimes decided by local zoning boards or boards of adjustment, with appeals directly to the County Board and then to the Minnesota Court of Appeals. But many other cases are venued in Minnesota Administrative Court. For example, an OSHA case for unsafe working conditions is heard in Administrative Court by an administrative judge. The rules are very different than district court. The administrative judge will issue a recommendation, which is then affirmed or modified by the Minnesota Department of Labor and Industry. If you don't like the ruling, you appeal to the Minnesota Court of Appeals. This is much different than district court and will impact how you approach the case.
- Embrace the Political Issues: There are often political components to your case. The government unit may be pressured to show the public that they are fulfilling their duties to taxpayers. They may try to make “an example” out of you. This is not good for you. On the other hand, you can sometimes use appropriate political pressure to help your cause. Most government workers strive to be responsive and do the right thing. Their job depends on it. Government officials worry about being voted out of office or removed. If working toward a solution saves their job, they will probably be more flexible.
- Know the Government Dynamics: There may be interpersonal dynamics that you should consider with the government entity. Government decision-making is bureaucratic and inflexible. Figure out who is the true decision-maker and that person's motivations. While you would assume the organization's leader or chair is your most important audience, that person may rely on someone else in coming to a decision. The person may vote with another board member or put trust in a low-level official. To persuade the person, figure out how they come to a decision. Do your best to get a feel for the decision-making dynamic early in your case. That will affect your messaging throughout the civil litigation.
- Consider Attorney's Fees: The government is usually not affected by litigation costs and attorney's fees. They may not be paying attorney's fees. They may have a city attorney, county attorney, or attorney general at their disposal. As such, they may see no reason to settle the case for reason of litigation costs. This is a risk to you, since you will likely be paying your private attorney. You need to consider the added cost if they refuse to discuss settlement and you have to go to trial.
- Think about the PR Issues: When a government agency takes enforcement action against a person or business, they often issue a press release to the newspaper and media. Sometimes they hold a press conference. They want to show the public that they are doing their jobs. This is bad for you as the opposing party. If your construction company or daycare has an accident, you may see your name in a newspaper or on tv. This could devastate your business. You may not have the connections or draw the same interest from the media. Consider this risk before you start a claim against a government unit.
- Judgment Collection: The benefit of suing a government entity is that they often have the resources to pay your claim, assuming there is no immunity. They will generally comply with a court order to pay a judgment, if one is entered. They may also have insurance that could pay a claim. Therefore, you may not have the problem that many plaintiffs experience with a “judgment proof” defendant. If your case seeks to void a government action or require it to approve a license request, they will generally comply with a valid court order. This is a positive factor.
- Know the Data Privacy Issues: There are complicated rules and laws about what the government can do with information. In civil litigation cases, you can usually take depositions and conduct discovery. This right is limited in administrative court. This right is also limited by data privacy laws. If you are defending a case brought by the government, you need all available information. Investigatory information from whistleblowers or other witnesses can be kept secret under the Minnesota Data Practices Act. I have seen the Attorney General's Office refuse to disclose evidence, and I do not like it. However, the law generally allows them to do this. The lesson is to understand what evidence you can ultimately present at a trial or contested case hearing.
- Be Patient: It can be frustrating having to wait for responses or decisions from the government entity. They must go through their decision-making channels, but generally will respond to you. If you have a business with pressing issues to address, you may have to take interim action and plan accordingly. Your attorney may have ways to speed up aspects of the case that you control. If so, take advantage of it.
The Minnesota Cosmetology Lawsuit presents controversial issues about whether licensing rules are constitutional. Frustrated makeup artists highlight the challenges that many other people experience in disputes with the government. You should consider these challenges before you begin civil litigation against the government. An experienced civil litigation attorney can help you understand these issues. If you don't have a strategic plan, you could waste money and be out of a remedy.