Ashley-Roxanne N'Dakpri, Lynn Schofield, and Evangela Michelle Robertson v. Louisiana State Board of Cosmetology; Steve Young; in his official capacity as executive director of the Board

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1213

ASHLEY-ROXANNE N' DAKPRI, LYNN SCHOFIELD, AND
EVANGELA MICHELLE ROBERTSON

VERSUS

LOUISIANA STATE BOARD OF COSMETOLOGY; STEVE
YOUNG; IN HIS OFFICIAL CAPACITY AS EXECUTIVE
DIRECTOR OF THE BOARD, AND FRANCES HAND; WILLIAM
MICHAEL GRAYSON; EDWIN H. NEILL, 111; JAMES WILLIAMS;
MELINDA TILLEY; MELLA BROWN; DEIDRE DELPIT; AND
ELIZA JILL HEBERT, IN THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE BOARD

JUDGMENT RENDERED: JUN 2 12024

Appealed from the Nineteenth Judicial District Court
Parish of East Baton Rouge • State of Louisiana
Docket Number C684,468 • Sec. 25

The Honorable Wilson E. Fields, Presiding Judge

F. Evans Schmidt COUNSEL FOR APPELLANT
New Orleans, Louisiana PLAINTIFF— Ashley-Roxanne
and- N' Dakpri
Keith Neely, pro hac vice
Andrew H. Ward, pro hac vice
Betsy Sanz, pro hac vice
Arlington, Virginia
and-

Jaimie Cavanaugh, pro hac vice
Lee U. McGrath, pro hac vice
Minneapolis, Minnesota

Sherri M. Morris COUNSEL FOR DEFENDANTS
Christina Berthelot Peck APPELLEEs- Louisiana State
Evan P. Fontenot Board of Cosmetology, Steve
Dominick J. Abrams Young; In His Official
Melissa A. Walker Capacity as Executive Board,
Baton Rouge, Louisiana and Frances Hand, William
and- Michael Grayson, Edwin H.
Karen Reiners Winfrey Neill, 111, James Williams,

Baton Rouge, Louisiana Melinda Tilley, Mella
and- Brown, Deidre Delpit and
Liz Murrill Eliza Jill Hebert, in Their
Attorney General Official Capacities as
Phyllis E. Glazer Members of the Cosmetology
Assistant Attorney General Board
Baton Rouge, Louisiana

BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.

2

WELCH, J.

The plaintiff, Ashley -Roxanne N' Dakpri, appeals the dismissal of her action

for declaratory judgment, injunctive relief, and nominal damages against the

defendant, the Louisiana State Board of Cosmetology (the " Board"). We affirm.

BACKGROUND

Louisiana has regulated the practice of cosmetology, which was then known

as cosmetic therapy or beauty culture and hairdressing, since 1925. See 1924 La.

Acts, No. 135. In 2001, the Louisiana State Legislature amended and re- enacted the

Louisiana Cosmetology Act (" the Cosmetology Act"), regulating the practice of

cosmetology in Louisiana, and it re -designated the applicable statutes as La. R.S.

37: 561- 607. See 2001 La. Acts, No. 907, eff. June 26, 2001. In doing so, the

legislature found that " the practice of cosmetology by qualified individuals is

necessary to protect the public health, safety, and welfare of the citizens of the state

of Louisiana[,]" and it declared that the purpose of the Cosmetology Act was " to

promote, preserve, and protect the public health, safety, and welfare by and through

the effective control and regulation of the practice of cosmetology." La. R. S.

37: 562( A) and (B). It is prohibited to " engage in the practice of cosmetology without

obtaining a current certificate of registration for the appropriate area of practice

under the provisions of [the Cosmetology Act]." La. R.S. 37: 581( A).'

The Cosmetology Act defines "[ c] osmetology" as " the practice of using one' s

hands ... or using cosmetic preparations, antiseptics, soaps, detergents, tonics,

lotions, or creams in any one or any combination of the practices of esthetics, hair

dressing, and manicuring for compensation, direct or indirect, including tips." La.
R.S. 37: 563( 6)( a). In addition, it defines "[ h] airdressing"
as " massaging, cleansing,

washing, stimulating, manipulating, exercising, beautifying, or doing similar work

1
Louisiana Revised Statutes 37: 581( B) exempts certain persons from the provisions of the
Cosmetology Act while in the proper discharge of their professional duties in a facility not licensed
by the Board. However, none of those exemptions are applicable to this case.

3

upon the scalp of any person, including arranging, singeing, cutting or shaping,

curling or waving, cleansing, shampooing, styling, bleaching, coloring, or similar

work upon the hair of another person." La. R.S. 37: 563( 9).

The Cosmetology Act also created the Board, which is " composed of eight

members appointed by the governor." La. R.S. 37: 571. " Each member [of the Board

must] be a registered cosmetologist who has been actively engaged, for at least five

years prior to his appointment, in the practice of cosmetology, or an owner of a

certified] beauty shop or salon ..., or as a teacher or instructor of cosmetology in

this state." La. R.S. 37: 572( B).

The Board is responsible for the control and regulation of the practice of

cosmetology. La. R. S. 37: 575( A). It is also required to " I:m] ake necessary rules and

regulations to carry out the purposes and enforce the provisions of [the Cosmetology

Act]" ( La. R.S. 37: 575( A)(2)); to " specify ... requirements for training in

cosmetology] schools" ( La. R.S. 37: 575( A)( 7); and to "[ e] stablish minimum

specifications for the ... personnel, and procedures for salons and schools" ( La. R.S.

37: 575( A)(9)). In addition, the Board is authorized to "[ i] ssue special permits in

accordance with rules and regulations adopted by the [ B] oard" ( La. R.S.

