This Michigan Town Repealed a Ban on Fortunetellers, but Might Break State Law if It Tries To Regulate Them
Until last month, reading someone's palm for pay could technically land you a $500 fine, 93 days in jail, or both in Petoskey, Michigan, thanks to an ordinance banning fortunetelling within city limits. The Petoskey City Council, which repealed the ban, is now seeking to impose new licensing requirements on town fortunetellers, but a straightforward legal solution doesn't seem to be in the cards.
Petoskey previously deemed it "unlawful for any person to engage in fortunetelling or pretend to tell fortunes for hire, gain or reward." A Petoskey resident contacted city staff earlier this year to criticize the ban, prompting the City Council to consider revising or repealing the ordinance. Minutes from a February 7 City Council meeting revealed that the ban was imposed in 2014 "when there had been scams perpetrated by transient individuals in the City at that time," but noted "that those actions were not in regards to fortunetelling and there have been no complaints received concerning fortunetelling since its enactment."
In April, the City Council unanimously voted to repeal the ban on fortunetelling and implement a new regulatory framework for the occupation. A proposed ordinance would require anyone practicing fortunetelling (as described by the city) to hold a government-issued license. It would regulate dozens of practices related to fortunetelling and divination, including those involving tarot cards, coffee grounds, love powders or potions, necromancy, and telepathy. Using "spells, charms, or incantations" to "make one person marry or divorce another," "induce a person to make or alter a will," or "tell where money or other property is hidden," among other things, would also be regulated by the proposed ordinance.
"Fortunetelling shall also include pretending to perform these actions," reads the draft ordinance, raising questions about why the city plans to license "bona fide" fortunetellers while also licensing those "pretending" to perform fortunetelling practices.
Fortunetelling licensing requirements are by no means unique to Michigan. Annapolis, Maryland, issues fortunetelling licenses only to people the police department says are "of good moral character." In San Francisco, those applying for fortunetelling licenses must undergo a public hearing. In New York state, fortunetelling is a class B misdemeanor.
However, as Petoskey weighs new regulations for fortunetellers, it's likely to encounter a major legal obstacle: The Local Government Occupational Licensing Act of 2018 prohibits political subdivisions in Michigan from imposing licensing requirements on professions if they didn't already impose those licensing requirements as of January 1, 2018. It also dictates that a locality must not implement requirements beyond those already imposed by the state. Though it was illegal to tell fortunes in Michigan for money until 1994, the state has done away with the ban and doesn't require a license for the profession. Imposing a new licensing scheme in Petoskey could very well violate the 2018 law.
Even in jurisdictions where regulations on fortunetelling are loosely enforced (as was reportedly the case in Petoskey), requiring an occupational license is a fee scheme in search of a health and safety justification. In theory, occupational licenses help the state maintain a high quality floor across regulated industries; licensees must obtain credentials to prove their suitability and risk losing the privilege of doing business if they cheat or hurt their customers. Critics of occupational licensing point out that government licenses are now mandatory in industries with few safety implications and are simply another way to extract revenue from workers and protect industry incumbents from competition.
Petoskey's draft fortuneteller ordinance is a good example of fee hunting. Where is the imminent harm of unlicensed fortunetelling? How can a government authority determine whether a practicing fortuneteller has proper credentials? If both legitimate fortunetellers (however they may be verified) and people "pretending to perform" fortunetelling are subject to the same licensing requirements, what standard of service is the government actually seeking to uphold?
Government bans and restrictions on fortunetelling have previously run into First Amendment issues, another sign of potentially difficult times ahead for regulation in Petoskey. Many of the practices it has floated regulating and licensing are rituals in established religions, such as paganism. That problem has sprung up in Kalamazoo, Michigan, which still has an ordinance on the books banning "the business or practice of phrenology, palmistry, or prognosticating or prophesying the future." The American Civil Liberties Union of Michigan has condemned that ordinance, arguing that "governments should not be deciding which spiritual beliefs have merit and which are fraudulent."
Petoskey officials at least partially recognize this. The city attorney and public safety director have both mentioned First Amendment concerns in official City Council meetings. But as the city weighs licensing requirements for fortunetellers, it should read the tea leaves and realize that the legal path ahead is complicated at best.