Good Morning Sunshine!

by Jery Payne

You’re sitting in your office with your cup of joe or grande ristretto caffe latte—depending on your style—reading the newspaper when in walks a lobbyist. As you take a drink, the lobbyist says “I want to talk to you about chick sexing.” After the coffee is wiped up, you manage to ask her what she is talking about. She replies that the chick sexers feel that their occupation needs to be licensed.

You ask, “Is there a pretty good market for that type of thing?”

“Yes,” she replies, “they play an important part in the economy, and licensing is very important to avoid poor-quality sexing.”

“So,” you ask, “what could the state do?”

“Ensure they have proper education and apprenticeships.”

“They have schools for that type of thing?”

“Well, there is one in Nagoya, Japan, but once we have licensing, local schools will come on board. In fact, the association is negotiating with a couple of local colleges.”

“I see.”

“This is a very important part of the agricultural industry in Colorado. Poor chick sexing causes farmers significant problems each year.”

“The farmers?”

“Who else would need to determine the sex of a baby chick?”

After a long talk, you agree that licensing chick sexers may be the best way to help Colorado farmers. Before you put in a bill request, however, you may want to find out if the proponents have obtained a sunrise report from the Department of Regulatory Agencies. It might save you some trouble.

Section 24-34-104.1 (2), Colorado Revised Statutes, sets the basic requirements necessary to propose “the regulation of any unregulated professional or occupational group.” This section requires such a proposal to be submitted to the Department of Regulatory Agencies for a cost-benefit analysis. The proposal must be signed either by ten members of the occupation or by ten other people. If the proposal is not signed by ten members of the occupation, the proposal must contain the following:
●    A description of the group proposed for regulation, including a list of its organizations in Colorado, and an estimate of the number of practitioners;
●    A description of the problem and why regulation is necessary;
●    The reasons why the specific form of regulation is proposed;
●    The public benefit of the regulation; and
●    The cost of the regulation.

If the proposal is in order, the department should analyze the proposed regulation and send the analysis to the proponents and the General Assembly within 120 days. If the department finds that the lack of regulation “poses an imminent threat to public health, safety, or welfare,” the department should notify the proponents and recommend regulation to the General Assembly. If the matter is not so dire, the department will make a recommendation based on the following:
●    Whether unregulated practice concretely harms or risks public health, safety, or welfare;
●    Whether regulating occupational competence is needed and beneficial; and
●    Whether the public can be protected in a more cost-effective manner.

Once you have the report, you may introduce the bill within two years.

The department may decline to conduct the analysis if it determines that:
●    Fewer than 250 people will be regulated;
●    The department already did the analysis and no new information has been submitted that would change the department’s mind; or
●    A majority of states license, certify, or register members of the occupation.
If the department doesn’t do the analysis, you may introduce the bill.

Now I know what you are thinking: “What exactly does ‘regulating’ mean?” The Office of Legislative Legal Services thinks it means legislation concerning a job that hasn’t previously been the specific subject of legislation. The Governor’s Office, however, has said that it means only licensing, registration, and certification. The Governor’s Office reasoned that most occupations are subject to some laws; therefore, the sunrise statute cannot apply to all laws specific to an occupation. But this reading conflicts with the actual language of the statutory section, which requires proponents of the regulation to state “the reasons why certification, registration, licensure, or other type of regulation is being proposed …” (Section 24-34-104.1 (2) (c), Colorado Revised Statutes, emphasis added). So “regulation” cannot merely be certification, registration, or licensure.

Another problem with the interpretation of the Governor’s Office is that it conflates the regulation of an occupation with general-purpose laws. For example, the law forbids bankers to steal, but the law doesn’t actually mention bankers. It applies to everybody regardless of whether they are a banker. Thus, it is a general-purpose law that incidentally a banker must obey when doing business. But a law that specifically requires bankers to keep a log of transactions is a law regulating bankers. A law that sets a standard or requirement for someone because of the person’s occupation is the regulation of an occupation. The mere fact that an occupation is subject to a general-purpose law does not mean it is a regulated occupation; but a new law that would create a requirement specific to the occupation should be subject to the sunrise process.

Nevertheless, the governor may veto the bill because it does not follow his office’s interpretation. Therefore, ignore the governor’s reading at your own risk.

So before using one of your bill requests to help farmers avoid getting their roosters confused with their hens, it makes sense to ask if the proponents have followed the sunrise process.