37: 575( B)( 2)); to "[
p] erform any other duties as are necessary and proper to carry

out the purposes [ of the Cosmetology Act]" ( La. R.S. 37: 575( B)( 9)); and to " adopt

rules and regulations for the issuance of special permits tc allow limited and specific

powers within the practice of cosmetology" ( La. R.S. 37: 584( C)).

In 2003 and pursuant to the provisions of La. R.S. 37: 575( B)( 2) and 584( 0),

the Board adopted rules for the issuance of several special permits. See LAC

46:XXXL 1101, et seq. Included therein was a special permit for " Alternative Hair

Design." See LAC 46: XXXI. 1105. " Alternative Hair Design" is defined as " the

practice of styling hair by twisting, wrapping weavir..g, extending, locking or

braiding the hair by either the use of hands or mechanical devices or appliances[,]"

El

and " include[ s] the application of antiseptics, powders, oils, clays, lotions or tonics

to the alternative hair[,]" but it does " not include the application of dyes, reactive

chemicals or other preparations to alter the structure or style of the natural hair."

LAC 46: XXXI. 10 1 ( A).

The curriculum for Alternative Hair Design is set forth in LAC

46: XXXI. 1107. It requires 500 hours' of instruction, which includes, but is not

limited to, instruction on the topics of bacteriology and sanitation; prevention of

infection and infection control; use of antiseptics, disinfectants, and detergents; hair

types and hair structure; scalp diseases and disorders; shampoos, conditioners, herbal

treatments, and rinses for synthetic hair only; and braiding and sculpting. See LAC
46: XXXI. 1107( A).

The Cosmetology Act requires all beauty shops and salons to obtain a

certificate of registration issued by the Board. La. R.S. 37: 591. " Beauty shop" or

salon"
is defined as " any premises upon or within which cosmetology is practiced
for a fee." La. R.S. 37: 563( 1). To obtain a certificate of registration as a beauty

shop or salon, the owner of such business is required to "[ c] ertify that all persons

employed at such facility are appropriately licensed by their respective licensing
board." La. R.S. 37: 591( B)( 1). The Board is required to "[ i] nspect during [ the]

hours of operation any licensed, permitted, certified, or registered facility ... for the

purpose of determining if any provisions of law governing the practice of

cosmetology are being violated." La. R.S. 37: 575( A)( 10)).

4n June 20, 2019, Evangela Michelle Robertson, Lynn Schofield, and Ms.

N' Dakpri filed a petition for declaratory judgment, injunctive relief, and nominal

damages against the Board, the executive director of the Board, and individual

2
In contrast, cosmetologists are required to complete 1, 500 hours of instruction. See LAC
46: XXXI.301( A).

5

members of the Board.' Therein, the plaintiffs sought to challenge the

constitutionality of the Board' s rules requiring an Alternative Hair Design permit,

and alleging that the permit requirement harmed them and Afro Touch, a hair

braiding salon, by requiring individuals engaging in the business of hair braiding to

obtain a permit;
injunctive relief prohibiting the Board from enforcing the

Alternative Hair Design permit requirement; and an award of $ 1. 00 in nominal

damages for the Board' s violations of the Louisiana Constitution (" the constitutional

claims").

More specifically with regard to the constitutional claims, the plaintiffs prayed

for declaratory judgment that La. R.S. 37: 563 ( setting forth the definition of certain

terms used in the Cosmetology Act), 37: 581( A) (prohibiting persons from engaging

in the practice of cosmetology without a certificate of registration for the appropriate

area of practice),
and 37: 584 ( providing that the Board may adopt special rules and

regulations for the issuance of special permits) and that LAC 46: XXXI.1101 ( the

Board' s regulation creating special permits, including Alternative Hair Design),

46: XXXI. 1105 ( the Board' s regulation providing that individuals with special

permits for Alternative Hair Design may only provide such services in facilities

licensed by the Board as cosmetology salons and providing for reciprocity for such
permits from another state), and 46:XXXI. 1107 ( the Board' s regulation setting forth

the curriculum for the Alternative Hair Design Permit), were unconstitutional as

applied because they violated their right to practice the occupation of their choosing,
free from unreasonable government interference in violation of Article I, Section 2

the due process clause); Article I, Section 3 ( the equal protection clause); and

Article I, Section 24 ( the unenumerated rights clause) of the Louisiana Constitution.

3
The petition specifically named as defendants Steve Young, in his official capacity as the
executive director of the Board; and prances Hand, William Michael Grayson, Edwin H. Neill, III,
James Williams, Melinda Tilley, Mella Brown, Deidre Delpit, and Eliza J. Hebert, in their official
capacities as members of the Board.

31

The plaintiffs' also prayed for declaratory judgment that La. R.S. 37: 575

establishing the powers and duties of the Board with regard to the practice of

cosmetology, including the ability to issue special permits), 37: 584, and 37: 586

providing for the examination of applicants for special permits) and LAC

46: XXXI. 1101,
1105, and 1107 were unconstitutional on their face because they

allowed the Board, an administrative executive agency, to exercise the powers of the

legislature in violation of Article II, Section 1 ( dividing the powers of government

into three separate branches); Article II, Section 2 ( establishing separation of the

powers of government);
and Article III, Section 1 ( establishing the legislative power

of the state) of the Louisiana Constitution.

In response to the plaintiffs' petition, the Board and the executive director and

individual members of the Board filed a peremptory exception raising the objection

of no cause of action, and alternatively, the objection of no right of action. Pursuant

to a judgment signed by the trial court on December 9, 2019, the trial court overruled

the objections of no cause of action and no right of action as to the Board; sustained

the objection of no cause of action as to the executive director and individual

members of the Board and dismissed the plaintiffs' claims against those defendants;

and ordered the Board to file an answer to the plaintiffs' petition within 15 days.

