State trade licensing boards

Summary

Trade and business licensing boards are appropriate governmental authorities: each one holds a statutory grant of power to license, examine, inspect and discipline a trade, and each one exercised that power in 2020 and 2021 by order, emergency rule, waiver or directive that limited the commerce of the licensees it governs. The pattern is uniform across the fifty States even where this sweep documents only a sample. In March 2020 the boards closed their public counters and test centers (California CSLB, Mar. 20 and Mar. 24, 2020, Ex. 015-016; Nevada State Contractors Board, Mar. 18, 2020, Ex. 027; Texas TDLR, Mar. 17, 2020, Ex. 008; Florida DBPR, Mar. 19, 2020, Ex. 001; Virginia DPOR, Apr. 2020, Ex. 021), cancelled or suspended every licensing examination administered in person (NCEES cancelled the April 2020 PE, FE and PS administration on Mar. 13, 2020, Ex. 032; Prometric closed every U.S. test center from Mar. 17 through Apr. 30, 2020 and NASBA, the AICPA and the boards of accountancy extended every Notice to Schedule expiring Apr. 1-June 30, 2020 to Sept. 30, 2020, Ex. 033-034; PSI closed its owned test centers Mar. 17, 2020, Ex. 029 and 064; NCARB suspended the Architect Registration Examination, Ex. 070), and tolled or waived license renewals, continuing education and exam eligibility deadlines because the classrooms, exam rooms and board offices that those requirements presuppose were closed by order (Florida DBPR Emergency Orders 2020-01, -03, -05, -07 and -08, cited by their existing exhibits AGY-ST-ALCOHOL-043 to -050; Illinois IDFPR variances of Mar. 18-20, 2020, Ex. 053; Virginia DPOR waivers effective Mar. 13, 18 and 19, 2020, Ex. 022-024; California DCA Division 3 renewal waivers of May 4, 2020 through Sept. 28, 2021, Ex. 045, 048-052). The State supreme courts, exercising their constitutional authority over admission to the bar, cancelled or postponed the July 2020 bar examination in every jurisdiction but a handful, moved it to September and then to a remote October 5-6, 2020 administration in twenty jurisdictions, granted one-time diploma privilege in Utah (Apr. 21, 2020, Ex. 019), Washington (June 12, 2020, recited in Ex. 075), Oregon (June 29-30, 2020) and Louisiana (July 22, 2020), created provisional and supervised-practice licenses (Texas, May 20, 2020, Ex. 040; Montana, June 17, 2020, Ex. 060; Hawaii, July 22, 2020, Ex. 071; District of Columbia, Ex. 038, 074), administered the February 2021 examination remotely in forty-one jurisdictions (Ex. 063) and ordered the July 2021 examination administered remotely in at least thirty jurisdictions by orders entered February through May 2021 (Washington, Mar. 5, 2021, Ex. 020; the NCBE inventory, Ex. 062). In the second quarter of 2020 the boards became the instruments through which the Governors' closure and reopening orders reached personal-service establishments: Florida DBPR made appointment-only service, fifteen-minute disinfection intervals, a bar on group appointments and employee masks mandatory for every barbershop and salon from May 11, 2020 under Executive Order 20-120 (Ex. 002); Texas TDLR posted and enforced the Governor's minimum standard health protocols for cosmetology salons, barber shops, nail salons and driving schools from May 8, 2020, kept esthetician salons, massage and laser-hair establishments closed to May 18, 2020, and limited driving schools to 25 percent, then 50 percent, then 75 percent of classroom occupancy through October 2020 (Ex. 009-012); Virginia DPOR listed the barbershops, cosmetology, nail and waxing salons, esthetics spas and tattoo and piercing salons that 'must close' under Executive Orders 53 and 55 (Ex. 021); Illinois IDFPR declared which private security licensees were 'security staff' exempt from the stay-at-home directive and extended cosmetology-school online-theory limits (Ex. 053, 056). Child-care licensing agencies limited who could be served (Texas HHSC: only children of essential-service employees under GA-14, Ex. 069; Pennsylvania OCDEL: only providers approved to operate during the emergency, Ex. 065) and imposed screening, drop-off and cohort rules by emergency rule (Texas HHSC § 745.10003, June 2020, Ex. 066). In the third and fourth quarters of 2020 the exam and office closures reopened under capacity limits, the renewal and CE waivers were extended (Florida to Dec. 31, 2020; California to Dec. 31, 2020 by DCA-20-70), and the CSLB closed its seven test centers again on Dec. 7, 2020 (Ex. 017). In the first and second quarters of 2021 the waivers continued (California DCA-21-135, Mar. 30, 2021; DCA-21-153, June 3, 2021; Virginia DPOR waiver amended Mar. 24, 2021 to run to the 30th day after the emergency), the February 2021 bar examination was remote nearly everywhere, and the courts ordered the July 2021 examination remote. In the third quarter of 2021 the following instruments of this cluster were in force: California DCA-21-176 (licenses expiring through Sept. 30, 2021) and DCA-21-195 (Sept. 28, 2021), DCA-21-136 (BSIS requalification waiver with 60-day compliance windows running into mid-2021); the Virginia DPOR waivers through July 30, 2021 (30 days after the Commonwealth's emergency ended June 30, 2021); the remote July 2021 bar examinations ordered by the Washington Supreme Court (Ex. 020) and at least twenty-nine other courts and boards (Ex. 062), administered July 27-28, 2021 under those orders; and the Texas HHSC child-care emergency rules as re-adopted. The boards' instruments limited commerce in the statutory sense: they closed the offices where licenses, permits and inspections are obtained, cancelled the examinations that admit new workers to a trade, prescribed the conditions on which a licensed establishment could serve a customer, and told licensees which of them could and could not operate.