Bill Text: MN SF1629 | 2011-2012 | 87th Legislature | Engrossed
Bill Title: Right to engage in a lawful occupation authorization
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Introduced - Dead) 2012-03-13 - Author stricken Rest [SF1629 Detail]
Download: Minnesota-2011-SF1629-Engrossed.html
1.2relating to occupational regulation; ensuring an individual may pursue a lawful
1.3occupation free from unnecessary regulations; stating a right to engage in
1.4an occupation to create a greater number of jobs; specifying conditions for
1.5government regulation of occupations to protect against misuse of occupational
1.6regulations to reduce competition and increase prices to consumers;proposing
1.7coding for new law as Minnesota Statutes, chapter 213.
1.8BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.9 Section 1. [213.01] DEFINITIONS.
1.10 Subdivision 1. Definitions. For the purposes of this chapter, the words defined in
1.11this section have the meaning given.
1.12 Subd. 2. Certification. "Certification" is a voluntary program for which the
1.13legislature establishes the criteria to grant recognition to an individual who (1) has met
1.14certain predetermined qualifications and (2) may use "certified" as a designated title.
1.15Noncertified individuals may also perform the occupation for compensation, but the use of
1.16the title "certified" by a noncertified individual is illegal. For the purposes of this chapter,
1.17the term certification is not intended to be synonymous with "licensing" or "license."
1.18 Subd. 3. Court. "Court" means any court, administrative tribunal, or other
1.19government agency acting in a judicial or quasi-judicial capacity.
1.20 Subd. 4. Government. "Government" means the government of this state or any of
1.21its political subdivisions.
1.22 Subd. 5. Lawful occupation. "Lawful occupation" means a course of conduct,
1.23pursuit, or profession that includes the sale of goods or services that are not themselves
1.24illegal to sell, irrespective of whether the individual selling them is subject to an
1.25occupational regulation.
2.1 Subd. 6. Least restrictive occupational regulation. "Least restrictive occupational
2.2regulation" means, from least to most restrictive:
2.3(1) a provision for private civil action to remedy consumer harm;
2.4(2) inspection;
2.5(3) bonding or requirement to carry insurance;
2.6(4) registration;
2.7(5) certification; or
2.8(6) licensing.
2.9 Subd. 7. License. "License" is a nontransferable authorization for an individual to
2.10perform an occupation for compensation based on meeting:
2.11(1) predetermined qualifications established by a legislative body, such as
2.12satisfactory completion of an approved education program and acceptable performance on
2.13a qualifying examination or series of examinations; and
2.14(2) continuing education qualifications.
2.15It is illegal for nonlicensed individuals to perform the occupation for compensation. A
2.16license is the most restrictive form of occupational regulation.
2.17 Subd. 8. Occupational regulation. "Occupational regulation" means a statute, rule,
2.18practice, policy, or other government-prescribed requirement for an individual to work
2.19in a lawful occupation. Occupational regulation excludes regulations not related to an
2.20individual's qualifications to perform an occupation for compensation, such as a business
2.21license, permit, franchise, building permit, or land use regulation.
2.22 Subd. 9. Registration. "Registration" means a requirement established by a
2.23legislative body in which an individual (1) submits notification to a state agency or
2.24political subdivision, and (2) may use "registered" as a designated title. Notification
2.25may include the individual's name and address, the individual's agent for service of
2.26process, the location of the activity to be performed, and a description of the service the
2.27individual provides. Registration does not include education or experience requirements.
2.28Registration may include a requirement to maintain a bond or insurance. Nonregistered
2.29individuals may not perform the occupation for compensation or use "registered" as a
2.30designated title. For purposes of this chapter, the term registration is not intended to be
2.31synonymous with "licensing" or "license."
2.32 Subd. 10. Substantial burden. "Substantial burden" means a legal or other
2.33regulatory obstacle that imposes significant difficulty or cost on an individual seeking
2.34to enter into or continue in a lawful occupation. A substantial burden is a burden that
2.35is more than incidental.
3.1 Sec. 2. [213.02] RIGHT TO ENGAGE IN A LAWFUL OCCUPATION.
3.2 Subdivision 1. Statutory right. An individual has a right to engage in a lawful
3.3occupation free from any substantial burden, unless the government demonstrates (1)
3.4it has a compelling interest in protecting against present and recognizable harm to the
3.5public health or safety, and (2) the occupational regulation is the least restrictive means of
3.6furthering that compelling interest.
