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REFERENCE TITLE: businesses; professions; regulation restrictions |
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State of Arizona House of Representatives Fifty-second Legislature Second Regular Session 2016
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HB 2517 |
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Introduced by Representatives Petersen, Borrelli, Boyer, Carter, Fann, Gowan, Kern, Leach, Mitchell, Montenegro, Olson, Senator Dial: Representatives Allen J, Barton, Bowers, Brophy McGee, Campbell, Cobb, Finchem, Lawrence, Livingston, Mesnard, Rivero, Thorpe, Townsend, Senators Barto, Biggs, Burges, Kavanagh, Lesko, Shooter, Yee
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AN ACT
amending title 9, chapter 7, Arizona Revised Statutes, by adding article 5; amending title 11, chapter 11, Arizona Revised Statutes, by adding article 2; amending title 41, chapter 6, Arizona Revised Statutes, by adding article 11; relating to the regulation of businesses and professions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 9, chapter 7, Arizona Revised Statutes, is amended by adding article 5, to read:
ARTICLE 5. BUSINESSES AND PROFESSIONS REGULATION
9‑851. Definitions
In this article, unless the context otherwise requires:
1. "Entry regulation" means any rule, regulation, policy, fee, condition, test, permit, license, ADMINISTRATIVE practice or other provision relating to entry into or participation in a market, with or without the support of public subsidies or user fees, or both. Entry regulation does not include any zoning ordinance as defined in section 9-462.
2. "Public service restriction" means any rule, regulation, policy, fee, condition, test, permit, license or other ADMINISTRATIVE practice, with or without the support of public subsidies or user fees, or both.
3. "Subsidies" means taxes, grants, user fees or other monies received by or on behalf of a city or town.
4. "Welfare" means the protection of members of the public against fraud or harm. Welfare does not include the protection of existing businesses, whether publicly or privately owned, against competition.
9‑852. Businesses and professions; entry regulations; public service restrictions; limitation
A city or town shall limit all entry regulations and public service restrictions applicable to businesses and professions to entry regulations and public service restrictions that are demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
9‑853. Comprehensive review; entry regulations; action
A. Within one year after the effective date of this section, each city or town shall conduct a comprehensive review of all entry regulations within the city's or town's jurisdiction that shall state:
1. With specificity the public health, safety or welfare objectives served by the regulation.
2. The reason that the regulation is necessary to serve the specified objectives.
B. If the city or town finds that any entry regulation conflicts with section 9‑852, the city or town shall:
1. Repeal the entry regulation or modify the entry regulation to comply with section 9‑852 if administrative action is required.
2. Recommend legislative actions to repeal or amend the entry regulation to comply with section 9‑852 if legislative action is required.
C. Within fifteen months after enacting a new entry regulation, each city or town shall report to the legislature on all actions taken to comply with this section.
9‑854. Administrative proceedings
A. Any person may petition a city or town to repeal or modify any entry regulation or public service restriction within the city's or town's jurisdiction.
B. Within ninety days after a petition has been filed pursuant to subsection A of this section, the city or town shall repeal the entry regulation or public service restriction, modify the entry regulation or public service restriction to comply with section 9‑852 or state the basis on which the city or town concludes that the entry regulation or public restriction complies with section 9‑852.
9‑855. Enforcement; fees and costs
A. after the ninety‑day period, if the city or town has not acted on a petition filed pursuant to section 9‑854, the person that filed the petition may file an action in a court of general jurisdiction.
B. In order for a plaintiff to prevail in an entry regulation challenge, the court must find by a preponderance of evidence that the challenged entry regulation on its face or in its effect burdens the creation of a business, the entry of a business into a particular market or the entry into a profession or occupation and that either:
1. The challenged entry regulation is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged entry regulation is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by regulations that are less burdensome to economic opportunity.
