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Panico v. Robinson

OCTOBER 23, 1974.

JOSEPH PANICO, PLAINTIFF-APPELLANT,

v.

WILLIAM H. ROBINSON, DIRECTOR, DEPARTMENT OF REGISTRATION AND EDUCATION, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

The plaintiff-appellant brought an action against the defendants seeking a declaratory judgment and permanent injunctive relief. The plaintiff alleged that he was a licensed cosmetologist and on June 1, 1972, had opened a business establishment at 6322 W. Cermak Road, Berwyn, Illinois, commonly referred to as "Panico the Haircutter" and/or "Panico Hair Trends." Plaintiff contended that he performed the services of styling and cutting the hair of male and female patrons and that he never performed any acts upon either male or female patrons which could be construed as shaving or clipping any body or facial hairs nor did he attempt to practice in any manner any business or occupation other than beauty culture. On August 24, 1972, plaintiff was served with an order of the defendant, William H. Robinson, in his official capacity as Director of Illinois Department of Registration and Education, which directed plaintiff to cease and desist from rendering his services to males. Rule VIII, G 1 and 2, of the Rules and Regulations for the Administration of the Beauty Culture Act limits to women patrons the cutting and trimming services a cosmetologist can render. *fn1 Plaintiff maintains that this rule is repugnant to the United States Constitution and the Constitution of the State of Illinois and sought a permanent injunction against defendants, Robinson and Pechous, from enforcing Rule VIII, G 1 and 2. It should be noted that the plaintiff is not nor has he ever been licensed to practice barbering within the State of Illinois.

The plaintiff's complaint also alleged that on September 13, 1972, plaintiff was personally informed by the defendant, Donald Pechous, Chief of Registration, Inspection and Investigation, Illinois Department of Registration and Education, that the Department of Education was going to institute criminal proceedings against him pursuant to section 58(b)(1) of "An Act in relation to the practice of barbering * * *" (Ill. Rev. Stat. 1971, ch. 16 3/4, par. 14.92(b)(1)). The statute states:

"(b) Each of the following constitutes a misdemeanor punishable upon conviction by a fine of not less than $25 nor more than $200 for the first offense, and for a second and subsequent offense, a fine of not less than $50 nor more than $500 and confinement in the county jail for not more than 6 months:

(1) The practice of barbering or an attempt to practice barbering without a valid and current certificate of registration as a registered barber." (Ill. Rev. Stat. 1971, ch. 16 3/4, par. 14.92(b) (1).)

The practice of barbering is defined as follows:

"Any one or any combination of the following practices constitutes the practice of barbering: To shave or trim the beard or cut the hair; to give facial and scalp massage or facial and scalp treatment with oils, creams or other preparations either by hand or by mechanical appliances; to singe or shampoo the hair or apply a hair tonic; or to dye or tint the hair of any person: Provided that any person registered under the provisions of `An Act relating to the practice of beauty culture', approved June 30, 1925, as amended, shall be exempt from the provisions of this Act insofar as the practice of beauty culture under the provisions of said Act is authorized." (Ill. Rev. Stat. 1971, ch. 16 3/4, par. 14.39.)

A definition of the practice of beauty culture is contained in section 2 of "An Act relating to the practice of beauty culture" (Ill. Rev. Stat. 1971, ch. 16 3/4, par. 16):

"Any one or any combination of the following practices constitutes the practice of beauty culture when done for cosmetic or beautifying purposes and not for the treatment of disease or of muscular or nervous disorder.

The application of cosmetic preparations to the human body by massaging, stroking, kneading, slapping, tapping, stimulating, manipulating, exercising, cleansing, beautifying, or by means of devices, apparatus or appliances; arranging, dressing, marcelling, curling, waving, cleansing, singeing, bleaching, coloring, dyeing, tinting, or otherwise treating by any means the hair of any person. However, the provisions of this Act shall not authorize any registered beauty culturist to cut or clip the hair of any person unless he has first obtained a certificate of registration as a barber under the provisions of `An Act to regulate the pursuit of the business, art and avocation of a barber, and to insure the better qualifications of persons following such business in the State of Illinois,' approved June 10, 1909, as amended." (Emphasis added.)

Plaintiff stated that he could not construe section 5 of the barbering act and section 2 of the beauty culture act (Ill. Rev. Stat. 1971, ch. 16 3/4, pars. 14.39 and 16) so as to determine the standard to which his conduct must comply and maintained that he was "on the horns of a dilemma in choosing his manner of practicing beauty culture." Plaintiff sought a construction of the statutory provisions.

On November 2, 1972, the plaintiff filed a motion for summary judgment and on November 28, 1972, the case came on for hearing and evidence was presented to the trial court. The plaintiff elected to stand on his pleadings and the defense presented two witnesses. We deem it unnecessary to recount all of the evidence in detail. However, it is important to note certain aspects of the plaintiff's testimony. Mr. Panico was called by the defense as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat., 1971, ch. 110, par. 60). Mr. Panico was asked the following question and gave the following response:

"Q. Now, at your present location do you cut hair for all people who come in?

A. Right. Well, I put restrictions on it. I am not qualified to, you know, to give like a taper up the back of the head. I refer them to a barber shop in the area. My ...


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