H.B. 75

1

OCCUPATIONAL AND PROFESSIONAL LICENSING
2 AMENDMENTS
3 2013 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Brian M. Greene
6 Senate Sponsor: Howard A. Stephenson
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Occupational and Professional Licensure Review Committee Act,
11 Title 58, Occupations and Professions, and the Legislative Oversight and Sunset Act, by
12 limiting the use of the state's regulatory authority over lawful occupations to matters of
13 public health or safety.
14 Highlighted Provisions:
15 This bill:
16 . defines terms;
17 . modifies the membership of the Occupational and Professional Licensure Review
18 Committee by requiring that the public members be selected by the director of the
19 Division of Occupational and Professional Licensing;
20 . provides that the committee shall meet at least twice annually;
21 . requires that the committee conduct sunrise and sunset reviews for all occupations
22 and professions proposed to be newly regulated or that are subject to their related
23 statutes being terminated under Section 63I-1-258 ;
24 . modifies the committee's reporting requirements;
25 . creates a statutory recognition of an individual's fundamental right to pursue any
26 lawful occupation;
27 . provides that the state may not enact an occupational regulation that substantially

28 burdens an individual's ability to engage in a lawful occupation unless the state demonstrates
29 that the occupational regulation:
30 . addresses a compelling state interest in protecting against present, recognizable,
31 and significant harm to the health or safety of the public;
32 . furthers the state's compelling interest in protecting and maintaining the health
33 or safety of the public; and
34 . is the least restrictive means for furthering the state's compelling interest in
35 protecting and maintaining the health or safety of the public;
36 . creates a private right of action for violation of this statute and establishes
37 applicable burdens of proof and standards of judicial construction;
38 . requires that future legislation proposing licensing or regulation of a previously
39 unregulated occupation or profession include a sunset date; and
40 . makes technical changes.
41 Money Appropriated in this Bill:
42 None
43 Other Special Clauses:
44 None
45 Utah Code Sections Affected:
46 AMENDS:
47 36-23-101.5, as enacted by Laws of Utah 2007, Chapter 137
48 36-23-102, as last amended by Laws of Utah 2008, Chapter 218
49 36-23-103, as last amended by Laws of Utah 2008, Chapter 218
50 36-23-104, as last amended by Laws of Utah 2010, Chapter 286
51 36-23-105, as enacted by Laws of Utah 1999, Chapter 152
52 36-23-106, as last amended by Laws of Utah 2012, Chapter 242
53 36-23-107, as last amended by Laws of Utah 2007, Chapter 137
54 ENACTS:
55 58-2a-101, Utah Code Annotated 1953
56 58-2a-102, Utah Code Annotated 1953
57 58-2a-103, Utah Code Annotated 1953
58 58-2a-104, Utah Code Annotated 1953

59 58-2a-105, Utah Code Annotated 1953
60 58-2a-106, Utah Code Annotated 1953
61 63I-1-102.5, Utah Code Annotated 1953
62
63 Be it enacted by the Legislature of the state of Utah:
64 Section 1. Section 36-23-101.5 is amended to read:
65 36-23-101.5. Definitions.
66 As used in this chapter:
67 (1) "Committee" means the Occupational and Professional Licensure Review
68 Committee created in Section 36-23-102 .
69 (2) "Government requestor" means:
70 (a) the governor;
71 (b) an executive branch officer other than the governor;
72 (c) an executive branch agency;
73 (d) a legislator; or
74 (e) a legislative committee.
75 [(2)] (3) "Newly regulate" means to regulate under Title 58, Occupations and
76 Professions, an occupation or profession not regulated under Title 58 before the enactment of
77 the new regulation.
78 [(3)] (4) "Proposal" means:
79 (a) an application submitted under Section 36-23-105 , with or without specific
80 proposed statutory language;
81 (b) a request for review by a legislator of the possibility of newly regulating an
82 occupation or profession, with or without specific proposed statutory language; or
83 (c) proposed or introduced legislation to newly regulate an occupation or profession
84 referred to the committee by another legislative committee.
85 [(4)] (5) "Sunrise review" means a review under this chapter of a proposal to newly
86 regulate an occupation or profession.
87 (6) "Sunset review" means a review under this chapter of a statute:
88 (a) regarding a licensed profession under Title 58, Occupations and Professions; and
89 (b) that is scheduled for termination under Section 63I-1-258 .

