Regulations Posted on February 6, 2017 | Op-Ed

Protecting the Right to Earn a Living

GOLDWATER POLICY UPDATE

Of all the rights Arizonans cherish, the freedom to earn a living or enter a new profession receives the least protection under the law. Unfortunately, regulatory agencies too often thwart the intent of the Legislature by applying restrictions to business activities they’ve not been given statutory control over. SB 1437, The Right to Earn a Living Act, remedies this concern by requiring regulatory agencies to show some legitimate public harm before blocking individuals from a profession.

SB 1437 is based on a simple premise: The burden of proving that government restrictions on free enterprise are excessive should not be placed on those who want to earn an honest living; instead regulators should bear the burden of justifying their restrictions.

This legislation would affect thoughtful entrepreneurs like Lauren Boice, a cancer survivor. After winning her battle with cancer, Lauren opened a business called Angels on Earth. Her business simply dispatched licensed cosmetologists to individuals who were homebound because of illness or immobility. Even though Lauren did not cut anyone’s hair or do anyone’s makeup, the Board of Cosmetology told Lauren that she needed a salon license to operate her business, despite the fact that the Legislature never gave the Board licensing authority over such operations. Unfortunately, under current law the courts would be inclined to rule in favor of the Board.

The Right to Earn a Living Act fixes this imbalance by doing two primary things:

  • First, the legislation simply requires that any regulation that limits participation in a job or profession “be limited to those demonstrated to be necessary to specifically fulfill a public health, safety, or welfare concern.”
  • The second piece of the legislation pertains to enforcement. If a regulation is on the books that violates the law, an aggrieved party can petition the agency to repeal or modify the restriction. If the agency decides not to change or repeal the regulation, the aggrieved individual may challenge the agency’s decision in court. To ensure the intent of the Legislature is preserved, the courts would rule in favor of the challenger if: (1) the challenged regulation burdens entry into or participation in an occupation or particular profession; and (2) the regulation is not “demonstrated to be necessary to specifically fulfill a public health, safety, or welfare concern.”

Ultimately, a hallmark of American freedom is the right to pursue one’s chosen profession and provide for oneself and one’s family. This is particularly true today – where new technologies make entrepreneurship easier than ever. SB 1437 restores the proper balance between free enterprise and legitimate government regulation, ensuring that economic opportunity for all is not merely a promise, but a reality.

Read more: http://goldwaterinstitute.org/en/work/topics/free-enterprise/entrepreneurship/right-to-earn-a-living-act/

 

Author

Jon Riches is the Director of National Litigation for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and General Counsel for the Institute. He litigates in federal and state trial ... Read

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