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WEST virginia legislature
2024 regular session
Committee Substitute
for
Senate Bill 493
By Senators Chapman, Rucker, Barrett, and Woelfel
[Originating in the Committee on the Judiciary; reported February 14, 2024]
A BILL to amend and reenact §17A-6-6 of the Code of West Virginia, 1931, as amended; to amend and reenact §19-2C-5b of said code; to amend and reenact §19-23-8 of said code; to amend and reenact §21-1-6 of said code; to amend and reenact §21-5-5c of said code; to amend and reenact §21-14-6 of said code; to amend and reenact §21-16-7 of said code; to amend and reenact §29-3B-4 of said code; to amend and reenact §29-3C-4 of said code; to amend and reenact §29-3D-6 of said code; to amend and reenact §30-1-24 of said code; to amend and reenact §30-5-9 and §30-5-11a of said code; to amend and reenact §30-6-8 and §30-6-17 of said code; to amend and reenact §30-20-8a of said code; to amend and reenact §30-32-10a of said code; to amend and reenact §30-36-10 of said code; to amend and reenact §31-17A-5 of said code; to amend and reenact §32A-2-8 of said code; and to amend and reenact §33-13C-3 and §33-13C-4 of said code, all relating generally to the use of criminal records as disqualification from initial licensure or other authorization to practice a profession or occupation; prohibiting licensing authorities from disqualifying an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that directly and specifically relates to the activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated; providing factors for a licensing authority to determine whether a criminal conviction directly and specifically relates to a profession or occupation; clarifying that a licensing authority may not disqualify an applicant from initial licensure because of a prior criminal conviction if certain criteria are met; prohibiting consideration of good moral character or crimes of moral turpitude as a basis for disqualifying applicant for initial licensure; authorizing an individual with a criminal record who has not previously held a license from the licensing authority to petition the authority for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license; clarifying that these requirements do not apply to discipline of licensees or reinstatement of a license following discipline; prohibiting a licensing authority from considering, or from requiring, an individual to disclose an arrest not followed by conviction in an application for initial licensure or determination of qualification for license; and requiring licensing authorities to update licensure forms, relevant public-facing documents, and website.
Be it enacted by the Legislature of West Virginia:
(1) Has failed to furnish the required bond unless otherwise exempt under the provisions of §17A-6-2a of this code;
(2) Has failed to furnish the required certificate of insurance;
(3) Has knowingly made false statement of a material fact in his or her application;
(4) Has habitually defaulted on financial obligations in this state or any other state or jurisdiction;
(5) Has been convicted of a felony: Provided, That the commissioner shall apply §17A-6-6(c) and §17A-6-6(d) of this code in determining subsections (c) and (d) of this section to determine whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought;
(6) So far as can be ascertained, has not complied with, and will not comply with, the registration and title laws of this state or any other state or jurisdiction;
(7) Does not or will not have or maintain at each place of business, subject to the qualification contained in §17A-6-1(a)(17) of this code with respect to a new motor vehicle dealer (an established place of business as defined for the business in question) in that section;
(8) Has been convicted of any fraudulent act in connection with the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer, or wrecker or dismantler in this state or any other state or jurisdiction: Provided, That the commissioner shall apply §17A-6-6(c) and §17A-6-6(d) of this code in determining subsections (c) and (d) of this section to determine whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought;
(9) Has done any act or has failed or refused to perform any duty for which the license certificate sought could be suspended or revoked were it then issued and outstanding;
(10) Is not age 18 years or older;
(11) Is delinquent in the payment of any taxes owed to the United States, the state of West Virginia, or any political subdivision of the state;
(12) Has been denied a license in another state or has been the subject of license revocation or suspension in another state;
(13) Has committed any action in another state which, if it had been committed in this state, would be grounds for denial and refusal of the application for a license certificate;
(14) Has failed to pay any civil penalty assessed by this state or any other state;
(15) Has failed to reimburse, when ordered, any claim against the Dealer Recovery Fund as prescribed in §17A-6-2a of this code; or
(16) Has failed to comply with the provisions of §17A-6E-1 et seq. of this code pertaining to the employment of licensed salespersons.
Otherwise, the commissioner shall issue to the applicant the appropriate license certificate which entitles the licensee to engage in the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer, or wrecker or dismantler, as the case may be.
(b) A license certificate issued in accordance with the provisions of this article is not transferable.
(c) The commissioner may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(d) 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: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction 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.
(e) An individual with a criminal record who has not previously applied for licensure held a license under this section 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 costs for each petition.
(f) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the commissioner consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (e) of this section.
(g) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (e) of this section.
(a) A person applying for a license pursuant to §19-2C-5, §19-2C-6, or §19-2C-6c of this code may be required to submit to a state and national criminal history record check. The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.
(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:
(1) Submitting fingerprints for the purposes set forth in this subsection; and
(2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.
(c) The results of the state and national criminal history record check may not be released to or by a private entity except:
(1) To the individual who is the subject of the criminal history record check;
(2) With the written authorization of the individual who is the subject of the criminal history record check; or
(3) Pursuant to a court order.
(d) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.
(e) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.
(f) The commissioner may not disqualify an applicant for initial licensure, certification, or registration because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the occupation requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(g) The commissioner may not use crimes involving moral turpitude in making licensure, certification or registration determinations. Because the terms “moral turpitude” and “good moral character” are vague and subject to inconsistent applications, the commissioner 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.
(h) If an applicant is disqualified for licensure, certification or registration because of a criminal conviction that has not been reversed, the commissioner shall afford the applicant the opportunity to reapply for licensure, certification or registration after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time: Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the individual board or licensing authority. Notwithstanding any other provision of this code to the contrary, the commissioner may not disqualify an applicant from licensure because of a prior criminal conviction 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.