C. In order for a plaintiff to prevail in a public service restriction challenge, the court must find by a preponderance of evidence that either:
1. The challenged public service restriction on its face or in its effect is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged public service restriction on its face or in its effect is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by restrictions that allow greater private participation.
D. On a finding for the plaintiff, the court shall enjoin further enforcement of the challenged entry regulation or public service restriction and shall award reasonable attorney fees and costs to the plaintiff.
Sec. 2. Title 11, chapter 11, Arizona Revised Statutes, is amended by adding article 2, to read:
ARTICLE 2. BUSINESSES AND PROFESSIONS REGULATION
11‑1621. Definitions
In this article, unless the context otherwise requires:
1. "Entry regulation" means any rule, regulation, policy, fee, condition, test, permit, license, ADMINISTRATIVE practice or other provision relating to entry into or participation in a market, with or without the support of public subsidies or user fees, or both. Entry regulation does not include any zoning ordinance as defined in section 11-801.
2. "Public service restriction" means any rule, regulation, policy, fee, condition, test, permit, license or other ADMINISTRATIVE practice, with or without the support of public subsidies or user fees, or both.
3. "Subsidies" means taxes, grants, user fees or other monies received by or on behalf of a county.
4. "Welfare" means the protection of members of the public against fraud or harm. Welfare does not include the protection of existing businesses, whether publicly or privately owned, against competition.
11‑1622. Businesses and professions; entry regulations; public service restrictions; limitations
A county shall limit all entry regulations and public service restrictions applicable to businesses and professions to entry regulations and public service restrictions that are demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
11‑1623. Comprehensive review; entry regulations; action
A. Within one year after the effective date of this section, each county shall conduct a comprehensive review of all entry regulations within the county's jurisdiction that shall state:
1. With specificity the public health, safety or welfare objectives served by the regulation.
2. The reason that the regulation is necessary to serve the specified objectives.
B. If the county finds that any entry regulation conflicts with section 11‑1622, the county shall:
1. Repeal the entry regulation or modify the entry regulation to comply with section 11‑1622 if administrative action is required.
2. Recommend legislative actions to repeal or amend the entry regulation to comply with section 11‑1622 if legislative action is required.
C. Within fifteen months after enacting a new entry regulation, each county shall report to the legislature on all actions taken to comply with this section.
11‑1624. Administrative proceedings
A. Any person may petition a county to repeal or modify any entry regulation or public service restriction within the county's jurisdiction.
B. Within ninety days after a petition has been filed pursuant to subsection A of this section, the county shall repeal the entry regulation or public service restriction, modify the entry regulation or public service restriction to comply with section 11‑1622 or state the basis on which the county concludes that the entry regulation or public restriction complies with section 11‑1622.
11‑1625. Enforcement; fees and costs
A. after the ninety‑day period, if the county has not acted on a petition filed pursuant to section 11‑1624, the person that filed the petition may file an action in a court of general jurisdiction.
B. In order for a plaintiff to prevail in an entry regulation challenge, the court must find by a preponderance of evidence that the challenged entry regulation on its face or in its effect burdens the creation of a business, the entry of a business into a particular market or the entry into a profession or occupation and that either:
1. The challenged entry regulation is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged entry regulation is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by regulations that are less burdensome to economic opportunity.
C. In order for a plaintiff to prevail in a public service restriction challenge, the court must find by a preponderance of evidence that either:
1. The challenged public service restriction on its face or in its effect is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged public service restriction on its face or in its effect is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by restrictions that allow greater private participation.
D. On a finding for the plaintiff, the court shall enjoin further enforcement of the challenged entry regulation or public service restriction and shall award reasonable attorney fees and costs to the plaintiff.
Sec. 3. Title 41, chapter 6, Arizona Revised Statutes, is amended by adding article 11, to read:
ARTICLE 11. BUSINESSES AND PROFESSIONS REGULATION
41-1093. Definitions
In this article, unless the context otherwise requires:
1. "Entry regulation" means any rule, regulation, policy, fee, condition, test, permit, license, ADMINISTRATIVE practice or other provision relating to entry into or participation in a market, with or without the support of public subsidies or user fees, or both.