3.7 Subd. 2. Defense and relief. (a) An individual may assert as a defense the right to
3.8engage in a lawful occupation in any judicial or administrative proceeding to enforce an
3.9occupational regulation that violates subdivision 1.
3.10(b) An individual may bring an action for declaratory judgment or injunctive or other
3.11equitable relief for a violation of subdivision 1.
3.12(c) An individual may assert as a defense or bring an action against the enforceability
3.13of an occupational regulation, pursuant to paragraphs (a) and (b), which is:
3.14(1) in law at the effective date of this act; or
3.15(2) enacted, adopted, or amended after the effective date of this act and does not
3.16include in statute an explicit exemption from this chapter.
3.17(d) An individual who asserts a defense or brings an action under this section has
3.18the initial burden of proof that an occupational regulation substantially burdens the
3.19individual's right to engage in a lawful occupation.
3.20(e) If the individual meets the burden of proof under paragraph (d), the government
3.21must demonstrate by clear and convincing evidence that the government has a compelling
3.22interest in protecting against present and recognizable harm to the public health or safety
3.23and the occupational regulation is the least restrictive means for furthering that compelling
3.24interest.
3.25 Subd. 3. Judicial determination. A court shall liberally construe this chapter to
3.26protect the right established in subdivision 1. A court shall make its own findings of fact
3.27and conclusions of law. It shall not grant any presumption to legislative or administrative
3.28determinations of harm to the public health or safety, or that the regulation is the least
3.29restrictive means of furthering a compelling governmental interest.
3.30 Sec. 3. [213.03] EXEMPTIONS.
3.31This chapter does not apply to occupational regulation of an individual who is (1)
3.32an employee of the government, (2) a fiduciary whose fiduciary status is recognized in
3.33statute, or (3) required by federal law to be subject to occupational regulation in order to
3.34engage in a lawful occupation.
4.1 Sec. 4. [213.04] NO CHANGE TO COLLECTIVE BARGAINING RIGHTS.
4.2The right established by this chapter does not change the right to collective
4.3bargaining as established in sections 179.10 and 179A.06.
1.3occupation free from unnecessary regulations; stating a right to engage in
1.4an occupation to create a greater number of jobs; specifying conditions for
1.5government regulation of occupations to protect against misuse of occupational
1.6regulations to reduce competition and increase prices to consumers;proposing
1.7coding for new law as Minnesota Statutes, chapter 213.
1.8BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.9 Section 1. [213.01] DEFINITIONS.
1.10 Subdivision 1. Definitions. For the purposes of this chapter, the words defined in
1.11this section have the meaning given.
1.12 Subd. 2. Certification. "Certification" is a voluntary program for which the
1.13legislature establishes the criteria to grant recognition to an individual who (1) has met
1.14certain predetermined qualifications and (2) may use "certified" as a designated title.
1.15Noncertified individuals may also perform the occupation for compensation, but the use of
1.16the title "certified" by a noncertified individual is illegal. For the purposes of this chapter,
1.17the term certification is not intended to be synonymous with "licensing" or "license."
1.18 Subd. 3. Court. "Court" means any court, administrative tribunal, or other
1.19government agency acting in a judicial or quasi-judicial capacity.
1.20 Subd. 4. Government. "Government" means the government of this state or any of
1.21its political subdivisions.
1.22 Subd. 5. Lawful occupation. "Lawful occupation" means a course of conduct,
1.23pursuit, or profession that includes the sale of goods or services that are not themselves
1.24illegal to sell, irrespective of whether the individual selling them is subject to an
1.25occupational regulation.
2.1 Subd. 6. Least restrictive occupational regulation. "Least restrictive occupational
2.2regulation" means, from least to most restrictive:
2.3(1) a provision for private civil action to remedy consumer harm;
2.4(2) inspection;
2.5(3) bonding or requirement to carry insurance;
2.6(4) registration;
2.7(5) certification; or
2.8(6) licensing.
