BEAUTY CULTURE ‑- HAIRDRESSING INDUSTRY ‑- REGULATION BY COUNTIES, CITIES AND TOWNS ‑- POLICE POWER ‑- ORDINANCE NOT IN CONFLICT WITH STATE LAW

BEAUTY CULTURE ‑- HAIRDRESSING INDUSTRY ‑- REGULATION BY COUNTIES, CITIES AND TOWNS ‑- POLICE POWER ‑- ORDINANCE NOT IN CONFLICT WITH STATE LAW.

The state of Washington has not preempted the field or regulating the practice of hairdressing and beauty culture; therefore, local police power ordinances may be adopted which do not conflict with existing state law.

                                                              - - - - - - - - - - - - -

                                                                October 30, 1962

Honorable Robert M. Schaefer
State Representative, 49th District
6101 Highland Drive
Vancouver, Washington

                                                                                                              Cite as:  AGO 61-62 No. 176

Dear Sir:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Has the state of Washington preempted the field of regulating the practice of hairdressing and beauty culture in this state?

            We answer your question in the negative.

                                                                     ANALYSIS

            We assume from your question that you refer to the power of municipal corporations to control and license for regulatory purposes under the police power rather than for revenue purposes under the taxing power and we have treated this matter accordingly.  For a discussion of the distinction see Pacific Telephone & Telegraph Co. v. Seattle, 172 Wash. 649, 21 P. (2d) 721 (1933), affirmed 291 U.S. 300, 78 L.Ed. 810 (1934).

            The source of local government police power is the following language in our constitution:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."  Article XI, § 11, Washington Constitution.

             [[Orig. Op. Page 2]]

            This provision constitutes a self-executing grant of police power to be exercised in a reasonable manner consistent with state law pertaining to the subject.  Seattle v. Ross, 54 Wn. (2d) 655, 344 P. (2d) 216 (1959); Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462 (1915).

            With respect to the cosmetic industry there exists a "general law" regulating the practice of beauty culture and hairdressing throughout the state.  See chapter 18.18 RCW.  Without further inquiry it is evident that local ordinances and resolutions in conflict with this legislation would be invalid.  However, you have raised the question of the validity of local ordinances and resolutions‑-assuming that they would not conflict with statutory law.

            Under these circumstances, the existence of police power remaining at the local government level is dependent upon legislative intent as to whether state regulation under chapter 18.18 RCW should be exclusive or, on the contrary, there is room for concurrent jurisdiction over the subject matter.  Bellingham v. Schampera, 57 Wn. (2d) 106, 356 P. (2d) 292 (1960);State v. Lundquist, 160 Wash. Dec. 403 (1962) [[60 Wn. 2d 397]].

            TheSchampera case, supra, indicates clear expressions of legislative intent with regard to the subject of motor vehicle operation, both as to authorization for concurrent jurisdiction (RCW 46.08.020), and as to state preemption of the field (RCW 46.08.010).  As to the former, see, also,Kimmel v. Spokane, 7 Wn. (2d) 372, 109 P. (2d) 1069 (1941); andAustin v. Seattle, 176 Wash. 654, 30 P. (2d) 646 (1934).  As to the latter seeSeattle v. Rothweiler, 101 Wash. 680, 172 Pac. 825 (1918).

            In the absence of such clear expressions of intent a more difficult problem is presented.  The proper approach is indicated by our court in a case denying a contention of preemption:

            ". . . In other words, the enactments were not intended by the legislature to be the whole law upon the given subject, but were intended as general regulations, leaving each of the separate municipalities the power to enact such additional legislation not inconsistent therewith as its peculiar needs might require.  Such is the general rule, unless the legislative enactment expressly or by evident intent so declares.  In addition to this, we have in this state a constitutional provision declaring that  [[Orig. Op. Page 3]] any county, city, town, or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.  Const., art. 11, § 11.  Other than such as are found in the section above quoted, these statutes contain no such express declaration, and the enumeration of certain prohibitions is in itself equivalent to a declaration that none other were intended."  Allen v. Bellingham, 95 Wash. 12, 35, 163 Pac. 18 (1917).

            The court has also said:

            "It may be stated as a general rule that a state law will not be construed as impliedly taking away from a first-class city an existing power.  In order to accomplish that result, the state statute must be clear and unambiguous. . . ."  Ayers v. Tacoma, 6 Wn. (2d) 545, 554, 108 P. (2d) 348 (1940).

            On the other hand, an act may be so comprehensive in its regulatory character as not to admit of concurrent regulation by local government agencies and therefore to indicate by its operative effect that it is intended to be exclusive.  Seattle Electric Co. v. Seattle, 78 Wash. 203, 138 Pac. 892 (1914), (public service commission act regulating street railway systems).  This principle is expressed as follows:

            ". . . The only way the legislature can inhibit local legislative bodies from enacting rules and police regulations is by the state itself occupying the same legislative field so completely that the legislation on the subject by local legislative bodies will necessarily be inconsistent with the state act. . . ."  Ex parte Iverson, 199 Cal. 582, 250 Pac. 681, 682 (1926).

            Applying the above rules to the field of beauty culture regulation, we note that chapter 18.18 RCW does not mention local government relationships to the subject in any manner.  Although the statute is quite specific in a number of regulatory details, we believe it is not so comprehensive in character as to preclude the possibility of effective, consistent local regulation.  Consequently we are unable  [[Orig. Op. Page 4]] to find a legislative intent that this statutory law be exclusive.

            Our determination is supported by our awareness of many jurisdictions in which state and local regulation of the beauty culture and hairdressing industry exists concurrently.  Annot., 56 A.L.R. (2d) 879, Validity construction and effect of statute or ordinance regulating beauty shops or beauty culture schools.  7 McQuillin Municipal Corporations § 24.336 (3rd ed. 1949).  In particular we note a Pennsylvania statute, 63 P.S., §§ 507-527 (substantially similar to chapter 18.18 RCW), and ordinances of the City of Philadelphia which were upheld inDepartment of Licenses and Inspection v. Weber, 394 Pa. 466, 147 A. (2d) 326 (1959).  In reversing the lower court, it was stated:

            "The Common Pleas Court held generally that, through the instrumentality of the Act of 1933, the State had preempted the field of beauty culture regulation, and that no municipality, therefore, could step into that area of supervision and control.  Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist.  It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention, all ordinances touching the topic of exclusive control fade away into the limbo of 'innocuous desuetude.'  However, where the Act is silent as to monopolistic domination and a municipal ordinance provides for a localized procedure which furthers the salutary scope of the Act, the ordinance is welcomed as an ally, bringing reinforcements into the field of attainment of the statute's objectives."  (p. 327.)

            We conclude that chapter 18.18 RCW regulating the beauty culture and hairdressing industry does not preempt or preclude the exercise of local government police power consistent with state law.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General