by Timothy Sandefur
February 1, 2018
Think for a moment of the many things government requires you to get a permit or a license to do—everything from building a house to starting a business to holding a yard sale. Usually, these requirements might be a bit of a hassle, but aren’t that burdensome—you fill out some paperwork and pay a fee. But in other cases, permit and license requirements can be a major burden, costing people thousands or even millions of dollars and months or years of delay. Vague, incomprehensible rules, and a lack of clear deadlines mean that bureaucrats can indefinitely postpone even considering a permit application—and most of the time, there’s nothing you can do about it, thanks to legal precedents that say a person can’t bring a lawsuit until a final decision is rendered.
Beginning in the 1950s, the U.S. Supreme Court made clear that while the government can require people to get permits, it has to at least provide what it called “procedural safeguards”—simple rules of fair play when it considers whether to grant a permit or not. There are three basic requirements:
1) The criteria for getting the permit should be clear, not vaguely worded things like “good cause” or “moral character” or “if we feel like it.”
2) There should be a clear deadline for when the applicant will get an answer—not just “whenever we get around to it.”
3) If the permit is denied, the applicant should be given his day in court to challenge it if he thinks that’s wrong.
These three simple rules were first applied to cases involving permits that had to do with free speech—like permits to have a protest or to show a movie. But in 1958, the Supreme Court explained that these three requirements applied to any law that “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon…a permit or license.”
Unfortunately, the Supreme Court’s command has gone unheeded much of the time. Many permit requirements include ambiguous and undefined terms. Some zoning laws require that buildings have “visual variety and interest” or that they be “appropriate for the location,” for instance. Some licensing laws require that people have “good character” or that they show “good cause” to get a permit—terms that are never defined. When the terms aren’t defined, they mean whatever the government says they mean. And often, permit requirements include no deadline for when an applicant will get an answer. The result is delay after delay after delay. And too often, a person who’s denied a license is required to go through an administrative hearing instead of having a day in court—even though administrative hearings don’t include the basic rules of evidence and due process that people are entitled to under our Constitution.
Whatever else one might think about permit requirements, we should be able to agree on these three common-sense rules of fairness—rules the Supreme Court has already said are constitutionally mandatory. Permit requirements are supposed to be a straightforward way to ensure that people don’t hurt others when they start construction or open a new business or drive a car or whatever it might be. But too often, they restrict freedom, depriving job-seekers of economic opportunity and harming the ability to start new and innovative businesses.
Arizona lawmakers now have an opportunity to ensure that the three simple rules that the Supreme Court has already said are required by simple due process are applied throughout the state. HB 2062, the “Permit Freedom Act,” allows the government to impose permit requirements, as long as the criteria are clear, the deadline is specified, and the applicant has a right to a review process that respects the rules of evidence and procedure. The bill doesn’t eliminate any existing permit requirements—it simply insists that state agencies play by the rules when considering applications. It’s a common-sense solution that will ensure a fairness for all Arizonans.
For more information, check out our policy report, “Permit Freedom.”
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.