Rihanna tattoo dust-up shows silliness of licensing laws

July 14, 12:07 PMCivil Liberties ExaminerJ.D. Tuccille

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Rihanna in a non-body-art setting. (AP Photo/Lori
Shepler, Pool)

Many years ago, I got a tattoo in a shop on St. Mark's Place in New York City. While the artist put the design on my left arm, another guy watched the door to check for cops. Even though the artist and I were both there voluntarily, consensually exchanging money for a service, tattooing was illegal in the Rotten Apple at the time, and we faced legal hassles if caught. New York City has since legalized the pop-art form, but headline-grabbing woes faced by musician paparazzi-bait Rihanna show that the city's tattoo rules still make no sense. In fact, her case shows the overall silliness of occupational licensing laws.

Earlier this month. Rihanna got into hot water for turning the tables on the artists at trendy East Side Ink (which is two and a half blocks from my old apartment. Wow, that neighborhood has gentrified). She adorned them with a trademark tattoo of her own, consisting of an umbrella and an "R."

Just one problem -- Rihanna doesn't have a tattoo artist license. The New York City Department of Health and Mental Hygiene is reportedly investigating, with fines of $300 for the first offense, $500 for the second and $1,000 for the third hanging in the balance.

Now, as in the bad old days of the total ban, the New York City Department of Health and Mental Hygiene justifies its intrusive rules in the name of protecting our health. "DOHMH tattoo regulations are aimed to control the spread of infectious diseases."

Well, OK. But if the total ban of the past, which drove tattoo fanciers to underground artists, would seem to have done little to protect health, threatening fines for an unlicensed artist who applied tattoos to willing, licensed artists who watched the whole procedure makes no more sense.

The threat here is ... what? A bad tattoo? But city bureaucrats admit "DOHMH rules do not address tattoo quality or design."

This has always been the problem with occupational licensing. It's not really capable of doing what it promises to do, and its restrictions end up being arbitrary and closely resembling nothing more than barriers to entry. That is, the only protection occupational licensing offers is for established businesses against new competitors.

In fact, when political scientists William Ruger, an assistant professor in the Department of Political Science at Texas State University, and Jason Sorens, an assistant professor of Political Science at the University at Buffalo, State University of New York, assessed the relative freedom of the various states in a report issued earlier this year, they counted occupational licensing laws as a negative. That's because, in their words, licensing "captures guild-style rent-seeking aimed at fleecing the consumer by artificially limiting supply of services."

After examining the effects of occupational licensing across professions, including everything from hairdressing to medicine, S. David Young, a professor of accounting and control at INSEAD (the European Institute of Business Administration) in France, wrote:

A careful analysis of licensing's effects across a broad range of occupations reveals some striking, and strikingly negative, similarities. Occupational regulation has limited consumer choice, raised consumer costs, increased practitioner income, limited practitioner mobility, and deprived the poor of adequate services—all without demonstrated improvements in the quality or safety of the licensed activities.

The protections for the public promised by licensing never materialize because the licensing process gets captured by members of the regulated profession -- they're the ones who understand the business, after all -- who protect each other while turning the law to their own ends.

Continues Young:

Indeed, licensing agencies are usually more zealous in prosecuting unlicensed practitioners than in disciplining licensees. Even when action is brought against a licensee, harm done to consumers is unlikely to be the cause. Professionals are much more vulnerable to disciplinary action when they violate rules that limit competition. A 1986 report issued by the U.S. Department of Health and Human Services claims that despite the increasing rate of disciplinary actions taken by medical boards, few such actions are imposed because of malpractice or incompetence.

That's what happened to Rihanna. She's an outsider, violating the privileged position of licensees. If she's fined, it won't be to protect the public health (which was never at risk), but to preserve barriers against easy entry into the profession.

She'd have been better off doing what I did, by keeping the bureaucrats entirely out of the matter.

email J.D.: civilliberties (at) tuccille.com