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SECOND REGULAR SESSION
HOUSE BILL NO. 3082
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE DA VIS.
6749H.01I JOSEPH ENGLER, Chief Clerk
AN ACT
T o amend chapter 1, RSMo, by adding thereto one new section relating to government
restrictions on the ability of a person to earn a living.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 1, RSMo, is amended by adding thereto one new section, to be
2 known as section 1.340, to read as follows:
1.340 . 1. This section shall be known and cited as the "Missouri Entr epr eneurial
2 Fr eedom Restoration Act".
3 2. The general assembly finds and declar es the following:
4 (1) The right of individuals to pursue a chosen business interes t, occupation,
5 trade, or pr ofession fr ee fr om arbitrary , unr easonable, or excessive government
6 interfer ence is a fundamental right;
7 (2) The original public meaning of Article I, Section 2 and Article I, Section 10 of
8 the Constitution of Missouri enshrined the right to earn a living as a fundamental right.
9 These constitutional pr ovisions recog nized that the right to earn a living is deeply root ed
10 in the history and tradition of Missouri and of this nation, the common law , and natural
11 law;
12 (3) Nevertheless, in W illiamson v . Lee Optical, Inc., 348 U.S. 483 (1955) and the
13 Slaughter -house Cases, 83 U.S. 36 (1872), the U.S. Supr eme Court virtually eliminated
14 the r equir ement that the government justify burdens on the right to earn a living despite
15 its enshrinement in the Fourteenth Amendment to the Constitution of the United States.
16 This state’ s courts have largely followed suit in interpr eting the right to earn a living
17 under the Constitution of Missouri, ther eby leaving it unpr otected;
EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language.
18 (4) Overly burdensome res trictions on the right to earn a living impede
19 economic grow th, hinder job cr eation, and limit consumer choices without pr omoting
20 public health, safety , or welfare;
21 (5) Heightened judicial r eview requ iring the government to justify the burdens it
22 imposes on the right to earn a living pro vides a workable test for striking sensible
23 balances between the right to earn a living and competing government interes ts in
24 public health, safety , and welfare; and
25 (6) Economic pr otectionism is never a valid government interes t and cannot
26 justify burdens on the right to earn a living.
27 3. The purposes of this section are:
28 (1) T o restor e judicial protecti on of the right to earn a living by r equiring courts
29 to apply heightened judicial review to government r estrictions that unnecessarily
30 burden the right to earn a living;
31 (2) T o promot e economic opportunity , competition, and individual fr eedom by
32 r emoving unnecessary res trictions on pursuing a livelihood in businesses, occupations,
33 pr ofessions, and trades; and
34 (3) T o provi de a claim or defense to individuals when the government
35 unnecessarily burdens their right to earn a living.
36 4. The pr ovisions of this section apply to all state and local laws, and
37 implementation of those laws, whether statutory or otherwise, and whether adopted
38 befor e or after the enactment of this section. State and local laws adopted after the
39 enactment of this section are subject to this section unless such law explicitly excludes
40 such application by ref eren ce to this section.
41 5. The right to earn a living in the businesses, profes sions, occupations, and
42 trades of life is the very essence of personal fr eedom and opportunity . The state of
43 Missouri recog nizes it as a fundamental right and nothing in this section shall be
44 construed to authorize any governmental body to burden the right to earn a living.
45 6. State and local governments, including their branches, departments, agencies,
46 instrumentalities, and officials, or other persons acting under the color of state or local
47 law , shall not burden a person’ s exercise of their right to earn a living unless the
48 r equir ements of subsection 7 of this section ar e met. Government r estrictions that
49 burden the right to earn a living without satisfying subsection 7 of this section constitute
50 a violation of this section, making the governmental body liable for legal and equitable
51 r elief.
52 7. Government r estrictions that burden the right to earn a living do not violate
53 this section if the governmental body demonstrates thr ough clear and convincing
54 evidence that:
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55 (1) Applying the burden to the person is necessary to pr otect public health,
56 safety , or welfare;
57 (2) Applying the burden to the person is the least r estrictive means to achieve the
58 law’ s stated purpose; and
59 (3) Alternative mechanisms, such as voluntary certification or less r estrictive
60 r egulatory measur es, could not achieve the stated government inter est without
61 unnecessarily res tricting entry into the occupation.
62
63 As used in this subsection, the term "welfar e" shall be narr owly construed to mean only
64 the pr otection of the public against fraud or physical or psychological harm. "W elfar e"
65 shall not mean the pr otection of businesses or agencies, whether publicly or privately
66 owned, against competition.
67 8. A person whose right to earn a living has been burdened in violation of this
68 section may assert that violation as a claim for reli ef in a court of competent jurisdiction
69 in this state and as a defense in any judicial or administrative pr oceeding. A court may
70 issue declaratory , injunctive, or other equitable relief and nominal damages to any
71 person who pr oves a violation of this section.
72 9. A person intending to engage in a specific business, pr ofession, occupation, or
73 trade but hinder ed fr om working by a burden on the right to earn a living, whether
74 curr ently engaged in a specific business, pr ofession, occupation, or trade, shall have
75 standing to bring a claim or defense asserting a violation of this section without being
76 r equir ed to first apply for , obtain, or be denied a relevan t occupational license or
77 certification.
78 10. A person asserting a claim for nominal damages for a violation of this section
79 has standing to challenge r estrictions alleged to burden the right to earn a living
80 pr otected by this section. The asserted harm shall arise dir ectly fr om the lawful practice
81 of the occupation itself, and not fr om independent criminal or unlawful conduct by third
82 parties.
83 1 1. A regu lation shall not be justified on the basis of moral disappr oval,
84 generalized psychological impact, or the desire to discourage lawful but disfavor ed
85 conduct. Evidence offered by the government to justify a reg ulation shall demonstrate a
86 substantial causal rel ationship, and not mer e correl ation or statistical association,
87 between the regul ation and the prev ention of the asserted harm.
88 12. A reg ulation shall not be deemed necessary if the asserted harm is alrea dy
89 addr essed thr ough existing criminal, civil, or administrative law unless the government
90 pr oves by clear and convincing evidence that such existing law is inadequate.
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91 13. The court shall award reas onable attorney's fees and costs to any person who
92 pr oves the government violated this section.
93 14. Nothing in this section supersedes or preempt s any existing cause of action
94 that a person may have under the federal or state constitutions, any statute, or the
95 common law . This section instead pro vides an additional layer of pr otection for the
96 right to earn a living.
97 15. If any pr ovision of this section or its application to any person or
98 cir cumstances is held invalid, the invalidity does not affect other provi sions or
99 applications of this section that can be given effect without the invalid pro vision or
100 application.
101 16. The state of Missouri her eby waives sovereig n immunity as to nominal
102 damages up to one dollar for each claim for any act by a state or local government
103 official that violates this section by unlawfully burdening the right to earn a living.
104 Further , any government official who, thr ough act or omission, unlawfully burdens the
105 right to earn a living by enforcing res trictions found to violate this section is liable for
106 nominal damages up to one dollar for each claim and is not entitled to qualified
107 immunity or any other type of immunity for nominal damages.
✔
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