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Florida Constitution Revision Commission

PUB 700781: Occupational Freedom by Andrew Heneen

ARTICLE I: DECLARATION OF RIGHTS, New Section.

Catchline: Occupational freedom
  1. The fundamental right of the people to earn a living in pursuit of a lawful occupation shall not be infringed, except by narrowly tailored means in pursuit of a compelling government interest where no less restrictive regulation would be feasible or similarly address the compelling government interest. The burden of proof and risk of non-persuasion in any court of law rests with the government when this fundamental right is infringed. Where federal laws and regulations limit entry into a profession or the state allows licensed professionals from another state to practice in this state, allowance of persons authorized by federal law or the laws of another U.S. jurisdiction shall not be considered as part of the narrow tailoring requirement.
  2. Less restrictive regulations in section (a) means one of the following types of regulation:
    1. [Note: To avoid copyright infringement (I didn't have time to ask for permission before the proposal deadline), I am not including the list explicitly, but by reference. There are 15 items to include here, as (1) through (14), which can be found on page 2 of the following PDF file as Sect. 100.02, Subd. 4, (1.) through (14.): http://ij.org/wp-content/uploads/2017/08/08-21-2017-NC-Dental-Sunrise-Sunset-Occupational-Board-Reform-Act-2.pdf ]
  3. Laws and regulations restricting entry into a profession shall not be valid unless the Legislature, local governments, and other governmental lawmaking and regulation-making entities who enact such regulations provide, at the time of passage, evidence of the necessity of each provision. Generalized justifications, such as public health and safety, are not adequate justification on their own, but must be accompanied by evidence that a problem exists or is likely to occur, that the restriction is necessary to address the problem, and that the public has had the opportunity to suggest less restrictive means and that less restrictive means have been considered. This subsection shall not apply to restrictions in force at the time this amendment is approved by voters, but does apply to modifications of such pre-existing restrictions.
  4. This section does not apply to government contracting and employment, except that government may not artificially constrain the private market to circumvent the restrictions of subsections (a) or (b), nor does this section restrict government monopolies granted to public utilities.

[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.]