S.F. 2332 Section 1. NEW SECTION . 27.1 Legislative findings, 1 declarations, and recognition. 2 The general assembly finds and declares that individuals 3 possess the fundamental right to engage in the occupation of 4 their choice free from unreasonable government regulation. 5 Barriers to entry, like occupational licenses, make it 6 difficult for individuals to provide for themselves and their 7 families, to innovate, and to create employment opportunities. 8 To encourage the creation of new jobs and support economic 9 development, this chapter recognizes this fundamental right 10 to engage in an occupation, limits occupational regulations 11 to the protection of public health and safety, and provides a 12 mechanism by which unreasonable occupational regulations may 13 be challenged. 14 Sec. 2. NEW SECTION . 27.2 Definitions. 15 For purposes of this chapter, unless the context otherwise 16 requires: 17 1. “Certification” means a voluntary program in which the 18 government grants nontransferable recognition to an individual 19 who meets certain personal qualifications, which permits the 20 individual to use “certified” as a designated title, but 21 which is not required for an individual to engage in a lawful 22 occupation for compensation. “Certification” by the government 23 does not include certification by a private certification 24 organization. 25 2. “Government” means any agency or other entity 26 of government of this state or of any of its political 27 subdivisions. 28 3. “Lawful occupation” means a course of conduct, pursuit, 29 or profession that includes the sale of goods or services that 30 can be legally sold in this state, irrespective of whether 31 the individual selling them is subject to an occupational 32 regulation. 33 4. “Least restrictive means of furthering a compelling 34 governmental interest” , from least to most restrictive, means 35 -1- LSB 5747XS (5) 85 je/rj 1/ 7

S.F. 2332 the following: 1 (1) Absence of any occupational regulations. 2 (2) A provision for private civil action in small claims or 3 district court to remedy consumer harm. 4 (3) Inspection requirements. 5 (4) Bonding or insurance requirements. 6 (5) Registration requirements. 7 (6) Certification requirements. 8 (7) Occupational license requirements. 9 5. “Occupational license” means a nontransferable 10 authorization in law for an individual to engage in a lawful 11 occupation for compensation based on meeting certain personal 12 qualifications, without which it is illegal for an individual 13 to engage in the occupation for compensation. “Occupational 14 license” does not include registration or certification. 15 6. “Occupational regulation” means a statute, ordinance, 16 rule, practice, policy, or other requirement in law that an 17 individual possess certain personal qualifications in order to 18 engage in a lawful occupation. 19 7. “Personal qualifications” means criteria established by 20 law related to an individual’s personal background including 21 but not limited to completion of an approved educational 22 program, satisfactory performance on an examination, work 23 experience, criminal history, moral standing, and completion 24 of continuing education. 25 8. “Registration” means a requirement established by law 26 in which an individual must give notice to the government in 27 order to engage in a lawful occupation and to use “registered” 28 as a designated title. Such notice may include but is not 29 limited to the individual’s name and address, the individual’s 30 agent for service of process, the location of the activity to 31 be performed, and a description of the service the individual 32 provides. “Registration” may require a bond or insurance. 33 “Registration” by the government does not include certification 34 by a private registration organization. A “registration” is 35 -2- LSB 5747XS (5) 85 je/rj 2/ 7

S.F. 2332 nontransferable. 1 9. “Substantial burden” means a requirement in an 2 occupational regulation that imposes significant difficulty or 3 cost on an individual seeking to enter into or continue in a 4 lawful occupation. “Substantial burden” means a burden that is 5 more than incidental. 6 Sec. 3. NEW SECTION . 27.3 Right to engage in a lawful 7 occupation —— remedies. 8 1. An individual has a right to engage in a lawful 9 occupation free from any substantial burden imposed by an 10 occupational regulation unless the government demonstrates all 11 of the following with respect to such occupational regulation: 12 a. The government has a compelling interest in protecting 13 against present and recognizable harm to the public health or 14 safety. 15 b. The occupational regulation is the least restrictive 16 means of furthering that compelling governmental interest. 17 2. a. An individual may assert as a defense in any judicial 18 or administrative proceeding brought by the government to 19 enforce an occupational regulation that such occupational 20 regulation violates the individual’s right established in 21 subsection 1. 22 b. An individual may bring an action for declaratory 23 judgment or injunctive or other equitable relief against the 24 government for an occupational regulation that violates the 25 individual’s right established in subsection 1. An individual 26 need not exhaust administrative remedies to bring such an 27 action. 28 3. An individual who asserts a defense or brings an action 29 under subsection 2 has the initial burden of proof that an 30 occupational regulation substantially burdens the individual’s 31 right to engage in a lawful occupation. 32 4. If the individual meets the burden of proof under 33 subsection 3, the government must demonstrate by clear and 34 convincing evidence that the government has a compelling 35 -3- LSB 5747XS (5) 85 je/rj 3/ 7

