Protecting Public Safety and Occupational Entry

Sunrise laws aim to help legislatures (a) determine whether proposed new or expanded occupational regulations are genuinely necessary and, if they are, (b) identify and enact regulations that protect public safety without excessively interfering with the right to enter a lawful occupation. Sunrise laws pursue this objective in at least four ways.

First, most sunrise laws acknowledge the importance of balancing public safety with open occupational entry

Most states’ sunrise laws—11 out of 15—include a preamble or policy statement describing the legislation’s purpose, and each notes that regulation should be enacted only when necessary to protect the public. Whether explicitly or implicitly, these statements also acknowledge the importance of balancing public safety with open occupational entry (see Table 2). For example, the preamble to Virginia’s sunrise law expressly recognizes the right to engage in a lawful occupation, declaring:

The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare. ¹

On the other hand, Colorado’s sunrise law affirms the right to engage in a lawful occupation by implication. It begins: “The general assembly finds that regulation should be imposed on an occupation or profession only when necessary for the protection of the public interest.” ² In another example, Hawaii’s sunrise law reads, in part: “[T]he purpose of regulation shall be the protection of the public welfare and not that of the regulated profession or vocation.” ³

Such preambles and statements are not legally binding. Even so, they may serve as a lodestar for the interpretation and implementation of sunrise laws, reminding reviewers and legislators that the purpose of the law is to ensure regulations do not excessively interfere with the right to enter lawful occupations.

Table 2: Acknowledgment of Need to Protect Open Occupational Entry and Level of Harm Required to Justify Regulation in Sunrise Laws, 15 States

State	Acknowledgment of Need to Protect Open Occupational Entry	Level of Harm Required to Justify Regulation	Evidence of Past Harm to Be Considered
Arizona (health)
Colorado
Florida*
Georgia
Hawaii
Kansas (health)
Maine*
Minnesota* (health)
Nebraska (health)
South Carolina*
Utah*
Vermont
Virginia	Health and non-health:	Health and non-health:	Health: Non-health:
Washington (health and non-health)
West Virginia

Note: * = does not regularly produce reports.

Second, all sunrise laws require a showing of harm to justify regulation

All sunrise laws require a showing of harm to justify regulation, though some set more stringent standards than others (see Table 2). Ten states require evidence that unregulated practice poses a moderate threat of harm to public health and safety. Those laws often use language such as “can clearly harm” ⁴ or potential for harm that is “recognizable and not remote.” ⁵  Florida, Utah and West Virginia set a higher standard—a threat of significant or substantial harm. Hawaii and Maine, in contrast, use a lower standard, requiring evidence only of potential harm.

On top of setting a threshold level of harm, six states go a step further by asking for evidence of past harm from unregulated practice of an occupation. Such evidence may show the threat used to justify regulation is not merely hypothetical but rooted in real problems. Florida, for instance, requires regulation proponents to provide documentation of past harm by describing complaints from the previous three years. And guidelines for Virginia’s health reviews suggest the Board of Health Professions should investigate malpractice claim rates to determine the extent of past harm. Interestingly, although Hawaii uses one of the lowest standards of harm, it is among the states placing an emphasis on past harm. Its sunrise law states that “[e]vidence of abuses by providers of the service shall be accorded great weight in determining whether regulation is desirable.” ⁶

By requiring a showing of harm and especially evidence of past harm to justify regulation, sunrise laws may help guard against the enactment or expansion of regulation based on hypothetical fears rather than verified threats. In this way, they may help reviewers and legislators preserve the balance between protecting the public from bona fide dangers and keeping the doors open to lawful occupations.

Third, all sunrise laws ask reviewers to weigh the costs and benefits of proposed regulations

Sunrise laws also seek to protect open occupational entry by providing for evaluations of the costs and benefits of proposed regulations. All sunrise laws do this, though the level of detail varies (see Table 3). Eight states—Arizona, Florida, Georgia, Hawaii, Nebraska, Vermont, Washington and West Virginia— contemplate the greatest level of detail, specifying that sunrise review can or should consider costs to workers,  consumers and the state. In contrast, three states—Colorado, Kansas and South Carolina—mention only one of those cost types, while Virginia’s sunrise law for non-health occupations calls for only an explanation of “[t]he cost of the proposed regulation.” ⁷ In addition, all but two states—Hawaii and Utah—specify that sunrise reviews can or should weigh the proposed regulation’s costs against its potential benefits, which sunrise laws tend to frame in terms of assuring consumers of service providers’ “initial and continuing professional or occupational competence.” ⁸ In practice, however, some states’ reviewers consistently conduct more—or less— detailed evaluations of costs and benefits than specified in law.

Importantly, when weighing costs versus benefits, sunrise laws do not call for sophisticated economic analyses, perhaps because needed data are rarely available for individual occupations under consideration and, in the rare cases where data about specific occupations are available, such analyses can be laborious and time-consuming. And, in fact, our dataset suggests reviewers rarely if ever perform them. Instead, states’ laws and reviewers’ reports reflect a belief that a careful and thoughtful weighing of available evidence is enough to judge whether a regulation’s benefits justify its costs.

