STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 10, 1969

Sam D. Sechser, Deputy State's Attorney
Minnehaha County Courthouse
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 69-80

Barbershop licenses; a licensed barbershop cannot be under direct supervision and management of a holder of a permit to practice as a journeyman barber. SDCL 1967 36-14-14; 36-14-27

Dear Mr. Sechser:

You have requested my official opinion in answer to the following situation:

"X, a barber licensed in a foreign state for the requisite period has applied and been issued a permit to practice as a journeyman barber in South Dakota in pursuance to SDC 27.1607 (SDCL 1967 36-14-14), At this time he has not taken the examination required by the South Dakota statute."

The question submitted with such factual situation is:

"Can X, as a holder of a permit to practice as a journeyman barber, who has as yet to take the proper examination as a barber, operate his own barbershop licensed under SDC 27.1607, as amended by Ch. 132 of the Session Laws of 1961 (SDCL 1967 36-14-27)?"

(For convenience I will cite the applicable statutes in terms of the sections of the 1967 compilation of South Dakota Law, rather than under the 1939 Code in this opinion,)

SDCL 1967 36-14-1 defines what constitutes the practice of barbering. 36-14-11 provides no person shall practice barbering or act or serve as an apprentice without a certificate of registration issued by the Board of Barber Examiners: 36-14-36 declares what acts are punishable as misdemeanors under the barbering act. Among such acts declared illegal is-"the practice of barbering or acting or serving as an apprentice without a certificate of registration." 36-14-21 provides no apprentice may independently practice barbering but may so act under the immediate personal supervision of a registered barber.

SDCL 1967 36-14-14 referred to in your factual situation, authorizes the issuance of a "permit to practice as a journeyman barber" until such person is called by the Board of Barber Examiners for examination of his fitness to receive a certificate of registration to practice barbering, to nonresidents who are holders of barber licenses in other states, or who have practiced barbering in a foreign state for at least five years. The statute further provides that if at the first examination such person fails to pass, he can continue to practice as a journeyman until the next examination. However, should he fail to pass such second examination, he must cease to practice barbering in South Dakota.

SDCL 1967 Sections 36-14-27 through 36-14-31 govern shop licenses, save and except for a Mobile Shop License, no such license when issued is transferable either from person to person or location to location. All such licensed barbershops must at all times be under the direct supervision and management of a registered barber. The appropriate language of the statute being:

"It shall be unlawful for any person to operate or cause to be operated a barbershop unless the same has been licensed as such by the State Board of Barber Examiners and such shop is at all times under the direct supervision and management of a registered barber."

It is my opinion that in view of the language, "no person shall operate or cause to be operated," that any barbershop license may be issued to any person, be he a licensed barber or not, so long as such shop is at all times under the direct supervision and management of a registered barber.

This, of course, is not the question that you have presented, as your question amounts to whether or not a holder of a "permit to practice as a journeyman barber in South Dakota" can be issued such barbershop license, when it is apparent that he will have direct supervision and management of such barbershop.

A review of our barbering statutes makes it patent that there are four separate classifications of registrants as barbers under our statutes:

1. A permit to practice as an apprentice (issued to non-residents);

2. A certificate of registration as an apprentice;

3. A permit to practice as a journeyman barber (issued to non-residents);

4. A certificate of registration to practice barbering.

The last stated Certificate of Registration to practice barbering cannot be issued without the successful completion of an examination to determine fitness to receive such certificate of registration to practice barbering.

It is my opinion that the only person that may be entitled to the designation "registered barber" in this statute are those who have passed such described examination and to whom has been issued such certificate of registration. This interpretation is consistent with the time honored system of "apprentice," "journeyman," and finally, "master," which historically is a part and parcel of all trades. (See 1945-46 AGR 223 which is consistent with this opinion.)

"X' in the example is not a holder of a certificate of registration to practice barbering. He holds a permit to practice as a journeyman barber until he has taken two examinations as to fitness to be a "master barber." He does not have the necessary qualifications to personally have supervision and management of a barbershop in South Dakota.

Under the factual situation presented, a barbershop license should not be issued to "X". (You can appreciate that if "X" were to show that such proposed shop were to be under the direct supervision and management of a "registered barber" of South Dakota, then, of course, such barbershop license could be issued in his name, assuming the shop passes the health standards required by the statutes.)

Respectfully submitted,

Gordon Mydland
Attorney General