(i) An individual with a criminal record who has not previously applied for licensure held a license, certification, or registration under this section 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 or other authorization. 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 inform the individual of his or her standing within 60 days of receiving the petition from the applicant. The licensing authority may charge a fee to recoup its costs for each petition.
(j) Nothing in this section alters the standards and procedures the commissioner uses for evaluating licensure, certification, or registration renewals.
(k) The commissioner shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section 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.
(l) The provisions of this section enacted during the 2019 Regular Session of the Legislature shall not apply to current licensees who maintain active licensure, but shall apply to individuals currently holding an apprentice auctioneer license who are applying for an auctioneer license, or to any current license holder whose license lapses and who is required to reapply.
(m) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (i) of this section.
(m) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (i) of this section.
(a) The Racing Commission shall promptly consider any application for a license or permit, as the case may be. Based upon such application and all other information before it, the Racing Commission shall make and enter an order either approving or denying the application. The application may be denied for any reason specified in subsection (b) of this section. If an application for a license is approved, the Racing Commission shall issue a license to conduct a horse or dog race meeting and shall designate on the face of the license the kind or type of horse or dog racing for which the same license is issued, the racing association to which the same license is issued, the dates upon which the horse or dog race meeting is to be held or conducted (which may be any weekdays, or weeknights, including Sundays), the location of the horse or dog racetrack, place, or enclosure where the horse or dog race meeting is to be held or conducted, and other information as the Racing Commission shall consider considers proper. If an application for a permit is approved, the Racing Commission shall issue a permit and shall designate on the face of the permit such information as the Racing Commission considers proper.
(b) The Racing Commission may deny the application and refuse to issue the license or permit, as the case may be, which denial and refusal is final and conclusive, unless a hearing is demanded in accordance with the provisions of §19-23-16 of this code, if the Racing Commission finds that the applicant individually, if an individual, or the partners or members, if a partnership, firm, or association, or the owners and directors, if a corporation:
(1) Has knowingly made false statement of a material fact in the application or has knowingly failed to disclose any information called for in the application;
(2) Is or has been guilty of any corrupt or fraudulent act, practice, or conduct in connection with a horse or dog race meeting in this or any other state;
(3) Has been convicted, within 10 years prior to the date of the application, of an offense which under the law of this state, of any other state, or of the United States of America shall constitute constitutes a felony: Provided, That the Racing Commission shall apply §19-23-8(g) and §19-23-8(h) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license or permit being sought pursuant to subsection (g) of this section;
(4) Has failed to comply with the provisions of this article or any reasonable rules of the Racing Commission;
(5) Has had a license to hold or conduct a horse or dog race meeting or a permit to participate therein in the meeting denied for just cause, suspended, or revoked in any other state;
(6) Has defaulted in the payment of any obligation or debt due to this state under the provisions of this article;
(7) Is, if a corporation, neither incorporated under the laws of this state nor qualified to do business within this state;
(8) In the case of an application for a license, has failed to furnish bond or other adequate security, if the same is required by the Racing Commission under the provisions of §19-23-7 of this code;
(9) In the case of an application for a permit, is unqualified to perform the duties required for the permit sought; or
(10) In the case of an application for a permit, is, for just cause, determined to be undesirable to perform the duties required of the applicant.
(c) In issuing licenses and fixing dates for horse or dog race meetings at the various horse racetracks and dog racetracks in this state, the Racing Commission shall consider the horse racing circuits and dog racing circuits with which the horse racetracks and dog racetracks in this state are associated or contiguous to and shall also consider dates which are calculated to increase the tax revenues accruing from horse racing and dog racing.
(d) A license issued under the provisions of this article is neither transferable nor assignable to any other racing association and may not permit the holding or conducting of a horse or dog race meeting at any horse or dog racetrack, place, or enclosure not specified thereon. However, if the specified horse or dog racetrack, place, or enclosure becomes unsuitable for the horse or dog race meeting because of flood, fire, or other catastrophe, or cannot be used for any reason, the Racing Commission may, upon application, authorize the horse or dog race meeting, or any remaining portion thereof, to be conducted at any other racetrack, place, or enclosure available for that purpose, provided that the owner of the racetrack, place, or enclosure willingly consents to the use.
(e) No type of horse racing or dog racing shall be conducted by a licensee at any race meeting other than that type for which a license was issued.
(f) Each permit issued under the provisions of this section shall be for a period of one year, unless approved otherwise by the commission. Effective January 1, 2012, each permit shall be renewed according to the following schedule: Permits issued to persons whose date of birth is January 1 through and including April 30 shall be renewed no later than April 30 of each year; permits issued to persons whose date of birth is May 1 through and including August 31 shall be renewed no later than August 31 of each year; and permits issued to persons whose date of birth is September 1 through and including December 31 shall be renewed no later than December 31 of each year. Each permit shall be valid at all horse or dog race meetings during the period for which it was issued unless it be sooner suspended or revoked in accordance with the provisions of this article. A permit issued under the provisions of this article is neither transferable nor assignable to any other person.
(g) The Racing Commission may not disqualify an applicant from an initial license or permit 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 activity requiring a license or permit such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the Racing Commission 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the applicant will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the applicant submits to the commissioner.
(h) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from a license or permit because of a prior criminal conviction, the commissioner shall permit the applicant to apply for an initial license or permit if: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction 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.
(i) An individual with a criminal record who has not previously applied for held a license or permit under this section may petition the Racing Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or permit. This petition shall include sufficient details about the individual’s criminal record to enable the Racing Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction. The Racing Commission shall provide the determination within 60 days of receiving the petition from the applicant. The Racing Commission may charge a fee to recoup its costs for each petition.
