The downside of professional and occupational licensing is one of the few subjects on which liberals and libertarians have been in accord. “We don’t have active supervision of our boards - they make their decisions and move forward without any oversight by the state.” Jerry Hill (D-San Mateo), chairman of the Senate’s business and professions committee.
“My sense is that it will apply directly to California,” says state Sen. There’s little doubt that California is in the ruling’s crosshairs.
The court has established, he says, that “the king has been wearing no clothes for the last 72 years.” The Supreme Court ruled then that state regulatory bodies comprising industry members are entitled to antitrust immunity only as long as their authority to set regulations is constrained and their decisions are subject to “active supervision” by state officials.įebruary’s decision means that “the vast majority of commissions and boards in all 50 states are untenable and illegal,” says Robert Fellmeth, a veteran antitrust expert who is executive director of the Center for Public Interest Law at the University of San Diego law school. That’s a partial list of California professional boards affected by the ruling, which is based on a 1943 precedent set in a case involving a marketing program for California raisins. Hanging in the balance is the state’s ability to regulate not only barbers and pet groomers, but also doctors and surgeons, nurses, chiropractors, optometrists, accountants, architects, lawyers, pest exterminators and security alarm installers. The state Senate Committee on Business, Professions and Economic Development has asked legislative counsel to examine the Supreme Court decision, but it isn’t expecting a report until next month. The Department of Consumer Affairs, which encompasses as many as 40 boards, says it hasn’t yet figured out how it applies. Yet in California, state officials have been slow to acknowledge its implications. The case involved North Carolina’s board of dental examiners, but its nationwide impact could be immense. 25 that if a “controlling number” of a board’s members are active participants in the business it regulates, they could be sued as antitrust violators. Supreme Court has now set them straight, ruling 6-3 on Feb. Until a few weeks ago, such state regulatory boards thought they had an exemption from the law. This smacks of “restraint of trade,” a fundamental no-no in antitrust law. These are just two of countless ways that members of a business or occupation can close the doors to others by using their authority on a state regulatory board. The board treats tooth cleaning using anything but a toothbrush as veterinary medicine - and the unlicensed practice of which is a crime punishable by up to a year in jail. Want to get paid for shampooing someone’s hair? In California, you may need to have at least nine months of experience and pass a licensing test overseen by the state barbering and cosmetology board, whose members include salon professionals.ĭo you clean dogs’ teeth for pay as part of a grooming service? You might run afoul of the state Veterinary Medical Board, which includes four veterinarians and a veterinary technician among its eight members.
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