HEALING ARTS LICENSES, CERTIFICATES, AND REGISTRATIONS
Present law prohibits a licensing authority from denying an application for a license, certificate, or registration, or refusing to renew a license, certificate, or registration, due to a prior criminal conviction that does not directly relate to the applicable occupation, profession, business, or trade.
This bill adds to the present law by prohibiting a licensing authority from automatically barring an individual from licensure because of the individual's criminal record. This bill also requires a licensing authority to provide individualized consideration of the individual's criminal record and current circumstances.
Present law requires, prior to denying an application for a license, certificate, or registration on the basis of a criminal conviction, or prior to the refusal to renew a license, certificate, or registration on the basis of a criminal conviction, the licensing authority to notify the applicant, licensee, certificate holder, or registrant of the determination in writing. Prior to submitting the application necessary to obtain a license, certification, or registration, an individual may request written notice from the licensing authority concerning the individual's qualification to obtain the license, certificate, or registration, based on the individual's criminal history. If the licensing authority determines that an individual is disqualified due to the individual's criminal history, then the licensing authority must provide the individual with a written notification that sets forth the reasons for its determination and its justification. The written notice as to the individual's qualifications must be limited to the individual's criminal history and does not prohibit the licensing authority from denying the application on other grounds. This determination applies exclusively to the individual and is not an advisory or formal opinion.
Present law authorizes an individual, applicant, licensee, certificate holder, or registrant who receives written notice pursuant to the above provisions to file a petition within 30 business days of the receipt of the notice in Davidson County chancery court. The licensing authority must demonstrate by a preponderance of the evidence that the conviction is related to the applicable occupation, profession, business, or trade. This bill changes this provision by, instead, requiring the licensing authority to demonstrate by clear and convincing evidence that the conviction directly relates to the applicable occupation, profession, business, or trade.
Present law requires, in considering whether to deny an application for a license, certificate, or registration to an applicant, or whether to refuse to renew a license, certificate, or registration, on the basis of a criminal conviction, the licensing authority to consider (i) the nature and seriousness of the crime for which the individual was convicted, (ii) the length of time since the commission of the crime, (iii) the relationship between the nature of the crime and the purposes of regulating the occupation, profession, business, or trade, (iv) the relationship between the crime and the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation, profession, business, or trade, (v) any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against the relationship of crime to the occupation, profession, business, or trade, and (vi) any applicable federal laws regarding an individual's participation in the occupation, profession, business, or trade.
Present law provides that the above provisions do not (i) prohibit a licensing authority from issuing a restricted or conditional license, if otherwise authorized to do so under law, and (ii) do not create a separate right to a contested case hearing that does not otherwise exist relative to the denial of the license, certificate, or registration under the Uniform Administrative Procedures Act. Additionally, the above provisions do not apply to the following:
(1) The board of law examiners;
(2) The board of judicial conduct;
(3) The licensure of services and facilities operated for the provision of mental health services, alcohol, and drug abuse prevention or treatment; for the provision of services for intellectual and developmental disabilities; and for personal support services;
(4) The certification of police officers;
(5) Any licensing authority created under the law regarding correctional institutions and inmates, securities, corporations and associations, education, insurance, and welfare;
(6) The department of financial institutions, when acting as a licensing authority pursuant to the law regarding banks and financial institutions;
(7) Any license, certificate, or registration issued pursuant to the rules of the supreme court;
(8) The licensure of pain management clinics; and
(9) The licensure of physicians.
This bill removes the exemptions in the present law above for: (4), everything in (5) except the law regarding education and welfare, (6), (8), and (9).
