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:
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For the purposes of this chapter, the terms defined in this
section have the meanings given.
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"Business license" means a permit, registration,
certification, franchise, or other approval required by law for a sole proprietorship,
partnership, or corporation to do business.
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"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.
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"Court" means any court, administrative tribunal, or other
government agency acting in a judicial or quasijudicial capacity.
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"Government" means the government of this state or any of
its political subdivisions.
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"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.
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"Least restrictive means of furthering an important governmental interest"
means, from least to most restrictive:
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(1) market competition;
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(2) private certification;
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(3) a provision for private civil action to remedy consumer harm;
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(4) a deceptive trade practice act;
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(5) a regulation of the underlying conduct;
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(6) inspection;
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(7) bonding or insurance;
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(8) registration;
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(9) government certification; or
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(10) occupational license.
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"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.
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"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.
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"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.
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"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.
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"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.
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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.
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(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.
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(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.
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(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:
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(1) in law at the effective date of this chapter; or
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(2) enacted, adopted, or amended after the effective date of this chapter and does not
include an explicit statutory exemption from this chapter.
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(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.
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(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.
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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.
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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.
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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.
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The right established in subdivision 1 is
subordinate to the right to collective bargaining established in sections 179.10 and 179A.06.
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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.
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Sections 1 and 2 are effective August 1, 2016.
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