(j) The Racing Commission may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code which establish the criteria for the approval or denial of a license or permit.
(k) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the Racing Commission consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (i) of this section.
(l) The Racing Commission shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (i) of this section.
(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 duties and responsibilities of the activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus a profession or occupation making its determination, 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(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: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction 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 held a license under this section 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.
(d) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the commission consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (c) of this section.
(e) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (c) of this section.
(a) No person, firm, or corporation shall administer a psychophysiological detection of deception examination, lie detector, or other similar examination utilizing mechanical or electronic measures of physiological reactions to evaluate truthfulness without holding a current valid license to do so as issued by the Commissioner of Labor. No examination shall be administered by a licensed corporation except by an officer or employee thereof who is also licensed.
(b) A person is qualified to receive a license as an examiner if he or she:
(1) Is at least 21 years of age;
(2) Is a citizen of the United States;
(3) Has not been convicted of a felony: Provided, That the commissioner shall apply §21-1-6 of this code to determine if whether the prior criminal conviction bears a rational nexus directly and specifically relates to the license being sought;
(4) Has not been released or discharged with other than honorable conditions from any of the armed services of the United States or that of any other nation;
(5) Has passed an examination conducted by the Commissioner of Labor or under his or her supervision to determine his or her competency to obtain a license to practice as an examiner;
(6) Has satisfactorily completed not less than six months of internship training; and
(7) Has met any other qualifications of education or training established by the Commissioner of Labor in his or her sole discretion which qualifications are to be at least as stringent as those recommended by the American Polygraph Association.
(c) The Commissioner of Labor may designate and administer any test he or she considers appropriate to those persons applying for a license to administer psychophysiological detection of deception, lie detector, or similar examination. The test shall be designed to ensure that the applicant is thoroughly familiar with the code of ethics of the American Polygraph Association and has been trained in accordance with association rules. The test must also include a rigorous examination of the applicant’s knowledge of and familiarity with all aspects of operating psychophysiological detection of deception equipment and administering psychophysiological detection of deception examinations.
(d) The license to administer psychophysiological detection of deception, lie detector, or similar examinations to any person shall be issued for a period of one year. It may be reissued from year to year. The licenses to be issued are:
(1) “Class I license” which authorizes an individual to administer psychophysiological detection of deception examinations for all purposes which are permissible under the provisions of this article and other applicable laws and rules.
(2) “Class II license” which authorizes an individual who is a full-time employee of a law-enforcement agency to administer psychophysiological detection of deception examinations to its employees or prospective employees only.
(e) The Commissioner of Labor shall charge an annual fee to be established by legislative rule. All fees paid pursuant to this section shall be paid to the Commissioner of Labor and deposited in an appropriated special revenue account hereby created in the State Treasury to be known as the Psychophysiological Examiners Fund and expended for the implementation and enforcement of this section. Through June 30, 2019, amounts collected which are found from time to time to exceed funds needed for the purposes set forth in this section may be utilized by the commissioner as needed to meet the division’s funding obligations: Provided, That beginning July 1, 2019, amounts collected may not be utilized by the commissioner as needed to meet the division’s funding obligations. In addition to any other information required, an application for a license shall include the applicant’s Social Security number.
(f) The Commissioner of Labor shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code governing the administration of psychophysiological detection of deception, lie detector, or similar examination to any person: Provided, That all applicable rules in effect on the effective date of §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of this code will remain in effect until amended, withdrawn, revoked, repealed, or replaced. The legislative rules shall include:
(1) The type and amount of training or schooling necessary for a person before which he or she may be licensed to administer or interpret a psychophysiological detection of deception, lie detector, or similar examination;
(2) Testing requirements, including the designation of the test to be administered to persons applying for licensure;
(3) Standards of accuracy which shall be met by machines or other devices to be used in psychophysiological detection of deception, lie detector, or similar examination;
(4) The conditions under which a psychophysiological detection of deception, lie detector, or similar examination may be administered;
(5) Fees for licenses, renewals of licenses, and other services provided by the commissioner;
(6) Any other qualifications or requirements, including continuing education, established by the commissioner for the issuance or renewal of licenses; and
(7) Any other purpose to carry out the requirements of §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of this code.
(a) The Commissioner of Labor may deny a license to any applicant who fails to comply with the rules established by the Commissioner of Labor, or who lacks the necessary qualifications: Provided, That the commissioner shall apply §21-1-6 of this code to determine if whether the prior criminal conviction bears a rational nexus directly and specifically relates to the license being sought.
(b) The Commissioner of Labor may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend or revoke a licensee’s license if:
(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure;
(3) The licensee incompetently or unsafely performs plumbing work; or
(4) The licensee violated any statute of this state, any legislative rule or any ordinance of any municipality or county of this state which protects the consumer or public against unfair, unsafe, unlawful, or improper business practices.
(a) The Commissioner of Labor may deny a license to any applicant who fails to comply with the provisions of this article or the rules established by the Commissioner of Labor, or who lacks the necessary qualifications: Provided, That the commissioner shall apply §21-1-6 of this code to determine if whether the prior criminal conviction bears a rational nexus directly and specifically relates to the license being sought.
(b) The Commissioner of Labor may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend, or revoke a licensee’s license if:
(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure;
(3) The licensee incompetently or unsafely performs heating, ventilating, and cooling work; or
(4) The licensee violated any statute of this state, any legislative rule, or any ordinance of any municipality or county of this state which protects the consumer or public against unfair, unsafe, unlawful, or improper business practices.
