HF 4 (LSB 1415YH (2) 87)

HOUSE FILE 4

BY  PETTENGILL

A BILL FOR

An Act to establish a right to engage in a lawful occupation free from substantial burdens imposed by occupational regulations unless certain conditions are met and providing remedies.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  27.1  Purpose.
   The purposes of this chapter are:
   1.  To ensure that an individual may pursue a lawful occupation free from unnecessary occupational regulations.
   2.  To protect against the misuse of occupational regulations to reduce competition and increase prices to consumers.
    Sec. 2.  NEW SECTION.  27.2  Definitions.
   For purposes of this chapter, unless the context otherwise requires:
   1.  “Business license” means a permit, registration, certification, franchise, or other approval required by law for a person to do business in this state.
   2.  “Certification” means a voluntary program in which the government grants nontransferable recognition to an individual who meets personal qualifications established by law, which permits the individual to use “certified” as a designated title, but which is not required for an individual to engage in a lawful occupation for compensation. “Certification” by the government does not include certification by a private certification organization.
   3.  “Government” means any agency or other entity of government of this state or of any of its political subdivisions.
   4.  “Lawful occupation” means a course of conduct, pursuit, or profession that includes the sale of goods or services that can be legally sold in this state, irrespective of whether the individual selling them is subject to an occupational regulation.
   5.  “Least restrictive means of furthering a compelling governmental interest”, from least to most restrictive, means the following:
   a.  Absence of any occupational regulations.
   b.  A provision for private civil action in small claims or district court to remedy consumer harm.
   c.  Inspection requirements.
   d.  Bonding or insurance requirements.
   e.  Registration requirements.
   f.  Certification requirements.
   g.  Occupational license requirements.
   6.  “Occupational license” means a nontransferable authorization in law for an individual to engage in a lawful occupation for compensation based on meeting personal qualifications established by law, without which it is illegal for an individual to engage in the occupation for compensation. “Occupational license” does not include registration or certification.
   7.  “Occupational regulation” means a statute, ordinance, rule, practice, policy, or other requirement in law that an individual possess certain personal qualifications in order to engage in a lawful occupation. “Occupational regulation” excludes a business license and zoning and land use regulations except to the extent such requirements regulate an individual’s personal qualifications to perform a lawful occupation.
   8.  “Personal qualifications” means criteria established by law related to an individual’s personal background including but not limited to completion of an approved educational program, satisfactory performance on an examination, work experience, criminal history, moral standing, and completion of continuing education.
   9.  “Registration” means a requirement established by law in which an individual must give notice to the government in order to engage in a lawful occupation and to use “registered” as a designated title. Such notice may include but is not limited to 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” may require a bond or insurance. “Registration” by the government does not include certification by a private registration organization. A “registration” is nontransferable.
   10.  “Substantial burden” means a requirement in an occupational regulation that imposes significant difficulty or cost on an individual seeking to enter into or continue in a lawful occupation. “Substantial burden” means a burden that is more than incidental.
    Sec. 3.  NEW SECTION.  27.3  Right to engage in a lawful occupation —— remedies.
   1.  An individual has a right to engage in a lawful occupation free from any substantial burden imposed by an occupational regulation unless the government demonstrates all of the following with respect to such occupational regulation:
   a.  The government has a compelling interest in protecting against present and recognizable harm to the public health or safety.
   b.  The occupational regulation is the least restrictive means of furthering that compelling governmental interest.
   2.  a.  An individual may assert as a defense in any judicial or administrative proceeding brought by the government to enforce an occupational regulation that such occupational regulation violates the individual’s right established in subsection 1.
   b.  An individual may bring an action for declaratory judgment or injunctive or other equitable relief against the government for an occupational regulation that violates the individual’s right established in subsection 1. An individual need not exhaust administrative remedies to bring such an action.
   3.  An individual who asserts a defense or brings an action under subsection 2 has the initial burden of proof that an occupational regulation substantially burdens the individual’s right to engage in a lawful occupation.
   4.  If the individual meets the burden of proof under subsection 3, 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 that the occupational regulation is the least restrictive means for furthering that compelling governmental interest.
   5.  The presiding officer or court in a proceeding in which an individual asserts a defense or brings an action under subsection 2 shall make its own findings of fact and conclusions of law with no deference given to any determination by the government or in statute or rule that an occupational regulation serves a compelling governmental interest in protecting against present and recognizable harm to the public health or safety or that the occupational regulation is the least restrictive means of furthering a compelling governmental interest.
   6.  An employer may assert a defense or bring an action under subsection 2 on behalf of an employee or prospective employee.
    Sec. 4.  NEW SECTION.  27.4  Private registration and certification permitted.
   An individual may use the words “registered” or “certified” as a designated title or as part of a designated title if the individual meets the requirements for registration or certification established by a private registration or certification organization. The individual shall not portray such registration or certification as granted by the government.
    Sec. 5.  NEW SECTION.  27.5  Construction.
   1.  This chapter shall be liberally construed to protect the right established in section 27.3, subsection 1.
   2.  This chapter shall not 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.
   3.  This chapter shall not be construed to create a right of action against the federal government for its use of a state occupational regulation in federal law.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides that an individual has a right to engage in a lawful occupation free from any substantial burden imposed by an occupational regulation unless the government demonstrates with respect to such occupational regulation 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 of furthering that compelling governmental interest.
   An individual may assert as a defense in any judicial or administrative proceeding brought by the government to enforce an occupational regulation that such occupational regulation violates this right. An individual may also bring an action for declaratory judgment or injunctive or other equitable relief against the government for an occupational regulation that violates this right. An individual need not exhaust administrative remedies to bring such an action.
   An individual who asserts such a defense or brings such an action has the initial burden of proof that an occupational regulation substantially burdens the individual’s right to engage in a lawful occupation. If the individual meets the burden of proof, 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 that the occupational regulation is the least restrictive means for furthering that compelling governmental interest. The presiding officer or court in such a proceeding shall make its own findings of fact and conclusions of law with no deference given to any determination by the government or in statute or rule that an occupational regulation serves a compelling governmental interest in protecting against present and recognizable harm to the public health or safety or that the occupational regulation is the least restrictive means of furthering a compelling governmental interest. An employer may assert a defense or bring an action on behalf of an employee or prospective employee.
   The bill defines “occupational regulation” as a statute, ordinance, rule, practice, policy, or other requirement in law that an individual possess certain personal qualifications in order to engage in a lawful occupation. “Occupational regulation” excludes a business license and zoning and land use regulations except to the extent such requirements regulate an individual’s personal qualifications to perform a lawful occupation. The bill defines “substantial burden” as a requirement in an occupational regulation that imposes significant difficulty or cost on an individual seeking to enter into or continue in a lawful occupation. “Substantial burden” means a burden that is more than incidental. The bill defines “government” as any agency or other entity of government of this state or of any of its political subdivisions.
   The bill defines “least restrictive means of furthering a compelling governmental interest” as, from least to most restrictive, absence of any occupational regulations, a provision for private civil action in small claims or district court to remedy consumer harm, inspection requirements, bonding or insurance requirements, registration requirements, certification requirements, and occupational license requirements.
   The bill permits an individual to use the words “registered” or “certified” as a designated title or as part of a designated title if the individual meets the requirements for registration or certification established by a private registration or certification organization. An individual cannot portray such registration or certification as granted by the government.
   The bill is to be liberally construed to protect the right established by the bill. The bill is not to 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. The bill is not to be construed to create a right of action against the federal government for its use of a state occupational regulation in federal law.