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WEST virginia legislature
2024 regular session
Committee Substitute
for
Committee Substitute
for
Senate Bill 493
By Senators Chapman, Rucker, Barrett, and Woelfel
[Originating in the Committee on Rules;
reported February 21, 2024]
A BILL to amend and reenact §21-1-6 of the Code of West Virginia, 1931, as amended; 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; and to amend and reenact §29-3D-6 of said code, all relating generally to the use of criminal records as disqualification from initial licensure or other authorization to practice certain professions or occupations regulated by the Division of Labor or the State Fire Marshal; 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; providing evidence of rehabilitation or treatment undertaken by the individual to be considered by a licensing authority in determining 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; authorizing an individual 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; 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 regarding criminal record; and requiring licensing authorities to update licensure forms, relevant public-facing documents, and website.
Be it enacted by the Legislature of West Virginia:
(a) The commissioner may not disqualify an applicant from initial licensure, as required in this chapter, except for §21-5-5c of this code, 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:
(A) The age of the individual when he or she committed the offense;
(B) The completion of the criminal sentence;
(C) A certificate of rehabilitation or good conduct;
(D) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;
(E) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;
(F) Education and training;
(G) Employment history relevant to the license being sought;
(H) Whether the individual will be bonded in the occupation; and
(I) 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 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) 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 mis-stated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material mis-statement 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 mis-stated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material mis-statement 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 (b)(3) of this section.
(g) 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 (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 (c)(3) of this section.
(e) 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 (c)(3) 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 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 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 mis-stated the terms of the applicant’s qualifications or experience;
(2) The licensee subscribed or vouched for a material mis-statement 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 (a)(3) 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 (a)(3) of this section.
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