The Board subsequently filed its answer, generally denying the allegations of the

petition and asserting several affirmative defenses.

Thereafter, in January 2022, one of the plaintiffs, Ms. Robertson, filed a

motion seeking to voluntarily dismiss her claims without prejudice, which the trial

court granted pursuant to an order signed on January 6, 2022. The plaintiffs then

filed an amended petition' in October 2022, to add a cause of action for declaratory

4 We note that in the amended petition, Ms. Robertson, who previously dismissed her claims, was
included as a plaintiff. In addition, the Board and its executive director and individual members
were again named as defendants in the amended petition.
The trial court, in response to another peremptory exception raising the objection of no
cause of action and/ or no right of action filed by the Board, signed a judgment on April 20, 2023,

7

judgment that La. R.S. 37: 563, 581 (A), and 584 and LAC 46: XXXI. 1101, 1105, and

1107, as applied, were in violation of "La. R.S.... 49: 963" ( as enacted by 2022 La.

Acts, No. 583 and subsequently designated as La. R.S. 49: 964( C) and 49: 968),

relative to agency rules concerning occupational licenses and regulations (" the

statutory claim").

In response to the amended petition and with regard to the statutory claim, the

Board filed a peremptory exception raising the objection of lack of subject matter

jurisdiction, or
alternatively, a dilatory exception
raising the objection of

prematurity. The Board' s objections were based on the requirement that, under La.

R. S. 49: 968( D), an action for declaratory judgment challenging an agency rule or

regulation relative to an occupational license may only be brought after the agency

has addressed the validity or applicable rule, and that the plaintiffs had failed to bring

their challenge before the Board. After a hearing on the matter, the trial court signed

a judgment on April 20, 2023, overruling the objection of lack of subject matter

jurisdiction, but sustaining the objection of prematurity. The trial court gave the
plaintiffs 90 days to file a petition with the Board pursuant to La. R.S. 49: 968( D);

however, after the plaintiffs " represented" that they would not petition the Board

within the next 90 days, the trial court dismissed, without prejudice, the plaintiffs'

statutory claim.5

dismissing Ms. Robertson as a plaintiff in accordance with its previous judgment of January 6,
2022, which dismissed Ms. Robertson' s claims; dismissing the executive director and individual
members as defendants in accordance with its previous judgment of December 9, 2019, which
dismissed those defendants; and dismissing the claims of "unnamed businesses and unnamed hair
braiders." These portions of the April 20, 2023 judgment constitute a partial final judgment, as
provided in La. C. C. P. art. 1915( A), and were not appealed.

5 We recognize that the portion ofthe April 20, 2023 judgment dismissing the plaintiffs' statutory
claim pursuant to the objection of prematurity constitutes a partial judgment, as provided in La.
C. C. P. art. 1915( B), but it was not designated as a final judgment for purposes of an immediate

appeal. Thus, that portion of the judgment is subject to review on an appeal from a final judgment
in this case. See State by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd.,
2017- 0448 ( La. App. Vt Cir. 2! 8/ 18), 242 So. 3d 597,602.

A trial on the merits was then scheduled for July 12, 2023 on the plaintiffs'

constitutional claim. On the morning of trial, pursuant to La. C. C. P. art.

1672( A)( 1), 6 the trial court dismissed the claims of Ms. Schofield, the founder of

Afro Touch salon, due to her failure to appear at trial and her failure to notify the

trial court of her absence prior to trial. The matter then proceeded to trial with Ms.

N' Dakpri as the sole remaining plaintiff. At the conclusion of Ms. N' Dakpri' s case,

the trial court granted the Board' s motion for involuntary dismissal pursuant to La.

C. C. P. art. 1672( B) based on Ms. N' Dakpri' s failure to meet her burden of proof.

A judgment in accordance with the trial court' s ruling, denying and dismissing

her constitutional claims? was signed on July 25, 2023. Ms. N' Dakpri now appeals,

arguing that the trial court erred in dismissing both her " as -applied" statutory claim

as provided in the April 20, 2023 judgment') and constitutional claims' ( as provided

in the July 25, 2023 final judgment) against the Board.

STATUTORY CLAIM -PREMATURITY

Ms. N' Dakpri' s statutory claim was dismissed pursuant to a dilatory exception

raising the objection of prematurity because she had not exhausted her

administrative remedies as required by law. On appeal, Ms. N' Dakpri contends that

the trial court erred because the administrative exhaustion requirement should not

apply to her claim.

6 Louisiana Code of Civil Procedure article 1672( A)( 1) provides that "[ a] judgment dismissing an
action shall be rendered upon application of any party, when the plaintiff fails to appear on the day
set for trial. In such case, the court shall determine whether the judgment of dismissal shall be
with or without prejudice."

7 More specifically, the judgment denied and dismissed Ms. N' Dakpri' s request for a declaration
that La. R. S. 37: 563, 575, 581( A), 584, and 586 and LAC 46: XXXI. 1101, 1105, and 1107 were
unconstitutional; injunctive relief; and damages.

8 See footnote 6.

9 As previously set forth, Ms. N' Dakpri' s constitutional claims were for declaratory judgment that
La. R.S. 37: 563, 37: 581( A), and 37: 584 and that LAC 46: XXXI. 1101, 46: XXXI. 1105, and

46:XXXI. 1107 were unconstitutional as applied and that La. R.S. 37: 575, 37: 584, and 37: 586 and
LAC 46: XXXI. 1101, 46:XXXI. 1105, and 46:XXXI. 1107 were unconstitutional on their face. On
appeal, Ms. N' Dakpri only challenges the dismissal of her " as -applied" constitutional claim.