2.9 Subd. 7. License. "License" is a nontransferable authorization for an individual to
2.10perform an occupation for compensation based on meeting:
2.11(1) predetermined qualifications established by a legislative body, such as
2.12satisfactory completion of an approved education program and acceptable performance on
2.13a qualifying examination or series of examinations; and
2.14(2) continuing education qualifications.
2.15It is illegal for nonlicensed individuals to perform the occupation for compensation. A
2.16license is the most restrictive form of occupational regulation.
2.17 Subd. 8. Occupational regulation. "Occupational regulation" means a statute, rule,
2.18practice, policy, or other government-prescribed requirement for an individual to work
2.19in a lawful occupation. Occupational regulation excludes regulations not related to an
2.20individual's qualifications to perform an occupation for compensation, such as a business
2.21license, permit, franchise, building permit, or land use regulation.
2.22 Subd. 9. Registration. "Registration" means a requirement established by a
2.23legislative body in which an individual (1) submits notification to a state agency or
2.24political subdivision, and (2) may use "registered" as a designated title. Notification
2.25may include the individual's name and address, the individual's agent for service of
2.26process, the location of the activity to be performed, and a description of the service the
2.27individual provides. Registration does not include education or experience requirements.
2.28Registration may include a requirement to maintain a bond or insurance. Nonregistered
2.29individuals may not perform the occupation for compensation or use "registered" as a
2.30designated title. For purposes of this chapter, the term registration is not intended to be
2.31synonymous with "licensing" or "license."
2.32 Subd. 10. Substantial burden. "Substantial burden" means a legal or other
2.33regulatory obstacle that imposes significant difficulty or cost on an individual seeking
2.34to enter into or continue in a lawful occupation. A substantial burden is a burden that
2.35is more than incidental.
3.1 Sec. 2. [213.02] RIGHT TO ENGAGE IN A LAWFUL OCCUPATION.
3.2 Subdivision 1. Statutory right. An individual has a right to engage in a lawful
3.3occupation free from any substantial burden, unless the government demonstrates (1)
3.4it has a compelling interest in protecting against present and recognizable harm to the
3.5public health or safety, and (2) the occupational regulation is the least restrictive means of
3.6furthering that compelling interest.
3.7 Subd. 2. Defense and relief. (a) An individual may assert as a defense the right to
3.8engage in a lawful occupation in any judicial or administrative proceeding to enforce an
3.9occupational regulation that violates subdivision 1.
3.10(b) An individual may bring an action for declaratory judgment or injunctive or other
3.11equitable relief for a violation of subdivision 1.
3.12(c) An individual may assert as a defense or bring an action against the enforceability
3.13of an occupational regulation, pursuant to paragraphs (a) and (b), which is:
3.14(1) in law at the effective date of this act; or
3.15(2) enacted, adopted, or amended after the effective date of this act and does not
3.16include in statute an explicit exemption from this chapter.
3.17(d) An individual who asserts a defense or brings an action under this section has
3.18the initial burden of proof that an occupational regulation substantially burdens the
3.19individual's right to engage in a lawful occupation.
3.20(e) If the individual meets the burden of proof under paragraph (d), the government
3.21must demonstrate by clear and convincing evidence that the government has a compelling
3.22interest in protecting against present and recognizable harm to the public health or safety
3.23and the occupational regulation is the least restrictive means for furthering that compelling
3.24interest.
3.25 Subd. 3. Judicial determination. A court shall liberally construe this chapter to
3.26protect the right established in subdivision 1. A court shall make its own findings of fact
3.27and conclusions of law. It shall not grant any presumption to legislative or administrative
3.28determinations of harm to the public health or safety, or that the regulation is the least
3.29restrictive means of furthering a compelling governmental interest.
3.30 Sec. 3. [213.03] EXEMPTIONS.
3.31This chapter does not apply to occupational regulation of an individual who is (1)
3.32an employee of the government, (2) a fiduciary whose fiduciary status is recognized in
3.33statute, or (3) required by federal law to be subject to occupational regulation in order to
3.34engage in a lawful occupation.
4.1 Sec. 4. [213.04] NO CHANGE TO COLLECTIVE BARGAINING RIGHTS.
4.2The right established by this chapter does not change the right to collective
4.3bargaining as established in sections 179.10 and 179A.06.
