Bill Text: IA HF46 | 2015-2016 | 86th General Assembly | Introduced
Bill Title: A bill for an act to establish a right to engage in a lawful occupation free from substantial burdens imposed by occupational regulations unless certain conditions are met and providing remedies.
Sponsorship: Partisan Bill (Republican 1)
Status: (Introduced - Dead) 2015-01-22 - Subcommittee, Highfill, Branhagen, and T. Taylor. H.J. 143. [HF46 Detail]
Download: Iowa-2015-HF46-Introduced.html
House File 46 - Introduced HOUSE FILE BY PETTENGILL A BILL FOR 1 An Act to establish a right to engage in a lawful occupation 2 free from substantial burdens imposed by occupational 3 regulations unless certain conditions are met and providing 4 remedies. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1571YH (1) 86 je/rj PAG LIN 1 1 Section 1. NEW SECTION. 27.1 Purpose. 1 2 The purposes of this chapter are: 1 3 1. To ensure that an individual may pursue a lawful 1 4 occupation free from unnecessary occupational regulations. 1 5 2. To protect against the misuse of occupational 1 6 regulations to reduce competition and increase prices to 1 7 consumers. 1 8 Sec. 2. NEW SECTION. 27.2 Definitions. 1 9 For purposes of this chapter, unless the context otherwise 1 10 requires: 1 11 1. "Business license" means a permit, registration, 1 12 certification, franchise, or other approval required by law for 1 13 a person to do business in this state. 1 14 2. "Certification" means a voluntary program in which the 1 15 government grants nontransferable recognition to an individual 1 16 who meets personal qualifications established by law, which 1 17 permits the individual to use "certified" as a designated 1 18 title, but which is not required for an individual to engage 1 19 in a lawful occupation for compensation. "Certification" by 1 20 the government does not include certification by a private 1 21 certification organization. 1 22 3. "Government" means any agency or other entity 1 23 of government of this state or of any of its political 1 24 subdivisions. 1 25 4. "Lawful occupation" means a course of conduct, pursuit, 1 26 or profession that includes the sale of goods or services that 1 27 can be legally sold in this state, irrespective of whether 1 28 the individual selling them is subject to an occupational 1 29 regulation. 1 30 5. "Least restrictive means of furthering a compelling 1 31 governmental interest", from least to most restrictive, means 1 32 the following: 1 33 (1) Absence of any occupational regulations. 1 34 (2) A provision for private civil action in small claims or 1 35 district court to remedy consumer harm. 2 1 (3) Inspection requirements. 2 2 (4) Bonding or insurance requirements. 2 3 (5) Registration requirements. 2 4 (6) Certification requirements. 2 5 (7) Occupational license requirements. 2 6 6. "Occupational license" means a nontransferable 2 7 authorization in law for an individual to engage in a lawful 2 8 occupation for compensation based on meeting personal 2 9 qualifications established by law, without which it is illegal 2 10 for an individual to engage in the occupation for compensation. 2 11 "Occupational license" does not include registration or 2 12 certification. 2 13 7. "Occupational regulation" means a statute, ordinance, 2 14 rule, practice, policy, or other requirement in law that an 2 15 individual possess certain personal qualifications in order 2 16 to engage in a lawful occupation. "Occupational regulation" 2 17 excludes a business license and zoning and land use regulations 2 18 except to the extent such requirements regulate an individual's 2 19 personal qualifications to perform a lawful occupation. 2 20 8. "Personal qualifications" means criteria established by 2 21 law related to an individual's personal background including 2 22 but not limited to completion of an approved educational 2 23 program, satisfactory performance on an examination, work 2 24 experience, criminal history, moral standing, and completion 2 25 of continuing education. 2 26 9. "Registration" means a requirement established by law 2 27 in which an individual must give notice to the government in 2 28 order to engage in a lawful occupation and to use "registered" 2 29 as a designated title. Such notice may include but is not 2 30 limited to the individual's name and address, the individual's 2 31 agent for service of process, the location of the activity to 2 32 be performed, and a description of the service the individual 2 33 provides. "Registration" may require a bond or insurance. 2 34 "Registration" by the government does not include certification 2 35 by a private registration organization. A "registration" is 3 1 nontransferable. 3 2 10. "Substantial burden" means a requirement in an 3 3 occupational regulation that imposes significant difficulty or 3 4 cost on an individual seeking to enter into or continue in a 3 5 lawful occupation. "Substantial burden" means a burden that is 3 6 more than incidental. 3 7 Sec. 3. NEW SECTION. 27.3 Right to engage in a lawful 3 8 occupation ==== remedies. 3 9 1. An individual has a right to engage in a lawful 3 10 occupation free from any substantial burden imposed by an 3 11 occupational regulation unless the government demonstrates all 3 12 of the following with respect to such occupational regulation: 3 13 a. The government has a compelling interest in protecting 3 14 against present and recognizable harm to the public health or 3 15 safety. 3 16 b. The occupational regulation is the least restrictive 3 17 means of furthering that compelling governmental interest. 3 18 2. a. An individual may assert as a defense in any judicial 3 19 or administrative proceeding brought by the government to 3 20 enforce an occupational regulation that such occupational 3 21 regulation violates the individual's right established in 3 22 subsection 1. 3 23 b. An individual may bring an action for declaratory 3 24 judgment or injunctive or other equitable relief against the 3 25 government for an occupational regulation that violates the 3 26 individual's right established in subsection 1. An individual 3 27 need not exhaust administrative remedies to bring such an 3 28 action. 3 29 3. An individual who asserts a defense or brings an action 3 30 under subsection 2 has the initial burden of proof that an 3 31 occupational regulation substantially burdens the individual's 3 32 right to engage in a lawful occupation. 3 33 4. If the individual meets the burden of proof under 3 34 subsection 3, the government must demonstrate by clear and 3 35 convincing evidence that the government has a compelling 4 1 interest in protecting against present and recognizable harm 4 2 to the public health or safety, and that the occupational 4 3 regulation is the least restrictive means for furthering that 4 4 compelling governmental interest. 