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[Comment: This proposal is a modified version of "PUB 700695: Occupational Freedom", which I'm not withdrawing in case this proposal goes too far (in which case, the commission should consider PUB 700695). ***THE COMMENTARY ON PUB 700695 APPLIES EQUALLY TO THIS PROPOSAL,*** but I will also add some more comments...
"Lawful occupation" means an occupation that is not itself illegal irrespective of the person engaging in the conduct. For example, if a law makes a particular good or service illegal, a merchant selling illegal goods or providing an unlawful service does not have a claim to the right to earn a living in a lawful occupation. However, if a law says that only certain people can engage in a particular occupation, an unlicensed person does have a claim based on this right.
The reason for exclusion of people authorized by federal law from the narrow tailoring test is that there may be circumstances in which federal law authorizes individuals to perform certain jobs/activities. Because the states must obey such permission under the Supremacy Clause of the U.S. Constitution (see also Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963)), there is the potential that allowing persons authorized under federal law could undermine the government's argument that its licensing laws are narrowly tailored. Also, because of the interstate nature of some jobs (especially on the internet), there may be cases where requiring state/local licensing in Florida could violate the Commerce Clause (esp. the Dormant Commerce Clause doctrine) or Privileges and Immunities Clause of the U.S. Constitution. Because licensing in other states may be more or less strict, it could place a big burden on governments (state/local in Florida) to satisfy the narrow tailoring requirement if their requirements allowed licenced professionals from out-of-state to do their jobs in Florida without state/local licensing in this state.]