(a) The following classes of license may be issued by the State Fire Marshal: master electrician license, journeyman electrician license, and temporary electrician license. Additional classes of specialty electrician license may be issued by the State Fire Marshal.
(b) The State Fire Marshal shall issue the appropriate class of license upon a finding that the applicant possesses the qualifications for the class of license to be issued. When considering whether an applicant possess the qualifications for the class of license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on directly and specifically relate to the license being sought.
(1) The State Fire Marshal may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the State Fire Marshal 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the applicant submits to the State Fire Marshal.
(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if: the State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction 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 State Fire Marshal.
(3) An individual with a criminal record who has not previously applied for licensure held a license under this section may petition the State Fire Marshal 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 State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.
(c) The State Fire Marshal shall propose rules for legislative approval regarding qualifications for testing, issuance of licenses, and renewal in accordance with the provisions of §29A-3-1 et seq. of this code.
(d) To the extent that other jurisdictions provide for the licensing of electricians, the State Fire Marshal shall grant the same or equivalent classification of license without written examination upon satisfactory proof furnished to the State Fire Marshal that the qualifications of the applicant demonstrate that the person can perform work safely and competently and is in good standing with all other jurisdictions where he or she is licensed, and upon payment of the required fee.
(e) In addition to any other information required, the applicant’s social security number shall be recorded on any application for a license submitted pursuant to the provisions of this section.
(f) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3), subsection (b) of this section.
(g) The State Fire Marshal shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (b)(3) of this section.
(a) The State Fire Marshal shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to establish a program for the certification of electrical inspectors. Proposed rules shall provide: Standards and procedures for certification, including applications, examinations, fees, qualifications, procedures for investigating complaints, revoking or suspending certifications, and for renewing licenses. The State Fire Marshal is also authorized to may propose emergency rules to implement the provisions of this article: Provided, That the emergency rules specify an initial certification fee of $50.
(b) The State Fire Marshal shall certify an electrical inspector upon a finding that the applicant possesses the requisite qualifications.
(c) When considering whether an applicant possess the qualifications for certification as an electrical inspector, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on directly and specifically relates to the certification being sought.
(1) The State Fire Marshal may not disqualify an applicant from initial certification 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 activity requiring certification such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the State Fire Marshal 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from certification because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial certification if: the State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction 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 certification, to be determined by the State Fire Marshal.
(3) An individual with a criminal record who has not previously applied for held a certification under this section may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a certification. This petition shall include sufficient details about the individual’s criminal record to enable the State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.
(d) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3), subsection (c) of this section.
(e) The State Fire Marshal shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (3), subsection (c) of this section.
(a) The State Fire Marshal may deny a license to any applicant who fails to comply with the rules established by the State Fire Marshal, or who lacks the necessary qualifications. When considering whether an applicant possesses the qualifications for a license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on directly and specifically relates to the license being sought.
(1) The State Fire Marshal may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the State Fire Marshal 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the State Fire Marshal.
(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if: the State Fire Marshal may not disqualify an applicant from initial licensure because of a prior criminal conviction 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 State Fire Marshal.
(3) An individual with a criminal record who has not previously applied for licensure held a license under this section may petition the State Fire Marshal 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 State Fire Marshal to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.
(b) The State Fire Marshal may, upon complaint or upon his or her own inquiry, and after notice to the licensee, suspend or revoke a licensee’s license if:
(1) The license was granted upon an application or documents supporting the application which materially misstated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material misstatement in his or her application for licensure; or
(3) The licensee incompetently or unsafely performs fire protection work or damper work.
(c) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3), subsection (a) of this section.
(d) The State Fire Marshal shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (3), subsection (a) of this section.
(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 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 profession or occupation requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, 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 the following, if applicable:
(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 profession or occupation; and
(iv) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:
(I) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(V) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(VI) Education and training;
(VII) Employment history relevant to the license being sought;
(VIII) Whether the individual will be bonded in the occupation; and
(IX) Other evidence of rehabilitation the individual submits to the board.
(2) Because the term terms “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 to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, a board shall permit the applicant to apply for initial licensure if: a board may not disqualify an applicant from initial licensure because of a prior criminal conviction 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) An individual with a criminal record who has not previously applied for licensure held a license under this section 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.
(5) The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees or reinstatement of a license following discipline.
(c) Every board subject to the provisions of this section shall propose rules or amendments to existing rules for legislative approval 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) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (b)(4) of this section.
(e) Every board subject to the provisions of this section shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (b)(4) of this section.
(a) To be eligible for a license to practice pharmacist care under the provisions of this article, the applicant shall:
(1) Submit a written application to the board;
(2) Be 18 years of age or older;
(3) Pay all applicable fees;
(4) Graduate from an accredited school of pharmacy;
(5) Complete at least 1,500 hours of internship in a pharmacy under the instruction and supervision of a pharmacist;
(6) Pass an examination or examinations approved by the board;
(7) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;
(8) Present to the board satisfactory evidence that he or she is a person of good moral character, has not Not have been convicted of a felony involving the sale or distribution of controlled substances;
(9) Not have been convicted in any jurisdiction of any other felony or crime which bears a rational nexus directly and specifically relates to the individual's ability to practice pharmacist care pursuant to §30-1-24 of this code: Provided, That an applicant with a felony conviction other than the felony conviction specified in subdivision eight of this section may apply to the board for licensure no sooner than five years after the date of the conviction. The board shall evaluate each applicant on a case by case basis; and
(10) Have fulfilled any other requirement specified by the board in rule.
(b) An applicant from another jurisdiction shall comply with all the requirements of this article.
