Compulsory licensing

“ Of course, cases may be imagined where the power to issue permits may be abused, and the permission accorded to social or political favorites and denied to others, who, for reasons totally disconnected with the merits of the case, are distasteful to the licensing power. ”

“ After the passing of the Act, no new licences, except for eating-houses and refreshment-rooms, were to be granted unless the consent of the County Councils had first been obtained, and even when new licences were granted, it was to be on the express understanding that their renewal might “at any time be refused at the free and unqualified discretion of the licensing authority”. ”

“ But in all cases, even when mere notification is required, the governing authority has the right to refuse permission or to withdraw it for reasons given, and so it retains the power of control. At the same time holders of the permission may be compelled to pay for the privilege and so contribute to the public revenue. The great merit of the licensing system is its perfect elasticity, which permits adjustment to all sorts of conditions and to the varying demands of public opinion. ”

“ Licensing, like a tax payable on the exercise of a First Amendment right (Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292) , is therefore unconstitutional. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. Yet registration, like licensing, may have aspects of harassment and burden. ”

“ A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give 'the State's licensing board a virtual power of review over the federal determination' that a person or agency is qualified and entitled to perform certain functions, [4] or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress. [5] 'No State law can hinder or obstruct the free use of a license granted under an act of Congress.' Pennsylvania v. ”

“ Such a defense is not allowed. 'It is well settled that where a licensing ordinance, valid on its face, prohibits certain conduct unless the person has a license, one who without a license engages in that conduct can be criminally prosecuted without being allowed to show that the application for a license would have been unavailing. * * * In short, the individual is given the choice of securing a license, or staying out of the occupation, or, before he acts, seeking a review in the civil courts of the licensing authority's refusal to issue him a license. ”

“ A license cannot be revoked because a man is red-headed or because he was divorced, except for a calling, if such there be, for which red-headedness or an unbroken marriage may have some rational bearing. If a State licensing agency lays bare its arbitrary action, or if the State law explicitly allows it to act arbitrarily, that is precisely the kind of State action which the Due Process Clause forbids. ”

“ For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional. ”

“ One half the doubts in life arise from the defects of language, and if this instrument had been called an exemption instead of a license, it would have given a better idea of its character. Licensing acts, in fact, in legislation, are universally restraining acts, as, for example, acts licensing gaming houses, retailers of spiritous liquors, &c. ”

“ In your opinion should not every play be seen by the Licenser, duly acted, with the costumes, before a licence can be granted? (b) and then that the licence be granted only on the condition that no alteration in word or action be made at any time, and under no pretence whatever, during the run, on pain of forfeiture of licence?
The above suggestions will serve as a foundation for some future Licensing Exam.-paper. ”

“ Any person who shall carry on any wholesale or retail trade or business, or who shall allow licensed premises to be in a condition which could disentitle him to a licence, shall be deemed to have contravened this Act, and shall be liable to a penalty of £20 for each offence, to be recovered by any Licensing Officer in the Court of the Magistrate. ”

“ Could the Supreme Court be moved to tell the Officer that the fact of a person being an Indian is no reason for a refusal, and that he should reconsider his decision subject to that direction?
If a Licensing officer arbitrarily refuses to issue licenses to all the Indians or a majority of them, can he be said to have used a discretion in either or both the cases?
A person having applied for and been refused a license to trade carries on his trade without a license. ”

“ As the Court explains in Part III of its opinion, it is not certain that any petitioner has standing to challenge the provisions of the licensing scheme that disqualify applicants who are themselves unqualified or who reside with, or are married to, unqualified persons. ”

“ For example, inspections are required whenever ownership of a sexually oriented business changes, and when the business applies for the annual renewal of its permit. We, therefore, hold, as a threshold matter, that petitioners may raise a facial challenge to the licensing scheme, and that as the suit comes to us, the businesses challenging the scheme have a valid First Amendment interest. ”

“ Commonly, if not universally, the statutes imposing the requirements of registration or licensing also prescribe fees which must be paid to authorize state officials to issue the necessary documents and plates. To assure that servicemen comply with the registration and licensing laws of some State, whether of their home State or the host State, we construe the phrase 'license, fee, or excise required by the State * * *' as equivalent to 'license, fee, or excise of the State. ”

“ Because they partake of the nature of a public utility, they, too, must be closely regulated in the public interest. And, as in the case of utilities, the power of regulation must be combined with the power of licensing. The details of regulatory supervision of these facilities are far too great to be handled by legislative bodies. ”

“ But it must be remembered that no change in the personnel of the licensing authority will effect much, and it is possible that any change may do harm. A representative body will be more liable to be influenced by outside consideration than are the justices; and the Boards in some places will favour the drink sellers more than the magistrates do now. This consideration has induced some reformers to advocate leaving the administration in the hands of the present authorities, but limiting their power by a direct popular control over the issuance of new licences. ”

“ The greatest gain that has come to society, as distinguished from the individual, through the temperance movement is its effect in unconsciously informing the public that the regulation and administration of licensing is in itself a great and vital problem ”

