With generally strong backing from the business lobby, Tennessee legislators made a theme this year of curbing the power of state departments and agencies while enhancing the General Assembly’s oversight of their rules and regulations.
The move with perhaps the greatest long-range consequences came with passage of HB2068 by Rep. Martin Daniel, R-Knoxville, and Sen. Mike Bell, R-Riceville.
The bill, signed into law by Gov. Bill Haslam despite concerns from several of the departments he oversees, makes it more difficult to promulgate rules and regulations. And it makes clear that the Legislature, acting through the Government Operations Committees of the House and Senate, has absolute authority to reject any rule that a majority want to overturn.
As Daniel put it: “The primary effect of this bill will be to eliminate the liberal construction of the Administrative Procedures Act.” Currently, the Uniform Administrative Procedures Act (UAPA) contains provisions that say, more or less, that if there’s a doubt about the authority of an administrative agency, the dispute will be resolved in favor of the agency having the authority to act.
The bill effectively flips that. The presumption now is that the agency does not have authority and must establish that the rule is necessary through “convincing” evidence. During debate, Democrats said the move is an unprecedented revision to the UAPA, a model law that has been adopted to govern administrative operations in all states, though each state can make modifications.
News release from Beacon Center of Tennessee
In its first statewide legal challenge, the Beacon Center Legal Foundation filed a civil rights lawsuit on behalf of Memphis resident Tammy Pritchard. The lawsuit is in response to Tennessee’s unfair and unconstitutional occupational licensing regulation on shampooing.
The state of Tennessee forces hair washers to get a license before they are legally allowed to shampoo hair. Due to the state’s licensing requirement, residents must spend hundreds of hours in educational programs that cost thousands of dollars before they are able to carry out this simple task in return for money.
Even worse, no one can currently acquire a license to shampoo hair in Tennessee. This is due to the fact that there is currently no school in the entire state that offers the course that is a mandated component of the hair washing license. That means that unless you already have a hair washing license from years ago or from another state, you are unable to wash hair in Tennessee without obtaining a full cosmetology license, something that requires 1,500 hours of schooling and costs as much as $35,000 in tuition.
Beacon Director of Litigation and former U.S. Justice Department Attorney Braden Boucek stated, “The idea that a person needs to have a license to do something as simple as washing hair is not just foolish, it is unconstitutional. These laws are designed by people already in the business who are attempting to unfairly shield themselves from competition at the expense of hard working Tennesseans. That’s not what laws are for. People want to work, and this regulation hurts the very people who need a job the most. The government is preventing low-income Tennesseans from getting a good a job, and we at the Beacon Center are ready to put a stop to that.”
Boucek went on to note, “The worst part of this regulation is that the state requires you to go to a school to get a license but is unaware of any school that actually offers the program.”
For more details about the case and to read the full story of Tammy Pritchard, click here
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Attorney General Bob Cooper says a state law that requires liquor store owners to be Tennessee residents – enacted by state legislators who said they wanted to block “interstate whiskey” – violates the commerce clause of the U.S. Constitution.
State Rep. Jon Lundberg, R-Bristol, who requested the Cooper opinion released Tuesday, says he will next year sponsor legislation to repeal the requirement and hopes it will be a first step toward a comprehensive rewrite of state liquor laws that currently “are not business-friendly and not citizen-friendly.”
The Cooper opinion (full text HERE) deals with statutes applying to both wholesale and retail liquor licenses.
To get a wholesaler license, a corporation’s officers and stockholders must be Tennessee residents for five years and “a majority of its assets” must be located in Tennessee. For a retail package store license, a company must have “all of its capitol stock” owned by persons who have resided in Tennessee for at least two years.
“These residency and corporate asset location requirements for applicants seeking a license as an alcoholic beverage wholesaler or package retailer violate the Commerce Clause of the United States Constitution,” says the opinion.
Senators argued to a temporary standstill Thursday over whether anyone teaching in a college should also be automatically eligible for to teach in high schools.
The bill in question (SB2302) says that “notwithstanding any law to the contrary,” the state Department of Education shall issue a license to teach to anyone who has taught in certified college or university fulltime for two years are part-time for four years.
Sen. Roy Herron, D-Dresden, led a verbal assault by Democrats on the proposition, declaring the broad language means overriding current laws requiring teachers to have “good moral character” and denying teaching licenses to those with felony convictions or “addicted to the use of intoxicants or narcotics.”
He envisioned the Department of Education forced to issue a teaching license a “convicted sexual predator” with a narcotics conviction.