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In re Application for Licensure of Griepentrog

Court of Appeals of Minnesota

December 12, 2016

In the Matter of the Application for Licensure of Nadeen Griepentrog.

         Department of Health OAH Docket No. 11-0900-31985


          Geoffrey P. Jarpe, Jesse D. Mondry, Kristian C.S. Weir, Maslon LLP, Minneapolis, Minnesota (for relator)

          Cody 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.


         The 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.


          JESSON, Judge

         Relator 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.


         Relator 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 month.

         In 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).[1]

         Griepentrog 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.

         Griepentrog 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.

         MDH and 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.[2] The administrative-law judge determined that, although the agency lacked authority to address Griepentrog's constitutional arguments, they were preserved for appeal.

         The 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?


         Griepentrog 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.

         Griepentrog's 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.

         When 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 self-regulation.[3]

         At the 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 ...

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