Louisiana Code of Civil Procedure article 926( A)( 1) provides for the dilatory

exception raising the objection of prematurity. The exception raising the objection

of prematurity may be utilized in cases where the applicable law has provided a

procedure for a claimant to seek administrative relief before resorting to judicial
1St
action.
Dutrey v. Plaquemine Manor Nursing Home, 2012- 1295 ( La. App.

Cir. 6/ 17/ 13), 205 So. 3d 934, 941. In such a case, the exceptor bears the initial

burden of showing that an administrative remedy or procedure applies, by reason of
which the lawsuit is premature. See Id. Once the existence of an administrative

remedy is established, the burden then shifts to the plaintiff to show that the specific

administrative remedy or procedure has been exhausted. Id.

Generally, a judgment sustaining a dilatory exception of prematurity and
dismissing a cause of action on that basis is reviewed under the manifest error

standard of review.
Pinegar v. Harris, 2008- 1112 ( La. App. 1st Cir. 6/ 12/ 09), 20

So. 3d 1081, 1088- 1089. However, where a purely legal question is presented, the

judgment is reviewed de novo. Richard v. Notre Dame Health System, 2022- 0800

La. App. 4" Cir. 5/ 31/ 23), 368 So. 3d 671, 675. Where no evidence is introduced at

the hearing, the trial court must render its decision on the exception based upon the

facts as alleged in the petition, and all allegations therein must be accepted as true.

Id.

Ms. N' Dakpri' s statutory claim against the Board was based on La. R.S.

49: 968( F). She claimed that the Board' s rule requiring her to obtain an Alternative

Hair Design permit in order to braid hair violated La. R.S. 49: 968( F) because the

rule was not necessary and narrowly tailored to fulfill legitimate fiduciary, public
health, safety, or welfare objectives. The Board, in support of its objection of

prematurity pointed to La. R.S. 49: 968( D), which provides that an action for

declaratory judgment under that section challenging the validity or applicability of
a rule may only be brought in a district court after the agency, which in this case

I(1

would be the Board, has had the opportunity to determine the validity or applicability
of the rule.

Louisiana Revised Statutes 49: 968 provides, in pertinent part, as follows:

A. ( 1) The validity or applicability of a rule may be determined in an
action for declaratory judgment in the district court of the parish in
which the agency is located.

2) The agency shall be made a party to the action.

C. The court shall declare the rule invalid or inapplicable if it finds that
it violates constitutional provisions or exceeds the statutory authority
of the agency or was adopted without substantial compliance with
required rulemaking procedures.

D. An action for a declaratory judgment under this Section may be
brought only after the plaintiff has requested the agency to pass upon
the validity or applicability of the rule in question and only upon a
showing that review of the validity and applicability of the rule in
conjunction with review of a final agency decision in a contested
adjudicated case would not provide an adequate remedy and would
inflict irreparable injury.

sIWM2

F. With respect to the challenge of an occupational regulation, the
plaintiff shall prevail if the court finds by a preponderance of evidence
that the challenged occupational regulation on its face or in its effect
burdens entry into a profession, trade, or occupation, and that an agency
has failed to prove by a preponderance of evidence that the challenged
occupational regulation is demonstrated to be necessary and narrowly
tailored to fulfill legitimate fiduciary, public health, safety, or welfare
objectives. Upon a finding for the plaintiff, the court shall enjoin further
enforcement of the challenged occupational regulation and shall award
reasonable attorney fees and costs to the plaintiff ....

Emphasis added.)

Based on the express provisions of La. R.S. 49: 968( D), the Board met its

initial burden of showing that an administrative remedy or procedure applied by
reason of which Ms. N' Dakpri' s statutory claim (based on La. R.S. 49: 968( F)) was

premature.
Consequently, once the existence of an administrative remedy was

established by the Board, the burden then shifted to Ms. N' Dakpri to show that the

specific administrative remedy or procedure had been exhausted. At the hearing

11

before the trial court, Ms. N' Dakpri did not offer any evidence that she had requested

the Board to pass on the validity of the rules at issue, nor did her amended petition

include such allegations. In fact, Ms. N' Dakpri does not dispute that she failed to

exhaust her administrative remedy, rather she claims that administrative exhaustion

should not be required of her because it would be impossible or futile, citing Daily

Advertiser v. Trans -La, a Division of Atmos Energy Corp., 612 So. 2d 7, 28 ( La.

1993).

Generally, a person aggrieved by an action must exhaust all available

administrative remedies provided before being entitled to judicial review. See Poly

v. State, Department of Transportation and Development, 538 So. 2d 239, 251
La. 1989).
The function of the exhaustion doctrine is to give the body whose

decision is under attack an opportunity to review, supplement, and, if necessary,
correct its decision. Jones v. Crow, 633 So.2d 247, 249 ( La. App.
1St
Cir. 1993).

However, this doctrine, like most legal doctrines, is subject to exceptions and

limitations. 7d. at 249- 250. One such exception is when exhaustion of

administrative remedies would be vain and useless or futile. See Bagert v. Moreau,

325 So.2d 702, 705 ( La. App. 411 Cir.), writs denied, 329 So. 2d 465, 466, and 467

La. 1976) (
noting that it is a general rule of law that a party must exhaust

administrative remedies before relief can be sought in the courts, unless doing so
would be vain and useless).

