An Act to establish provisions relating to occupational licensing and criminal convictions.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That a NEW SECTION be added to title 36:

Terms in this chapter mean:

(1) "Board,” a state governmental entity responsible for granting, denying, diminishing, limiting, suspending, revoking, refusing to renew, and otherwise withholding state recognition;

(2) "Executive director,” the governmental employee responsible for the enforcement of state recognition;

(3) “Occupational license” a nontransferable authorization in law for an individual to exclusively perform a lawful occupation, for compensation, based on meeting personal qualifications;

(4) “Personal qualifications,” the completion of an approved educational program, satisfactory performance on an examination, work experience, apprenticeship, other evidence of attainment of requisite skills or knowledge, criminal record, completion of continuing education, or any other criteria related to an individual’s personal background and characteristics; and

(5) “State recognition,” a governmental grant or renewal of an occupational title, certification, license, or authorization to work in a lawful occupation.

Section 2. That a NEW SECTION be added to title 36:

Notwithstanding any other law, an executive director or board may use only this chapter to deny, diminish, limit, suspend, revoke, refuse to renew, or otherwise withhold state recognition because of a criminal conviction or question of character. Neither an executive director nor a board may automatically bar an individual from state recognition because of a criminal record.

An executive director or a board may, for purposes of state recognition, consider only a conviction of a felony or a violent misdemeanor. Neither an executive director nor a board may, for purposes of state recognition, consider or require that a person disclose a:

(1) Deferred adjudication, participation in a diversion program, or an arrest not followed by a conviction;

(2) Conviction for which no sentence of incarceration can be imposed;

(3) Conviction that has been sealed, annulled, dismissed, expunged or pardoned;

(4) Juvenile adjudication;

(5) Non-violent misdemeanor; or

(6) Conviction, older than three years, for which the person was not incarcerated, or for which the person’s incarceration ended more than three years before the date of the board’s consideration, except for a conviction of a felony related to:

(a) A sexual act;

(b) Fraud or embezzlement;

(c) An aggravated assault;

(d) An aggravated robbery;

(e) The aggravated abuse, neglect, or endangerment of a child;

(f) Arson;

(g) Carjacking;

(h) Kidnapping; or

(i) Murder or manslaughter.

Section 3. That a NEW SECTION be added to title 36:

The executive director of a board may grant state recognition despite a person having a criminal conviction or a question of character, or choose not to deny, diminish, limit, suspend, revoke, refuse to renew, or otherwise withhold state recognition, because a person has a criminal conviction or there exists a question of character.

Section 4. That a NEW SECTION be added to title 36:

An executive director or a board shall deny, diminish, limit, suspend, revoke, refuse to renew, or otherwise withhold state recognition if it is determined that:

(1) The person’s criminal record, if not excluded under section 2 of this Act, directly relates to the duties and responsibilities of the occupation; and

(2) Granting the person state recognition would pose a direct and substantial risk to public safety, because the person has not, in accordance with section 5 of this Act, been rehabilitated so as to safely perform the duties and responsibilities of the occupation.

Section 5. That a NEW SECTION be added to title 36:

To determine whether a person has been rehabilitated, an executive director or a board shall consider:

(1) The age of the person at the time of the offense;

(2) The time that has elapsed since the offense;

(3) The circumstances and nature of the offense;

(4) The completion of the criminal sentence;

(5) Any certificate of rehabilitation or good conduct;

(6) The completion of, or active participation in, a rehabilitative drug or alcohol treatment program;

(7) Testimonials and recommendations, including a progress report from a probation or parole officer;

(8) Other evidence of rehabilitation;

(9) Education and training;

(10) Employment history;

(11) Employment aspirations;

(12) Family responsibilities;

(13) Whether bonding is required in the occupation; and

(14) Any other information the person has offered.

Section 6. That a NEW SECTION be added to title 36:

Any adverse decision made by the executive director or the board must be supported by clear and convincing evidence. An ambiguity in an occupational statute or rule relating to the board or the executive director’s use of a person's criminal record must be resolved in favor of the person.

Section 7. That a NEW SECTION be added to title 36:

The executive director or the board may deny, diminish, limit, suspend, revoke, refuse to renew, or otherwise withhold state recognition based, in whole or in part, on a person's criminal record only if:

(1) The executive director issues a preliminary adverse decision;

(2) The board makes a final written decision; and

(3) The person may appeal the