Bill Text: MN SF1629 | 2011-2012 | 87th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
1.2relating to occupational regulation; ensuring a person 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 a person who (1) has met certain
1.14predetermined qualifications and (2) may use "certified" as a designated title. Noncertified
1.15persons may also perform the occupation for compensation, but the use of the title
1.16"certified" by a noncertified person is illegal. For the purposes of this chapter, the term
1.17certification 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 person selling them is subject to an occupational
1.25regulation.
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;
2.6(4) registration;
2.7(5) certification; or
2.8(6) licensing.
2.9 Subd. 7. License. "License" is a nontransferable authorization to perform an
2.10occupation for compensation based on meeting:
2.11(1) predetermined qualifications established by the legislature, such as satisfactory
2.12completion of an approved education program and acceptable performance on a qualifying
2.13examination or series of examinations; and
2.14(2) continuing education qualifications.
2.15It is illegal for nonlicensed persons to perform the occupation for compensation. A license
2.16is 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 a person to work in a
2.19lawful occupation.
2.20 Subd. 9. Registration. "Registration" means a requirement established by the
2.21legislature in which a person (1) submits notification to a state agency, and (2) may use
2.22"registered" as a designated title. Notification may include the person's name and address,
2.23the person's agent for service of process, the location of the activity to be performed, and a
2.24description of the service the person provides. Registration does not include education
2.25or experience requirements. Registration may include a requirement to maintain a
2.26bond. Nonregistered persons may not perform the occupation for compensation or use
2.27"registered" as a designated title. For purposes of this chapter, the term registration is not
2.28intended to be synonymous with "licensing" or "license."
2.29 Subd. 10. Substantial burden. "Substantial burden" means a legal or other
2.30regulatory obstacle that imposes significant difficulty or cost on a person seeking to enter
2.31into or continue in a lawful occupation. A substantial burden is a burden that is more
2.32than incidental.
2.33 Sec. 2. [213.02] RIGHT TO ENGAGE IN A LAWFUL OCCUPATION.
2.34 Subdivision 1. Statutory right. A person has a right to engage in a lawful
2.35occupation free from any substantial burden, unless the government demonstrates (1)
3.1it has a compelling interest in protecting against present and recognizable harm to the
3.2public health or safety, and (2) the occupational regulation is the least restrictive means of
3.3furthering that compelling interest.
3.4 Subd. 2. Defense and relief. (a) A person may assert as a defense the right to
3.5engage in a lawful occupation in any judicial or administrative proceeding to enforce an
3.6occupational regulation that violates subdivision 1.
3.7(b) A person may bring an action for declaratory judgment or injunctive or other
3.8equitable relief for a violation of subdivision 1.
3.9(c) A person may assert as a defense or bring an action against the enforceability of
3.10an occupational regulation, pursuant to paragraphs (a) and (b), which is:
3.11(1) in law at the effective date of this act; or
3.12(2) enacted, adopted, or amended after the effective date of this act and does not
3.13include in statute an explicit exemption from this chapter.
3.14(d) A person who asserts a defense or brings an action under this section has the
3.15initial burden of proof that an occupational regulation substantially burdens the person's
3.16right to engage in a lawful occupation.
3.17(e) If the person meets the burden of proof under paragraph (d), the government
3.18must demonstrate by clear and convincing evidence that the government has a compelling
3.19interest in protecting against present and recognizable harm to the public health or safety
3.20and the occupational regulation is the least restrictive means for furthering that compelling
3.21interest.
3.22 Subd. 3. Judicial determination. A court shall liberally construe this chapter to
3.23protect the right established in subdivision 1. A court shall make its own findings of fact
3.24and conclusions of law. It shall not grant any presumption to legislative or administrative
3.25determinations of harm to the public health or safety, or that the regulation is the least
3.26restrictive means of furthering a compelling governmental interest.
3.27 Sec. 3. [213.03] EXEMPTIONS.
3.28This chapter does not apply to occupational regulation of a person who is (1)
3.29an employee of the government, or (2) a fiduciary whose fiduciary status is recognized
3.30in statute.
3.31 Sec. 4. [213.04] NO CHANGE TO COLLECTIVE BARGAINING RIGHTS.
3.32The right established by this chapter does not change the right to collective
3.33bargaining as established in section 179.10.