In Daily Advertiser, 612 So.2d at 28, the Louisiana Supreme Court described

the exhaustion of administrative remedies doctrine as a " balancing test," requiring

courts to weigh the relevant factors pulling for or against the desirability of
exhaustion. The supreme court noted that "[ p] ulling away from [ the] requirement

of exhaustion" were factors such as " irreparable injury to a party from pursuing the

administrative remedy, clear absence of the agency jurisdiction, clear illegality of

the agency' s position, a dispositive question of law peculiarly within judicial

12

competence, the futility of exhaustion, and [ the] expense and awkwardness of the

administrative proceeding as compared with inexpensive and efficient judicial

disposition of the controversy." Id. (Emphasis in original). The supreme court

further noted that "[ p] ulling toward exhaustion" were factors such as the

need for factual development, importance of reflecting the agency' s
expertise or policy preferences in the final result, probability that the
agency will satisfactorily resolve the controversy without judicial
review, protection of agency processes from impairment by avoidable
interruption, conservation ofjudicial energy by avoiding piecemeal or
interlocutory review, and providing the agency the opportunity to
correct its own errors.

Id.

Although Ms. N' Dakpri argues that the factors excusing exhaustion are in her

favor, as well as the factors requiring exhaustion, Ms. N' Dakpri offered no support

for this contention at the hearing on the objection. The trial court apparently

concluded that exhaustion of administrative remedies was necessary because it

granted Ms. N' Dakrpi 90 days to petition the Board, and it was only after Ms.

N' Dakpri represented that she would not do so that the trial court rendered judgment

dismissing her statutory claims without prejudice. Based on our review of the

record, we find no error in the trial court' s conclusion or judgment.

Notably, in Daily Adverstiser, 612 So.2d at 29, the plaintiff therein, pointing

toward the list of factors pulling away from exhaustion, relied heavily on the futility

of exhaustion pointing to the list of things that the agency could not do, including

awarding monetary and injunctive relief. However, the supreme court found a flaw

in the argument, noting that it ignored the differentiation recognized in the

jurisprudence between a money judgment— a judicial function— and interpreting the

reasonableness of an agency' s action or rule— an administrative function. Id. at 30.

The supreme court then noted that " when the interpretation of [an agency' s] orders
or regulations is at issue, Louisiana courts have invoked the exhaustion rule,

requiring that until the plaintiff has exhausted his available remedies before the

13

agency], he cannot resort to the courts." Id. In this case, Ms. N' Dakpri is seeking

a determination of the reasonableness of the Board' s rule requiring her to obtain an

Alternative Hair Design permit in order to engage in the practice of hair braiding

and the reasonableness of the Board' s requirements to obtain that permit, which is

an administrative function within the purview of the Board' s expertise.

Accordingly, like the trial court, we must conclude that pursuant to La. R.S.

49: 968( D), Ms. N' Dakpri was required to exhaust her administrative remedies prior

to filing suit on her statutory claims. Because Ms. N' Dakpri failed to establish—

either with evidence introduced at the hearing on the objection of prematurity or with
factual allegations in her petition— that she had done so, we find that her statutory

claims against the Board are premature. Accordingly, we affirm that portion of the

April 20, 2023 judgment, which dismissed, without prejudice, Ms. N' Dakpri' s

statutory claim.

CONSTITUTIONAL CLAIMS

Ms. N' Dakpri' s constitutional claims were dismissed pursuant to La. C. C.P.

art. 1672( B) because the trial court found Ms. N' Dakpri failed to meet her burden of

proof. On appeal, Ms. N' Dakpri contends that the trial court erred because she met

her burden of proving that the Board' s enforcement of the Alternative Hair Design

permit requirement was not appropriately tailored to a legitimate state interest.

Louisiana Code of Civil Procedure article 1672( B) provides:

In an action tried by the court without a jury, after the plaintiff
has completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the ground
that upon the facts and law, the plaintiff has shown no right to relief.
The court may then determine the facts and render judgment against the
plaintiff and in favor of the moving party or may decline to render any
judgment until the close of all the evidence.

Thus, La. C.C. P. art. 1672( B) provides the basis for an involuntary dismissal
at the close of a plaintiff' s case in a bench trial, when a plaintiff has shown no right

14

to relief based on the facts and law. Succession of Arseneaux, 2022- 0638 ( La. App.
I" Cir. 12/ 29/ 22), 360 So. 3d 868, 872, writ denied, 2023- 00135 ( La. 4/ 4/ 23), 358

So. 3d 873. In determining whether involuntary dismissal should be granted, the

appropriate standard is whether the plaintiff has presented sufficient evidence in his

case -in -chief to establish a claim by a preponderance of the evidence, which means

taking the evidence as a whole, the fact or cause sought to be proved is more probable

than not. Id. When considering a motion for involuntary dismissal, a plaintiff is

entitled to no special inferences in his favor; however, absent circumstances in the

record casting suspicion on the reliability of the testimony and sound reasons for its

rejection, uncontroverted evidence should be taken as true to establish a fact for

which it is offered. Id.

The trial court' s grant of an involuntary dismissal is subject to the manifest

error standard of review.10 Id. at 873. Accordingly, in order to reverse the trial

court' s grant of involuntary dismissal, we must find that there is no factual basis for

the trial court' s finding or that the finding is clearly wrong. Id.; see also Stobart v.

State through Department of Transportation and Development, 617 So. 2d 880,

882 ( La. 1993). The issue to be resolved is not whether the trial court was right or

to On appeal, Ms. N' Dakpri contends that the de novo standard of review is applicable because
the trial court legally erred by failing to apply a constitutional standard to her claim. We find no
merit to this contention. In granting the Board' s motion for involuntary dismissal, the trial court
noted, in its oral reasons, that Ms. N' Dakpri was " challenging the constitutionality of [ the]
statutes,"
and " challenging the authority of the Board to act on licensing the hair braiders," but
found that Ms. N' Dakpri did not meet her burden of proof. While the trial court, in its oral reasons
for judgment, may not have elucidated the specific constitutional standard ( or applicable level of
scrutiny) that it was applying, it is clear that the trial court concluded that Ms. N' Dakpri failed to
meet her burden of proving that the Board' s Alternative Hair Design permit requirement and the
enforcement of that permit requirement against her were unconstitutional.

