The opinion of the court was delivered by: BRIEANT
MEMORANDUM DECISION AND ORDER
By her amended complaint, plaintiff, a licensed cosmetologist in the State of New York who also holds an apprentice barber's license, invokes our jurisdiction pursuant to 28 U.S.C. §§ 1343(3) and (4), 2281 (1970) and 42 U.S.C. §§ 1983 and 1988 (1970) seeking injunctive and other relief preventing enforcement, against her, by defendant, of the New York Statutes regulating the practice of barbering. New York has a statutory scheme for licensure and regulation of barbering, found in Article 28 of the General Business Law, N.Y.Gen.Bus.Law §§ 430-47 (McKinney's 1968), as amended, (McKinney's Supp. 1974-75) enacted substantially in its present form in 1946.
A companion scheme exists in Article 27 of the same law, N.Y.Gen.Bus.Law §§ 400-15 (McKinney's 1968), as amended, (McKinney's Supp. 1974-75) to license and regulate the business of cosmetology.
The statutes do not prevent a person of either sex from holding either or both licenses, and thus operating upon the heads of male and female persons, but unless also licensed as a master barber, or acting as a licensed apprentice barber and working under the supervision of a licensed master barber, a licensed cosmetologist may not, inter alia, "wave, dye, color, bleach, cut, arrange, dress, [or] curl . . . the hair of the head" of a male person, N.Y.Gen.Bus. Law § 401(5) (McKinney's 1968) although a cosmetologist may "massage, cleanse, or exercise the scalp or stimulate the growth of the hair of the head of any person." Id. (emphasis added). A cosmetologist may not shave a person. A barber may cut the hair of persons without regard to their sex, N.Y.Gen.Bus. Law § 431(4) (a) (McKinney's 1968), but unless licensed also as a cosmetologist may not administer facial or scalp massage, singes, shampoo, hairdressing and similar services other than to male persons. Id. § 431(4) (b)-(d). Recently, "[those] members of the younger generation with a penchant for long tresses" [Mains v. Board of Barber Examiners, 249 Cal. App. 2d 459, 57 Cal. Rptr. 573 (3rd Dist. Court of Appeals 1967)] have sought the services of trained cosmetologists in preference to barbers. Plaintiff has been cutting and styling their hair.
Defendant Ghezzi became Acting Secretary of State of the State of New York on January 1, 1974. Enforcement of the two licensing schemes mentioned is entrusted to him. N.Y.Gen.Bus. Law § 433 (McKinney's 1968). By an order issued May 16, 1974 after a hearing before defendant's subordinate, hearing officer Alex K. Gross, it was officially determined that plaintiff, not supervised by a licensed master barber, and while employed at Executive Chair Ltd., a corporation licensed to conduct a barbershop in the City of Syracuse in this District, colored the hair of a male customer. The plaintiff was held to have violated Section 432 of the New York General Business Law (McKinney's 1968) by "practicing barbering on the hair of a male person while not supervised by a master barber . . . ." For that, and also for other unrelated violations, defendant reprimanded plaintiff and her then employer. Should plaintiff continue to perform such services on male persons' hair, she faces further punitive sanctions.
Accordingly, plaintiff presents an actual controversy in which she has a vital interest, with respect to whether the state statutes above mentioned violate the Due Process Clause of the Fourteenth Amendment of the Constitution to the extent they prohibit cosmetologists from rendering to male patrons all of the services they may provide lawfully to female patrons, and may also allege a claim under The Equal Protection Clause.
This Court has subject matter jurisdiction under the statutes previously mentioned, as well as jurisdiction over the parties. Defendant's motion, by undated Notice, to dismiss on jurisdictional grounds or for failure to state a claim is denied. Since injunctive relief is sought solely on constitutional grounds against enforcement of a state statute, and since the complaint is not obviously frivolous or wholly insubstantial [Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973)], this three-judge statutory court was properly convened.
In addition to the statutes previously mentioned, an amendment effective September 1, 1971 to the New York Executive Law Section 296(2) bears upon the issue.
That law in effect prevents the proprietor of "any place of public accommodation" from refusing privileges to any person because of sex. N.Y.Exec. Law § 296(2) (McKinney's 1972), now N.Y.Exec. Law § 269(2) (a) (McKinney's Supp. 1974-75). Barber shops and beauty parlors, in New York, are such places. N.Y.Exec. Law § 292(9) (McKinney's 1972). The Attorney General of New York, whose duties include the issuance and publication of legal opinions to state officials, has noted the apparent conflict. On November 30, 1971, the Attorney General advised defendant's predecessor in office, John P. Lomenzo, in part as follows:
"this section provides that the State Division of Human Rights may grant an exemption from the provisions barring discrimination because of sex in places of public accommodation 'based on bona fide considerations of public policy.'
It must be further noted that apart from the proscription of Executive Law, section 296, subd. 2, the fact that hairdressers and barbers are State licensees raises a constitutional question as to whether the State can, consistent with the purposes of the Fourteenth Amendment, exclude the patrons of such licensees on the basis of their sex.
In accordance with the legislative directive embodied in Executive Law, section 296, subd. 2, the question of determining whether the above-described provisions of the General Business Law qualify for exemptions based upon bona fide considerations of public policy should be left for initial determination by the State Division of Human Rights. Until the Division determines this question, the Department of State should refrain from imposing any penalties for hairdressers or barbers who serve both male and female patrons."
Thereafter, in its "Quarterly Law Review No. 1", issued for November 1972, the Executive Department of the State of New York, Division of Human Rights held:
"Barber Shops and Beauty Shops are places of public accommodation. (§ 292.9). A question arose as to the effect of the 1971 law on the sections of the General Business Law which provide for the licensing of hairdressers to do certain things to 'the hair of the head of a female person' (§ 401.5) and for the licensing of barbers to give facial or scalp massages and shampoos 'to males only' (§ 431.4). The State Attorney General advised that these questions 'should be left for initial determination by the State Division of Human Rights' (Opinion to Sec'y of State, 11/30/71). State Human Rights Commissioner Sable wrote the Secretary of State on June 5, 1972:
'. . . that the public policy reflected in the General Business Law and the provisions of the Executive Law, Sec. 296 subd. 2, applicable to sex discrimination in places of public accommodation, would require the servicing of any patron regardless of sex in licensed barber shops and beauty shops.
Exemption from the provisions of the Executive Law under Sec. 296 subd. 2 is hereby granted to permit barber shops and beauty shops to observe the requirements for licensure of barber operators and beautician operators under the General Business Law. In other words, a licensed barber shop owner or beauty shop owner must provide services to any person regardless of sex in the shop, ...