This bill authorizes the licensing authority to only consider a conviction that is a felony or violent misdemeanor. However, this bill prohibits the licensing authority from considering or requiring an individual to disclose (i) an arrest not followed by a conviction; (ii) a deferred adjudication or participation in a diversion program; (iii) a conviction that has been sealed, annulled, dismissed, expunged, overturned, or pardoned; (iv) a nonviolent misdemeanor; (v) a juvenile adjudication; or (vi) a conviction older than three years for which the individual was not incarcerated, or a conviction for which the individual's incarceration ended more than three years before the date of the licensing authority's consideration, except for a conviction of a felony related to the following:
(1) Aggravated rape, rape, aggravated sexual battery, sexual battery, mitigated statutory rape, statutory rape, aggravated statutory rape, indecent exposure, promoting prostitution, aggravated prostitution, public indecency, continuous sexual abuse of a child, rape of a child, sexual battery by an authority figure, solicitation of a minor, soliciting sexual exploitation of a minor, aggravated rape of a child, statutory rape by an authority figure, promoting travel for prostitution, especially aggravated rape, or especially aggravated rape of a child;
(2) Aggravated assault, reckless endangerment committed with a deadly weapon, reckless endangerment by discharging a firearm or antique firearm into a habitation, reckless endangerment by discharging a firearm from within a motor vehicle, vehicular assault, offenses related to female genital mutilation, domestic assault under the circumstances described in the existing law relative to a third or subsequent conviction for domestic assault; aggravated vehicular assault, aggravated assault against a first responder or nurse, or grave torture;
(3) Robbery, aggravated robbery, especially aggravated robbery, or carjacking;
(4) Burglary, aggravated burglary, or especially aggravated burglary;
(5) Child abuse, child neglect, child abuse or neglect, or aggravated child abuse, aggravated child neglect, or aggravated endangerment of a child;
(6) Neglect of an elderly or vulnerable adult, aggravated neglect of an elderly or vulnerable adult, abuse of an elderly or vulnerable adult, or aggravated abuse or neglect of an elderly or vulnerable adult;
(6) Arson, or aggravated arson;
(7) Kidnapping, aggravated kidnapping, especially aggravated kidnapping, involuntary labor servitude, trafficking persons for forced labor or services, trafficking a person for a commercial sex act, advertising commercial sexual abuse of a minor, or aggravated human trafficking;
(8) First degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide, vehicular homicide, reckless homicide, as described in or aggravated vehicular homicide;
(9) An offense for an organized crime; or
(10) An offense under the Terrorism Prevention and Response Act.
This bill prohibits the licensing authority from using a vague term in its consideration and its notice or decision, including good moral character, moral turpitude, or character and fitness.
LICENSES FOR OTHER PROFESSIONS, BUSINESSES, AND TRADES
This bill makes the same changes mentioned above to the law regarding professions, businesses and trades as it did for the law regarding professions of the healing arts.
ON APRIL 4, 2024, THE HOUSE ADOPTED AMENDMENT #1 AND PASSED HOUSE BILL 1859, AS AMENDED.
AMENDMENT #1 rewrites the bill to, instead, do the following:
(1) Prohibit a licensing board for a profession of the healing arts from using a vague term in its consideration and its notice or decision under present law on the prohibition against denying a license for a prior criminal prosecution for such a profession. Such vague terms include good moral character or character and fitness, and cannot be used without also providing an explanation of how a prior conviction directly relates to the applicable occupation, profession, business, or trade, if such prior conviction serves as a basis for the licensing authority's consideration and notice or decision; and
(2) Prohibit a licensing board for a profession, business, or trade from using a vague term in its consideration and its notice or decision under present law on the prohibition against denying a license for a prior criminal prosecution for such a profession. Such vague terms include good moral character or character and fitness, and cannot be used without also providing an explanation of how a prior conviction directly relates to the applicable occupation, profession, business, or trade, if such prior conviction serves as a basis for the licensing authority's consideration and notice or decision.

Statutes affected:
Introduced: 63-1-130, 63-1-130(b), 63-1-130(c), 62-76-104, 62-76-104(b), 62-76-104(c)
Amended with HA0794 -- 04/04/2024: 63-1-130, 63-1-130(b), 63-1-130(c), 62-76-104, 62-76-104(b), 62-76-104(c)