It’s entirely possible for people to commit a crime in North Carolina without even realizing it.
A bill to recodify the criminal code may help some people stay on the right side of the law, but countless others have mistakenly committed crimes. They’re not burglars or con artists, but rather just people who are trying to make a living.
Each of their stories has one thing in common: occupational licensing. Buried in hundreds of pages of criminal statutes are regulation and licensing offenses. Unlike traditional crimes, the offenses don’t require that a person know their actions are wrong to be found guilty.
In December 2011, the N.C. Board of Dietetics/Nutrition told health blogger Steve Cooksey he was committing a crime.
Cooksey added an advice column to his Paleolithic diet blog and answered readers’ questions on health and diet. He wasn’t a licensed nutritionist, but he argued the advice he provided was protected by the First Amendment. He joined with the Institute for Justice in a lawsuit against the board and won.
Earlier that year, Steven Pruner was found guilty of selling hot dogs near Duke University Medical Center without a permit and was sentenced to a 45-day jail term. His sentence was suspended, but he was placed on 12 months’ unsupervised probation — all for selling unlicensed hot dogs.
In a much larger case, the U.S. Supreme Court got involved in a licensing dispute in 2014 over the N.C. Board of Dental Examiners’ ban on non-dentists providing services to whiten teeth. The court ruled against the Dental Examiners board, arguing the ban violated antitrust laws under the Federal Trade Commission.
Lawmakers seem to realize the problem with overcriminalization, or at least with the organization of criminal statutes. Senate Bill 114, or the Annual Reports, Property Tax, and Recodification Commission, may help North Carolina’s criminal codes become more accessible and easier for people to understand.
The bill would create the Criminal Code Recodification Commission under Section 10 of S.B. 114. The commission, with Chief Justice Mark Martin’s supervision, would be responsible for drafting a streamlined criminal code for lawmakers to review.
Part of Section 10 requires all agencies, boards, and commissions with the ability to create criminal offenses to provide the Criminal Code Recodification Commission a list of all criminal penalties. The licensing agencies have until Dec. 1 of each year to submit their reports.
Sen. Andy Wells, R-Catawba, one of the primary sponsors of S.B. 114, said Rep. Dennis Riddell, R-Alamance, introduced Section 10 to the bill while it was in the House. Riddell could not be reached for comment.
“It is entirely possible to commit a crime without knowing it,” Wells said. “There are 55 licensing boards in North Carolina and some deal with multiple licenses.”
The bill is in the Committee on Rules and Operations in the Senate. Wells said he hopes it will be addressed in the special session starting Aug. 18.
While occupational licensing isn’t the primary focus of S.B. 114, the bill opens the door for increased scrutiny over how licensing boards operate in North Carolina.
“One of the many virtues of this recodification proposal is that it will give the legislature a chance to review the crimes that have been created by these agencies and boards and decide which, if any, of them should be a part of North Carolina’s criminal code,” Jon Guze, director of legal studies at the John Locke Foundation, said.
Another aspect of S.B. 114 looks to see whether administrative agencies should even have the authority to criminalize behavior.
“Under the separation of powers guaranteed by the North Carolina Constitution, crimes should only be created by the General Assembly, not by administrative agencies appointed by the executive branch, and certainly not by self-interested private licensing boards,” Guze explained.
North Carolina isn’t alone in looking into occupational licensing. U.S. Sen. Mike Lee, R-Utah, in July introduced a bill aimed at reining in licensing boards at the federal level while also protecting them from antitrust litigation.
Eric Boehm, a reporter for Reason, noted that Lee’s bill would give states two ways to gain immunity: “The first by bringing state licensing boards under direct supervision by the legislative and executive branches. The second by requiring states to show why a certain licensing requirement is necessary to protect public health and safety.”