2. "Public service restriction" means any rule, regulation, policy, fee, condition, test, permit, license or other ADMINISTRATIVE practice, with or without the support of public subsidies or user fees, or both.
3. "Subsidies" means taxes, grants, user fees or other monies received by or on behalf of an agency.
4. "Welfare" means the protection of members of the public against fraud or harm. Welfare does not include the protection of existing businesses or agencies, whether publicly or privately owned, against competition.
41-1093.01. Businesses and professions; entry regulations; public service restrictions; limitation
An agency shall limit all entry regulations and public service restrictions applicable to businesses and professions to entry regulations and public service restrictions that are demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
41-1093.02. Comprehensive review; entry regulations; action
A. Within one year after the effective date of this section, each AGENCY shall conduct a comprehensive review of all entry regulations within the agency's jurisdiction that shall state:
1. With specificity the public health, safety or welfare objectives served by the regulation.
2. The reason that the regulation is necessary to serve the specified objectives.
B. If the agency finds that any entry regulation conflicts with section 41‑1093.01, the agency shall:
1. Repeal the entry regulation or modify the entry regulation to comply with section 41‑1093.01 if administrative action is required.
2. Recommend legislative actions to repeal or amend the entry regulation to comply with section 41‑1093.01 if legislative action is required.
C. Within fifteen months after enacting a new entry regulation, each agency shall report to the legislature on all actions taken to comply with this section.
41-1093.03. Administrative proceedings
A. Any person may petition an agency to repeal or modify any entry regulation or public service restriction within the agency's jurisdiction.
B. Within ninety days after a petition has been filed pursuant to subsection A of this section, the agency shall repeal the entry regulation or public service restriction, modify the entry regulation or public service restriction to comply with section 41‑1093.01 or state the basis on which the agency concludes that the entry regulation or public restriction complies with section 41‑1093.01.
41-1093.04. Enforcement; fees and costs
A. after the ninety‑day period, if the agency has not acted on a petition filed pursuant to section 41‑1093.03, the person that filed the petition may file an action in a court of general jurisdiction.
B. In order for a plaintiff to prevail in an entry regulation challenge, the court must find by a preponderance of evidence that the challenged entry regulation on its face or in its effect burdens the creation of a business, the entry of a business into a particular market or the entry into a profession or occupation and that either:
1. The challenged entry regulation is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged entry regulation is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by regulations that are less burdensome to economic opportunity.
C. In order for a plaintiff to prevail in a public service restriction challenge, the court must find by a preponderance of evidence that either:
1. The challenged public service restriction on its face or in its effect is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.
2. If the challenged public service restriction on its face or in its effect is demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives, these objectives can be effectively served by restrictions that allow greater private participation.
D. On a finding for the plaintiff, the court shall enjoin further enforcement of the challenged entry regulation or public service restriction and shall award reasonable attorney fees and costs to the plaintiff.
Sec. 4. Legislative findings; intent
A. The legislature finds and declares that:
1. The right of individuals to pursue a chosen business or profession, free from arbitrary or excessive government interference, is a fundamental civil right.
2. The freedom to earn an honest living traditionally has provided the surest means for economic mobility.
3. In recent years, many regulations of entry into businesses and professions have exceeded legitimate public purposes and have had the effect of arbitrarily limiting entry and reducing competition.
4. The burden of excessive regulation is borne most heavily by individuals outside the economic mainstream, for whom opportunities for economic advancement are curtailed.
B. Because it is in the public interest, by this act the legislature intends to:
1. Ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition.
2. Provide the means for the vindication of this right.
3. Ensure that regulations of entry into businesses and professions are demonstrably necessary and carefully tailored to fulfill legitimate health, safety and welfare objectives.
Sec. 5. Short title
This act may be cited as the "Right to Earn a Living Act".