(a) To be eligible for registration as a pharmacy technician trainee to assist in the practice of pharmacist care, the applicant shall:
(1) Submit a written application to the board;
(2) Pay the applicable fees;
(3) (A) Have graduated from a high school or obtained a Certificate of General Educational Development (GED), or
(B) Be currently enrolled in a high school competency based pharmacy technician education and training program;
(4) (A) Be currently enrolled in a competency-based pharmacy technician education and training program of a learning institution or training center approved by the board; or
(B) Be an employee of a pharmacy in an on-the-job competency-based pharmacy technician training program.
(5) Not be an alcohol or drug abuser as these terms are defined in §27-1A-11of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;
(6) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for registration, which conviction remains unreversed;
(7) Not have been convicted of a misdemeanor or felony in any jurisdiction which bears a rational nexus directly and specifically relates to the practice of pharmacist care, which conviction remains unreversed pursuant to §30-1-24 of this code; and
(8) Have requested and submitted to the board the results of a fingerprint-based state and a national electronic criminal history records check.
(b) The rules, authorized duties, and unauthorized prohibitions as set out in §30-5-12 of this code for pharmacy technicians apply to pharmacy technician trainees.
(c) The board shall promulgate an emergency rule and legislative rule pursuant article two, chapter twenty-nine-a to §29A-3-1 et seq. of this code to authorize the requirements of this section to permit pharmacy technician trainees.
The board shall issue a license to practice embalming to an applicant who:
(a) Is free of a felony conviction bearing a rational nexus which directly and specifically relates to the profession pursuant to §30-1-24 of this code;
(b) Is 18 years of age or over;
(c) Is a citizen of the United States or is eligible for employment in the United States;
(d) Has a high school diploma or its equivalent;
(e) Has completed one of the following education requirements, as evidenced by a transcript submitted to the board for evaluation:
(1)(A) Has an associate degree from an accredited college or university; or
(B) Has successfully completed at least 60 semester hours or 90 quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study; and
(2) (A) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than 12 months; or
(B) Has a bachelor degree in mortuary science from an accredited college or university;
(f) Has completed a one-year apprenticeship, under the supervision of a licensed embalmer and funeral director actively and lawfully engaged in the practice of embalming and funeral directing in this state, which apprenticeship consisted of:
(1) Diligent attention to the work in the course of regular and steady employment and not as a side issue to another employment; and
(2) The apprentice taking an active part in:
(A) The operation of embalming not less than 35 dead human bodies; and
(B) Conducting not less than 35 funeral services;
(g) Passes, with an average score of not less than 75 percent, the following examinations:
(1) The International Conference of Funeral Service Examining Boards examination at a testing site provided by the national conference, which passage is a condition precedent to taking the state law examination;
(2) The West Virginia Laws, Rules, and Regulations Examination, administered by the International Conference of Funeral Service Examining Boards; and
(3) Any other examination required by the board; and
(h) Has paid all the appropriate fees.
A license to practice embalming issued by the board prior to July 1, 2012, shall for all purposes be considered a license issued under this section: Provided, That a person holding a license issued prior to July 1, 2012, must renew the license pursuant to the provisions of this article.
(a) After July 1, 2022, the board shall issue a registration to be an apprentice funeral service licensee to an applicant who meets the following requirements:
(1) Is free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;
(2) Is 18 years of age or over;
(3) Is a citizen of the United States or be eligible for employment in the United States;
(4) Has a high school diploma or its equivalent;
(5) The required 60 semester hours or 90 quarter hours of college or university credits and mortuary school can be completed prior to, during, or after the apprenticeship; and
(6) Has paid the appropriate fees.
(b) Any person that commences an apprenticeship prior to January 1, 2003, may continue to serve such apprenticeship and is not subject to the requirements set forth in this section, but is subject to board approval.
(c) The board may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year for a funeral service licensee and shall not be more than two years for a funeral director.
(d) No licensed funeral director or licensed embalmer shall be permitted to register or have registered more than five apprentices under his or her license at the same time.
(a) The West Virginia Board of Physical Therapy is authorized to require state and national criminal history record checks for the purpose of issuing licenses. The West Virginia Board of Physical Therapy shall require an applicant, including physical therapists and physical therapy assistants, as a condition of eligibility for initial license to submit to a state and national criminal history record check as set forth in this section.
(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:
(1) Submitting fingerprints for the purposes set forth in this subsection; and
(2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.
(c) The results of the state and national criminal history record check may not be released to or by a private entity except:
(1) To the individual who is the subject of the criminal history record check;
(2) With the written authorization of the individual who is the subject of the criminal history record check; or
(3) Pursuant to a court order.
(d) The criminal history record check and related records are not public records for the purposes of §29B-1-1 et seq. of this code.
(e) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.
(f) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.
(g) The board may not disqualify an applicant for initial licensure because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the occupation requiring licensure pursuant to §30-1-24 of this code.
(h) The board may not use crimes involving moral turpitude in making licensure determinations.
(i) If an applicant is disqualified for licensure because of a criminal conviction that has not been reversed, the board shall afford the applicant the opportunity to reapply for licensure after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time: Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the board.
(j) An individual with a criminal record who has not previously applied for licensure, certification, or registration may petition the board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or other authorization to practice. 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 inform the individual of his or her standing within 60 days of receiving the petition from the applicant. The board may charge a fee established by rule to recoup its costs for each petition.
(k) The board shall propose rules or amendments to existing rules for legislative approval 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.
(a) Each person desiring to obtain a license from the board to engage in the practice of dealing in or fitting of hearing aids shall make application to the board. The application shall be made in such manner and form as prescribed by the board and shall be accompanied by the prescribed fee. The application shall state under oath that the applicant:
(1) Is a resident of this state;
(2) Is free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;
(3) Is 18 years of age or older;
(4) Has an education equivalent to a four-year course in an accredited high school; and
(5) Is free of chronic infectious or contagious diseases.
