HOUSE COMMERCE AND ECONOMIC DEVELOPMENT
COMMITTEE SUBSTITUTE FOR
HOUSE BILL 191
55th legislature - STATE OF NEW MEXICO - second session, 2022
AN ACT
RELATING TO LICENSURE; CLARIFYING THAT PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS ARE REQUIRED TO FOLLOW THE PROVISIONS OF THE STATE RULES ACT WHEN PROMULGATING RULES AND THE PROVISIONS OF THE UNIFORM LICENSING ACT FOR LICENSING AND DISCIPLINARY MATTERS; PROVIDING FOR EXPEDITED LICENSURE FOR PERSONS HOLDING PROFESSIONAL OR OCCUPATIONAL LICENSES FROM OTHER LICENSING JURISDICTIONS; REVISING BOARD OF BARBERS AND COSMETOLOGISTS AND REGULATION AND LICENSING DEPARTMENT POWERS AND DUTIES; REVISING CERTAIN LICENSING REQUIREMENTS; ESTABLISHING CERTAIN FEES; EXTENDING THE SUNSET DATE FOR THE BOARD OF BODY ART PRACTITIONERS; AMENDING, REPEALING, ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 61-1-2 NMSA 1978 (being Laws 1957, Chapter 247, Section 2, as amended) is amended to read:
"61-1-2. DEFINITIONS.--As used in the Uniform Licensing Act:
A. "board" means:
(1) the construction industries commission, the construction industries division and the electrical bureau, mechanical bureau and general construction bureau of the construction industries division of the regulation and licensing department;
(2) the manufactured housing committee and manufactured housing division of the regulation and licensing department;
(3) the crane operators licensure examining council;
[(3)] (4) a board, commission or agency that administers a profession or occupation licensed pursuant to Chapter 61 NMSA 1978; and
[(4)] (5) any other state agency to which the Uniform Licensing Act is applied by law;
B. "applicant" means a person who has applied for a license;
C. "expedited license", whether by examination, endorsement, credential or reciprocity, means a license issued to a person in this state based on licensure in another state or territory of the United States, the District of Columbia or a foreign country, as applicable;
D. "initial license" means the first regular license received from a board for a person who has not been previously licensed;
[C.] E. "license" means a certificate, permit or other authorization to engage in [each of the professions and occupations] a profession or occupation regulated by [the boards enumerated in Subsection A of this section] a board;
F. "licensing jurisdiction" means another state or territory of the United States, the District of Columbia or a foreign country, as applicable;
G. "regular license" means a license that is not issued as a temporary or provisional licence;
[D.] H. "revoke a license" means to prohibit the conduct authorized by the license; and
[E.] I. "suspend a license" means to prohibit, for a stated period of time, the conduct authorized by the license. "Suspend a license" also means to allow, for a stated period of time, the conduct authorized by the license, subject to conditions that are reasonably related to the grounds for suspension [and
F. "emergency" includes any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requires the resources of the state]."
SECTION 2. A new section of the Uniform Licensing Act is enacted to read:
"[NEW MATERIAL] RESIDENCY IN NEW MEXICO NOT A REQUIREMENT FOR LICENSURE.--A person who otherwise meets the requirements for a professional or occupational license shall not be denied licensure or relicensure because the person does not live in New Mexico."
SECTION 3. A new section of the Uniform Licensing Act is enacted to read:
"[NEW MATERIAL] INCOMPLETE APPLICATION--NOTICE--EXPIRATION.--If a board deems an application for licensure incomplete, the board shall notify the applicant within thirty days, including the ways in which the application is incomplete. An incomplete application expires after one year."
SECTION 4. Section 61-1-4 NMSA 1978 (being Laws 1957, Chapter 247, Section 4, as amended) is amended to read:
"61-1-4. NOTICE OF CONTEMPLATED BOARD ACTION--REQUEST FOR HEARING--NOTICE OF HEARING.--
A. [For the purpose of] When investigating complaints against licensees, [the] a board may issue investigative subpoenas prior to the issuance of a notice of contemplated action as provided in this section.
B. When a board contemplates taking [any] an action of a type specified in Subsection A, B or C of Section 61-1-3 NMSA 1978, it shall serve upon the applicant a written notice containing a statement:
(1) that the applicant has failed to satisfy the board of [his] the applicant's qualifications to be examined or to be issued a license, as the case may be;
(2) indicating in what respects the applicant has failed to satisfy the board;
(3) that the applicant may secure a hearing before the board by depositing in the mail within twenty days after service of the notice a certified return receipt requested letter addressed to the board and containing a request for a hearing; and
(4) calling the applicant's attention to [his] the applicant's rights under Section 61-1-8 NMSA 1978.
