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DEPARTMENT LICENSES AND INSPECTIONS v. WEBER. (01/12/59)

January 12, 1959

DEPARTMENT OF LICENSES AND INSPECTIONS, APPELLANT,
v.
WEBER.



Appeal, No. 294, Jan. T., 1958, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1957, No. 2878, in case of Department of Licenses and Inspections et al. v. Nancy Weber. Order reversed.

COUNSEL

David Berger, City Solicitor, with him James L.J. Pie, Albert J. Persichetti, Assistant City Solicitors, Alan Miles Ruben, Assistant to the City Solicitor, and James L. Stern, Deputy City Solicitor, for appellant.

Isadore Gottlieb, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Musmanno

[ 394 Pa. Page 467]

OPINION BY MR. JUSTICE MUSMANNO.

Nancy Weber owns a beauty shop in Philadelphia and holds a license issued by the State Board of Cosmetology, authorizing her to carry on the work of enhancing

[ 394 Pa. Page 468]

    the feminine pulchritude of the land. On July 24, 1957, she was notified, through appropriate agencies of the City of Philadelphia that, according to provisions of the City's Health Code (Sections 6-402(3) and 6-503), she was required to obtain a city license and introduce certain features into her shop so that it would meet standards of safety and sanitation set up by the City.

She refused to apply for the city license and declined to carry out the recommendations of the Department, asserting that she was amenable only to the provisions of the Beauty Culture Act of May 3, 1933, P.L. 242, 63 PS § 507, under whose aegis she was operating, by virtue of the State license already issued to her. Accordingly she appealed to the Board of License and Inspection Review, claiming that "Sections 6-402, paragraphs 3a to 3h inclusive and section 6-503 of the Code of General Ordinances of the City of Philadelphia and Regulations promulgated thereunder for governing Beauty Shops and Schools of Beauty Culture are invalid, illegal, and unconstitutional and therefore unenforceable." The Board rejected her contentions and she appealed to the Court of Common Pleas No. 7 of Philadelphia County which reversed the adjudication of the Board.

The common pleas court held generally that, through the instrumentality of the Act of 1933, the State had preempted the field of beauty culture regulation, and that no municipality, therefore, could step into that area of supervision and control. Of course, it is obvious that where a statute specifically declares it has planted the flag of preemption in a field, all ordinances on the subject die away as if they did not exist. It is also apparent that, even if the statute is silent on supersession, but proclaims a course of regulation and control which brooks no municipal intervention,

[ 394 Pa. Page 469]

    all ordinances touching the topic of exclusive control fade away into the limbo of "innocuous desuetude." However, where the Act is silent as to monopolistic domination and a municipal ordinance provides for a localized procedure which furthers the salutary scope of the Act, the ordinance is welcomed as an ...


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