Tuesday, August 5, 2014 | 4 comments

Legislative Overstepping? Firearms, Breastfeeding, and More

By Connor Boyack

Audio Recording

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

View our iTunes Podcast

Under Utah law, cities are authorized to require permits of business owners—including home business owners—for “purposes of regulation and revenue.” A bill attempting to restrict that authority, specifically carving out an exemption for at-home business owners, struggled in committee and was referred to interim study.

That interim study came in the form of another committee meeting a few weeks ago, in which the same debate was had; many legislators struggled to understand how or why the legislature should “impose” something upon the cities. They voiced objections to the thought of “micro-managing” cities, and indicated a preference to allowing cities to do as they please.

What wasn’t brought up, however, was the fact that the legislature has in the past—in many cases—restricted the authority of local governments to ensure a state-wide policy is followed rather than enabling a patchwork of different treatment for citizens around the state. As it relates to the home business exemption, this also makes sense. Why should a (very part time) seamstress earning $200 a year on the side be forced to pay a $150 license fee for the privilege of working in her own home, while another seamstress earning the same amount in another city be free from that burden?

As mentioned, there are many instances in Utah law when cities and counties are prohibited from doing something. Here are a few examples.

Firearms

Utah law explicitly recognizes the “individual right to keep and bear arms” as “a constitutionally protected right under Article I, Section 6 of the Utah Constitution.” As such, “the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.”

Part of that uniform law includes the following:

(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.

Many cities might like to enact policy restricting or regulating firearm possession and transportation. Some would jump at the chance to collect revenue by requiring a permit and license. This power is denied to them by the legislature, creating a state-wide policy that recognizes and protects the right to acquire and possess firearms.

Breastfeeding

Andrea Scannel, a Utah mother, was at Mount Logan Middle School for a government-administered “free lunch” program for her three-year-old. While there, she nursed her infant. She was given a letter by the school’s principal, delivered by an employee, passive-aggressively inviting her to “use discretion” and to “find a way to discreetly feed the baby, whether with a small blanket or in a more private area.” Andrea was taken aback by the “request,” later commenting: “I just never expected anyone to have an issue with me feeding my baby while everyone is there to feed their children.”

Utah law states, “A woman’s breast feeding, including breast feeding in any place where the woman otherwise may rightfully be, does not under any circumstance constitute an obscene or lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.”

It further stipulates that local governments “may not prohibit a woman’s breast feeding…” Some of the more conservative cities might otherwise wish to regulate how much breast can be exposed, and when and where, but this power is denied to them “irrespective of whether the breast is uncovered during or incidental to the breast feeding.” Mothers around the state now take comfort in a general recognition that their nursing of their infants is a legally protected activity.

Alcohol regulation

One might imagine what Provo, Utah would do in regards to regulating alcohol availability if it had the opportunity, but Utah law states that it, and other cities, “may not regulate in relation to” an issue “related to alcoholic product control” if state law already addresses that issue, unless the legislature “expressly granted” authority to do so.

If the legislative committee reviewing the business licensure bill imposed their same logic on this issue, some cities such as Park City and Salt Lake City would have free-flowing booze while others, such as Provo or Orem, would be dry cities. The legislature has previously decided on requiring a more uniform set of policies throughout the state, denying authority to the cities to act contrary to its edicts.

Immigration

Just a few years ago, the legislature passed a bill that prevents local governments from enacting “an ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials regarding the immigration status of a person within the state.”

Whereas a more liberal city council might want to prevent coordination such as this to provide sanctuary to so-called “illegal immigrants,” cities and counties around the state have been denied the ability to intervene.

Conclusion

More examples exist, but these suffice to show that the legislature is perfectly comfortable establishing state-wide policies on matters where there otherwise might be diverse interests among Utah’s 243 cities and towns.

Of course, just because the legislature has done something in the past is not reason on its own to repeat it in the future. However, in cases where fairness and rights are involved, it makes more sense to have a uniform policy that recognizes and protects that right.

The right to work has long been recognized by the courts in Utah. For example, in Leetham v. McGinn: “The right to engage in a profession or occupation is a property right, which is entitled to protection by the law and the courts.” In another case, McGrew v. Industrial Commission, we read this:

[O]ne may be said to have a special property in his profession or calling by means of which he makes his support, and he can be deprived of it only by due process of law. . . . . The right to work, the right to engage in gainful occupations, the right to receive compensation for one’s work are essentially property rights. So too is the right to enjoy the benefits resulting from the work of one so employed. So also the right to engage in commerce or in legitimate business is property.

For this reason, we support a state-wide restriction on a city’s ability to siphon money from its residents through permits for operating businesses inside the home that do not impact the public. Legislators expressing concern over stepping on the toes of cities seems, in the end, to be more a concern of money than authority; local governments are not going to give up an estimated $4 million in revenue without a fight.

Tagged in: , , , ,

About the Author

Connor Boyack is president of Libertas Institute. He is the author of several books on politics and religion, including the Tuttle Twins series for children.


4 comments
davidmpark
davidmpark

The legislature lifting that city ban would help my family and I. I legally cannot work outside the home because of my wife's disability (that's what APS told me: neglect by an informal caregiver of a vulnerable adult is a class-B misdemeanor - heavy fines and mandatory jail time). There are very few jobs outside of 10 years experience as a technology expert or professional blogger. I'm neither, nor can I leave for college to get training. Lifting the licensing and permits would help open more opportunities. Wouldn't solve any of problems, but it'd be a start - at least I can try to earn something.

Elaine
Elaine

Wish I'd been there. The legislature does seem rather afraid of the cities. The cities seem to think imposing licenture on any one potentially earning anything, including the babysitter or lemonade stand, somehow serves the public interest. It's about the money.

Skyler Collins
Skyler Collins

But what about City's Rights? You aren't a centralizer, are you? 

Greg
Greg

@Skyler Collins 

Prohibition of creating laws that would restrict individual freedoms is precisely as much a centralization as the Bill of Rights.




Featured