In the Matter of the Application for Licensure of Nadeen Griepentrog.
of Health OAH Docket No. 11-0900-31985
Geoffrey P. Jarpe, Jesse D. Mondry, Kristian C.S. Weir,
Maslon LLP, Minneapolis, Minnesota (for relator)
M. Zustiak, Assistant Attorney General, St. Paul, Minnesota
(for respondent Department of Health)
Anthony B. Sanders, Meagan A. Forbes, Lee U. McGrath,
Institute for Justice, Minneapolis, Minnesota (for amicus
curiae Institute for Justice)
Considered and decided by Jesson, Presiding Judge; Stauber,
Judge; and Reyes, Judge.
supervision requirement of Minnesota Statutes section
146B.03, subdivision 4(4) (2014), which requires 200 hours of
supervision by a licensed Minnesota body-art technician for
occupational licensing as a body-art technician in Minnesota,
is not unconstitutional on the grounds that it unlawfully
delegates legislative power, violates principles of equal
protection, or violates the Dormant Commerce Clause.
challenges an order denying her application for a license as
a body-art technician, arguing that the supervision
requirement in the body-art licensing statute, Minnesota
Statutes section 146B.03, which requires supervision by a
licensed Minnesota body-art technician, is unconstitutional.
Because the statutory requirement does not unlawfully
delegate legislative power to set licensing standards to
private body-art technicians, does not violate
equal-protection rights by intentionally discriminating
against out-of-state technicians, and does not violate the
Dormant Commerce Clause by discriminating against
out-of-state commercial interests without a legitimate
purpose, we affirm.
Nadeen Griepentrog, who lives in Wisconsin, has been a
licensed cosmetologist for ten years. In 2010, she took a
50-hour course in Wisconsin to learn micropigmentation, a
process by which pigment is injected underneath the skin for
cosmetic effect. From 2011-2014, she took additional training
sessions and received further evaluation and instruction. Her
total training in micropigmentation amounted to 260 hours.
She also received training in bloodborne pathogens in an
approved course. After her training, she began performing
eyeliner, eyebrow, full lip, and lip-liner micropigmentation
procedures in Wisconsin, averaging about three procedures per
September 2014, Griepentrog, who wished to practice
micropigmentation in the Twin Cities, applied to the
Minnesota Department of Health (MDH) for a
body-art-technician license under the body-art licensing
statute. Minn. Stat. §§ 146B.01-.10 (2014). Under
that chapter, among other requirements, a person seeking
licensure in Minnesota to perform body art, which includes
micropigmentation and other forms of tattooing, must provide
proof of "a minimum of 200 hours of supervised
experience within each area for which the applicant is
seeking a license." Minn. Stat. § 146B.03, subd.
4(4). "Supervision" is defined as "the
physical presence of a technician licensed under this chapter
while a body art procedure is being performed." Minn.
Stat. § 146B.01, subd. 28 (2014).
initially submitted an incomplete application. MDH wrote back
that she needed to submit the licensing fee and apply first
for a temporary body-art-technician license and that the
department did not accept reciprocity from Wisconsin.
See Minn. Stat. § 146B.03, subd. 7 (allowing
temporary, one-year license on application and a letter from
a licensed technician who has agreed to provide the required
supervision). It also sent her a nonexclusive list of six
body-art technicians willing to provide supervision to reach
the 200-hour requirement for licensing in Minnesota.
See Minn. Stat. § 146B.03, subd. 4(4).
Griepentrog attempted to contact most of those technicians
about the training they offered, but she decided not to use
their services because two were located in northern
Minnesota, one was retired, and one was willing to provide
training in the Twin Cities, but would charge $1, 500.
requested an administrative hearing, alleging that she met
all of the requirements for licensure in Minnesota, including
the required hours of training, except that her training
instructor was licensed in Wisconsin, rather than Minnesota.
