Stages of Occupational Regulation: Evidence from Case Studies

Appendix D: Statutory Right to an Occupation: Model Legislation

Appendix D Statutory Right to an Occupation Model Legislation Table of Contents 100.01 Purpose 100.02 Definitions 100.03 Right to engage in a lawful occupation 100.04 Federal law’s use of state occupational regulations 100.01 PURPOSE This chapter’s purpose is to (a) ensure that an individual may pursue a lawful occupation free from unnecessary regulations and (b) protect against the misuse of occupational regulations to reduce competition and increase prices to consumers. 100.02 DEFINITIONS Subdivision 1. Scope. For the purposes of this chapter, the words defined in this section have the following meanings. Subd. 2. Business license. “Business license” means a permit, registration, certification, franchise, or other approval required by law for a sole proprietorship , partnership, or corporate entity to do business. Subd. 3. Certification. “Certification” is a voluntary program in which the government grants nontransferable recognition to an individual who meets personal qualifications established by a legislative body. Upon approval, the individual may use “certified” as a designated title. A noncertified individual may also perform the lawful occupation for compensation but may not use the title “certified.” “Certification” is not intended to be synonymous with an “occupational license” in this chapter or to prohibit the use of private certification. Subd. 4. Court. “Court” means any court, administrative tribunal, or other government agency acting in a judicial or quasijudicial capacity. 245 Kleiner2013.indb 245 Kleiner2013.indb 245 9/18/2013 10:11:35 AM 9/18/2013 10:11:35 AM 246 Kleiner Subd. 5. Government. “Government” means the government of this state or any of its political subdivisions. Subd. 6. Lawful occupation. “Lawful occupation” means a course of conduct, pursuit, or profession that includes the sale of goods or services that are not themselves illegal to sell, irrespective of whether the individual selling them is subject to an occupational regulation. Subd. 7. Least restrictive occupational regulation. “Least restrictive occupational regulation” means, from least to most restrictive, (a) a provision for private civil action to remedy consumer harm, (b) inspection, (c) bonding or insurance, (d) registration, (e) certification, or (f) occupational license. Subd. 8. Occupational license. “Occupational license” is a nontransferable authorization in law for an individual to perform a lawful occupation for compensation based on meeting personal qualifications established by a legislative body. It is illegal for an individual who does not possess an occupational license to perform the occupation for compensation. Occupational licensing is the most restrictive form of occupational regulation. Subd. 9. Occupational regulation. “Occupational regulation” means a statute, ordinance, rule, practice, policy, or other law requiring an individual to possess certain personal qualifications to work in a lawful occupation. It excludes a business license, facility license, building permit, land use regulation, or other commercial regulations except to the extent those laws regulate an individual’s personal qualifications to perform a lawful occupation. Subd. 10. Personal qualifications. “Personal qualifications” are criteria established by a legislative body related to an individual’s personal background, including completion of an approved educational program, satisfactory performance on an examination, work experience, moral standing, and completion of continuing education. Subd. 11. Registration. “Registration” means a requirement established by a legislative body in which an individual gives notice to the government that may include the individual’s name and address, the individual’s agent for service of process, the location of the activity to be performed, and a description of the service the individual provides. “Registration” does not include personal qualifications but may require a bond or insurance. Upon approval, the individual may use “registered” as a designated title. A nonregistered individual may not perform the occupation for compensation or use “registered” as a designated title. “Registration” is not transferable. It is not intended to be synonymous with an “occupational license” in this chapter or to prohibit the use of private registration. Kleiner2013.indb 246 Kleiner2013.indb 246 9/18/2013 10:11:35 AM 9/18/2013 10:11:35 AM Appendix A 247 Subd. 12. Substantial burden. “Substantial burden” means a legal or other regulatory obstacle that imposes significant difficulty or cost on an individual seeking to enter into or continue in a lawful occupation. A substantial burden is a burden that is more than incidental. 100.03 RIGHT TO ENGAGE IN A LAWFUL OCCUPATION Subdivision 1. Statutory right. An individual has a right to engage in a lawful occupation free from any substantial burden unless the government demonstrates (a) it has a...