September 27, 2005 | Commentary on Legal Issues
Many states require about 1,700 hours
of training to become a licensed paramedic, six weeks of training
to be a firefighter, and 10 weeks of training to become a police
officer. So a job requiring 3,200 hours of training must be even
more complicated or dangerous, right?
Actually, that's what some states require to become a licensed hair braider. And that's just one example of the many ridiculous obstacles faced every day by American entrepreneurs. Worst of all, accidentally violating such regulations can turn well-meaning small-business owners into criminals.
Legislators may believe they are protecting their constituents when they write these laws, but often, they do so only after being prodded by special-interest groups intent on stifling competition from startup businesses. Many business licensing laws, in practice, do nothing to protect consumers and actually raise prices and reduce quality. And in most states, failing to navigate the licensing bureaucracy is a criminal offense. Business owners who don't comply, even accidentally, can be bankrupted with fines or even thrown in jail.
In Utah, the Pleasant Grove City Police arrested eight people for "soliciting without a license." Soliciting what? Drugs? Prostitution? No. They were soliciting for customers to buy vacuum cleaners. Police rounded up the otherwise law-abiding door-to-door salesmen for violating a city code requiring them to provide fingerprints and post a $1,000 bond. All that just to sell vacuums. They sued the city, arguing that the licensing regime violates their rights to freedom of speech and to earn a living.
In July, the U.S. Court of Appeals for the Tenth Circuit agreed with the salesmen. The city claimed that the law was not about harassing and discouraging businesspeople, but was intended only to prevent fraud and burglaries. During a hearing, however, a Pleasant Grove City police captain admitted that the fingerprints required for a license never had been used -- not to prosecute a crime or for anything else. In reality, the fingerprinting and expensive bond were just ways to interfere with a legitimate business by creating time-consuming and complicated procedures with criminal penalties for intentional or even accidental non-compliance.
Is it really a good idea to use scarce criminal-justice resources to go after well-meaning and productive citizens? Small-business entrepreneurs certainly don't think so, and some of them are fighting back.
For many urban women, particularly immigrants from Africa and the Caribbean, hair braiding is a great way to earn a living. It requires almost no initial investment, can pay a relatively high hourly wage and allows a flexible schedule. As is often the case, some established businesses are less than enthusiastic about the upstart competition. In fact, established full-service salons have pressured some state regulators to go after hair braiders for failing to secure a cosmetology license -- despite the fact that hair braiders don't use chemicals, razors or any of the other potentially hazardous tools used in a regular salon.
In Mississippi, the law required 3,200 hours of coursework just to apply for a license. Any violation was considered a crime. Hair braiders challenged the law in court in 2004 and won, requiring the law to be rewritten with more freedom and less economic protectionism. California law required at least nine months of full-time study at a cosmetology school, which could cost more than $5,000. A court in California found that the licensing requirement was irrational as applied to hair braiding and struck it down.
The Louisiana legislature has taken silly and abusive regulations even further. Want to open a flower shop in the Bayou State? First you'll need a state-issued florist license. And to get the license, you must pass the state florist test, which just happens to be graded by established florists. It is no surprise that the exam is totally subjective and the pass rate is lower than the Louisiana state bar exam.
The justification for economic regulation is always the "public good," but in many cases it is clear that lawmakers are simply protecting established businesses from competition. No one should be branded a criminal for practicing floristry without a license. Salesmen should not be treated like felons in the course of trying to earn an honest living for their families. Women who want to braid hair for a living deserve the freedom to do so without being crushed by senseless regulation. Instead, governments should celebrate the distinctly American entrepreneurial spirit and encourage the creation of new businesses.
There certainly are occupations that call for high training standards and regulatory oversight, although criminal law never should be used for accidental violations. But hair braiders and vacuum cleaner salesmen are not paramedics or pilots. When it comes to everyday Americans trying to do everyday jobs -- like, say, floristry -- government should "let 1,000 flowers bloom."
Trent England is a legal policy analyst at The Heritage Foundation. Claire Wendt is a law student at Pepperdine University and was the H.N. and Frances C. Berger Foundation intern at Heritage (heritage.org).
Distributed nationally on the Knight-Ridder Tribune Wire