Table 3: Cost-Benefit Evaluations Provided for in Sunrise Laws, 15 States

State	Costs to Workers	Costs to Consumers	Costs to State	Benefits
Arizona (health)
Colorado
Florida*
Georgia
Hawaii
Kansas (health)
Maine*
Minnesota* (health)
Nebraska (health)
South Carolina*
Utah*
Vermont
Virginia	Health and non-health:	Health: Non-health:	Health: Non-health:	Health and non-health:
Washington (health and non-health)
West Virginia

Note: * = does not regularly produce reports.

Fourth, many sunrise laws require reviewers to recommend, and encourage legislatures to enact, the least restrictive regulation necessary to address the identified harm

Many sunrise laws ask both reviewers and legislators to consider whether less restrictive regulations—including no regulation—can protect the public (see Table 4). As discussed above, there is a range of options, both regulatory and non-regulatory,  for addressing occupational harms, of which licensure is perhaps the most well known but also the most restrictive.

Sunrise laws may promote less restrictive regulations in a few different ways. First, 12 states’ sunrise laws catalogue regulatory options from least to most restrictive, often resembling Figure 1. For example, West Virginia’s statute defines “least restrictive regulation” as meaning, from least to most restrictive:

Such lists tell reviewers and legislators that even if they determine that the identified health and safety risks warrant a response, the proposed regulation might not be the best response. A less restrictive regulatory or even non-regulatory option may be enough.

Second, 12 states require or encourage regulation proponents or reviewers to consider prior measures to address the identified harm and explain why those measures are ineffective. Prior measures may include actions taken by an occupation to police itself—such as with a code of ethics or voluntary private certifications ¹⁰ —or less restrictive government regulations already in place.

Third, sunrise laws in eight states ask reviewers or regulation proponents to consider whether a proposed regulation is “narrowly tailored” to the identified harm, which may make reviewers more likely to recommend least restrictive regulations. For instance, in Utah, reviewers must consider whether the proposed regulation is “narrowly tailored to protect against present, recognizable, and significant harm to the health or safety of the public” and whether the regulation will significantly diminish the identified risk. ¹¹  Similarly, Arizona’s law allows reviewers to ask proponents to provide information on “[t]he extent to which the incidence of specific problems present in the unregulated health profession can reasonably be expected to be reduced by regulation.” ¹²

A narrowly tailored regulation is one that would remedy the specific harm at issue without being overbroad and unnecessarily burdening occupational entry.  For example, with restaurant cooks, the potential harm might be foodborne illness. Both licensure for cooks and regular inspections of restaurant kitchens might protect the public, but only inspections are narrowly tailored to the specific harm. Indeed, inspections are the primary way most jurisdictions ensure restaurant food safety. And no state licenses restaurant cooks. ¹³ Similarly, where the potential harm is the risk of damage or fraud by fly-by-night service providers, registration may be more appropriate than full licensure. With registration, providers need not meet any specific qualifications, but the state can track those with complaints or disciplinary actions—and consumers can avoid businesses with a history of problems. ¹⁴

Fourth, nine states’ sunrise laws explicitly require reviewers to recommend the least restrictive alternative to the proposed regulation. South Carolina’s sunrise law, for instance, states that “the commission shall recommend the least extensive and restrictive form of regulation consistent with the public interest. The commission may not recommend any regulation unless necessary to protect the health, safety, or welfare of the public.” ¹⁵ Likewise, Utah’s law states that reviewers “shall study and make recommendations regarding potentially less restrictive alternatives to licensing for the regulation of lawful occupations, including registration, certification, or exemption, if appropriate, that would avoid unnecessary regulation while still protecting the health and safety of the public.” ¹⁶

Finally, seven states encourage the legislature to enact the least restrictive regulation, some in very strong terms. Arizona, Nebraska and Vermont say the legislature “shall” enact the least restrictive regulation necessary to protect the public. ¹⁷ Virginia uses similarly strong language. ¹⁸ While a statute cannot tie the legislature’s hands, strong language may be effective in encouraging the legislature to enact the least restrictive regulation, including no regulation, thus helping to protect open occupational entry.

Only two states—Georgia and, for health occupations, Virginia—promote less restrictive regulations in all five of the above ways. Arizona, Nebraska, Utah, Vermont, Washington, West Virginia and, for non-health occupations, Virginia do so in four ways. Two states, Colorado and Hawaii, do not promote less restrictive regulations in any of the above ways.

Table 4: Provisions Promoting Least Restrictive Regulations (LRR) in Sunrise Laws, 15 States

State	List of Regulatory Options Provided	Review to Consider Prior Measures to Address Harm	Review to Consider Whether Proposed Regulation Is Narrowly Tailored	Reviewer Required to Recommend LRR	Legislature Encouraged to Enact LRR
Arizona (health)
Colorado
Florida*
Georgia
Hawaii
Kansas (health)
Maine*
Minnesota* (health)
Nebraska (health)
South Carolina*
Utah*
Vermont
Virginia	Health and non-health:	Health and non-health:	Health and non-health:	Health: Non-health:	Health and non-health:
Washington (health and non-health)
West Virginia

Note: * = does not regularly produce reports.