Today's Law As Amended


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AB-2409 Professions and vocations: occupational regulations.(2017-2018)



As Amends the Law Today


SECTION 1.
 This act may be known as the “Occupational Opportunity Act.”
SEC. 2.
 The Legislature finds and declares all of the following:
(a) Each individual has the right to pursue a chosen profession and vocation, free from arbitrary or excessive government interference.
(b) The freedom to earn an honest living traditionally has provided the surest means for economic mobility.
(c) In recent years, many regulations of entry into professions and vocations have exceeded legitimate public purposes and have had the effect of arbitrarily limiting entry and reducing competition.
(d) The burden of excessive regulation is borne most heavily by individuals outside the economic mainstream, for whom opportunities for economic advancement are curtailed.
(e) It is in the public interest to do all of the following:
(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 professions and vocations are demonstrably necessary and narrowly tailored to fulfill legitimate health, safety, and welfare objectives.

SEC. 3.

 Section 37 is added to the Business and Professions Code, to read:

37.
 (a) (1) Notwithstanding Section 480 or any other law, a person has a right to engage in a lawful profession or vocation without being subject to an occupational regulation that imposes a substantial burden on that right. To achieve this purpose, each occupational regulation shall be limited to what is demonstrably necessary and shall be narrowly tailored to fulfill a legitimate public health, safety, or welfare objective.
(2) Notwithstanding any other law, the right set forth in paragraph (1) includes the right of a person with a criminal record to not have the person’s criminal record be used by a board as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation, unless for reasons specified in this section.
(3) Notwithstanding any other law, the right set forth in paragraph (1) also includes the right of a person who is behind on his or her taxes or student loan payments to obtain a license to engage in a profession or vocation, and the right to not have the board use the person’s status with respect to his or her taxes or student loan payments as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation.
(b) (1) A person may petition a board to review an occupational regulation within the board’s jurisdiction for compliance with subdivision (a). The board shall respond within 90 days after the petition is submitted, and shall, in writing, inform the petitioner of the board’s decision to do one of the following depending on the circumstances:
(A) Subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), repeal the occupational regulation.
(B) Subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), amend the occupational regulation to bring it into compliance with subdivision (a).
(C) Recommend the enactment of legislation by the Legislature.
(D) State the basis on which the board concludes the occupational regulation complies with subdivision (a).
(2) A person may appeal the board’s determination in paragraph (1) by filing an action in a court of general jurisdiction for declaratory judgment, injunctive relief, or other equitable relief.
(A) In such an action, the board bears the burden of proving by a preponderance of the evidence that the challenged occupational regulation is in compliance with subdivision (a).
(B) If the board fails to meet the burden of proof and the court finds by a preponderance of the evidence that the challenged occupational regulation does not comply with subdivision (a), the court shall enjoin further enforcement of the occupational regulation and shall award reasonable attorney’s fees and costs to the petitioner.
(c) (1) Notwithstanding any other law, a person with a criminal record may petition a board at any time for a determination of whether the person’s criminal record will automatically disqualify the person from obtaining a license from the board.
(2) The person shall include in the petition the person’s criminal record or authorize the board to obtain the person’s criminal record.
(3) Notwithstanding any other statute or rule, the board may find the individual’s criminal record disqualifies the individual from obtaining a license only if both of the following are met:
(A) The person’s criminal record includes a conviction for a felony or violent misdemeanor.
(B) The board concludes the state has an important interest in protecting public safety that is superior to the person’s right in subdivision (a). The board may make this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that all of the following are met:
(i) The specific offense for which the person was convicted is substantially related to the state’s interest in protecting public safety.
(ii) The person, based on the nature of the specific offense for which he or she was convicted and the person’s current circumstances, will be put in a position where the person is more likely to reoffend by having the license than if the individual did not have the license.
(iii) A reoffense will cause greater harm than if the individual did not have a license and was not put in the position where the individual is more likely to reoffend.
(4) The board shall issue its determination within 90 days after the board receives the petition. The determination shall be in writing and include, but not be limited to, the person’s criminal record, findings of fact, and the board’s legal conclusions.
(d) For purposes of this section, the following terms apply:
(1) “Board” has the same meaning as set forth in Section 22.
(2) “License” has the same meaning as set forth in Section 23.7.
(3) “Occupational regulation” means a regulation, rule, policy, condition, test, permit, administrative practice, or other state government-prescribed requirement for a person to engage in a lawful profession or vocation.