License to Work: Licensing Boards Sidebar
Salt Lake City hairbraider and IJ client Jestina Clayton
One danger of occupational licensing regimes is that, once established, they take on a life of their own. Once licensees enjoy the benefits of limiting competition, they become a persistent lobby for keeping licenses on the books and for expanding them to encompass previously unlicensed practices. And because regulatory boards established to oversee the licensing process are typically made up of current practitioners and funded by licensees’ dues, they have tremendous incentives to adopt and enforce a broad interpretation of a license’s scope. All too often the result is that new business models or techniques are choked off as would-be innovators are forced to undergo costly and irrelevant training or testing or are effectively shut down with threats of fines, injunctions or even criminal prosecution.
This problem of “license creep” is just one of several ways this report underestimates both the extent and the impact of occupational licensing on job seekers and creators.
For example, cosmetology is one of the 102 licensed occupations studied, but in many states, what licensing boards define as “cosmetology” actually encompasses several occupations.1 These include ancient, all-natural grooming practices like the South Asian and Middle Eastern practice of eyebrow threading and African-style hairbraiding. These increasingly popular services have existed for centuries and require no heat, chemicals or sharp objects. Yet cosmetology boards in several states insist that these practitioners obtain expensive and irrelevant licenses in Western-style cosmetology.
Eyebrow threading simply uses cotton thread to remove unwanted facial hair by forming a loop in the thread and then quickly brushing it along the face of a client. In Texas, eyebrow threaders with 20 years of experience are being told they must stop working and spend between $7,000 and $22,000 and 750 hours in a government-approved beauty school that does not even teach threading.2
Likewise, African-style hairbraiders in Utah must spend 2,000 hours in cosmetology training that does not even teach braiding.3 Other states impose similarly irrelevant cosmetology requirements on braiders, and only 10 states specifically exempt them from cosmetology licensing regimes.4
Once created and empowered to oversee an occupation, licensing boards may even completely prohibit a practice, as cosmetology boards in at least 14 states have done with the Asian practice of fish pedicures, where small, toothless fish painlessly remove dead skin from customers’ feet.5
Dentists, too, have joined the trend of license creep. In a number of states, including Connecticut, dental boards and dental associations are demanding that entrepreneurs who sell over-the-counter teeth-whitening products and provide customers guidance and a location to use the product must be fully licensed dentists.6 Yet it is perfectly legal for someone to take the very same whitening kit home and apply it without guidance. On average, a dentist can earn $25,000 annually by performing teeth-whitening, and dentists routinely charge four times more than non-dentists.7
Until a recent federal court decision,8 Louisiana for many years included casket selling within the scope of a funeral director’s license. That meant independent casket makers or sellers, such as the monks of Saint Joseph Abbey in St. Benedict, La., would have had to apprentice for one year, learn unnecessary skills, pass an industry test and install embalming equipment just to sell a wooden box.9 A federal appeals court struck down a similar law in Tennessee,10 but a different appellate court upheld Oklahoma’s casket monopoly.11
Elsewhere, veterinary boards have tried to sweep the traditional practice of horse teeth floating under their domain. Chris Johnson, a third generation teeth floater in Minnesota, learned from his father how to manually file or “float” a horse’s teeth, a necessary procedure since horses’ teeth grow throughout their lifetimes. State boards in Minnesota and Texas blocked these less expensive (and often far better qualified) competitors even though few veterinary schools provide significant instruction in dentistry, let alone teeth floating. Johnson was forced out of business, and practitioners in Texas must work under the supervision of veterinarians who typically have no hands-on training or personal experience with equine teeth floating.12
In yet another example, Texas defined the practice of private investigation so broadly that it included a variety of computer repair services, forcing all computer technicians to obtain a costly P.I. license before looking at computer data—or face steep penalties.13
Occupational licensing often does more than burden aspiring workers. It empowers current licensees to police the boundaries of their occupation and gives them every incentive to push those boundaries ever further to keep out new competition.
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1 One such occupation, makeup artist, was included in the study as its own occupational category even though in most states it is simply considered the practice of cosmetology or esthetics. This is because makeup artists are classified separately by the Bureau of Labor Statistics, the main source for our list, while other emerging or smaller occupations such as hairbraiders and eyebrow threaders are not.
2 Hottot, W. (2009). Bureaucratic barbed wire: How occupational licensing fences out Texas entrepreneurs. Arlington, VA: Institute for Justice. See also Texas House of Representatives (2009). Interim report of the Committee on Government Reform, 81st Legislature. Austin, TX: Texas Legislative Council. Available at http://www.tlc.state.tx.us/docprod/reports/HI81GovRef.pdf.
4 Carpenter, D. M. (2009). The power of one entrepreneur: Melony Armstrong, African hairbraider. Arlington, VA: Institute for Justice.
5 Shishkin, P. (2009, March 23). Ban on feet-nibbling fish leaves salons on the hook. Wall Street Journal, http://online.wsj.com/article/SB123776729360609465.html.
8 Saint Joseph Abbey v. Castille, 2011 U.S. Dist. LEXIS 79327 (E.D. La. July 21, 2011).
10 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002).
11 Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004).