(b) The board, after first determining that the applicant is qualified and eligible to take the examination, shall notify the applicant that he or she has fulfilled all of the qualifications and eligibility requirements as required and shall advise him or her of the date, time, and place for him or her to appear to be examined as required by the provisions of this article and the regulations promulgated by the board pursuant to this article. The board may promulgate rules relating to the frequency of examinations and other such related topics pursuant to §29A-3-1 of this code.
(c) Before obtaining a license to engage in the practice of dealing in or fitting of hearing- aids, an applicant must meet the following requirements:
(1) The applicant must pass the International Licensing Examination for Hearing Healthcare Professionals, prepared by the International Hearing Society, or an equivalent examination selected by the board.
(2) The applicant must pass a practical examination, which shall be a nationally recognized test selected by the board, or a test designed by the board to test the applicant’s proficiency in the following techniques as they pertain to the fitting of hearing aids:
(A) Pure tone audiometry, including air conduction testing;
(B) Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing; and
(C) Masking when indicated and effective masking.
(3) The applicant must pass an examination, which shall be developed by the board, to test an applicant’s competency in the following subjects:
(A) Ability to counsel the person or family who will receive the hearing aid relative to the care and use of the instrument;
(B) Knowledge regarding the medical and rehabilitative facilities for hearing-handicapped children and adults in the area being served;
(C) Knowledge and understanding of the grounds for revocation, suspension, or probation of a license as outlined in this article or in rule; and
(D) Knowledge and understanding of criminal offenses relating to the profession.
(d) The board may promulgate rules to implement the requirements of this section, including emergency rules promulgated pursuant to the provisions of §29A-3-1 of this code.
(e) The provisions of this section will take effect upon the sunset or termination of the Board of Hearing Aid Dealers and Fitters, which in no event will be later than July 1, 2023.
(a) To qualify for a license, an applicant shall:
(1) Be free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;
(2) Be at least 18 years of age;
(3) Demonstrate competence in performing acupuncture by meeting one of the following standards for education, training, or demonstrated experience:
(A) Graduation from a course of training of at least 1,800 hours, including 300 clinical hours, that is:
(i) Approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine; or
(ii) Found by the board to be equivalent to a course approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine;
(B) Achievement of a passing score on an examination that is:
(i) Given by the national commission for the certification of acupuncturists; or
(ii) Determined by the board to be equivalent to the examination given by the national commission for the certification of acupuncturists;
(C) Successful completion of an apprenticeship consisting of at least 2,700 hours within a five-year period under the direction of an individual properly approved by that jurisdiction to perform acupuncture; or
(D) Performance of the practice of acupuncture in accordance with the law of another jurisdiction or jurisdictions for a period of at least three years within the five years immediately prior to application that consisted of at least 500 patient visits per year; and
(4) Achievement of any other qualifications that the board establishes in rules.
(b) Notwithstanding any other provisions of this code to the contrary, to qualify for a certificate as an auricular detoxification specialist, an applicant shall:
(1) Be at least 18 years old;
(2) Be authorized in this state to engage in any of the following:
(A) Physician assistant, pursuant to §30-3E-1 et seq. of this code;
(B) Dentist, pursuant to §30-4-1 et seq. of this code;
(C) Registered professional nurse, pursuant to §30-7-1 et seq. of this code;
(D) Practical nurse, pursuant to §30-7A-1 et seq. of this code;
(E) Psychologist, pursuant to §30-21-1 et seq. of this code;
(F) Occupational therapist, pursuant to §30-28-1 et seq. of this code;
(G) Social worker, pursuant to §30-30-1 et seq. of this code;
(H) Professional counselor, pursuant to §30-31-1 et seq. of this code;
(I) Emergency medical services provider, pursuant to §16-4C-1 et seq. of this code;
(J) Corrections medical providers, pursuant to §15A-1-1 et seq. of this code; or
(K) Any other profession the board determines is eligible to engage in the practice of auricular acudetox.
(3) Provide evidence of successful completion of a board-approved auricular acudetox program;
(4) Submit a completed application as prescribed by the board; and
(5) Submit the appropriate fees as provided for by legislative rule.
(c) A certificate may be issued to a retired or inactive professional as described in §30-36-10(b) of this code: Provided, That the professional meets the qualifications for a certificate holder and the last three years of professional activity were performed in good standing: Provided, however, That a person who holds a certificate or its equivalent in another jurisdiction as an auricular detoxification specialist may be approved by the board to practice auricular acudetox during a public health emergency or state of emergency for a duration to be provided for in legislative rules of the board.
(a) The commissioner may not issue a mortgage loan originator license unless the commissioner makes at a minimum the following findings:
(1) The applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction, except that a subsequent formal vacation of the revocation may not be considered a revocation.
(2) The applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court: Provided, That any pardon of a conviction may not be a conviction for purposes of this subsection: Provided, however, That the commissioner shall apply §31-17A-5(b) and §31-17A-5(c) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought pursuant to subsections (b) and (c) of this section;
(A) During the five-year period preceding the date of the application for licensing and registration; or
(B) At any time preceding the date of application if the crime bears a rational nexus to the license being sought.
(3) The applicant has demonstrated financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently within the purposes of this article.
For purposes of this subsection, a person has shown that he or she is not financially responsible when he or she has shown a disregard in the management of his or her own financial condition. The commissioner shall not use a credit score as the sole basis for license denial. A determination that an individual has not shown financial responsibility may include, but not be limited to:
(A) Current outstanding judgments, except judgments solely as a result of medical expenses;
(B) Current outstanding tax liens or other government liens and filings;
(C) Foreclosures within the past three years; and
(D) A pattern of seriously delinquent accounts within the past three years.
