House Bill 1284

(As Passed the House)

AN ACT TO CREATE THE "FRESH START ACT OF 2019"; TO PROVIDE THAT NO PERSON SHALL BE DISQUALIFIED FROM PURSUING, PRACTICING OR ENGAGING IN ANY OCCUPATION FOR WHICH A LICENSE IS REQUIRED SOLELY OR IN PART BECAUSE OF A PRIOR CONVICTION OF A CRIME, UNLESS THE CRIME FOR WHICH THE PERSON WAS CONVICTED DIRECTLY RELATES TO THE DUTIES AND RESPONSIBILITIES OF THE LICENSED OCCUPATION; TO PROHIBIT THE USE OF VAGUE TERMS SUCH AS "MORAL TURPITUDE," "GOOD CHARACTER" AND "ANY FELONY"; TO PROVIDE THAT WHEN PROMULGATING RULES AND REGULATIONS RELATED TO THE QUALIFICATIONS FOR LICENSURE, LICENSING AUTHORITIES SHALL ONLY CONSIDER CRIMINAL RECORDS THAT ARE SPECIFIC AND DIRECTLY RELATED TO THE DUTIES AND RESPONSIBILITIES OF THE LICENSED OCCUPATION; TO ESTABLISH A CLEAR AND CONVINCING STANDARD OF PROOF WHEN DETERMINING WHETHER A PERSON WILL BE DENIED A LICENSE; TO AUTHORIZE A PERSON WITH A CRIMINAL RECORD TO PETITION A LICENSING AUTHORITY AT ANY TIME FOR A DETERMINATION OF WHETHER THE PERSON'S CRIMINAL RECORD WILL DISQUALIFY THAT PERSON FROM OBTAINING A LICENSE; TO REQUIRE EACH LICENSING AUTHORITY WITH ESTABLISHED STATUTORY AUTHORITY OR ADOPTED RULES THAT ALLOW THAT LICENSING AUTHORITY TO DISQUALIFY A PERSON FROM PURSUING OR PRACTICING AN OCCUPATION FOR WHICH A LICENSE IS REQUIRED SOLELY OR IN PART BECAUSE OF A PRIOR CONVICTION OF CRIME SHALL BEGIN TO REVIEW ITS STATUTORY AUTHORITY AND RULES IN ORDER TO PROPOSE STATUTORY CHANGES CONSISTENT WITH THE CERTAIN GUIDELINES AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) This act shall be known and may be cited as the "Fresh Start Act of 2019."

SECTION 2. The following words and phrases shall have the meanings as defined in this section unless the context clearly indicates otherwise:

(a) "Criminal record" shall mean any type of felony or misdemeanor conviction.

(b) "Licensing" shall mean any required training, education, or fee to work in a specific profession.

(c) "Licensing authority" shall mean an agency, examining board, credentialing board, or other office with the authority to impose occupational fees or licensing requirements on any profession.

SECTION 3. Absent applicable state law, no person shall be

disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation.

SECTION 4. (1) Absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to, "moral turpitude," "any felony," and "good character." Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.

(2) The licensing authority shall use the clear and convincing standard of proof in examining the factors to determine whether an applicant with a disqualifying criminal conviction will be denied a license. Absent applicable state law, the licensing authority shall make their determination based on the following factors:

(a) The nature and seriousness of the crime for which the individual was convicted;

(b) The passage of time since the commission of the crime;

(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation; and

(d) Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation.

(3) All licensing authorities shall meet the requirements listed in subsection (1) by one hundred twenty (120) days after

the enactment of this act.

(4) For licensing authorities, the requirements listed in subsections (1) and (2) also apply to any new occupational licenses created after July 1, 2019.

(5) The licensing authority shall adopt necessary rules for the implementation of this section.

SECTION 5. (1) An individual with a criminal record may petition a licensing authority at any time for a determination of whether the individual's criminal record will disqualify the individual from obtaining a license. This petition shall include details on the individual's criminal record. The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. The board may charge a fee to recoup its costs not to exceed Twenty-five Dollars ($25.00) for each petition.

(2) If a licensing authority denies an individual a license solely or in part because of the individual's prior conviction of a crime, the licensing authority shall notify the individual in writing of the following:

(a) The grounds and reasons for the denial or disqualification;

(b) That the individual has the right to a hearing to challenge the licensing authority's decision;

(d) That evidence of rehabilitation may be considered upon reapplication.

(3) If an applicant's criminal history does not require a denial of a license under applicable state law, any written determination by the licensing authority that an applicant's criminal conviction is directly related to the duties and responsibilities for the licensed occupation must be documented in written findings for each of the preceding factors under subsection (2) by clear and convincing evidence sufficient for a reviewing court.

(4) In any administrative hearing or civil litigation authorized under this section, the licensing authority shall carry the burden of proof on the question of whether the applicant's criminal conviction directly relates to the occupation for which the license is sought.

(5) The licensing authority shall adopt necessary rules for the implementation of this section.

SECTION 6. (1) On or before July 1, 2019, each licensing authority with established statutory authority or adopted rules that allow that licensing authority to disqualify a person from pursuing or practicing an occupation for which a license is required solely or in part because of a prior conviction of crime shall begin to review its statutory authority and rules in order to propose statutory changes consistent with the following guidelines:

(a) Specifically identify those criminal convictions that in the opinion of the licensing authority should reasonably disqualify a person from receiving a license because the conviction directly relates to the duties and responsibilities of the licensed occupation;

(b) Identify instances of background history which would be considered as involving or pertaining to, "moral turpitude" and "good character," which in the opinion of the licensing authority would be a disqualifying crime or instance.

(2) In considering these recommendations, the licensing authority should:

(a) Use a clear and convincing standard of proof in examining the factors to determine whether an applicant with a disqualifying criminal conviction should be denied a license;

(b) Consider licensing disqualification decisions based on the following factors:

(i) The nature and seriousness of the crime for which the individual was convicted;

(ii) The passage of time since the commission of the crime;

(iii) The relationship of the crime to the ability, capacity and fitness required to perform the duties and discharge the responsibilities of the occupation;

(iv) Any evidence of rehabilitation or treatment undertaken by an individual that might mitigate against pursuing, practicing or engaging in the occupation; and

(v) Regarding felony convictions of a violent or sexual nature, the health and safety of clients and customers served by the occupation;

(c) Identify those instances where a disqualifying criminal conviction results in a licensing disqualification but that disqualification in the opinion of the licensing authority should be limited to a specific time duration except for crimes of a violent or sexual nature, of no more than five (5) years from the date the individual is released from incarceration.

(3) On or before November 1, 2020, those licensing authorities shall submit the information in subsection (1) to the Mississippi Joint Committee on Performance Evaluation and Expenditure Review (PEER). PEER shall review the submitted information and prepare a report to be submitted to the Legislature no later than December 31, 2020.

(4) Notwithstanding any provisions of the laws of the State of Mississippi to the contrary, each licensing authority in the state shall be required to provide the information required in subsection (1) of this section and cooperate with PEER when PEER is making the report to the Legislature.

SECTION 7. This act shall take effect and be in force from and after July 1, 2019.