90 Section 2. Section 36-23-102 is amended to read:
91 36-23-102. Occupational and Professional Licensure Review Committee.
92 (1) There is created the Occupational and Professional Licensure Review Committee.
93 (2) The committee consists of nine members appointed as follows:
94 (a) three members of the House of Representatives, appointed by the speaker of the
95 House of Representatives, no more than two from the same political party;
96 (b) three members of the Senate, appointed by the president of the Senate, no more
97 than two from the same political party; and
98 (c) three public members appointed [jointly by the speaker of the House of
99 Representatives and the president of the Senate as follows] by the director of the Division of
100 Occupational and Professional Licensing and selected from the following two groups:
101 (i) [two members who have] at least one member who has previously served, but [are]
102 is no longer serving, on any [of the] advisory [boards] board created under Title 58,
103 Occupations and Professions; and
104 (ii) at least one member from the general public who does not hold any type of license
105 issued by the Division of Occupational and Professional Licensing.
106 (3) (a) The speaker of the House of Representatives shall designate a member of the
107 House of Representatives appointed under Subsection (2)(a) as a cochair of the committee.
108 (b) The president of the Senate shall designate a member of the Senate appointed under
109 Subsection (2)(b) as a cochair of the committee.
110 Section 3. Section 36-23-103 is amended to read:
111 36-23-103. Committee terms -- Vacancies.
112 (1) A legislator serving on the committee shall serve a two-year term or until the
113 legislator's successor is appointed.
114 (2) (a) Except as provided in Subsection (2)(b), a public member shall serve a
115 three-year term or until the public member's successor is appointed.
116 (b) The [speaker of the House of Representatives and the president of the Senate]
117 director of the Division of Occupational and Professional Licensing shall, at the time of
118 appointment or reappointment, adjust the length of terms of the public members to ensure that
119 approximately one of the public members is appointed every year.
120 (3) A legislative or public member of the committee may serve one or more terms.

121 (4) (a) A vacancy occurs:
122 (i) when a legislative member ceases to be a member of the Legislature; [or]
123 (ii) when a member of the committee resigns from the committee[.]; or
124 (iii) when a member is removed by the appointing authority for cause.
125 (b) A vacancy shall be filled by the appointing authority, and the replacement member
126 shall serve for the remaining unexpired term.
127 Section 4. Section 36-23-104 is amended to read:
128 36-23-104. Committee meetings -- Compensation -- Quorum -- Legislative rules.
129 (1) The committee [may] shall meet as needed, at the call of the committee chairs, to
130 carry out the duties [set forth] described in Section 36-23-106 .
131 (2) A public member may not receive compensation or benefits for the member's
132 service, but may receive per diem and travel expenses in accordance with:
133 (a) Section 63A-3-106 ;
134 (b) Section 63A-3-107 ; and
135 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
136 63A-3-107 .
137 (3) (a) Five members of the committee constitute a quorum.
138 (b) If a quorum is present, the action of a majority of members present is the action of
139 the committee.
140 (4) Except as provided in Subsection (3), in conducting all its business, the committee
141 shall comply with the rules of legislative interim committees regarding motions.
142 Section 5. Section 36-23-105 is amended to read:
143 36-23-105. Applications -- Fees.
144 (1) [Representatives of occupations or professions who desire to have their occupation
145 or profession licensed or regulated by the state may] If a government requestor or a
146 representative of an occupation or profession that is not licensed by the state proposes that the
147 state license or regulate an occupation or profession, the requestor or representative shall, prior
148 to the introduction of any proposed legislation, submit an application for sunrise review to the
149 Office of Legislative Research and General Counsel in a form approved by the committee.
150 (2) [Applicants shall submit] If an application is submitted by a representative of an
151 occupation or profession, the application shall include a nonrefundable fee of $500 [with each