C. In [any] a board proceeding to take [any] an action of a type specified in Subsection A, B or C of Section 61-1-3 NMSA 1978, the burden of satisfying the board of the applicant's qualifications shall be upon the applicant.
D. When a board contemplates taking [any] an action of a type specified in Subsections D through N of Section 61-1-3 NMSA 1978, it shall serve upon the licensee a written notice containing a statement:
(1) that the board has sufficient evidence that, if not rebutted or explained, will justify the board in taking the contemplated action;
(2) indicating the general nature of the evidence;
(3) that unless the licensee within twenty days after service of the notice deposits in the mail a certified return receipt requested letter addressed to the board and containing a request for a hearing, the board [will] shall take the contemplated action; and
(4) calling the licensee's attention to [his] the licensee's rights as provided in Section 61-1-8 NMSA 1978.
E. Except as provided in Section 61-1-15 NMSA 1978, if the licensee or applicant does not mail a request for a hearing within the time and in the manner required by this section, the board may take the action contemplated in the notice and such action shall be final and not subject to judicial review.
F. If the licensee or applicant does mail a request for a hearing as required by this section, the board shall, within twenty days of receipt of the request, notify the licensee or applicant of the time and place of hearing, the name of the person who shall conduct the hearing for the board and the statutes and [regulations] rules authorizing the board to take the contemplated action. The hearing shall be held not more than sixty nor less than fifteen days from the date of service of the notice of hearing.
G. Licensees shall bear all costs of disciplinary proceedings unless they are excused by the board from paying all or part of the fees or if they prevail at the hearing and an action specified in Section 61-1-3 NMSA 1978 is not taken by the board.
H. All fines collected by a board shall be deposited to the credit of the current school fund as provided in Article 12, Section 4 of the constitution of New Mexico."
SECTION 5. Section 61-1-29 NMSA 1978 (being Laws 1971, Chapter 54, Section 3, as amended) is amended to read:
"61-1-29. ADOPTION OF [REGULATIONS] RULES--NOTICE AND HEARING.--[A. The] Rulemaking procedures [specified in Sections 61-1-29 through 61-1-31 NMSA 1978 shall be applicable to proceedings by a board to adopt, amend or repeal rules or regulations of general applicability which implement or interpret a law enforced or administered by the] of a board [These procedures shall not apply to:
(1) statements, policies, procedures or regulations concerning only internal management or discipline of a board and not affecting the rights of or procedures available to licensees, applicants or the public generally;
(2) declaratory rulings issued pursuant to Section 61-1-33 NMSA 1978;
(3) decisions, statements or interpretations issued or actions taken in the course of disciplinary proceedings against a licensee; or
(4) formal or informal opinions of the attorney general issued pursuant to requests of the board.
B. No regulation or amendment or repeal thereof shall be adopted by the board until after a public hearing by the board.
C. The board shall make reasonable efforts to give notice of any rulemaking proceeding to its licensees and to the members of the public. Notice of the hearing shall be given at least thirty days prior to the hearing date and shall state the subject, the time and the place of the hearing and the manner in which interested persons may present their views. The notice shall also state where interested persons may secure copies of any proposed regulations. The notice of the public hearing shall include but not necessarily be limited to publishing the notice in a newspaper of general circulation in the state, and the board shall give notice to all persons who have made a written request to the board for advance notice.
D. At the hearing, the board shall allow all interested persons reasonable opportunity to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. Any person heard or represented at the hearing shall be given written notice of the action of the board. The board may designate a hearing officer to take evidence in the hearing. A record shall be made of all proceedings at the hearing.
E. No regulation or amendment or repeal thereof shall become effective until thirty days after its filing under the State Rules Act] shall be as provided in the State Rules Act."
SECTION 6. Section 61-1-31 NMSA 1978 (being Laws 1971, Chapter 54, Section 5, as amended) is amended to read:
"61-1-31. VALIDITY OF [REGULATION] RULE--JUDICIAL REVIEW.--
A. [Any] A person who is or may be affected by a [regulation adopted] rule promulgated by [the] a board may appeal to the court of appeals for relief. All appeals shall be upon the record made at the hearing by the board and shall be taken to the court of appeals within thirty days after filing of the [regulation under] rule pursuant to the State Rules Act.
B. An appeal to the court of appeals under this section is perfected by the timely filing of a notice of appeal with the court of appeals, with a copy attached of the [regulation] rule from which the appeal is taken. The appellant shall certify in [his] the appellant's notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support [his] the appellant's appeal to the court, at the expense of the appellant, including three copies [which he] that the appellant shall furnish to the board.
C. Upon appeal, the court of appeals shall set aside the [regulation] rule only if it is found to be:
(1) arbitrary, capricious or an abuse of discretion;
(2) contrary to law; or
(3) against the clear weight of substantial evidence of the record."