(4) The applicant has completed the pre-licensing education requirement described in §31-17A-6 of this code.
(5) The applicant has passed a written test that meets the test requirement described in §31-17A-7 of this code.
(6) The applicant has met the surety bond requirement as required pursuant to §31-17A-13 of this code.
(b) The commissioner may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(c) 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: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction 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.
(d) An individual with a criminal record who has not previously applied for licensure held a license under this section 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.
(e) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the commissioner consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (d) of this section.
(f) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (d) of this section.
(a) The commissioner may issue a license to an applicant only upon first determining that the financial condition, business experience, and character and general fitness of an applicant are such that the issuance of the license is in the public interest: Provided, That the commissioner shall apply subsections (f) and (g) of this section in determining whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought.
(b) An applicant for a license shall agree in writing to comply with the currency reporting and record-keeping requirements of 31 U.S.C. §5313, as well as those set forth in 31 C.F.R. Chapter X and any other relevant federal law.
(c) A person is not eligible for a license or shall surrender an existing license if, during the previous five years:
(1) The person or a principal of the person, of a business:
(A) Has been convicted of a felony or a crime involving fraud or deceit under the laws of this state, any other state, or the United States;
(B) Has been convicted of a crime under the laws of another country that involves fraud or deceit or would be a felony if committed in the United States; or
(C) Has been convicted under a state or federal law relating to currency exchange or transmission or any state or federal monetary instrument reporting requirement; or
(2) The person, a principal of the person, or the spouse of the person or a principal of the person has been convicted of an offense under a state or federal law relating to drug trafficking, money laundering, or a reporting requirement of the Bank Secrecy Act, 12 U.S.C. §1951 et seq., as amended.
(d) The commissioner will review the application to determine whether the applicant:
(1) Has recklessly failed to file or evaded the obligation to file a currency transaction report as required by 31 U.S.C. §5313 during the previous three years;
(2) Has recklessly accepted currency for exchange, transport, or transmission during the previous three years in which a portion of the currency was derived from an illegal transaction or activity;
(3) Will conduct its authorized business within the bounds of state and federal law, including, but not limited to, §31D-15-1501 of this code;
(4) Warrants the trust of the community;
(5) Has and will maintain at all times a minimum tangible net worth of the greater of $100,000 or three percent of total assets for the first $100 million, two percent of additional assets for $100 million to $1 billion, and 0.5 percent of additional assets for over $1 billion, computed according to United States generally accepted accounting principles as shown by the most recent audited financial statement filed with and satisfactory to the commissioner, except that an applicant for a license or renewal of a license may not be required by this article to maintain a tangible net worth of more than $1 million, computed according to generally accepted accounting principles; and
(6) Does not owe delinquent taxes, fines, or fees to any local or state taxing authority or governmental agency, department, or other political subdivision of this state.
(e) A person is not eligible for a license, and a person who holds a license shall surrender the license to the commissioner, if the person or a principal of the person has at any time been convicted of:
(1) A felony involving the laundering of money that is the product of or proceeds from criminal activity under §61-1-1 et seq. of this code, or a similar provision of the laws of another state or the United States; or
(2) A felony violation of 31 U.S.C. §5313 or 5324, or a rule adopted under those sections.
(f) The commissioner may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. 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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner..
(g) 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: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction 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.
(h) An individual with a criminal record who has not previously applied for licensure held a license under this section 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.
(i) Before approving an application for a license of an applicant who has less than one year’s experience in the proposed business governed by this article as a regulated entity in another state, or whose license has been suspended or revoked by another state, the commissioner may, in his or her discretion, conduct an on-site investigation of an applicant at the sole expense of the applicant and may require the applicant to pay a nonrefundable payment of the anticipated expenses for conducting the investigation. Failure to make the payment or cooperate with the investigation is grounds for denying the application.
(j) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (h) of this section.
(k) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (h) of this section.
(a)(1) A person may not operate as a viatical settlement provider or viatical settlement broker without first obtaining a license from the commissioner.
(2)(A) An insurance producer who is authorized to sell life insurance in this state pursuant to a resident or nonresident license issued in accordance with the provisions of §33-12-1 et seq. of this code may operate as a viatical settlement broker without obtaining a license pursuant to this section if the viatical settlement activities of the producer are incidental to the producer’s insurance business activities.
(B) The insurer that issued the policy being viaticated is not responsible for any act or omission of a viatical settlement broker or viatical settlement provider arising out of or in connection with the viatical settlement transaction, unless the insurer receives compensation for the placement of a viatical settlement contract from the viatical settlement provider or viatical settlement broker in connection with the viatical settlement contract.
(3) A person licensed as an attorney, certified public accountant, or financial planner accredited by a nationally recognized accreditation agency who is retained to represent the viator, whose compensation is not paid directly or indirectly by the viatical settlement provider, may negotiate viatical settlement contracts on behalf of the viator without having to obtain a license as a viatical settlement broker.
(b) Application for a viatical settlement provider or viatical settlement broker license and for renewals of the licenses shall be made in the manner prescribed by the commissioner and shall be accompanied by fees established in legislative rules, including emergency rules, promulgated by the commissioner.
(1) The commissioner may not disqualify an applicant from initial licensure 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 activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated. 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:
(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 the following, if applicable:
(i) The age of the individual when he or she 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 mental health, drug, or alcohol treatment;
(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(vi) Education and training;
(vii) Employment history relevant to the license being sought;
(viii) Whether the individual will be bonded in the occupation; and
(ix) Other evidence of rehabilitation the individual submits to the commissioner.