152 application]. All application fees shall be deposited in the General Fund.
153 Section 6. Section 36-23-106 is amended to read:
154 36-23-106. Duties -- Reporting.
155 (1) The committee shall:
156 (a) conduct a sunrise review in accordance with Section 36-23-107 [for all
157 applications], within 12 months, for each application submitted in accordance with Section
158 36-23-105 ;
159 (b) (i) conduct a sunset review for [an occupational or professional license
160 classification that is referred to the committee by any other legislative committee by applying:]
161 all statutes regarding a licensed profession under Title 58, Occupations and Professions, that
162 are scheduled for termination under Section 63I-1-258;
163 [(i) the criteria in Section 36-23-107 ;]
164 [(ii) the criteria in Title 63I, Chapter 1, Legislative Oversight and Sunset Act; and]
165 [(iii) any other appropriate criteria; and]
166 [(c) submit a written report by no later than December 31 of each calendar year to:]
167 [(i) the speaker of the House of Representatives;]
168 [(ii) the president of the Senate;]
169 [(iii) the chair of the House Rules Committee;]
170 [(iv) the chair of the Senate Rules Committee; and]
171 [(v) the chairs of the Business, Economic Development, and Labor Appropriations
172 Subcommittee.]
173 (ii) conduct a sunset review under this Subsection (1)(b) prior to the last general
174 session of the Legislature that is scheduled to meet before the scheduled termination date; and
175 (iii) conduct a review regarding any other occupational or professional licensure matter
176 referred to the committee by the Legislature, the Legislative Management Committee, or other
177 legislative committee.
178 (2) The committee shall submit an annual written report before November 1 to:
179 (a) the Legislative Management Committee; and
180 (b) the Business and Labor Interim Committee.
181 [(2)] (3) The written report required by Subsection [(1)(c)] (2) shall include:
182 (a) all findings and recommendations made by the committee under Subsection (1) or

183 [(3)] (4) in that calendar year; and
184 (b) a summary report [for] of each [sunrise] review conducted by the committee
185 stating:
186 (i) whether the [sunrise] review was conducted under Subsection (1) or [(3)] (4);
187 (ii) whether [or not] the [sunrise] review included a review of specific proposed or
188 existing statutory language;
189 (iii) any action taken by the committee as a result of the [sunrise] review; and
190 (iv) the number of legislative members that voted in favor of the action described in
191 Subsection [(2)] (3)(b)(iii).
192 [(3)] (4) The committee may[: (a) conduct a sunrise review of any proposal to newly
193 regulate an occupation or profession; (b) conduct any other review referred to it by the
194 Legislature, the Legislative Management Committee, or other legislative committee; or (c)]
195 conduct any other study related to regulation of an occupation or profession under Title 58,
196 Occupations and Professions.
197 Section 7. Section 36-23-107 is amended to read:
198 36-23-107. Sunrise or sunset review -- Criteria.
199 (1) In conducting a sunrise review or a sunset review under this chapter, the committee
200 may:
201 (a) receive information from:
202 (i) representatives of the occupation or profession proposed to be newly regulated or
203 that is subject to a sunset review;
204 (ii) the Division of Occupational and Professional Licensing; or
205 (iii) any other person; and
206 (b) review [the] a proposal with or without considering proposed statutory language[;].
207 [(c) evaluate the criteria in Subsection (2) to determine whether or not the occupation
208 or profession should be regulated by the state; and]
209 [(d) as to the proposal, recommend:]
210 [(i) that the proposal be adopted by the Legislature;]
211 [(ii) that the proposal be adopted by the Legislature with recommended changes;]
212 [(iii) that the proposal not be adopted by the Legislature; or]
213 [(iv) any other action.]

