HF 779

as introduced - 87th Legislature (2011 - 2012) Posted on 03/03/2011 10:37am

A bill for an act
relating to occupational licensure; stating a right to engage in an occupation;
specifying conditions for government regulation of occupations; amending
Minnesota Statutes 2010, section 214.01; 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] RIGHT TO ENGAGE IN AN OCCUPATION.
new text end

new text begin Subdivision 1. new text end

new text begin Definition. new text end

new text begin In this chapter, "government" means the government
of this state or any political subdivision.
new text end

new text begin Subd. 2. new text end

new text begin Right to engage in an occupation. new text end

new text begin (a) An individual may engage in a
legal occupation without being subject to statutes, administrative rules, and governmental
policies that regulate the occupation that are arbitrary, unnecessary, or substantially
burdensome.
new text end

new text begin (b) No government shall require an occupational license, certification, registration,
or other occupational regulation that imposes a substantial burden on the person unless the
government demonstrates that it has a compelling interest in protecting against present and
recognizable harm to the public health and safety, and the regulation is the least restrictive
means to furthering that compelling government interest.
new text end

new text begin Subd. 3. new text end

new text begin Defense and relief. new text end

new text begin (a) An individual may assert as a defense in any
administrative or judicial proceeding to enforce a statute or administrative rule that the
standard required by subdivision 2, paragraph (b), has not been met.
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 2.
new text end

new text begin (c) An individual who brings an action or asserts a defense under this section has
the initial burden of proof that the statute or administrative rule or a government practice
related to the statute or rule substantially burdens the individual's right to engage in an
occupation not prohibited by law.
new text end

new text begin (d) If the individual meets the burden of proof under paragraph (c), the government
must then demonstrate by clear and convincing evidence that the government has a
compelling interest in protecting against present and recognizable harm to the public
health and safety, and the regulation is the least restrictive means for furthering that
compelling governmental interest.
new text end

new text begin Subd. 4. new text end

new text begin No change in labor law. new text end

new text begin The right established by this section does not
change the right to collective bargaining.
new text end

new text begin Subd. 5. new text end

new text begin Judicial determination. new text end

new text begin A district court shall liberally construe this
statute to protect the right established in subdivision 2, paragraph (a). A district court
shall make its own findings of fact and conclusions of law. It shall not rely on legislative
findings of fact not presented in admissible form to the district court. It shall not grant any
presumption to legislative determinations of harm to the public health and safety or that
the regulation is the least restrictive means to further a compelling government interest.
new text end

Sec. 2.

Minnesota Statutes 2010, section 214.01, is amended to read:

214.01 DEFINITIONS.

Subdivision 1.

Application.

The words defined in this section for purposes of this
chapter have the meanings given them unless the context clearly requires otherwise.

Subd. 1a.

Council of Health Boards.

"Council of Health Boards" means a
collaborative body established by the health-related licensing boards.

new text begin Subd. 1b. new text end

new text begin Certification. new text end

new text begin "Certification" means a voluntary process by which the
legislature establishes the criteria to grant recognition to a person who (1) has met certain
predetermined qualifications and (2) may use "certified" as a designated title. Use of the
title certified by a person who is not certified is unlawful. "Certification" is the middle
form of occupational regulation. Noncertified persons may also perform the occupation
for compensation.
new text end

Subd. 2.

Health-related licensing board.

"Health-related licensing board" means
the Board of Examiners of Nursing Home Administrators established pursuant to section
144A.19, the Office of Unlicensed Complementary and Alternative Health Care Practice
established pursuant to section 146A.02, the Board of Medical Practice created pursuant
to section 147.01, the Board of Nursing created pursuant to section 148.181, the Board of
Chiropractic Examiners established pursuant to section 148.02, the Board of Optometry
established pursuant to section 148.52, the Board of Physical Therapy established pursuant
to section 148.67, the Board of Psychology established pursuant to section 148.90, the
Board of Social Work pursuant to section 148D.025, the Board of Marriage and Family
Therapy pursuant to section 148B.30, the Office of Mental Health Practice established
pursuant to section 148B.61, the Board of Behavioral Health and Therapy established by
section 148B.51, the Board of Dietetics and Nutrition Practice established under section
148.622, the Board of Dentistry established pursuant to section 150A.02, the Board
of Pharmacy established pursuant to section 151.02, the Board of Podiatric Medicine
established pursuant to section 153.02, and the Board of Veterinary Medicine established
pursuant to section 156.01.

new text begin Subd. 2a. new text end

new text begin License. new text end

new text begin "License" means a nontransferable authorization to perform an
occupation for compensation based on meeting predetermined qualifications established
by the legislature such as (1) satisfactory completion of an approved education or training
program and (2) acceptable performance on a qualifying examination or series of
examinations. "Licensing" or "licensure" means authorization to engage in an occupation
for compensation which would otherwise be unlawful in the absence of such authorization.
A license is the most restrictive form of occupational regulation.
new text end

Subd. 3.

Non-health-related licensing board.

"Non-health-related licensing
board" means the Board of Teaching established pursuant to section 122A.07, the Board
of Barber Examiners established pursuant to section 154.001, the Board of Cosmetologist
Examiners established pursuant to section 155A.20, the Board of Assessors established
pursuant to section 270.41, the Board of Architecture, Engineering, Land Surveying,
Landscape Architecture, Geoscience, and Interior Design established pursuant to section
326.04, the Private Detective and Protective Agent Licensing Board established pursuant
to section 326.33, the Board of Accountancy established pursuant to section 326A.02, and
the Peace Officer Standards and Training Board established pursuant to section 626.841.

new text begin Subd. 4. new text end

new text begin Occupational regulations. new text end

new text begin "Occupational regulations" means registration,
certification and licensing, statutes, administrative rules, and practices.
new text end

new text begin Subd. 5. new text end

new text begin Registration. new text end

new text begin "Registration" means a voluntary process established by the
legislature in which a person (1) may submit notification to a state agency and (2) may use
"registered" as a designated title. Notification to a state agency may include the person's
name and address, the person's agent for service of process, the location of the activity
to be performed, and a description of the service the person provides. Use of the title
"registered" by a person who is not registered is unlawful. The term does not include a
requirement to post a bond or other security. "Registration" is the least restrictive form
of occupational regulation. Nonregistered persons may also perform the occupation for
compensation.
new text end