Bill Text: MI HB4641 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Occupations; unlicensed practice; unreasonable occupational regulations; restrict enforcement. Creates new act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-05-01 - Printed Bill Filed 05/01/2013 [HB4641 Detail]
Download: Michigan-2013-HB4641-Introduced.html
HOUSE BILL No. 4641
April 30, 2013, Introduced by Rep. McMillin and referred to the Committee on Regulatory Reform.
A bill to establish a right to engage in a lawful occupation
without unreasonable governmental regulation; to limit occupational
regulations to the protection of health and safety; and to provide
remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"occupational licensing relief and job creation act".
Sec. 2. As used in this act:
(a) "Certification" means a voluntary program in which the
government grants nontransferable recognition to an individual
based on meeting certain personal qualifications, including the
authority to use "certified" as or as part of a designated title if
certification is approved. The term is not synonymous with the term
occupational license in this act or to refer to or prohibit the use
of private certification.
(b) "Certified" is a designated title an individual may use if
his or her certification is approved. A noncertified individual may
perform the lawful occupation for compensation but may not use
certified as a designated title.
(c) "Court" means any court, administrative tribunal, or other
government agency that is acting in a judicial or quasi-judicial
capacity.
(d) "Government" means the government of this state or any of
its political subdivisions.
(e) "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 an occupational
regulation.
(f) "Least restrictive means of furthering a compelling
governmental interest" means any of the following, from least to
most restrictive:
(i) A provision for private civil action in small-claims or
district court to remedy consumer harm.
(ii) Inspection.
(iii) Bonding or insurance.
(iv) Registration.
(v) Certification.
(vi) Occupational license.
(g) "Occupational license" means a nontransferable
authorization in law for an individual to perform a lawful
occupation for compensation based on meeting personal
qualifications. 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.
(h) "Occupational regulation" means a statute, ordinance,
rule, practice, policy, or other requirement in law that an
individual possess certain personal qualifications to work in a
lawful occupation.
(i) "Personal qualifications" means criteria related to an
individual's personal background, including, but not limited to,
completion of an approved educational program, satisfactory
performance on an examination, work experience, criminal history,
moral standing, or completion of continuing education.
(j) "Registered" is a designated title an individual may use
if his or her registration is approved. A nonregistered individual
may not perform the occupation for compensation or use "registered"
as a designated title.
(k) "Registration" means a requirement in law that an
individual give 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, or a
description of the service the individual provides. Registration
does not include meeting personal qualifications but may require a
bond or insurance. A registration is not transferable. The term is
not intended to be synonymous with an occupational license in this
act or to prohibit the use of private registration.
(l) "Substantial burden" means a requirement in an occupational
regulation 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.
Sec. 3. (1) An individual has a right to engage in a lawful
occupation free from any substantial burden in an occupational
regulation unless the government demonstrates both of the
following:
(a) It has a compelling interest in protecting against present
and recognizable harm to the public health or safety.
(b) The occupational regulation is the least restrictive means
of furthering that compelling governmental interest.
(2) An individual may assert as a defense the right to engage
in a lawful occupation in any judicial or administrative proceeding
brought by the government to enforce an occupational regulation
that violates subsection (1).
(3) An individual may bring an action for declaratory judgment
or injunctive or other equitable relief against the government for
a violation of subsection (1), without regard to the exhaustion of
administrative remedies.
(4) An individual may assert the right described in subsection
(1) as a defense in an action described in subsection (2), or bring
an action described in subsection (3), against the enforceability
of an occupational regulation that is any of the following:
(a) In law on the effective date of this act.
(b) Enacted, adopted, promulgated, or amended after the
effective date of this act and does not include in state statute an
explicit exemption from this act.
(5) An individual who asserts a defense or brings an action
under this section has the initial burden of proof that an
occupational regulation substantially burdens the individual's
right to engage in a lawful occupation.
(6) If an individual meets the burden of proof described in
subsection (5), the government must demonstrate by clear and
convincing evidence that the government has a compelling interest
in protecting against present and recognizable harm to the public
health or safety, and the occupational regulation is the least
restrictive means of furthering that compelling governmental
interest.
(7) An employer or potential employer may assert the right of
an employee or potential employee recognized in subsection (1) by
bringing a defense or action under this subsection.
(8) A court shall liberally construe this act to protect the
rights recognized in subsection (1). A court shall make its own
findings of fact and conclusions of law. It shall not grant any
presumption to legislative or administrative determinations of harm
to the public health or safety, or that the regulation is the least
restrictive means of furthering a compelling governmental interest.
(9) This section does not create a right of action against a
private party or require a private party to do business with an
individual who is not licensed, certified, or registered with the
government.
Sec. 4. This act does not create a right of action against the
federal government.