214 (2) When conducting a sunrise review or sunset review under this chapter, the
215 committee shall [use the following criteria]:
216 (a) consider whether state licensing of the profession is necessary for the health and
217 safety of the public;
218 (b) if the committee determines that state licensing of the profession is not necessary
219 for the health and safety of the public, recommend to the Legislature that the state refrain from
220 licensing the profession;
221 (c) if the committee determines that continued state licensing of the profession is
222 necessary for the health and safety of the public, consider whether each licensing provision in
223 the proposed or existing statute is the least restrictive means for furthering the state's
224 compelling interest in protecting and maintaining the health or safety of the public; and
225 (d) recommend to the Legislature any necessary changes to the proposed or existing
226 licensure provisions to ensure each provision is the least restrictive means for furthering the
227 state's compelling interest in protecting and maintaining the health or safety of the public.
228 (3) In its performance of each sunrise review or sunset review, the committee may
229 apply the following criteria, to the extent that it is applicable:
230 (a) whether [or not] the unregulated practice of the occupation or profession has clearly
231 harmed or may harm or endanger the health, safety, or welfare of the public;
232 (b) whether [or not] the potential for harm or endangerment described in Subsection
233 (2)(a) is easily recognizable and not remote;
234 (c) whether [or not] the public needs, and can reasonably be expected to benefit from,
235 an assurance of initial and continuing occupational or professional competence;
236 (d) whether [or not] regulation of the occupation or profession:
237 (i) imposes significant new economic hardship on the public;
238 (ii) significantly diminishes the supply of qualified practitioners; or
239 (iii) otherwise creates barriers to service that are not consistent with the public welfare
240 or interest;
241 (e) whether [or not] the occupation or profession requires knowledge, skills, and
242 abilities that are:
243 (i) teachable; and
244 (ii) testable;

245 (f) whether [or not] the occupation or profession is clearly distinguishable from other
246 occupations or professions that are already regulated;
247 (g) whether [or not] the occupation or profession has:
248 (i) an established code of ethics;
249 (ii) a voluntary certification program; or
250 (iii) other measures to ensure a minimum quality of service;
251 (h) whether [or not]:
252 (i) the occupation or profession involves the treatment of an illness, injury, or health
253 care condition; and
254 (ii) practitioners of the occupation or profession will request payment of benefits for
255 the treatment under an insurance contract subject to Section 31A-22-618 ;
256 (i) whether [or not] the public can be adequately protected by means other than
257 regulation; and
258 (j) other appropriate criteria as determined by the committee.
259 Section 8. Section 58-2a-101 is enacted to read:
260 CHAPTER 2a. RIGHT TO PURSUE ANY LAWFUL OCCUPATION ACT
261 58-2a-101. Title.
262 This chapter is known as the "Right to Pursue any Lawful Occupation Act."
263 Section 9. Section 58-2a-102 is enacted to read:
264 58-2a-102. Definitions.
265 For purposes of this chapter:
266 (1) "Court" means a trial or appellate court.
267 (2) (a) "Lawful occupation" means a course of conduct, profession, or vocation that
268 includes the sale of a good or the rendering of a service for profit.
269 (b) "Lawful occupation" includes the sale of a good or the rendering of a service when
270 the good or service itself is not illegal, irrespective of whether the individual selling the good or
271 rendering the service is subject to an occupational regulation that restricts the individual's
272 ability to sell the good or render the service.
273 (c) "Lawful occupation" does not include a course of conduct, profession, or vocation
274 of an individual selling a good or rendering a service when the good or service itself is illegal.
275 (3) "Occupational regulation" means a statute, rule, practice, policy, or other

