Occupational Licensing Reforms and Criminal Convictions

In legislation that may have escaped the notice of some criminal law practitioners, the North Carolina General Assembly enacted significant reforms this year to the state’s occupational licensing laws. The reforms, which apply to applications for licensure submitted on or after October 1, 2019, significantly lessen legal barriers to obtaining an occupational license for people with a criminal conviction. The legislation, S.L. 2019-91 (H 770), received bipartisan support, passing both chambers unanimously.

Before passage of these reforms, many occupational licensing statutes in North Carolina allowed or required licensing boards to disqualify a person from obtaining a license if he or she had a conviction for a crime of one kind or another. This authority usually appeared in the chapter of the General Statutes governing the occupation. In addition to the barriers created by these provisions, they could be inconsistent and difficult to track down. In 2013, the General Assembly took a step to address these barriers by revising Chapter 93B of the General Statutes, which governs licensing boards generally. The 2013 legislation revised G.S. 93B-8.1 to prohibit the automatic denial of an occupational license based on an applicant’s criminal record and to direct licensing boards to consider various factors in deciding whether to deny licensure. The revised statute, however, still required denial of a license if the law otherwise required denial, as provided in many occupational licensing statutes, and allowed licensing boards discretion in weighing the statutory factors.

The 2019 reforms go much further in new and amended provisions of Chapter 93B. First, the legislation both expands the licensing boards covered by the law and limits their authority to deny licensure based on a criminal justice history.

• The previously-enacted limitations on consideration of a criminal conviction applied only to independent occupational licensing boards. Amended G.S. 93B-1, in contrast, makes Chapter 93B applicable to state agency licensing boards as well as occupational licensing boards. The amended statute includes a nonexclusive list of state agency boards, such as licensing boards within the Department of Health and Human Services, Department of Labor, and Department of Public Instruction. The legislation also requires all licensing boards to account to the General Assembly about their licensing decisions involving people with a criminal justice history. Amended G.S. 93B-2 requires annual reporting of the number of applicants with a criminal record and, of that number, the number granted a license, denied a license for any reason, and denied a license because of a conviction.
• As under previous law, G.S. 93B-8.1 continues to require licensing boards to consider various factors when deciding whether to deny a license based on a criminal conviction. The amended statute revises and strengthens these provisions. A board now may deny a license only if it finds that the applicant’s criminal conviction history is “directly related” to the licensed occupation. The only exceptions are when federal law makes denial mandatory or the conviction is for a crime that is violent or sexual in nature. A board may not automatically deny licensure based on an applicant’s criminal history and, further, may not deny an applicant a license based on a determination that a conviction is for a crime of “moral turpitude,” a vague term that appears in various occupational license statutes but is ill-defined. In addition, the amended statute contains an expanded list of factors licensing boards must consider in making licensing decisions, including the completion of or active participation in rehabilitative drug or alcohol treatment and a certificate of relief granted under G.S. 15A-173.2 (discussed further below).

Second, the revised chapter contains several procedural protections for license applicants.

• If a board denies an applicant a license, the board must make written findings within 60 days of the denial specifying the factors deemed relevant by the board and explaining the reasons for the denial. G.S. 93B-8.1(b2).
• Boards must include in their license applications and on their public websites whether they require applicants to consent to a criminal record check, the factors they consider when making license decisions, and the appeals process if they deny licensure because of a criminal conviction. G.S. 93B-8.1(b3).
• If a board requires a criminal record check, the board must require the provider of the record check to provide the applicant with access to the record check or otherwise deliver a copy of the record to the applicant. If the applicant’s record includes matters that may prevent the board from issuing a license to the applicant, the board must notify the applicant in writing and allow the applicant the opportunity to provide additional information to the board. An applicant has 30 days to correct inaccuracies and submit additional information for the board’s consideration. G.S. 93B-8.1(b4).
• If a board denies a license application, the board’s written order must specifically identify any criminal conviction that formed the basis for the denial and the rationale for the denial. The order also must refer to the process for appealing the denial and the right of the applicant to reapply no more than two years after the most recent application. G.S. 93B-8.1(b5).

The revised chapter also sets up a procedure for applicants to obtain preliminary eligibility determinations from licensing boards.

• S. 93B-8.1(b6) gives a person with a criminal record the right to petition a board at any time, including before starting any education or training requirements, for a predetermination whether the person’s record will likely disqualify the person from obtaining a license. If the board determines that an applicant would likely be denied licensure, the board must notify the person in writing of the reasons for its predetermination, that the person has the right to complete any requirements for licensure and have the board consider the person’s application, and that further evidence of rehabilitation will be considered.
• S. 93B-8.1(b8) provides that a predetermination that a petitioner is eligible for a license is binding if the petitioner applies for a license, the petitioner fulfills all other requirements, and the petitioner’s criminal record was correct and has not changed.

In addition, the legislation strengthens North Carolina’s certificate of relief law, enacted in 2011. One effect of a certificate or relief has been that it converts mandatory penalties, disabilities, or disadvantages based on a criminal conviction into discretionary disqualifications. As part of its discretionary decision, an administrative agency, government official, or court in a civil proceeding has been permitted to consider a certificate of relief favorably. Amended G.S. 15A-173.2(d) now mandates that agencies, officials, and courts consider a certificate of relief favorably in determining whether a conviction should result in disqualification in licensing and other matters, effective for certificates of relief granted on or after October 1, 2019.

These changes do not affect the many de facto obstacles that may affect a person with a criminal justice history. A private employer, for example, may still refuse to employ a person who has a criminal conviction. With the enactment of these occupational licensing reforms, however, people may be better equipped to overcome an initial hurdle to employment and integration into the community.