SF 784

as introduced - 89th Legislature (2015 - 2016) Posted on 02/13/2015 09:09am

A bill for an act
relating to occupations; ensuring an individual may pursue a lawful occupation
free from unnecessary occupational 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 in Minnesota Statutes, chapter 326.

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

Section 1.

new text begin [326.522] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

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

new text begin Subd. 2. new text end

new text begin Business license. new text end

new text begin "Business license" means a permit, registration,
certification, franchise, or other approval required by law for a sole proprietorship,
partnership, or corporation to do business.
new text end

new text begin Subd. 3. new text end

new text begin Certification. new text end

new text begin "Certification" is a voluntary program in which a private
organization or the government grants nontransferable recognition to an individual who
meets personal qualifications established by a legislative body. Upon approval, the
individual my use "certified" as a designated title. A noncertified individual may also
perform the lawful occupation for compensation but may not use the title "certified."
Certification is not intended to be synonymous with an "occupational license" in this
chapter.
new text end

new text begin Subd. 4. 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 quasijudicial capacity.
new text end

new text begin Subd. 5. 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.
new text end

new text begin Subd. 6. 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. 7. new text end

new text begin Least restrictive means of furthering an important governmental
interest. new text end

new text begin "Least restrictive means of furthering an important governmental interest"
means, from least to most restrictive:
new text end

new text begin (1) market competition;
new text end

new text begin (2) private certification;
new text end

new text begin (3) a provision for private civil action to remedy consumer harm;
new text end

new text begin (4) a deceptive trade practice act;
new text end

new text begin (5) a regulation of the underlying conduct;
new text end

new text begin (6) inspection;
new text end

new text begin (7) bonding or insurance;
new text end

new text begin (8) registration;
new text end

new text begin (9) government certification; or
new text end

new text begin (10) occupational license.
new text end

new text begin Subd. 8. new text end

new text begin Occupational license. new text end

new text begin "Occupational license" is a nontransferable
authorization in law for an individual to perform a lawful occupation for compensation
based on meeting personal qualifications established by a legislative body. 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.
new text end

new text begin Subd. 9. new text end

new text begin Occupational regulation. new text end

new text begin "Occupational regulation" means a statute,
ordinance, rule, practice, policy, or other law requiring an individual to possess certain
personal qualifications to work in a lawful occupation. It excludes a business license,
facility license, building permit, or zoning and land use regulation except to the extent
those laws regulate an individual's personal qualifications to perform a lawful occupation.
new text end

new text begin Subd. 10. new text end

new text begin Personal qualifications. new text end

new text begin "Personal qualifications" means criteria related
to an individual's personal background including completion of an approved educational
program, satisfactory performance on an examination, work experience, moral standing,
criminal history, and completion of continuing education.
new text end

new text begin Subd. 11. 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 gives 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, and a description of the service the individual
provides. Registration does not include personal qualifications but may require a bond
or insurance. Upon approval, the individual may use "registered" as a designated title.
A nonregistered individual may not perform the occupation for compensation or use
"registered" as a designated title. Registration is not transferable. It is not intended to be
synonymous with an occupational license under sections 326.522 to 326.5221.
new text end

new text begin Subd. 12. 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 [326.5221] 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 in the form of an occupational regulation
unless the government demonstrates: (1) it has an important 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 an important governmental 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 brought by the
government 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, as it relates to the individual, for a violation of subdivision 1
by the government.
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 chapter; or
new text end

new text begin (2) enacted, adopted, or amended after the effective date of this chapter and does not
include an explicit statutory 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 an important
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 important
governmental 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 an important governmental interest.
new text end

new text begin Subd. 4. new text end

new text begin Limitation. new text end

new text begin Nothing in this section shall be construed to create a right of
action against a private party or to require a private party to do business with an individual
who is not licensed, certified, or registered with the government.
new text end

new text begin Subd. 5. new text end

new text begin Federal use of state occupational regulations. new text end

new text begin Nothing in this section
shall be construed to create a right of action against the federal government for its use of a
state occupational regulation in federal law.
new text end

new text begin Subd. 6. new text end

new text begin Collective bargaining rights. new text end

new text begin The right established in subdivision 1 is
subordinate to the right to collective bargaining established in sections 179.10 and 179A.06.
new text end

new text begin Subd. 7. new text end

new text begin Exemption. new text end

new text begin Sections 326.522 to 326.5221 do not apply to an occupational
regulation of an individual who is a government employee or a fiduciary whose fiduciary
status is established in state law.
new text end

Sec. 3. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 and 2 are effective August 1, 2016.
new text end