SF 1629

1st Engrossment - 87th Legislature (2011 - 2012) Posted on 03/14/2012 08:58am

A bill for an act
relating to occupational regulation; ensuring an individual may pursue a lawful
occupation free from unnecessary regulations; stating a right to engage in
an occupation to create a greater number of jobs; specifying conditions for
government regulation of occupations to protect against misuse of occupational
regulations to reduce competition and increase prices to consumers; proposing
coding for new law as Minnesota Statutes, chapter 213.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [213.01] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For the purposes of this chapter, the words defined in
this section have the meaning given.
new text end

new text begin Subd. 2. new text end

new text begin Certification. new text end

new text begin "Certification" is a voluntary program for which the
legislature establishes the criteria to grant recognition to an individual who (1) has met
certain predetermined qualifications and (2) may use "certified" as a designated title.
Noncertified individuals may also perform the occupation for compensation, but the use of
the title "certified" by a noncertified individual is illegal. For the purposes of this chapter,
the term certification is not intended to be synonymous with "licensing" or "license."
new text end

new text begin Subd. 3. new text end

new text begin Court. new text end

new text begin "Court" means any court, administrative tribunal, or other
government agency acting in a judicial or quasi-judicial capacity.
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new text begin Subd. 4. new text end

new text begin Government. new text end

new text begin "Government" means the government of this state or any of
its political subdivisions.
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new text begin Subd. 5. new text end

new text begin Lawful occupation. new text end

new text begin "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.
new text end

new text begin Subd. 6. new text end

new text begin Least restrictive occupational regulation. new text end

new text begin "Least restrictive occupational
regulation" means, from least to most restrictive:
new text end

new text begin (1) a provision for private civil action to remedy consumer harm;
new text end

new text begin (2) inspection;
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new text begin (3) bonding or requirement to carry insurance;
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new text begin (4) registration;
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new text begin (5) certification; or
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new text begin (6) licensing.
new text end

new text begin Subd. 7. new text end

new text begin License. new text end

new text begin "License" is a nontransferable authorization for an individual to
perform an occupation for compensation based on meeting:
new text end

new text begin (1) predetermined qualifications established by a legislative body, such as
satisfactory completion of an approved education program and acceptable performance on
a qualifying examination or series of examinations; and
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new text begin (2) continuing education qualifications.
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new text begin It is illegal for nonlicensed individuals to perform the occupation for compensation. A
license is the most restrictive form of occupational regulation.
new text end

new text begin Subd. 8. new text end

new text begin Occupational regulation. new text end

new text begin "Occupational regulation" means a statute, rule,
practice, policy, or other government-prescribed requirement for an individual to work
in a lawful occupation. Occupational regulation excludes regulations not related to an
individual's qualifications to perform an occupation for compensation, such as a business
license, permit, franchise, building permit, or land use regulation.
new text end

new text begin Subd. 9. new text end

new text begin Registration. new text end

new text begin "Registration" means a requirement established by a
legislative body in which an individual (1) submits notification to a state agency or
political subdivision, and (2) may use "registered" as a designated title. Notification
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 education or experience requirements.
Registration may include a requirement to maintain a bond or insurance. Nonregistered
individuals may not perform the occupation for compensation or use "registered" as a
designated title. For purposes of this chapter, the term registration is not intended to be
synonymous with "licensing" or "license."
new text end

new text begin Subd. 10. new text end

new text begin Substantial burden. new text end

new text begin "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.
new text end

Sec. 2.

new text begin [213.02] RIGHT TO ENGAGE IN A LAWFUL OCCUPATION.
new text end

new text begin Subdivision 1. new text end

new text begin Statutory right. new text end

new text begin An individual has a right to engage in a lawful
occupation free from any substantial burden, unless the government demonstrates (1)
it has a compelling interest in protecting against present and recognizable harm to the
public health or safety, and (2) the occupational regulation is the least restrictive means of
furthering that compelling interest.
new text end

new text begin Subd. 2. new text end

new text begin Defense and relief. new text end

new text begin (a) An individual may assert as a defense the right to
engage in a lawful occupation in any judicial or administrative proceeding to enforce an
occupational regulation that violates subdivision 1.
new text end

new text begin (b) An individual may bring an action for declaratory judgment or injunctive or other
equitable relief for a violation of subdivision 1.
new text end

new text begin (c) An individual may assert as a defense or bring an action against the enforceability
of an occupational regulation, pursuant to paragraphs (a) and (b), which is:
new text end

new text begin (1) in law at the effective date of this act; or
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new text begin (2) enacted, adopted, or amended after the effective date of this act and does not
include in statute an explicit exemption from this chapter.
new text end

new text begin (d) 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.
new text end

new text begin (e) If the individual meets the burden of proof under paragraph (d), 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 for furthering that compelling
interest.
new text end

new text begin Subd. 3. new text end

new text begin Judicial determination. new text end

new text begin A court shall liberally construe this chapter to
protect the right established in subdivision 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.
new text end

Sec. 3.

new text begin [213.03] EXEMPTIONS.
new text end

new text begin This chapter does not apply to occupational regulation of an individual who is (1)
an employee of the government, (2) a fiduciary whose fiduciary status is recognized in
statute, or (3) required by federal law to be subject to occupational regulation in order to
engage in a lawful occupation.
new text end

Sec. 4.

new text begin [213.04] NO CHANGE TO COLLECTIVE BARGAINING RIGHTS.
new text end

new text begin The right established by this chapter does not change the right to collective
bargaining as established in sections 179.10 and 179A.06.
new text end