HB 1265 – AS INTRODUCED
2012 SESSION
HOUSE BILL 1265
AN ACT relative to criteria for the government regulation of occupations and professions.
SPONSORS: Rep. Bowers, Sull 3; Rep. Cohn, Merr 6; Rep. Lambert, Hills 27; Rep. Davenport, Rock 12; Sen. Forsythe, Dist 4
COMMITTEE: Executive Departments and Administration
This bill establishes criteria for the regulation of occupations and professions by boards and commissions as authorized by law, and provides that an individual may engage in a legal occupation without being subject to laws that regulate the occupation or profession which are arbitrary, unnecessary, or substantially burdensome.
The bill also creates a committee to determine the appropriate level of regulation for each occupation or profession.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2180
10/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to criteria for the government regulation of occupations and professions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings. The general court finds that:
I. Occupational licensing requirements are usually implemented at the request of the very groups that are regulated, and not by the consumers they ostensibly protect. Licensing requirements create barriers to entry and decrease competition, which increases prices, although there is little evidence that there is an offsetting increase in consumer protection. Licensing costs the people of this state tens of millions of dollars, and tends to increase the disparity in wages. It rewards those in the professional classes, who tend to have higher income.
II. Licensing often requires formal postsecondary education. This requirement closes doors and reduces upward mobility for those who do not pursue higher education. When licensing requirements are not based on demonstrated skills, they close off opportunities to advance for persons who learn on the job or pick up skills on their own without formal education.
III.(a) Part I, Article 2 of the New Hampshire Constitution states that “All men have certain natural, essential, and inherent rights ...” Thomas Jefferson declared that one of these natural rights is the right to choose a vocation, and he wrote that “laws abridging the natural right of the citizen, should be restrained by rigorous constructions within their narrowest limits.”
(b) Part II, Article 83 of the New Hampshire Constitution declares “Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it.”
IV. Certification, also known as voluntary licensing, is better for consumers than licensing. Similar to licensing, certification sends a signal to consumers about who has met the government’s requirements. However, it does not reduce competition and it does not cause prices to increase the way licensing does. Certification provides consumers more choice at a lower price than compulsory licensing. Decades of economic analysis have shown that compulsory licensing has little or no demonstrable improvement to service or safety compared to certification.
2 Intent. The general court intends that each person has the natural right to engage in a lawful occupation without being subject to arbitrary, unnecessary, or burdensome regulations.
3 Committee Established. There is established a committee to determine the appropriate level of regulation for each occupation or profession.
I. The members of the committee shall be as follows:
(a) Three members of the house of representatives, appointed by the speaker of the house of representatives.
(b) Two members of the senate, appointed by the president of the senate.
II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.
III. The committee shall study and determine the appropriate level of regulation for each occupation or profession in light of the findings and intent of the general court pursuant to this act.
IV. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.
V. The committee shall, notwithstanding RSA 14:49, report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before December 1, 2012.
4 New Section; General Administration of Regulatory Boards and Commissions. Amend RSA 332-G by inserting after section 7 the following new section:
332-G:8 Regulatory Standards.
I. Definitions. In this section:
(a) “Certification” means a voluntary program for 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. Non-certified persons may also perform the occupation for compensation but the use of the title “certified” by a non-certified person is illegal.
(b) “Government” means the government of this state or any of its political subdivisions, including any departments, boards, or agencies.
(c) “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 person selling them is subject to an occupational regulation.
(d) “Licensing” 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 program and (2) acceptable performance on a
qualifying examination or series of examinations. It is illegal for non-licensed persons to perform the
occupation for compensation. Licensing is the most restrictive form of occupational regulation.
(e) “Occupational regulation” means a statute, rule, practice, policy or other government-prescribed requirements for a person to work in a lawful occupation. From least to most restrictive, occupational regulations include (1) a provision for private civil action to remedy consumer harm, (2) inspection, (3) bonding, (4) registration, (5) certification, and (6) licensing.
(f) “Registration” means a requirement established by the legislature in which a person (1) submits notification to a state agency and (2) may use “registered” as a designated title. Notification 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. Registration may include a requirement to post a bond but does not include education or experience requirements. Non-registered persons may not perform the occupation for compensation or use “registered” as a designated title.
(g) “Substantial burden” means a legal or other regulatory obstacle that imposes significant difficulty or cost on a person seeking to enter into or continue in a lawful occupation. A substantial burden is a burden that is more than incidental.
(h) “Voluntary licensing” means certification.
II. Beginning July 1, 2012, the provisions of this section shall govern the occupational and professional regulation by the boards and commissions established in this title and other boards and commissions regulating the practice of a trade, occupation, or profession in this state.
III.(a) An individual has a right to engage in a lawful occupation.
(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.
IV. Any agency or board of occupational regulation shall find a substantial threat of irreparable harm before issuing a cease and desist order. The burden of proof for such finding is clear and convincing evidence.
V.(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 subparagraph III(b) has not been met.
(b) An individual may bring an action for declaratory judgment or injunctive or other equitable relief for a violation of paragraph III.
(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.
(d) If the individual meets the burden of proof under subparagraph (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.
VI. A court shall liberally construe this section to protect the right established in subparagraph III(a). A 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 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.
5 New Subparagraph; Administrative Procedures Act; Objection to Rule. Amend 541-A:13, IV by adding after subparagraph (d) the following new subparagraph:
(e) Not consistent with the requirements of RSA 332-G:8, III(b).
6 Effective Date. This act shall take effect upon its passage.