It is well- settled that appeals are taken from judgments, not reasons for judgment.
Bergeron v. Williams, 1999- 0886 ( La. App. I" Cir. 5/ 12/ 00), 764 So. 2d 1084, 1089 n. 7, writ
denied, 2000- 1697 (La. 9/ 15/ 00), 768 So.2d 1281. Therefore, regardless ofthe underlying reasons
oral or written),
if a judgment is correct, i.e., the trial court' s conclusion is reasonably supported
by the record, it should be affirmed, As such, the issue before this Court is whether the record
reasonably supports the conclusion that Ms. N' Dakpri failed to meet her burden of proving the
unconstitutionality of the Board' s Alternative Hair Design permit requirement and the enforcement
of that permit requirement against her. Because we find, for reasons detailed herein, that the record
reasonably supports the trial court' s conclusion in this regard, the trial court' s judgment should be
affirmed.

V

wrong, but whether its conclusion was a reasonable one. See Id. Even though an

appellate court may feel its own evaluations and inferences are more reasonable than

the trial court' s, reasonable evaluations of credibility and reasonable inferences of

fact should not be disturbed upon review where conflict exists in the testimony. Id.

Moreover, where two permissible views of the evidence exist, the fact finder' s

choice between them cannot be clearly wrong. Id. at 883.

As previously set forth, Ms. N' Dakpri sought a declaratory judgment that La.

R.S. 37: 563, 37: 581( A), and 37: 584 and that LAC 46: XXXI. 1101, 46: XXXI. 1105,

and 46: XXXI. 1107 were unconstitutional as applied because the Board' s rules and

regulations and enforcement thereof violated her right to practice the occupation of

her choosing, free from unreasonable government interference, in violation of the

due process, equal protection and unenumerated rights clauses of the Louisiana

Constitution. See La. Const. Art. I, §§ 2, 3, and 24. 11

In general, statutes are presumed to be constitutional; therefore, the party

challenging the validity of a statute has the burden of proving its unconstitutionality.

LaPointe v. Vermilion Parish School Board, 2015- 0432 ( La. 6/ 30/ 15), 173 So. 3d

1152, 1157; see also Lakeside Imports, Inc. v. State, 94- 0191 ( La. 7/ 5/ 94), 639

So.2d 253, 255; Gilbert v. Catahoula Parish Police Jury, 407 So.2d 1228, 1231
La. 1981).
While statutes are afforded the presumption of constitutionality, the

11 Article I of the Louisiana Constitution provides, in pertinent part:

Section 2. No person shall be deprived of life, liberty, or property, except by due
process of law.

Section 3. No person shall be denied the equal protection of the laws. No law shall
discriminate against a person because of race or religious ideas, beliefs, or
affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate
against a person because of birth, age, sex, culture, physical condition, or political
ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the
latter case as punishment for crime.

Section 24. The enumeration in this constitution of certain rights shall not deny or
disparage other rights retained by the individual citizens of the state.

government does not have unlimited authority to regulate the lives of its citizens and

may only pass laws that are reasonably related to the protection or promotion of a

public good, such as health, safety or welfare. Gilbert, 407 So.2d at 1231.

The due process clause and the equal protection clause establish limits on the

government' s ability to regulate a person' s livelihood or legal occupation. See

Banjavich v. Louisiana Licensing Board for Marine Divers, 237 La. 467, 485,

111 So. 2d 505, 511 ( La. 1959) ( noting "[ t] hat the pursuit of a legal occupation is a

property right" and "
that the right to engage in a lawful calling is of such a basic

nature that the curtailment of the right by oppressive or arbitrary legislation

effectuates a deprivation of the complainant' s property without due process and

denies him equal protection of the law"). However, these constitutional protections

do not operate as limitations upon the police power of the State to enact and enforce

laws and regulations to protect the public health and safety and promote the general

welfare of the people." Board of Barber Examiners of Louisiana v. Parker, 190

La. 214, 274- 275, 182 So. 485, 504 ( La. 1938) ( on rehearing).

In Banjavich, 111 So. 2d 515 n. 7, the Louisiana Supreme Court recognized

the appropriateness of regulating barbers and the practice of cosmetic therapy

cosmetology) when it observed that with regard to those professions— and others

that have been subject to regulation by the government— that "[ flt is fair to presume

that these professions and occupations have substantial relation with the public in

general and that their regulation is in the public interest is a proper exercise of police

power."

In Board of Barber Examiners of Louisiana, there were several challenges

to the constitutionality of certain statutes and regulations pertaining to the

establishment of the Board of Barber Examiners and the minimum price regulations

established for barbers and barber shops by the Board of Barber Examiners, which

were rooted in the cost of maintaining standards of hygiene and sanitation. The

17

Louisiana Supreme Court found that "[ t]he operation of a barber shop is a business

affecting the public health, safety and welfare and laws and regulations enacted for

the purpose of preserving them constitute a valid exercise of the police power of the

State provided such laws and regulations are not arbitrary, capricious and oppressive

and that the means selected by the legislative body to carry them out shall have a

real and substantial relation to the purpose sought to be obtained." Board of Barber

Examiners of Louisiana, 182 So. at 505. In determining whether there was a real

and substantial relation between the regulation challenged and the standards

required, the court observed that

t]he barbers and the members of the Board of Barber Examiners are
familiar with and know the requirements of the sanitation laws and
regulations.
They are in a position to fairly, reasonably and accurately
determine what should be the minimum prices charged ... in order to
maintain those standards of hygiene and sanitation in the interest of the
public health and safety.

