Through a lot of blood, sweat and tears, my wife and I are able to go to a Southern California beach for a few weeks each winter. We take along Nelson, who is our son/part dog. Nelson really enjoys going to breakfast with us at RJ’s Café in Dana Point. Some California restaurants have dog menus. RJ’s does not.
The state of Utah bans dogs from general eating areas in restaurants, but allows counties to waive this regulation. In 2012, Salt Lake County amended its “dogs on the patio” regulation to include an annual fee to pay for its inspectors. It also listed nine specific requirements that are extremely burdensome. For instance, the third requires restaurant owners to clean their patios every shift change or, if they don’t have scheduled shifts, every six hours with environmentally friendly chemicals. This is why Eric Nelson, the owner of Ruth's Diner in Emigration Canyon, does not allow dogs on his patio.
As of last week, the Salt Lake County Health Department said that, out of the 4,448 eating establishments in the county, only 12 are dog-friendly. Not one of these has a dog menu because the Utah State Health Department says you can’t feed dogs in a restaurant.
As mentioned, Californians can feed dogs in a restaurant and, according to the National Restaurant Association, having a dog menu increases revenue by 5 percent. Yep, that’s 5 percent more taxes paid, 5 percent more income for restaurant employees and 5 percent more restaurant employees. In Utah this equates to over 5,000 new jobs. This is why California allows dogs to eat in restaurants.
It’s called “regulatory dark matter,” which are the rules, executive orders, agency memoranda, ordinances, guidance and regulations that don’t have legislative oversight. The Obama administration in its last five days in office published over 1,400 pages of regulatory dark matter — executive orders that burden American industry to the tune of $111.2 billion, according to Dan Goldbeck, a policy analyst at the American Action Forum.
The key phrase about all the above is “without Congressional approval.” From 2001 to 2014, 53,838 final rules — regulatory dark matter — were added to the Federal Registry.
“Dogs on the patio” is a classic example of regulatory dark matter. A dog enthusiast went to elected Salt Lake Council member Arlyn Bradshaw and sold him on allowing dogs on the patio. Councilman Bradshaw took the idea to the 15 members of the Salt Lake County Board of Health, who are appointed, not elected, by Salt Lake County Mayor Ben McAdams. They passed the regulation, which was modeled after one in Dallas without a single member voting no.
Boy, is there a lot of regulatory dark matter out there. In fact, no one claims to know just how much. In a well-publicized study, Clyde Wayne Crews Jr. of the Competitive Enterprise Institute’s “Mapping Washington Lawlessness 2016,” says, “We can count agency proposed and final rules and even executive orders and memos, but agency memos, guidance documents, billions in other dark matter are more difficult to broadly grasp and measure.”
Crews concludes with a super idea: “Congress must vote approval of costly or controversial dark matter decrees. Free enterprise does not mean companies get to run wild, and sadly, the competitive process itself has a vital role to play in ‘regulation.’ Real regulation, real discipline, requires something other than the bureaucratic mindset.”
Great Britain and Canada have both implemented rule-in, rule-out requirements with some success. I believe regulatory dark matter is the root of government’s out-of-control growth.
Robert Pembroke is chairman of Pembroke’s Inc. and a self-described “small-business owner on permanent sabbatical.”