March 21, 2019
by Timothy Sandefur
Half a century ago, the U.S. Supreme Court ruled that whenever the government “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon . . . a permit or license,” the licensing requirement must provide three simple, procedural protections:
1) the criteria for getting the permit must be clear and unambiguous—none of this “good cause” stuff;
2) there has to be a specific deadline when the applicant will get an answer—none of this “whenever we get around to it” stuff; and
3) the applicant must be given a hearing if he or she is denied the permit and thinks that’s wrong.
These simple, common-sense rules prevent the government from arbitrarily denying people the chance of exercising their constitutional rights—whatever that right might be. If the government requires you to get a permit to hold a protest march, or a permit to build a building, or a license to do your job or to own a firearm, these procedural safeguards must apply, regardless.
Unfortunately, permit and license requirements are still often written in ways that ignore these requirements. Such laws are sometimes written in vague terms like “good cause,” or contain no specific deadlines so that bureaucrats can indefinitely delay giving a person a yes or no answer, or they require people to go through administrative hearings if they’re denied a permit—hearings where the rules of evidence and procedure don’t apply.
Arizona’s legislature is now considering a reform to fix this problem—HB 2182, the Permit Freedom Act—which imposes these three simple protections to all permit requirements. The Act doesn’t eliminate any existing licensing or permit requirement. It just requires that government give people clear rules, specific deadlines, and a fair hearing if it refuses them a permit and they think that’s wrong.
This bill is virtually identical to one that passed the Arizona legislature unanimously last year, only to be vetoed by Governor Doug Ducey, out of concern that it prohibited regulatory agencies from holding so-called “informal” hearings. This year’s new version of the bill allows for informal hearings—but within limits that protect the rights of Arizonans to present evidence at those hearings and to object if the process isn’t fair. It also lets agencies come up with their own deadlines for permit applications—as long as they give some specific date when they’ll act.
How would the Permit Freedom work in practice? Suppose you want to hold a protest march in your city. If the government requires you to get a permit first, this law would ensure that the government tells you exactly what you must do to get a permit, and when you’ll get an answer on your application, and that it gives you a chance to challenge the government if it refuses you a permit. That would ensure that government couldn’t block protests based on vague standards like “good cause”—and it would prevent the government from delaying a decision on your application until it’s too late to hold your protest. (In fact, the rules in HB 2182 were copied from famous Supreme Court cases like Shuttlesworth v. Birmingham that protect the right to protest.)
Remember Lee Sepanek? He’s the Phoenix homeowner who was prohibited from operating his annual Christmas light show in 2017 thanks to county ordinances restricting “mobile food vending.” Lee wasn’t selling food—he was giving hot chocolate away—and he wasn’t doing it from a “mobile” vehicle but from a card table in his driveway. But even the county couldn’t give him a straight answer on whether he was allowed to do his holiday display. Permit Freedom would require clear rules to prevent that kind of confusion and disruption.
Or consider applicants for building or construction permits. In one recent incident, property owners in Santa Cruz County were denied the right to develop their land into a guest ranch despite the fact that it easily fit within the zoning law’s definition of “guest ranch” (“a remote transient lodging facility providing services to their guests such as sleeping quarters, meals,” etc.)—because County officials thought the project was “inconsistent with the commonly held view of a guest ranch.” What does that mean? It meant whatever the government said it meant—which isn’t how the law is supposed to work.
Whatever you think about permit requirements and licensing laws, we should be able to agree that these simple requirements—clarity, a deadline, and a hearing if you think the government’s wrong—are necessary if such requirements are going to be administered in a fair and even-handed way. That, after all, is what the Supreme Court has already said. Arizona lawmakers should take the opportunity to pass HB 2182 and ensure that the state’s licensing requirements meet the standard of the constitution—and common sense.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.