S.F. 2332 interest in protecting against present and recognizable harm 1 to the public health or safety, and that the occupational 2 regulation is the least restrictive means for furthering that 3 compelling governmental interest. 4 5. The presiding officer or court in a proceeding in 5 which an individual asserts a defense or brings an action 6 under subsection 2 shall make its own findings of fact and 7 conclusions of law with no deference given to any determination 8 by the government or in statute or rule that an occupational 9 regulation serves a compelling governmental interest in 10 protecting against present and recognizable harm to the public 11 health or safety or that the occupational regulation is the 12 least restrictive means of furthering a compelling governmental 13 interest. 14 6. An employer may assert a defense or bring an action under 15 subsection 2 on behalf of an employee or prospective employee. 16 Sec. 4. NEW SECTION . 27.4 Private registration and 17 certification permitted. 18 An individual may use the words “registered” or “certified” 19 as a designated title or as part of a designated title if 20 the individual meets the requirements for registration 21 or certification established by a private registration 22 or certification organization. The individual shall not 23 portray such registration or certification as granted by the 24 government. 25 Sec. 5. NEW SECTION . 27.5 Construction. 26 1. This chapter shall be liberally construed to protect the 27 right established in section 27.3, subsection 1. 28 2. This chapter shall not be construed to create a right of 29 action against a private party or to require a private party to 30 do business with an individual who is not licensed, certified, 31 or registered with the government. 32 3. This chapter shall not be construed to create a right of 33 action against the federal government for its use of a state 34 occupational regulation in federal law. 35 -4- LSB 5747XS (5) 85 je/rj 4/ 7

S.F. 2332 EXPLANATION 1 The inclusion of this explanation does not constitute agreement with 2 the explanation’s substance by the members of the general assembly. 3 This bill provides that an individual has a right to engage 4 in a lawful occupation free from any substantial burden 5 imposed by an occupational regulation unless the government 6 demonstrates with respect to such occupational regulation that 7 the government has a compelling interest in protecting against 8 present and recognizable harm to the public health or safety 9 and the occupational regulation is the least restrictive means 10 of furthering that compelling governmental interest. 11 An individual may assert as a defense in any judicial or 12 administrative proceeding brought by the government to enforce 13 an occupational regulation that such occupational regulation 14 violates this right. An individual may also bring an action 15 for declaratory judgment or injunctive or other equitable 16 relief against the government for an occupational regulation 17 that violates this right. An individual need not exhaust 18 administrative remedies to bring such an action. 19 An individual who asserts such a defense or brings such an 20 action has the initial burden of proof that an occupational 21 regulation substantially burdens the individual’s right to 22 engage in a lawful occupation. If the individual meets the 23 burden of proof, the government must demonstrate by clear 24 and convincing evidence that the government has a compelling 25 interest in protecting against present and recognizable harm 26 to the public health or safety, and that the occupational 27 regulation is the least restrictive means for furthering that 28 compelling governmental interest. The presiding officer or 29 court in such a proceeding shall make its own findings of 30 fact and conclusions of law with no deference given to any 31 determination by the government or in statute or rule that 32 an occupational regulation serves a compelling governmental 33 interest in protecting against present and recognizable harm to 34 the public health or safety or that the occupational regulation 35 -5- LSB 5747XS (5) 85 je/rj 5/ 7

S.F. 2332 is the least restrictive means of furthering a compelling 1 governmental interest. An employer may assert a defense 2 or bring an action on behalf of an employee or prospective 3 employee. 4 The bill defines “occupational regulation” as a statute, 5 ordinance, rule, practice, policy, or other requirement in law 6 that an individual possess certain personal qualifications 7 in order to engage in a lawful occupation. The bill defines 8 “substantial burden” as a requirement in an occupational 9 regulation that imposes significant difficulty or cost on 10 an individual seeking to enter into or continue in a lawful 11 occupation. “Substantial burden” means a burden that is more 12 than incidental. The bill defines “government” as any agency 13 or other entity of government of this state or of any of its 14 political subdivisions. 15 The bill defines “least restrictive means of furthering 16 a compelling governmental interest” as, from least to most 17 restrictive, absence of any occupational regulations, a 18 provision for private civil action in small claims or district 19 court to remedy consumer harm, inspection requirements, 20 bonding or insurance requirements, registration requirements, 21 certification requirements, and occupational license 22 requirements. 23 The bill permits an individual to use the words “registered” 24 or “certified” as a designated title or as part of a designated 25 title if the individual meets the requirements for registration 26 or certification established by a private registration or 27 certification organization. An individual cannot portray such 28 registration or certification as granted by the government. 29 The bill is to be liberally construed to protect the right 30 established by the bill. The bill is not to be construed to 31 create a right of action against a private party or to require 32 a private party to do business with an individual who is not 33 licensed, certified, or registered with the government. The 34 bill is not to be construed to create a right of action against 35 -6- LSB 5747XS (5) 85 je/rj 6/ 7