Overcriminalization Hits the Barbershop

Originally published at National Review by Josh Barro | November 8, 2010
The Orlando Sentinel reports that the Orange County (Florida) Sheriff’s Office has been enforcing Florida’s barber licensing requirements in an unusually aggressive way: conducting armed raids of barbershops, handcuffing barbers while their records are checked, and searching (without warrants) for drugs and other contraband.

Originally published at National Review by Josh Barro | November 8, 2010

The Orlando Sentinel reports that the Orange County (Florida) Sheriff’s Office has been enforcing Florida’s barber licensing requirements in an unusually aggressive way: conducting armed raids of barbershops, handcuffing barbers while their records are checked, and searching (without warrants) for drugs and other contraband. Adding to the sensitivity of such operations, all the establishments raided to date cater to a primarily black or Hispanic clientele:

In “sweeps” on Aug. 21 and Sept. 17 targeting at least nine shops, deputies arrested 37 people — the majority charged with “barbering without a license,” a misdemeanor that state records show only three other people have been jailed in Florida in the past 10 years.

The operations were conducted without warrants, under the authority of the Department of Business and Professional Regulation inspectors, who can enter salons at will. Deputies said they found evidence of illegal activity, including guns, drugs and gambling. However, records show that during the two sweeps, and a smaller one in October, just three people were charged with anything other than a licensing violation…

[Barbershop owner Brian] Berry said deputies entered his store and told his barbers to stop cutting and put their hands behind their backs. As barbers sat on the ground in handcuffs, he said, deputies removed his customers — including children — from the store, and began searching workstations and checking licenses without explanation.

Barbers and witnesses at several shops told the Orlando Sentinel that deputies shouted and cursed during the raids, demanding the location of illegal drugs, which they searched for extensively. They never found more than misdemeanor amounts of marijuana at eight of the nine shops they raided.

If you were a police detective who wanted to raid my office, you would have to go before a judge and show probable cause to believe that I was committing a crime. But because barbers in Florida (and in most states) are subject to licensing requirements, they must agree to submit to inspections on demand by the Department of Business and Professional Regulation—which can then join up with local law enforcement to conduct warrantless searches that cover matters beyond barber licensing issues. Essentially, to be a barber in Florida, you must agree to give up your Fourth Amendment rights at work.

I’d never heard of a case like this involving barbershops before, though the Orlando Sentinel story talks about similar raids earlier this decade in Moreno Valley, California. Where you most often hear about raids that spill over from licensing issues to more general law enforcement is in bars.

Texas, in particular, has a reputation for aggressively raiding liquor licensees. Starting in 2005, the Texas Alcoholic Beverage Commission would jointly raid a bar along with local law enforcement, with no need for a warrant as the raid is in service of the liquor license. Mostly, the purpose of the raids was to issue citations for overservice and for public intoxication—yes, for the crime of being drunk in a bar. TABC argues that these arrests benefit public safety, as drunk patrons may drive home, though TABC does not have to prove that a person intends to drive before arresting him or her.

TABC drastically scaled back its bar raid program in 2006, as a result of a public outcry. The case that most undermined the TABC’s public position was one woman’s public intoxication arrest at an Irving, Texas hotel bar. Says the Austin American-Statesman:

The arrest arguably did not prevent a DWI; the woman had a room at the hotel that night. The TABC agent contended she was a danger to herself because she had no one to escort her to her room.

The point of this story is that the only brake on the abuse of warrantless bar inspections has been public opinion; TABC is still legally empowered to raid bars at any time for any reason, and continues to do so on a smaller scale. Indeed, an aggressive raid on a gay bar in Fort Worth in 2009 (on the 40th anniversary of the Stonewall Riots, no less) led to another public outcry. As with barbershops, the “license inspection” excuse deprives bar owners, employees and patrons of their Fourth Amendment rights—and they must rely on public opinion to restrain state officials from exploiting this opening.

Debates over business licensing usually weigh the value of protection from unqualified service providers against the cost of erecting barriers to entry. Examined this way, some license requirements look ridiculous even if you assume that licensing officials will act benevolently and efficiently; floristry licenses in Louisiana are a good example.

But it is also important to consider the costs that are likely to arise when a government misuses its license power. Licensing bodies can use their powers to bar qualified operators from entering new markets, to punish politically disfavored individuals or groups, or (as seen in the above cases) to circumvent the Fourth Amendment. The potential for abuse puts another thumb on the scale against business licensing.

The simplest way to stop licensing-related erosion of Fourth Amendment rights is to reduce the number of activities that require a license. Unfortunately, this is inappropriate in some cases, and politically infeasible in others. Personally, I oppose liquor licensing; I believe that liquor sales should be regulated through zoning and generally applicable laws, in the same way that governments regulate most other kinds of retail businesses. But the regime of liquor licensing is politically entrenched and unlikely to go away.

Assuming liquor licensing is retained, the warrantless inspection powers of liquor inspectors should be limited to civil matters, with Fourth Amendment protections preserved for matters such as public intoxication. And meanwhile, Texas should repeal its overbroad public intox law.

But with barbering, the solution is simple: barber licensing should be abolished (as has long been advocated by CAP’s Matt Yglesias). Hell, I’d get rid of the entire Florida Department of Business and Professional Regulation, which also conducts the important business of licensing auctioneers, cosmetologists, interior designers, landscape architects, talent agents and yacht brokers and salespeople, among others.

Barbershops could still be subject to health and safety inspections, much in the way that restaurants are in most jurisdictions—restaurant cleanliness matters, but you don’t need a license to run a restaurant*, nor do you have to put in a certain number of hours at culinary school. And barbershop inspections should be limited to addressing health and safety issues, not enforcing laws more broadly.