‘Singled Out’: Hair Salon Claims California Closure Orders Constitute Seizure of Property without Compensation

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A proposed class action claims California state officials’ orders prohibiting barbering and cosmetology professions from operating amid the COVID-19 crisis amount to an unlawful seizure of property without just compensation.

Filed by a La Jolla, California hair salon, the 52-page lawsuit alleges the defendants—California Governor Gavin Newsom, California Attorney General Xavier Becerra and executive officer of the State Board of Barbering and Cosmetology Kristy Underwood—have overstepped the United States Constitution by forcing hair and nail salons to remain closed while “arbitrarily” allowing other types of businesses to operate with restrictions.

“These businesses have been singled out for closure in order to benefit the public,” the complaint reads. “They remain one of the only types of businesses which have been ordered to completely shut down, with no opportunity to conduct any operations whatsoever or earn a livelihood, despite the lack of any showing or evidence that the operation of hair salons at the same levels permitted for other types of businesses (e.g., 20% capacity) would lead to increased transmission rates of Covid-19.”

The lawsuit argues that the denial of hair and nail salons’ economically beneficial use of their properties for the public’s benefit warrants compensation in the same way the government’s seizure of property to expand a highway would entitle the homeowners to compensation. As the case tells it, the plaintiff and proposed class members have been singled out in order to benefit the public and are thus entitled to just compensation under the U.S. and California constitutions.

According to the lawsuit, a number of executive orders dating back to March 2020 have restricted the operation of hair and nail salons in California, with the most recent mandate, issued on December 29, 2020, extending indefinitely a regional stay-at-home order that goes into effect when a region is determined to have less than 15 percent Intensive Care Unit (ICU) availability. Under the regional order, hair and nail salons are “completely and indefinitely prohibited” from operating, the suit says.

The plaintiff avers that the defendants’ classification of some businesses as “essential” services, e.g., those that are permitted to remain open under the governor’s orders, is arbitrary, alleging they “bear no connection to public health and have been created for the sole purpose of allowing Defendants’ politically preferred trades and industries to continue operating while secondary interests are left in economic distress.” The case notes that beauticians, hair stylists and manicurists supporting the entertainment industry; producers of personal hygiene and cleaning supplies; workers supporting the elderly and disabled populations; and laundry services are permitted to operate even though the plaintiff and proposed class members offer similar services. 

Moreover, espresso bars, cannabis dispensaries, pet groomers, chiropractors and other businesses are deemed to be “essential” and continue operating despite the fact that they, according to the lawsuit, pose the same or greater risk of COVID-19 spread than hair and nail salons.

“Since the initial outbreak of COVID-19 in the United States in February and March 2020, the Defendants imposed increasingly stringent restrictions — and then banned completely — Plaintiff’s licensed activities, while allowing individuals in other classes and groups to perform similar activities that pose equal or greater risks to public health,” the complaint reads.

The case goes on to allege that the defendants have threatened to revoke the licenses of cosmetology professionals for violating closure orders while allowing pet groomers to remain open, which the complaint notes “send[s] the signal that dog haircuts are more essential than human haircuts.” The suit adds that restaurants, strip clubs, toy stores, clothing stores, souvenir shops and adult sex shops have been permitted to remain open while hair and nail salons are left with “no opportunity to make any income or livelihood whatsoever.”

The lawsuit alleges that proposed class members have been “devastated” by the defendants’ “arbitrary and capricious closure orders” and are owed due compensation for the denied use of their licenses and real and personal property for the benefit of the public.

The case proposes a class of California residents who held an active barbering or cosmetology license as of March 19, 2020 and were unable to work at any time since then due to the closure orders issued by the state.

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