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The Attack On restricting free trade and therefore is not granted immunity from
anti-trust action. The FTC suit was upheld, and teeth whitening
Licensing Boards can now happen on street corners and back alleys up and down
the state of North Carolina, and I’m sure it does. Get your teeth
whitened at the mall and get a free churro besides.
Prepared by Carl C.de Baca, PLS
So why all these attacks on Licensing boards? As I may have
In 2018 U.S. Magistrate Judge Stacie F. Beckerman ruled in pointed out once or twice in the past, there is a Libertarian-
a case filed by a Beaverton man, Mats Järlström, against led movement with strong bi-partisan support to tear down
the Oregon Board of Examiners for Engineering and Land licensure across the nation. Occupational licensing is overly
Surveying. restrictive and not needed, so they claim. In their mind, the
natural process of free trade will weed out the weak and bad
Järlström holds a Bachelor of Science degree in engineering practitioners. Maybe the public will suffer some harm in the
from Sweden. Before 2018, he had repeatedly challenged process, but that is the cost of doing (unrestricted) business.
Oregon’s timing of yellow traffic lights as too short, leading
to an investigation by the Oregon Board of Examiners for This North Carolina case will be very interesting to watch since
Engineering and Land Surveying for the “unlicensed practice the Institute for Justice (IFJ) is involved. They are the ones who
of engineering’’. A review of the case indicates that Järlström scored the winning run in the Oregon free speech case. The IFJ is
had sent his traffic light calculations to the state board, trying, with money from the Koch brothers, to eliminate licensing
identified himself as an engineer to local media and the “60 requirements across the U.S. In 2019 NCEES, ASCE, NSPE,
Minutes” T.V. news program, as well as in discussions with the AICPA, NCARB, NASBA, ASLA formed a group called Alliance for
National Council of Examiners for Engineering and Surveying. Responsible Professional Licensing.
The state fined Järlström $500 for violating a state law Let’s hope their first amendment argument doesn’t morph into
governing who may call themselves an engineer, finding he an argument that the North Carolina Board of Examiners for
wasn’t an Oregon-registered professional engineer. Engineers and Surveyors is restricting free trade. The one-two
punch would be mighty tough to withstand.
With backing from the Institute for Justice, which provided
him with an attorney, Järlström asked the court to take a While I have your attention, do you notice any relevant national
broader look at the state law and its administrative rules and association missing from that coalition?
declare them unconstitutional. He won. He is free to call Why NSPS is not involved and does not see the importance of
himself an engineer. this is beyond me. Is there an ad-hoc committee working on
this, and I just don’t know about it? Are NSPS officers attending
I remember the Oregon case. That seemed like kind of a stunner the coalition meetings in an unofficial capacity to monitor the
to me, and my initial reaction was that I would thereafter adopt situation? What is the NSPS position on threats to licensure
the title of Supreme Court Justice since it’s just a free speech anyway?
issue, and I’m free to be whatever I want to call myself. However,
my wife refused to address me as ‘Honorable Justice Carl,’ so I let
go of the idea very shortly. Good thing I hadn’t got the robes yet.

Currently, there is a case playing itself out in the courts in North
Carolina that could also impede a licensing board’s ability to
enforce state laws. In this one, the North Carolina Board of
Examiners for Engineers and Surveyors ordered an unlicensed
individual to stop flying his drone and provide orthorectified
imagery to his clients, as orthophotography production is a
‘protected’ function, only allowed to licensed surveyors. He was
also showing ‘approximate’ property lines on his photography
and had developed a disclaimer that said the lot lines were
approximate and a land surveyor should be consulted for actual
locations.

His case also relies on First Amendment protections, saying the
board has violated his right to free speech by making him stop
producing this imagery for his clients. This might seem crazy
until you read the facts of the case and the arguments he and his
attorneys are putting forth. He could win this case.

Coincidentally, or maybe not, this case is taking place in North
Carolina where the Supreme Court ruled a few short years ago,
in an anti-trust case involving teeth whiteners and the North
Carolina Board of Dental Examiners, that a board of regulation
made up of active practitioners is inherently susceptible to

10 The Nevada Traverse Vol.48, No.2, 2021