Number 7 September 23, 1971

Number 7 September 23, 1971 Mrs. Irene E. Bode, Chairman Board of Registration of Hairdressers Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Mr. Anthony J. Bellio, Secretary Board of Registration of Barbers Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mrs. Bode and Mr. Bellio: You have requested my opinion with respect to the effect of the re- cent enactment of Chapter 418 of the Acts of 1971 (entitled "An Act to Prohibit Discrimination on the Basis of Sex in Public Accommoda- tions") upon those statutes whose subject matter is the registration of barbers (Mass. G. L. c. 1 12, §§ 87F through 87S) and the registration of hairdressers (Mass. G. L. c. 112, §§ 87T through 87KK). Although I am required to render formal advice only to "departments, officers and offi- cials" of the Commonwealth under the provisions of Mass. G. L. c. 12, §3,1 will respond to your joint request because of the public signifi- cance and immediacy of the question you raise. 58 P.D. 12 Section One of c. 418 of the Acts of 1971, which amends Mass. G. L. c. 272, § 92A, provides in pertinent part: "A place of public accommodation . . . shall be defined as and shall be deemed to include any place, whether licensed or unlicensed, which is open to and accepts or solicits the pa- tronage of the general public and . . . whether or not it be . . . (5) a . . . barber shop, beauty parlor ..." Section Two of c. 418 of the Acts of 1971, which amends Mass. G. L. c. 272, § 98, further provides as follows: "Whoever makes any distinction, discrimination or restric- tion on account of . . . sex . . . relative to the admission of any person to, or his treatment in, any place of public ac- commodation ... as defined in section ninety-two A . . . shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than one year, or both, and shall forfeit to any person aggrieved thereby not less than one hundred nor more than five hundred dollars Under Mass. G. L. c. 112, § 87F, a "Barber" is defined as "any per- son who . . . shaves or trims the beard, cuts the hair . . . [etc.] of any male person ..." (Emphasis supplied.) Under Mass. G. L. c. 112, § 87T, "Hairdressing" is defined in part as "arranging, dressing, curling, waving, cleansing, cutting, singeing, bleaching, coloring, or similarly treating the hair of any female ..." (Emphasis supplied.) Thus, the issue you raise is the extent, if any, to which the Legislature intended that c. 481 of the Acts of 1971 affect the statutory provisions concerning barbers and hairdressers. " 'The words of a statute are the main source for the ascertainment of a legislative purpose . . . ' " Tilton v. Haverhill, 311 Mass. 572, 577, and cases cited. Words in common use must be construed in their usual and ordinary sense and given the mean- ing intended when they are used by ordinary men. Save-Mor Supermar- kets, Inc. v. Shelly Detective Service, Inc., 1971 Mass. Adv. Sh. 537, 541. In my opinion, a barber who would refuse a female the services he is authorized by statute to offer to "any male person" or a hairdresser who would refuse a male the services authorized by statute to be offered to "any female" would be engaged in making a "distinction, discrimination or restriction on account of . . . sex . . . relative to ... [a person's] treatment in, any place of public accommodation" within the usual meaning of the words employed in c. 418. While it might be contended that a licensed barber or hairdresser re- fusing such services would not be engaging in any discrimination on ac- count of sex for any personal reasons but rather because of the require- ments imposed by law under the above-cited definitional provisions of c. 112, I find such an argument unpersuasive. First of all, the statute is si- lent as to the reason for discrimination on account of sex and does not P.D. 12 59 distinguish between discrimination based on personal grounds and dis- crimination purportedly required under prior existing law. Accordingly, discrimination on account of sex for whatever reason is prohibited, and the statute must be construed as it is written. Harry Alan Gregg, Jr. Family Found' n Inc. v. Com'r of Corp' ns & Tax'n, 330 Mass. 538, 544. Secondly, the "statute is to be so construed as to 'be given an effect in harmony with common sense and sound reason.' Duggan v. Bay State St. Rv., 230 Mass. 370, 374." Sullivan v. Boston Retirement Board, 1971 Mass. Adv. Sh. 545, 546. It would not be consistent with common sense or sound reason to declare that a statute clearly prohibiting dis- crimination on account of sex in a place of public accommodation allows such discrimination in a barber shop or beauty parlor. Such an interpre- tation would completely negate the intent of these specific statutory provisions, a mode of interpretation which should be avoided. See Board of Assessors of Newton v. Pickwick Ltd., Inc., 351 Mass. 621, 625. Lastly, such an interpretation would be contrary to the rule of statutory construction that, if possible, the enactment of nugatory provi- sions will not be attributed to the Legislature. Goldsmith v. Reliance Ins. Co., 353 Mass. 99, 102. Stated in other words, I cannot assume that words in a statute have no force and effect. See Milton v. Metropolitan District Commission, 342 Mass. 222, 225. Accordingly, it is my opinion that c. 418 of the acts of 1971 has im- pliedly repealed those provisions in c. 1 12, §§ 87F and 87T which limit a barber from offering the same services to females which he performs for males and which limit a hairdresser from offering to males the same ser- vices which are afforded females. Specifically, c. 418 has the effect of eliminating the world "male" from Section 87F and the word "female" from Section 87T, and inserting in place of the word "female" the word "person." I further note that barbers and hairdressers respectively may still provide only those services which are authorized by statute. Although the principle of implied repeal is admittedly not regarded with favor and is applied with caution (Gregoire, petitioner, 355 Mass. 399, 400), nevertheless it has its place in the construction of legislative enactments. Doherty v. Commissioner of Administration, 349 Mass. 687, 690. "The test of the applicability of the principle of implied repeal is whether the prior statute is so repugnant to and inconsistent with the later enactment covering the same subject matter that both cannot stand." Ibid. Such may exist when the Legislature enacts a law covering a particular field but leaves conflicting prior prescriptions unrepealed. Ibid. It is clear in this instance that the statutory definitions of "barber" and "hairdressing" referred to above are repugnant to and inconsistent with c. 418. Accordingly, since the legislative intent in the later statute must prevail, the earlier statute must give way. Ibid. Since the intent of c. 418 is fully effected by the above interpretation, I am of the further opinion that no other changes are effected by the sta- tute. Very truly yours, ROBERT H. QUINN Attorney General 60 P.D. 12