OKLAHOMA CITY — An eyelash artisan licensed in Texas has sued the Oklahoma Board of Cosmetology and Barbering, contending agency rules that forbid her from practicing her specialized craft in this state are unconstitutional.
“This is a civil rights lawsuit to stop the state from imposing burdensome, irrational and arbitrary demands” on a highly trained specialist in the application of false eyelashes, “and to vindicate the right to conduct business free from unreasonable governmental restraints,” Brandy Davis of Creek County asserts.
Her lawsuit was filed in Oklahoma County District Court on Sept. 6. She is represented by the GableGotwals law firm in Tulsa and by the Virginia-based Institute for Justice.
One-fourth of workers across the nation today have a state-approved occupational license, compared to about 5% sixty years ago, the National Conference of State Legislatures reports.
The State of Oklahoma has begun a review of its occupational licensing procedures and requirements.
For example, State Labor Commissioner Leslie Osborn said that during the past four years “we worked on reducing the number of licensed professions from 508 jobs” to a little over 200.
The Occupational Licensing Advisory Commission was created in 2018 and was charged with reviewing Oklahoma’s occupational and professional licenses at least once every four years and providing recommendations to the state Legislature.
As a result, Oklahoma now has approximately 210 occupational licenses issued by 42 state agencies and boards, OLAC ledgers show.
The list includes the typical professions such as plumbers, pipe fitters, electricians, barbers, pesticide handlers and applicators.
But it also includes embalmers and funeral service directors, abstractors and accountants, building inspectors, water/wastewater treatment plant operators, emergency medical technicians, dieticians, dental hygienists, home inspectors, real estate agents / appraisers / brokers, security alarm technicians, land surveyors, landscape architects, HVAC contractors, manicurists, pedicurists, and many more.
“I’m in favor of occupational licenses because there is a public safety component,” state Rep. Cyndi Munson, D-Oklahoma City and a member of OLAC, told The Oklahoman. “But I don’t want unnecessary barriers in place that prevent someone from making a living.”
Eyelash extension practitioners use semi-permanent glue to apply either a single extension fiber or a cluster of fibers to a natural eyelash, Davis explained in her lawsuit. The extensions are silk or other natural or artificial fibers and are attached to a person’s natural eyelashes with semi-permanent glue, she said. The application process is “meticulous” and generally “takes about two hours to apply a full set of extensions,” she wrote.
The extensions are worn when the customer sleeps, showers and swims. The extensions are discarded when the natural eyelashes “shed from a person’s eyelids every few weeks...”
Complainant received 320+ hours of training while living in Texas
Some states offer specialty licenses to apply and maintain eyelash extensions, Davis wrote. Indiana requires 45 hours of training in health, safety, and application technique. Kentucky requires a certificate from an approved training program and a 3-hour infection control course. Connecticut requires 50 hours of specialized training; Minnesota, 38 hours; Rhode Island, 20 hours.
In Oklahoma, though, eyelash-extension practitioners are required by the State Board of Cosmetology and Barbering to obtain an esthetician license or a cosmetology license to be authorized to apply eyelash extensions, Davis noted.
Obtaining an esthetician license requires completion of 600 hours of coursework in a cosmetology school and passing two licensing exams. Obtaining a cosmetology license requires completion of 1,500 hours of cosmetology coursework and passing two licensing exams. None of the required training or exams for either license addresses eyelash extensions, she wrote.
Not one minute of the required curriculum for licensing an esthetician (a person who provides cosmetic skin care treatments and services) or cosmetologist “addresses eyelash extensions,” she pointed out.
Consequently, practitioners trained in eyelash extensions – via licensing programs in other states or through private certification programs – “are required to endure hundreds of hours of training irrelevant to their jobs” and at a cost of between $1,100 and $11,700 for the minimum-required courses in Oklahoma, Davis complained. And then they are required to pass “irrelevant exams” before the Cosmetology Board will license them to work as eyelash-extension practitioners.
Davis is licensed in Texas, which offers a specialty license for application of eyelash extensions; she has more than 320 hours of training in that niche field, she reported.
That is 320+ hours “above the eyelash-extension training Oklahoma-licensed cosmetologists and estheticians needed to obtain their licenses,” she pointed out. But under Oklahoma law, a licensed cosmetologist or esthetician “who has completed zero hours of training in eyelash extensions” can legally apply them, while Davis cannot.
Davis said her training in Texas included courses on first aid and adverse reactions, sanitation and contagious diseases, safety and client protection, eyelash growing cycles and selection, chemistry of products, supplies and equipment, application technique, eye shapes, salon management, and law.
She said she also completed four hours of continuing education required to renew her Texas license, and completed an 8-hour health, safety and technique course through a company from which she buys eyelash-extension products.
Davis wrote that she also has completed more than 500 hours in esthetician curriculum approved by the Texas Department of Licensing and Regulation.
She said she owned and operated her own eyelash-extension business in Texas for two years, until January of this year, when she moved to Bristow, where she works as a cosmetology apprentice in a salon.
She is allowed to perform eyelash extensions only under the supervision of her apprenticeship instructor and is prohibited from establishing her own business in Oklahoma unless she obtains an esthetician or cosmetology license.
The Cosmetology Board accepts reciprocal licenses from other states only for cosmetologist, manicurist, esthetician or barber licenses. But the board does not accept a reciprocal eyelash-extension license from another state and does not offer a specialty license for that work, either.
Oklahoma’s cosmetology laws and the board’s rules, as applied to Ms. Davis, “have no real and substantial relationship to public health, safety, or welfare,” and “do not advance any legitimate governmental interest,” her lawsuit alleges.
Davis claims she contacted the board and asked for an audience to explain her position but was rebuffed at least twice.
She has asked the court to declare four sections of a state statute and three sections of the state Administrative Code unconstitutional, and to bar the State Board of Cosmetology from enforcing its regulations against her.
Change might require statutory amendments
“It might not be the fault of the board if they do not have the authority to change their rules and regulations without legislation” passed by Oklahoma lawmakers, said state Labor Commissioner Leslie Osborn, a former legislator who is a member of the Occupational Licensing Advisory Commission.
“I believe that the State Board of Cosmetology and Barbering would have to get a statutory adjustment in order to carve out a license for persons who install false eyelashes,” wrote Daniel Mares, assistant general counsel for the state Labor Department.
The definitions of cosmetologists, manicurists, nail technicians, estheticians, cosmeticians, hair braiding techs, master cosmetology instructors, manicurist instructors, esthetics instructors, barbers, and master barber instructors, are all spelled out in a state statute.
So, perhaps it would require the State Board of Cosmetology and Barbering to persuade the Legislature to amend the statute “to change an existing definition to include persons who install false eyelashes,” or “to give them the authority to license the various professions and to include a license for persons who install false eyelashes,” Mares said.