“ Those who oppose prohibition usually strike out the second and third lines, so as to vote for the continuance of existing licensed houses; while there are others, again, who strike out the first and third issues, with a view simply to a reduction in the number of licensed houses. An absolute majority of the votes carries reduction; but it requires a three-fifths majority to carry 'no-license.' If reduction is carried the licensing committee must then reduce the publicans’ licenses in the district by not less than 5 per cent. ”

“ They, at least, have not laid themselves open to the charge of trimming. For more than thirty years the Bill, the whole Bill, and nothing but the Bill, has been their cry; and as a consequence they have seen these years pass without the carrying of any real amendment of our licensing system.
In 1873 the Gladstone Government, now drawing towards the close of its remarkable history, introduced a great measure of licensing reform, known at the time as Mr. Bruce's Bill. ”

“ Before a licence is granted the opinion of the police and other executive officers is to be taken. The licensing authority is the mayor in towns and the chairman of the district council in rural areas. The provisions with regard to the dependence of a licence on local requirements have been adopted by Prussia and other states, but apparently little or no use is made of them. Permits are very freely granted, and the number of licensed houses, though not so great as in France, is very high in proportion to population. ”

“ The most striking examples of the right to speak first and challenge later, and of peculiar moment for the present case, are the cases concerning the ability of an individual to challenge a permit or licensing statute giving broad discretion to an individual or group, such as the Birmingham permit ordinance, despite the fact that he dd not attempt to obtain a permit or license. ”

“ Could an intending applicant move the Supreme Court to direct the Town Council to appoint an absolutely independent person on the ground that the permanent officer would be so much under the influence of the Town Council that he could not be expected to give an unbiassed decision uninfluenced by the views of the Town Council, and on the ground thatthe intending applicant would practically be denied the right of approaching two separate tribunals—one original and the other appellate?
A Licensing Officer, under the Act, refuses to issue a license to a person on the ground that he is an Indian. ”

“ While the state is thus apparently put in the position of objecting to the licensing of projects sanctioned by its own laws, the bill explains that the objection is chiefly to the restrictions and conditions to which, according to the terms of the act, an applicant is deemed to assent by seeking and accepting a license. These restrictions and conditions are assailed in the bill as passing beyond the field of congressional power and invading that reserved to the state. ”

“ It was with this view of the limited objective of the statute that the state court considered and defined the duty of the licensing authority and the rights of the appellants to a license for their parade, with regard only to considerations of time, place and manner so as to conserve the public convenience. The obvious advantage of requiring application for a permit was noted as giving the public authorities notice in advance so as to afford opportunity for proper policing. ”

“ No. 2980, 81st Cong., 2d Sess. 1-2; S.Rep. No. 1358, 81st Cong., 2d Sess. 5; cf. H.R.Rep. No. 1844, 80th Cong., 2d Sess. 1; 96 Cong.Rec. 13765, 14233, 14585.↑ See, e.g., S.Rep. No. 1358, 81st Cong., 2d Sess. 9:↑ We need not consider now the decisions in which this Court has struck down regulations requiring not merely registration but the securing of a license, issued either at the arbitrary discretion of licensing officials or by the application of licensing standards so broad or uncertain as to permit arbitrary action by officials, as prerequisite to the right to speak. ”

“ Freedman, supra, at 58-60, 85 S.Ct., at 738-740. Although we struck the licensing provision in Riley v. National Federation of Blind of N.C., Inc., supra, on the ground that it did not provide adequate procedural safeguards, we did not address the proper scope of procedural safeguards with respect to a licensing scheme. ”

“ Mr. C. A. de R. Labistour appeared for the applicant, and said his client had ample capital to start in a decent way of business in the premises, which had been most satisfactorily reported upon by the Sanitary Inspector. The applicant was a capable businessman. Mr. Collins: Have we had the Licensing Officer’s reasons? The Mayor: No. Mr. Taylor: I don’t think the Licensing Officer need give reasons, unless requested to do so by a majority of the Council. All that we have to do is to decide whether or not we will confirm the Licensing Officer’s decision. ”

“ Any city may create a licensing board to consist of the person who is the active head of the police department, the mayor of such city and one other person who shall be appointed by the city government, which board shall have delegated powers to investigate and decide the question of granting licenses under this chapter, and it may grant revocable blanket licenses to fraternal and other like organizations, to theatres and to undertakers. ”

“ The problem of licensing reform, as every one who has given it even the most cursory attention will readily admit, is by no means an easy one. Whatever step may be proposed is certain to excite the opposition of many. It is impossible for even the most astute statesman to formulate a plan that will receive the assent and approval of extremists of either school. ”

“ Appellees stress the features of their licensing system by which it is said they protect the public interest and their own good will by the selection as licensees of those who are specially skilled and competent to render the service which they undertake. ”

“ As Justice O'CONNOR notes in the course of refusing to apply one of the Freedman procedural mandates, the licensing in these cases is required of sexually oriented businesses, enterprises that will have every incentive to pursue the license applications vigorously. Ante, at 229-230. The ordinance requires that an application be acted on within 30 days. Licensing decisions suspending or revoking a license are immediately appealable to a permit and license appeal board and are stayed pending that appeal. ”

“ We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product. Any constitutional challenge to such programs can only be resolved, as many have been in the past, on a case-by-case basis under the general Fourth Amendment standard of reasonableness. ”