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 a person who (1) has met certain
1.14predetermined qualifications and (2) may use "certified" as a designated title. Noncertified
1.15persons may also perform the occupation for compensation, but the use of the title
1.16"certified" by a noncertified person is illegal. For the purposes of this chapter, the term
1.17certification 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 person selling them is subject to an occupational
1.25regulation.
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;
2.6(4) registration;
2.7(5) certification; or
2.8(6) licensing.
2.9 Subd. 7. License. "License" is a nontransferable authorization to perform an
2.10occupation for compensation based on meeting:
2.11(1) predetermined qualifications established by the legislature, such as satisfactory
2.12completion of an approved education program and acceptable performance on a qualifying
2.13examination or series of examinations; and
2.14(2) continuing education qualifications.
2.15It is illegal for nonlicensed persons to perform the occupation for compensation. A license
2.16is 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 a person to work in a
2.19lawful occupation.
2.20 Subd. 9. Registration. "Registration" means a requirement established by the
2.21legislature in which a person (1) submits notification to a state agency, and (2) may use
2.22"registered" as a designated title. Notification may include the person's name and address,
2.23the person's agent for service of process, the location of the activity to be performed, and a
2.24description of the service the person provides. Registration does not include education
2.25or experience requirements. Registration may include a requirement to maintain a
2.26bond. Nonregistered persons may not perform the occupation for compensation or use
2.27"registered" as a designated title. For purposes of this chapter, the term registration is not
2.28intended to be synonymous with "licensing" or "license."
2.29 Subd. 10. Substantial burden. "Substantial burden" means a legal or other
2.30regulatory obstacle that imposes significant difficulty or cost on a person seeking to enter
2.31into or continue in a lawful occupation. A substantial burden is a burden that is more
2.32than incidental.
2.33 Sec. 2. [213.02] RIGHT TO ENGAGE IN A LAWFUL OCCUPATION.
2.34 Subdivision 1. Statutory right. A person has a right to engage in a lawful
2.35occupation free from any substantial burden, unless the government demonstrates (1)
3.1it has a compelling interest in protecting against present and recognizable harm to the
3.2public health or safety, and (2) the occupational regulation is the least restrictive means of
3.3furthering that compelling interest.
3.4 Subd. 2. Defense and relief. (a) A person may assert as a defense the right to
3.5engage in a lawful occupation in any judicial or administrative proceeding to enforce an
3.6occupational regulation that violates subdivision 1.
3.7(b) A person may bring an action for declaratory judgment or injunctive or other
3.8equitable relief for a violation of subdivision 1.
3.9(c) A person may assert as a defense or bring an action against the enforceability of
3.10an occupational regulation, pursuant to paragraphs (a) and (b), which is:
3.11(1) in law at the effective date of this act; or
3.12(2) enacted, adopted, or amended after the effective date of this act and does not
3.13include in statute an explicit exemption from this chapter.
3.14(d) A person who asserts a defense or brings an action under this section has the
3.15initial burden of proof that an occupational regulation substantially burdens the person's
3.16right to engage in a lawful occupation.
3.17(e) If the person meets the burden of proof under paragraph (d), the government
3.18must demonstrate by clear and convincing evidence that the government has a compelling
3.19interest in protecting against present and recognizable harm to the public health or safety
3.20and the occupational regulation is the least restrictive means for furthering that compelling
3.21interest.
3.22 Subd. 3. Judicial determination. A court shall liberally construe this chapter to
3.23protect the right established in subdivision 1. A court shall make its own findings of fact
3.24and conclusions of law. It shall not grant any presumption to legislative or administrative
3.25determinations of harm to the public health or safety, or that the regulation is the least
3.26restrictive means of furthering a compelling governmental interest.
3.27 Sec. 3. [213.03] EXEMPTIONS.
3.28This chapter does not apply to occupational regulation of a person who is (1)
3.29an employee of the government, or (2) a fiduciary whose fiduciary status is recognized
3.30in statute.
3.31 Sec. 4. [213.04] NO CHANGE TO COLLECTIVE BARGAINING RIGHTS.
3.32The right established by this chapter does not change the right to collective
3.33bargaining as established in section 179.10.