4 5 5. The presiding officer or court in a proceeding in 4 6 which an individual asserts a defense or brings an action 4 7 under subsection 2 shall make its own findings of fact and 4 8 conclusions of law with no deference given to any determination 4 9 by the government or in statute or rule that an occupational 4 10 regulation serves a compelling governmental interest in 4 11 protecting against present and recognizable harm to the public 4 12 health or safety or that the occupational regulation is the 4 13 least restrictive means of furthering a compelling governmental 4 14 interest. 4 15 6. An employer may assert a defense or bring an action under 4 16 subsection 2 on behalf of an employee or prospective employee. 4 17 Sec. 4. NEW SECTION. 27.4 Private registration and 4 18 certification permitted. 4 19 An individual may use the words "registered" or "certified" 4 20 as a designated title or as part of a designated title if 4 21 the individual meets the requirements for registration 4 22 or certification established by a private registration 4 23 or certification organization. The individual shall not 4 24 portray such registration or certification as granted by the 4 25 government. 4 26 Sec. 5. NEW SECTION. 27.5 Construction. 4 27 1. This chapter shall be liberally construed to protect the 4 28 right established in section 27.3, subsection 1. 4 29 2. This chapter shall not be construed to create a right of 4 30 action against a private party or to require a private party to 4 31 do business with an individual who is not licensed, certified, 4 32 or registered with the government. 4 33 3. This chapter shall not be construed to create a right of 4 34 action against the federal government for its use of a state 4 35 occupational regulation in federal law. 5 1 EXPLANATION 5 2 The inclusion of this explanation does not constitute agreement with 5 3 the explanation's substance by the members of the general assembly. 5 4 This bill provides that an individual has a right to engage 5 5 in a lawful occupation free from any substantial burden 5 6 imposed by an occupational regulation unless the government 5 7 demonstrates with respect to such occupational regulation that 5 8 the government has a compelling interest in protecting against 5 9 present and recognizable harm to the public health or safety 5 10 and the occupational regulation is the least restrictive means 5 11 of furthering that compelling governmental interest. 5 12 An individual may assert as a defense in any judicial or 5 13 administrative proceeding brought by the government to enforce 5 14 an occupational regulation that such occupational regulation 5 15 violates this right. An individual may also bring an action 5 16 for declaratory judgment or injunctive or other equitable 5 17 relief against the government for an occupational regulation 5 18 that violates this right. An individual need not exhaust 5 19 administrative remedies to bring such an action. 5 20 An individual who asserts such a defense or brings such an 5 21 action has the initial burden of proof that an occupational 5 22 regulation substantially burdens the individual's right to 5 23 engage in a lawful occupation. If the individual meets the 5 24 burden of proof, the government must demonstrate by clear 5 25 and convincing evidence that the government has a compelling 5 26 interest in protecting against present and recognizable harm 5 27 to the public health or safety, and that the occupational 5 28 regulation is the least restrictive means for furthering that 5 29 compelling governmental interest. The presiding officer or 5 30 court in such a proceeding shall make its own findings of 5 31 fact and conclusions of law with no deference given to any 5 32 determination by the government or in statute or rule that 5 33 an occupational regulation serves a compelling governmental 5 34 interest in protecting against present and recognizable harm to 5 35 the public health or safety or that the occupational regulation 6 1 is the least restrictive means of furthering a compelling 6 2 governmental interest. An employer may assert a defense 6 3 or bring an action on behalf of an employee or prospective 6 4 employee. 6 5 The bill defines "occupational regulation" as a statute, 6 6 ordinance, rule, practice, policy, or other requirement in law 6 7 that an individual possess certain personal qualifications 6 8 in order to engage in a lawful occupation. "Occupational 6 9 regulation" excludes a business license and zoning and 6 10 land use regulations except to the extent such requirements 6 11 regulate an individual's personal qualifications to perform 6 12 a lawful occupation. The bill defines "substantial burden" 6 13 as a requirement in an occupational regulation that imposes 6 14 significant difficulty or cost on an individual seeking to 6 15 enter into or continue in a lawful occupation. "Substantial 6 16 burden" means a burden that is more than incidental. The 6 17 bill defines "government" as any agency or other entity 6 18 of government of this state or of any of its political 6 19 subdivisions. 6 20 The bill defines "least restrictive means of furthering 6 21 a compelling governmental interest" as, from least to most 6 22 restrictive, absence of any occupational regulations, a 6 23 provision for private civil action in small claims or district 6 24 court to remedy consumer harm, inspection requirements, 6 25 bonding or insurance requirements, registration requirements, 6 26 certification requirements, and occupational license 6 27 requirements. 6 28 The bill permits an individual to use the words "registered" 6 29 or "certified" as a designated title or as part of a designated 6 30 title if the individual meets the requirements for registration 6 31 or certification established by a private registration or 6 32 certification organization. An individual cannot portray such 6 33 registration or certification as granted by the government. 6 34 The bill is to be liberally construed to protect the right 6 35 established by the bill. The bill is not to be construed to 7 1 create a right of action against a private party or to require 7 2 a private party to do business with an individual who is not 7 3 licensed, certified, or registered with the government. The 7 4 bill is not to be construed to create a right of action against 7 5 the federal government for its use of a state occupational 7 6 regulation in federal law. LSB 1571YH (1) 86 je/rj
