Sec. 406. Judicial review
511 words·~2 min read·
/bill/117/s/2039/is/section-406·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The immunity under section 404(a) shall apply to any action of an occupational licensing board of a State, or any action of a member, officer, or employee of that board acting in the official capacity of that member, officer, or employee, if— the actions of the occupational licensing board or member, officer, or employee are authorized by a non-frivolous interpretation of the occupational licensing laws of the State; the State adopts a policy of using less restrictive alternatives to occupational licensing to address real, substantial threats to public health, safety, or welfare, in accordance with section 405(b); and the State enacts legislation providing for judicial review of occupational licensing laws, in accordance with subsection
(b)of this section. Legislation enacted by a State under subsection (a)(3)— shall— prohibit the State and any occupational licensing board from imposing an occupational licensing law unless the State— identifies an important government interest in protecting against real, substantial threats to public health, safety, or welfare; and demonstrates that the occupational licensing law is substantially related to achievement of the important government interest described in clause (i), in light of the availability of less restrictive alternatives to occupational licensing; provide an affirmative defense against enforcement of any occupational licensing law of the State under which the State shall be required to demonstrate that the standard under subparagraph
(A)has been met; establish a cause of action under which— a person may bring an action for injunctive relief against enforcement of an occupational licensing law of the State; the plaintiff bears the initial burden to prove that the challenged occupational licensing law substantially burdens the plaintiff’s ability to engage in a lawful occupation; and once the plaintiff makes the initial showing under clause (ii), the State is required to demonstrate that the standard under subparagraph
(A)has been met; provide for an award of reasonable costs and attorney fees to a person who successfully challenges the application of an occupational licensing law of the State by— raising an affirmative defense under subparagraph (B); or bringing an action under subparagraph (C); and provide for independent judicial review of the occupational licensing laws of the State to ensure that the standard set forth in subparagraph
(A)has been met; and may not authorize a court to— uphold enforcement of an occupational licensing law of the State simply because the court believes the law is rationally related to a legitimate governmental purpose; rely on hypothetical risks to public safety, not substantiated by evidence in the record, to uphold enforcement of an occupational licensing law of the State; defer to factual or legal conclusions of another person or entity, rather than exercising independent review; or rely on a post hoc justification for the action of an occupational licensing board that was not put forward by the board at the time of the challenged action. Nothing in subsection
(b)shall be construed to require legislation enacted by a State under subsection (a)(3) to provide a right to recover monetary damages, other than reasonable costs and attorney fees as provided under subsection (b)(1)(D).