(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, unless that conviction is a felony pursuant to §33-13C-14 of this code, the commissioner shall permit the applicant to apply for initial licensure if: the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction, except for a felony pursuant to §33-13C-14 of this code, 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 commissioner.
(3) An individual with a criminal record who has not previously applied for licensure held a license under this section 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.
(c) The commissioner has the authority, at any time, to require the applicant to fully disclose the identity of all stockholders, partners, officers, members, and employees and the commissioner may, in the exercise of the commissioner’s discretion, refuse to issue a license in the name of a legal entity if not satisfied that any officer, employee, stockholder, partner, or member of the entity who may materially influence the applicant’s conduct meets the standards of this article.
(d) The commissioner shall make an investigation of each applicant and issue a license if the commissioner finds that the applicant:
(1) If a viatical settlement provider, has provided a detailed plan of operation;
(2) Is competent and trustworthy and acts in good faith in the capacity of a licensee;
(3) Has a good business reputation and is qualified by experience, training, or education as a viatical settlement provider or broker;
(4) Has demonstrated evidence of financial responsibility, in a format prescribed by the commissioner, by possessing a minimum equity of not less than $250,000 in cash or cash equivalents reflected in the applicant’s audited financial statements or through a surety bond executed and issued by an insurer authorized to issue surety bonds in this state in the amount of $250,000: Provided, That the commissioner may permit an applicant for a broker’s license to demonstrate evidence of financial responsibility through a policy of insurance covering legal liability resulting from erroneous acts or failure to act in their capacity as a viatical settlement broker and inuring to the benefit of any aggrieved party as the result of any single occurrence in the sum of not less than $100,000 and $300,000 in the aggregate for all occurrences within one year. Any surety bond issued pursuant to this subdivision shall be in the favor of this state and shall specifically authorize recovery by the commissioner on behalf of any person in this state who sustained damages as the result of erroneous acts, failure to act, conviction of fraud, or conviction of unfair practices by the viatical settlement provider or viatical settlement broker. The commissioner shall accept, as evidence of financial responsibility, proof that financial instruments in accordance with the requirements in this paragraph have been filed with a state in which the applicant is licensed as a viatical settlement provider or viatical settlement broker. The commissioner may ask for evidence of financial responsibility at any time he or she considers it necessary.
(5) If a legal entity has provided a certificate of good standing from the state of its domicile; and
(6) Has provided an antifraud plan that meets the requirements of §33-13C-14(g) of this code.
(e) The commissioner may not issue a license to a nonresident applicant unless the applicant files with the commissioner either a written designation of an agent for service of process or the applicant’s written irrevocable consent that any action against the applicant may be commenced against the applicant by service of process on the commissioner.
(f) A viatical settlement provider or viatical settlement broker shall provide to the commissioner new or revised information about officers, 10 percent or more stockholders, partners, directors, members, or designated employees within 30 days of the change.
(g) An individual licensed as a viatical settlement broker shall complete on a biennial basis 15 hours of training related to viatical settlements and viatical settlement transactions as required by the commissioner. A life insurance producer operating as a viatical settlement broker pursuant to subdivision (2), subsection (a) of this section is not subject to the requirements of this subsection. Any person failing to meet the requirements of this subsection is subject to the penalties imposed by the commissioner.
(h) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (e) of this section.
(i) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (e) of this section.
(a) The commissioner may refuse to issue, suspend, revoke, place on probation, or refuse to renew the license of a viatical settlement provider or viatical settlement broker if the commissioner finds that:
(1) There was any material misrepresentation in the application for the license;
(2) The licensee or any officer, partner, member, or key management personnel has been convicted of fraudulent or dishonest practices, is subject to a final administrative action, or is otherwise shown to be untrustworthy or incompetent;
(3) The viatical settlement provider demonstrates a pattern of unreasonable payments to viators;
(4) The licensee or any officer, partner, member, or key management personnel has been found guilty of, or has pleaded guilty or nolo contendere to, any felony, or to a misdemeanor involving fraud, regardless of whether a judgment of conviction has been entered by the court: Provided, That the commissioner shall apply §33-13C-3(b) of this code and any relevant legislative rules in determining whether an applicant’s prior criminal convictions bear a rational nexus to directly and specifically relate to the license being sought;
(5) The viatical settlement provider has entered into any viatical settlement contract that has not been approved pursuant to this article;
(6) The viatical settlement provider has failed to honor contractual obligations set out in a viatical settlement contract;
(7) The licensee no longer meets the requirements for initial licensure;
(8) The viatical settlement provider has assigned, transferred or pledged a viaticated policy to a person other than a viatical settlement provider licensed in this state, viatical settlement purchaser, an accredited investor, or qualified institutional buyer as defined respectively in Rule 501(a) or Rule 144A promulgated under the Federal Securities Act of 1933, as amended, financing entity, special purpose entity, or related provider trust; or
(9) The licensee or any officer, partner, member, or key management personnel has violated any provision of this article.
(b) The commissioner may suspend, revoke, or refuse to renew the license of a viatical settlement broker or a life insurance producer operating as a viatical settlement broker pursuant to this article if the commissioner finds that the viatical settlement broker or life insurance producer has violated the provisions of this article or has otherwise engaged in bad faith conduct with one or more viators.
(c) If the commissioner denies a license application or suspends, revokes, or refuses to renew the license of a viatical settlement provider, viatical settlement broker, or life insurance producer operating as a viatical settlement broker, the commissioner shall conduct a hearing in accordance with §33-2-13 of this code.
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