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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 493
By Senators Chapman, Rucker, Barrett, and Woelfel
[Introduced January 18, 2024; referred
to the Committee on the Workforce; and then to the Committee on the Judiciary]
A BILL to amend and reenact §21-1-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30‑1‑24 of said code, all relating generally to the use of criminal records as disqualification from authorization to practice a profession or occupation by a board, authority, or other agency authorized to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.
Be it enacted by the Legislature of West Virginia:
(a) The commissioner may not disqualify an applicant from initial licensure, as required in this chapter, because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the activity requiring licensure. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the commissioner shall consider at a minimum:
(1) The nature and seriousness of the crime for which the individual was convicted;
(2) The passage of time since the commission of the crime;
(3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and
(4) Any evidence of rehabilitation or treatment undertaken by the individual including if applicable:
(i) The age of the individual when the individual committed the offense;
(ii) The completion of the criminal sentence;
(iii) A certificate of rehabilitation or good conduct;
(iv) Completion of, or active participation in, rehabilitative drug or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from (he individual's probation or parole officer;
(vi) Education and training;
(vii) Employment history and aspirations:
(viii) The individual's current family responsibilities:
(ix) Whether the individual will be bonded in the occupation: and
(x) Other evidence of rehabilitation the individual submits to the licensing authority.
(b) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the commissioner shall permit the applicant to apply for initial licensure if:
(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;
(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and
(3) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.
(c) An individual with a criminal record who has not previously applied for licensure may petition the commissioner 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 sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The commissioner shall provide the determination within 60 days of receiving the petition from the applicant. The commissioner may charge a fee to recoup its costs for each petition.
(a) Definitions. — For the purposes of this section:
(1) "Board" means the board, authority, or other agency authorized by the provisions of this chapter to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.
(2) "License" or "licensure" means the official authorization to engage in a profession or occupation issued by a board, pursuant to the requirements of this chapter.
(3) "Unreversed", as that term refers to a criminal conviction, means that a conviction has not been set aside, vacated, pardoned, or expunged.
(b) Notwithstanding any provision of this chapter law to the contrary, except for the professions and occupations regulated by §30‑2‑1 et seq., §30‑3‑1 et seq., §30‑3E‑1 et seq., §30‑14‑1 et seq., §30‑18‑1 et seq., and §30‑29‑1 et seq. of this code, and where not in conflict with an existing compact or model act:
(1) Boards subject to the requirements of this section may not disqualify an applicant from initial licensure to engage in a profession or occupation because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the to the profession or occupation requiring licensure and granting the applicant licensure would pose a direct and substantial risk to public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly relates to the duties and responsibilities of a profession or occupation and whether an individual has not been rehabilitated, the board shall consider at a minimum:
(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 profession or occupation; and
(D) Any evidence of rehabilitation or treatment undertaken by the individual, including if applicable:
(i) The age of the individual when the individual committed the offense;
(ii) The completion of the criminal sentence;
(iii) A certificate of rehabilitation or good conduct;
(iv) Completion of, or active participation in, rehabilitative drug or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from (he individual's probation or parole officer;
(vi) Education and training;
(vii) Employment history and aspirations:
(viii) The individual's current family responsibilities:
(ix) Whether the individual will be bonded in the occupation: and
(x) Other evidence of rehabilitation the individual submits to the licensing authority.
(2) Because the term "moral turpitude" and "good moral character" is are vague and subject to inconsistent applications, boards subject to the requirements of this section may not rely upon the description of a crime for which an applicant has been convicted as one of "moral turpitude" or the applicant lacking "good moral character" as a basis for denying licensure: Provided, That if the prior conviction for the underlying crime bears a rational nexus to the profession or occupation requiring licensure, the board may consider the conviction according to the requirements of subdivision (1) of this subsection.
(3) Notwithstanding any other provision of this chapter law to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, a board shall permit the applicant may not disqualify an applicant to apply for initial licensure if:
(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;
(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense; and
(C) The conviction was not for an offense of a violent or sexual nature: Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the individual board.
(4) Notwithstanding any other provision of law to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction or a nonviolent misdemeanor in an application or determination for licensure.
(4) (5) An individual with a criminal record who has not previously applied for licensure may petition the appropriate board 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 sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The board shall provide the determination within 60 days of receiving the petition from the applicant. The board may charge a fee to recoup its costs for each petition. The individual may appeal the final written decision within 60 days after the date of the decision in accordance with the State Administrative Procedures Act.
(5) (6) The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees and reinstating licenses following discipline.
(c) Every board subject to the provisions of this section shall propose rules or amendments to existing rules for legislative approval if necessary to comply with the provisions of this section. These rules or amendments to rules shall be proposed pursuant to the provisions of §29A‑3‑1 et seq. of this code within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.
(d) Every board subject to the provisions of this article, including the Commissioner of Labor, shall update their forms and all other public-facing documents, explain on the board's website the law in this section and the availability of the process in subdivision (b)(5)of this section, and eliminate language that conflicts with or contradicts this section.
NOTE: The purpose of this bill is to amend §21-1-6 and §30-1-24 relating generally to the use of criminal records as disqualification, from authorization to practice a profession or occupation, by a board, authority, or other agency authorized to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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