Board of Barber Examiners of Louisiana, 182 So. at 510.

As previously noted, the Louisiana legislature has found that " the practice of

cosmetology by qualified individuals is necessary to protect the public health, safety,
and welfare of the citizens of the state of Louisiana" and that the purpose of the

Cosmetology Act is to " promote, preserve, and protect the public health, safety, and
welfare by and through the effective control and regulation of the practice of

cosmetology." La. R.S. 37: 562. Further, the Louisiana Supreme Court observed

that the regulation of the practice of cosmetic therapy ( now cosmetology) is in the

public interest and a proper exercise of police power. See Banjavich, 111 So. 2d at

505 n. 7. Consequently, laws and regulations enacted by the Board for the purpose

of preserving the public health, safety, and welfare constitute a valid exercise of the

police power of the State ( and are thus constitutional) provided that the means

selected to preserve the public health, safety, and welfare have a real and substantial

relationship to the purpose sought to be obtained. See Board of Barber Examiners

W-
1

of Louisiana, 182 So. at 505; see also Gilbert, 407 So. 2d at 1231 ( providing that

the test to be applied in determining whether an ordinance or statute is a reasonable

exercise of government' s police power is " whether there is a real and substantial

relationship between the regulation imposed and the prevention of injury to the
public or the promotion of the general welfare"); Schwegmann Bros. v. Louisiana

Board of Alcoholic Beverage Control, 216 La. 148, 177- 179, 43 So. 2d 248, 258

1949) ( applying the " real and substantial relation" test). 12

Thus, at trial Ms. N' Dakpri had the burden of proving that there was no real

and substantial relationship between the statutes enacted and regulations imposed by

the Board, i.e. the means selected to preserve the public health, safety, and welfare,

and the purpose sought to be obtained, i.e. the prevention of injury to the public or

the promotion of the general. welfare. See Board of Barber Examiners of

Louisiana, 182 So. at 505; see also Gilbert, 407 So.2d at 1231. In this regard, Ms.

N' Dakpri offered the testimony of Tisha Butler, an employee of the Board; Mella

Brown, a Board member; and herself.

According to Ms. Butler' s testimony, she is the Assistant Director of the

Board. In this capacity, she assists the Executive Director of the Board with

personnel issues, and she is responsible for preparing hearing letters and cease and
desist orders. Ms. Butler testified that she has worked for the Board in various

capacities since 2002, and that the Board enacted the Alternative Hair Design permit

12 On appeal, Ms. N' Dakpri argues, and we agree, that the " real and substantial relationship" test
is the constitutional standard ( or level of scrutiny) applicable to her claim. However, she also
argues, in the alternative, that the less stringent constitutional standard or level of scrutiny— that
the statutes or regulations challenged have a " rational relationship to a legitimate state interest" of
public safety, health and welfare— could also be applicable. See Lakeside Imports, Inc., 639
So. 3d at 256.
Notably, the " real and substantial relationship" test imposes an easier burden of
proof on Ms. N' Dakpri than the heavy burden that would be imposed by " rational relationship to
a legitimate state interest" standard.

While we with Ms. N' Dakpri as to the applicable constitutional standard, we conclude that
Ms. N' Dakpri failed to meet her burden of proof. Thus, even if the " rational relationship to a
legitimate state interest" was the applicable burden, the result herein would be the same, as Ms.
N' Dakpri likewise failed to meet the heavier burden of proof under that standard.

19

because natural braiding can pose a threat to public health, safety, and welfare if

clients are injured by improper practices, including but not limited to the transfer of

bacteria, illnesses, and/ or viruses. Ms. Butler explained that originally, the

Alternative Hair Design permit required 1, 000 hours of training, but in 2010, the

training requirement was reduced to 500 hours.

Ms. Butler testified that the Board reviews and approves the curriculum

proposed by cosmetology schools in Louisiana that offer the Alternative Hair Design

curriculum. She explained that, although the Board mandates that certain topics be

covered in the curriculum, the Board does not specifically dictate the amount of time

spent on each topic. However, when the Board reviews the proposed curriculum at

a Board meeting, it may request modifications to the proposed curriculum. Ms.

Butler also explained that the Board' s rules require the Board to issue reciprocity

permits to any applicant that has a permit from another state and two years of

experience. Ms. Butler testified that the Board has received complaints from

individuals harmed by hair braiding.

Ms. Brown testified that she has been a member of the Board since 2016. She

has been a licensed cosmetologist since 1988, the sole proprietor of a licensed hair

salon since 1995, and is a licensed cosmetology instructor. Ms. Brown confirmed

that the Alternative Hair Design permit was enacted by the Board in the interest of

public health, safety, and welfare. More specifically, Ms. Brown testified that, with

respect to public health, safety and welfare, the Alternative Hair Design permit " is

to make sure that the person doing the alternative hair design has an understanding

of what it is that is required in keeping the public safe," such as " disease, scalp

disorders, anything that could be transmitted from one person to another." Ms.

Brown testified that she has personally seen clients whose hair had been damaged

by hair braiding.

OR

Ms. Brown testified that the Board only approves a cosmetology school' s

curriculum if the curriculum meets the specific requirements. Ms. Brown also

confirmed Ms. Butler' s testimony that prior to the enactment of the alternative hair

design permit in 2003, those practicing alternative hair design were required to

obtain a full cosmetology license, which requires substantially more hours of

training and education.