276 state-prescribed requirement related to the requirements of an individual to engage in a specific
277 lawful occupation.
278 (4) (a) "State" means the government of the state.
279 (b) "State" includes:
280 (i) a government office, department, division, bureau, or other body of government in
281 the state; and
282 (ii) a county, municipality, or political subdivision of the state.
283 (5) (a) "Substantial burden" means the imposition of a significant obstacle or cost on an
284 individual seeking to enter into or continue in a lawful occupation.
285 (b) "Substantial burden" does not include a burden that is incidental or negligible to the
286 average person.
287 Section 10. Section 58-2a-103 is enacted to read:
288 58-2a-103. Right to engage in any lawful occupation.
289 (1) Each citizen of the state 18 years of age or older has a fundamental right to engage
290 in any lawful occupation.
291 (2) The state may not adopt an occupational regulation that imposes a substantial
292 burden on a citizen of the state 18 years of age or older unless the state demonstrates that the
293 occupational regulation:
294 (a) addresses a compelling state interest in protecting against present, recognizable, and
295 significant harm to the health or safety of the public;
296 (b) materially furthers the state's compelling interest in protecting and maintaining the
297 health or safety of the public;
298 (c) is the least restrictive means for furthering the state's compelling interest in
299 protecting and maintaining the health or safety of the public; and
300 (d) is not primarily enacted to discourage competition or to confer economic advantage
301 to a limited class.
302 Section 11. Section 58-2a-104 is enacted to read:
303 58-2a-104. Private cause of action.
304 (1) A person may bring an action against the state for declaratory judgment, injunctive
305 relief, or other equitable relief in a court of competent jurisdiction for a violation of Section
306 58-2a-103 , without regard to the exhaustion of administrative remedies.

307 (2) A person may assert as an affirmative defense the right to engage in any lawful
308 occupation and that the state has violated Subsection 58-2a-103 (2) in a judicial or
309 administrative proceeding brought by the state to enforce an occupational regulation.
310 (3) Unless an occupational regulation includes an explicit statutory exemption from the
311 requirements of this chapter, a person may bring an action or assert an affirmative defense as
312 described in Subsections (1) and (2) related to the occupational regulation.
313 (4) If a person who brings an action or asserts an affirmative defense under this section
314 makes a prima facie showing that an occupational regulation substantially burdens the person's
315 right to engage in a lawful profession, the burden of proof shifts to the state to demonstrate by
316 clear and convincing evidence that the occupational regulation:
317 (a) addresses a compelling state interest in protecting against present, recognizable, and
318 significant harm to the health or safety of the public;
319 (b) materially furthers the state's compelling interest in protecting and maintaining the
320 health or safety of the public; and
321 (c) is the least restrictive means for furthering the state's compelling interest in
322 protecting and maintaining the health or safety of the public.
323 Section 12. Section 58-2a-105 is enacted to read:
324 58-2a-105. Judicial determination.
325 (1) When this chapter is interpreted by a court or administrative tribunal it shall be
326 liberally construed to protect the right of a citizen to engage in any lawful occupation as
327 recognized in Subsection 58-2a-103 (1).
328 (2) When issuing a decision under this chapter, a court or administrative tribunal:
329 (a) shall issue written findings of fact and conclusions of law; and
330 (b) may not grant any presumptions regarding the state's evidence required by
331 Subsection 58-2a-104 (4).
332 Section 13. Section 58-2a-106 is enacted to read:
333 58-2a-106. Limitation.
334 This chapter does not:
335 (1) create a right of action against:
336 (a) a private party; or
337 (b) the state when acting as an employer;

338 (2) require a private party to do business with an individual who is not licensed or
339 otherwise authorized by the state to engage in a lawful occupation; or
340 (3) prohibit an employer, including the state, from making specific education, training,
341 licensing, or other requirements a condition of employment.
342 Section 14. Section 63I-1-102.5 is enacted to read:
343 63I-1-102.5. Legislative review in Title 58, Occupations and Professions.
344 Beginning on or after January 1, 2014, legislation proposing the licensing or regulation
345 of an occupation or profession under Title 58, Occupations and Professions, that is not subject
346 to licensing or regulation under Title 58, Occupations and Professions, on December 31, 2013:
347 (1) is subject to a reauthorization schedule as described in Title 63I, Chapter 1,
348 Legislative Oversight and Sunset Act; and
349 (2) shall include a repeal date in Section 63I-1-258 that is no later than 10 years after
350 the effective date of the legislation.




Legislative Review Note
as of 1-21-13 10:54 AM

Office of Legislative Research and General Counsel

[Bill Documents]