A Brief Primer on Constitutional Challenges to Occupational Licensing Laws

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Over the last few decades occupational licensing has become the norm in America. It seems that just about every business one could think of requires a some type of license from the state. Even entry level businesses — such as selling lemonade or washing dogs– now require pages of applications and hundreds of dollars in licensing fees and mandatory education just to get started.

While constitutional challenges to these restrictions rarely succeed, an effective challenge is not impossible. The Due Process Clause of the Fourteenth Amendment protects each individual’s right to earn a living free from unreasonable government interference. In practice, that means that all licensing requirements must bear some rational relationship to the protection of the public at large– i.e. the public health, safety, or welfare. License requirements that fail to meet this standard may be successfully challenged in court.

For example, in 1999, a Federal District Court struck down a California licensing requirement for hair-braiders that required them to spend nine months (1,600 hours) and at least $5,000 at a government-approved cosmetology school before sitting for the state licensing examination, which allowed braiders to legally practice their craft. Because none of these government-mandated classes actually taught students how to braid hair, the Court found that the education requirements were not related to any legitimate state interest and therefore were unconstitutional.

Similarly, in 2002, the Sixth Court of Appeals invalidated a Tennessee law requiring that anyone who wished to sell a casket become a licensed funeral director. Looking at the facts, the Court could think of no rational reason (other than protecting existing funeral directors from competition) for requiring casket-sellers to undergo the extensive training and testing required to be a funeral director when all they wanted to do was sell caskets. Thus, because protecting existing businesses from competition is not a constitutional purpose for state legislation, the law was struck down.

That said, most licensing requirements will be upheld. Courts will not strike down license requirements merely because they are burdensome or silly. As in the cases mentioned above, the challenged regulation must have no relationship to any legitimate interest before a court will strike it down. An attorney with expertise in occupational licensing should be able to tell the difference.

If you or your business is experiencing similar burdensome government requirements, please contact the Los Angeles and Sacramento Lawyers at Kassouni Law by calling 877-770-7379. We will be pleased give an honest evaluation of your legal matter.

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