Ms. N' Dakpri testified that she grew up both in the United States and in

Africa. Although she started learning about hair braiding when she was seven or

eight years old, she studied hair braiding at a cosmetology school in the Ivory Coast

a country in West Africa). Ms. N' Dakpri explained that her cosmetology course

was approximately nine months, consisting of an approximate 9: 00 a.m. to 5: 00 p.m.

schedule, and totaling 30 to 40 hours per week. She testified that she completed

approximately 1, 000 to 1, 200 hours of study to obtain her foreign license. Using

this education and training, Ms. N' Dakpri testified that she now braids hair at the

salon Afro Touch, which was founded by her aunt, Ms. Schofield.

Ms. N' Dakpri testified that as part of the curriculum she completed, she

studied sanitation and disinfecting procedures to prevent the transfer of bacteria.

Additionally, her course textbook included materials on sanitation and cross -

contamination.
Ms. N' Dakpri acknowledged that the human scalp is at risk of

infection due to the potential transfer of bacteria during braiding. In addition to the

nine- month course that she completed in the Ivory Coast, Ms. N' Dakpri testified that

she has also received additional education through hair shows, festivals, and learning
from other people in the industry. Ms. N' Dakpri admitted that the education she

received with respect to sanitation has helped her protect her clients' health when

performing services on them and when they are in Afro Touch.

Ms. N' Dakpri testified that prior to braiding her clients' hair, she evaluates

their scalps and performs a shampoo service. According to Ms. N' Dakpri, she

21

spends approximately b to 12 hours braiding on an individual client depending on

the hair style, but more complex braiding sometimes requires up to 18 hours of

braiding on a client for a single transaction. Ms. N' Dakpri explained that that she

uses combs, clips, gels, oil shine, scissors, hot water kettles with boiling water, and

sanitation supplies, such as barbicide solutions, disinfectants, and alcohol at Afro

Touch. She testified that Afro Touch has an " emergency kit" of sanitation supplies,

that she is responsible for " making sure that everything is clean at all times," and

that she trains Afro Touch employees in sanitation and in interacting with customers

Ms. N' Dakpri testified that she could not afford to leave her business to spend

500 hours at a course to obtain the Alternative Hair Design permit, and therefore,

she does not have the required permit. However, she admitted that the 500 -hour

requirement may not apply to her because she trained in another jurisdiction and was

eligible for and had applied for reciprocity in Louisiana.

With regard to reciprocity, Ms. N' Dakpri explained that after a Board

inspector informed her of the availability of reciprocity, she went online to obtain

the packet and submitted the application to the Board. However, it was returned to

her with a " list of things that [ she] needed to do" to correct her deficient application

including a request for a translation of the transcript from French), which she chose

not to complete due to this suit. Ms. N' Dakpri admitted that she has not received a

letter denying her reciprocity application, and that she is still interested in obtaining
an Alternative Hair Design permit by completing the reciprocity application.

Ms. N' Dakpri also admitted that as of trial, she was not the owner of Afro

Touch; rather, it was owned by her brother, Serge Kolai. However, she explained

that she would like to expand Afro Touch by hiring additional hair braiders and that

she knows other hair braiders she would like to hire, but they do not have the

requisite permit.

Pig

Based on our review of this evidence, we find no manifest error in the

conclusion that Ms. N' Dakpri failed to meet her burden of proving that there was no

real and substantial relationship between the statutes enacted and the regulations

imposed by the Board and the prevention of injury to the public or the promotion of

the general welfare. Together, the testimony of Ms. Butler and Ms. Brown establish

a real and substantial relationship between the regulation of hair braiding by the

Board, which ensures that individuals performing hair braiding are educated on

sanitation and how to properly perform hair braiding, and protecting the health,

safety, and welfare of the public. In addition, Ms. N' Dakpri' s own testimony is

consistent with the testimony of Ms. Butler and Ms. Brown regarding the necessity

and importance of training and education on sanitation and hair braiding to protect
the public health, safety, and welfare, as she testified that she completed

approximately 1, 000- 1, 200 hours of cosmetology education, which included those

specific topics, and that she utilizes that knowledge and education when dealing with

her clients and managing Afro Touch. Further, her testimony regarding the extent

of her education illustrates why the Board' s 500 -hour requirement is not excessive.

While Ms. N' Dakpri testified that the 500 -hour requirement is excessive and

that she cannot afford to spend time away from her business to obtain the permit,

she offered no evidence as to the specific amount of training that should be deemed

necessary. Further, the record establishes that the Board' s 500 -hour requirement

may not be applicable to her because she trained in another jurisdiction and was

eligible for reciprocity, but she chose not to complete that process due to this suit.

For these reasons, we find the record reasonably supports the conclusion that

Ms. N' Dakpri failed to meet her burden of proving the unconstitutionality of the
Board' s Alternative Hair Design permit requirement and the enforcement of that

permit requirement against her, and that finding is not clearly wrong. Accordingly,

23

the trial court' s July 25, 2023 judgment dismissing Ms. N' Dakpri' s constitutional

claims is affirmed.

CONCLUSION

For all of the above and foregoing reasons, the April 20, 2023 judgment of the

trial court, which dismissed, without prejudice, Ms. N' Dakpri' s claims based on La.

R.S. 49: 968, is affirmed. In addition, the July 25, 2023 judgment of the trial court,

which dismissed, with prejudice, Ms. N' Dakpri' s petition seeking: declaratory

judgment that the Board' s rules and regulations relative to Alternative Hair Design

permits (La. R.S. 37: 563, 575, 581( A), 584 and 586 and LAC 46: XXXI. 1101, 1105,

and 1107) were unconstitutional; injunctive relief, and damages, is also affirmed.

All costs of this appeal are assessed to the plaintiff/appellant, Ashley -Roxanne
N' Dakpri.

AFFIRMED.

24