She further alleged that Minnesota Statutes section 146B.03
was unconstitutional. MDH rejected the request for hearing as
premature because it had not actually denied
Griepentrog's incomplete application and informed her
that she could still apply for a temporary license. When she
declined to do so, MDH officially denied her application for
a permanent license.
Griepentrog filed cross-motions for summary disposition with
the office of administrative hearings. After a hearing, an
administrative-law judge issued an order recommending that
the Minnesota Commissioner of Health grant MDH's motion
for summary disposition. The administrative-law judge
determined that Griepentrog's training did not meet the
requirements of chapter 146B because it was not performed
under the supervision of a Minnesota licensee and that,
because she had been physically supervised for only 12 hours,
her supervised experience fell short of the statutory
requirement. The administrative-law judge
determined that, although the agency lacked authority to
address Griepentrog's constitutional arguments, they were
preserved for appeal.
commissioner issued a decision affirming the denial of
Griepentrog's licensure. The commissioner determined that
the undisputed facts demonstrated that Griepentrog failed to
meet the statutory requirements for licensure and that her
constitutional challenges to the body-art-technician
licensing statute were not properly before the agency.
Griepentrog filed this certiorari appeal.
I. Does Minnesota Statutes section 146B.03 unlawfully
delegate legislative power to private parties?
II. Does Minnesota Statutes section 146B.03 violate
principles of equal protection?
III. Does Minnesota Statutes section 146B.03 violate the
Dormant Commerce Clause?
challenges the constitutionality of Minnesota Statutes
section 146B.03 on three different grounds. First, she argues
that the statute represents an unlawful delegation of
legislative authority because it delegates legislative power
to private persons, i.e., current Minnesota
body-art-technician licensees who act as supervisors to
applicants for licensure. Next, she argues that the statute
denies equal-protection rights under the Minnesota
Constitution by discriminating against out-of-state body-art
technicians who have training and experience similar to that
of Minnesota licensed technicians. Finally, she argues that
the statute violates the Dormant Commerce Clause of the
United States Constitution because it impermissibly
discriminates against interstate commerce.
allegations lead us to the heart of the state's ability
to protect the public through licensure. This power to
regulate occupations was first invoked in the nineteenth
century through licensure of the professions of law and
medicine. See Dent v. West Virginia, 129 U.S. 114,
124, 9 S.Ct. 231, 234 (1889) (upholding state licensing
statute for physicians). Using its police power, states
mandated that a professional must meet particular
qualifications in order to obtain a license to practice
certain occupations. And those licenses were subject to
suspension, revocation or other disciplinary action if a
licensee did not meet certain standards of practice. As the
United States Supreme Court noted in explaining the power of
the state to provide for the welfare of its people:
[I]t has been the practice of different states, from time
immemorial, to exact in many pursuits a certain degree of
skill and learning upon which the community may confidently
rely; their possession being generally ascertained upon an
examination of parties by competent persons or inferred from
a certificate to them in the form of a diploma.
Id. at 122, 9 S.Ct. at 233.
determining who gained entrance to a profession through the
grant of a license, as well as when disciplinary action
against licensed professionals was appropriate, states leaned
heavily upon professional participation. See
generally, Paul Starr, The Social Transformation of
American Medicine, at 102-03 (1982) (discussing the
growth of the medical profession). Licensure was often
implemented by state boards, which were dominated by members
of the licensed professions to such an extent that lines
blurred, at times, between state and professional
beginning of the 1900s, licensing power was extended in many
states beyond medicine and law to require licensure for
persons engaged in other occupations, including plumbers,
barbers, funeral directors, nurses, electricians, and
dentists. Lawrence M. Friedman, Freedom of Contract and
Occupational Licensing 1890-1910: A Legal and Social
Study, 53 Calif. L. Rev. 487, 489 (1965); see,
e.g., State v. Zeno, 79 Minn. 80, 83-85, 81
N.W. 748, 749-51 (1900) (concluding that licensing statute
for barbers, which required training and experience to
perform that trade, was constitutional, citing public-health
considerations). In ...