Q Does the Fresh Start Act of 2019, Sections 73-77-1 et seq, (“the Act”) apply when a board’s enabling statute allows for denial of licensure or the imposition of discipline based on the conviction of any crime or felony? Does the same apply to questions of “good moral character”?
A Section 73-77-5 provides that absent applicable state law, no person shall be disqualified from pursuing, practicing, or engaging in any occupation for which a license is required solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation. If the board’s enabling statute prohibits a person from pursuing, practicing or engaging in the business or practice in question because of a prior criminal conviction, the “applicable state law” would exempt the board from the requirements of the above-cited section. However, if no such “applicable state law” exists, then the board must comply with Section 73-77-5.
Section 73-77-7(1) states, in part, that absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to, “moral turpitude,” “any felony,” and “good character.” As above, if the board’s enabling statute requires a person to be of good moral character, or to furnish evidence of good moral character, or contains similar language, then “applicable state law” exists which exempts the board from Section 73-77-7(1) (Attorney General’s Opinion to Smith, January 30, 2020) (Also see Opinions to Johnson, Dilworth, Boyette, Rowden, and Limbaugh, all dated January 30, 2020)