Does Mississippi's Fresh Start Act stop the Optometry Board from rejecting a license applicant for a moral-turpitude crime?

Plain-English summary

Mississippi's State Board of Optometry asked the AG whether the 2019 Fresh Start Act, Miss. Code Ann. §§ 73-77-1 et seq., overrode the board's authority under Miss. Code Ann. § 73-19-23(1) to refuse, cancel, revoke, or suspend an optometry license for "the conviction of a crime involving moral turpitude." The Fresh Start Act broadly bars licensing boards from disqualifying applicants for prior convictions unless the conviction "directly relates" to the licensed occupation, and bars boards from using vague terms like "moral turpitude," "any felony," or "good character" in their licensure rules.

The AG concluded the enabling statute survived. The Fresh Start Act's two restrictions, in §§ 73-77-5 and 73-77-7(1), each begin with "absent applicable state law." Because § 73-19-23(1) already specified the conviction-based grounds for license action, that statute was the "applicable state law" the carve-out preserved. The Optometry Board could continue applying its existing criteria, with each individual case decided on its facts.

The AG also addressed § 73-77-9(1), which begins "Absent applicable state law" and describes a petition process for an individual with a criminal record. The opinion held that this process covers applicants and non-applicants alike. The quoted statute states a 30-day response period and a $25 fee cap; the AG did not decide whether another applicable state law could alter those terms.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The opinion discusses the Fresh Start Act of 2019, Miss. Code Ann. §§ 73-77-1 et seq., and three of its provisions:

1. § 73-77-5 prohibits disqualification "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."
2. § 73-77-7(1) prohibits boards from using "vague or generic terms" like "moral turpitude," "any felony," and "good character" in their licensure rulemaking, and limits criminal-record review to records "specific and directly related" to the occupation.
3. § 73-77-9(1) begins "Absent applicable state law" and describes a petition process for an individual with a criminal record, a 30-day response, and a $25 fee cap.

All three quoted provisions begin with "Absent applicable state law." For §§ 73-77-5 and 73-77-7(1), the AG found that the Optometry Board's enabling statute, § 73-19-23(1), was applicable state law. It allows the board to refuse or revoke a license for conviction of a crime involving moral turpitude. Whether a particular applicant met that statutory ground remained a factual call for the board.

The AG concluded that § 73-77-9(1) covers both applicants and non-applicants. It did not address whether an applicable state law could affect the petition procedure; the statute begins with that qualifier.

Common questions

Q: Did the opinion define "moral turpitude" for an optometry license?
A: No. The opinion did not define or narrow the term. It confirmed only that, because § 73-19-23(1) uses "conviction of a crime involving moral turpitude" as a licensure ground, the board could continue using that statutory term, even though the Fresh Start Act otherwise prohibits "vague or generic" criteria absent applicable state law.

Q: What did the Fresh Start Act actually change for optometry applicants in Mississippi?
A: The AG concluded the cited optometry licensure standard remained applicable. It also read § 73-77-9(1), subject to its opening qualifier, as covering people with criminal records whether or not they had applied for a license.

Q: How does the board decide whether a specific moral-turpitude conviction warrants license denial?
A: The opinion called that a "factual determination to be made by the Board." It left the substantive call (whether a given applicant met the licensure requirements of § 73-19-23) to the board, deciding each case on its facts.

Q: Could a non-applicant petition for a determination?
A: The AG read § 73-77-9(1) as covering an individual whether or not the person had applied for a license. The quoted provision begins "Absent applicable state law," and the opinion did not decide how other applicable law might affect a particular petition.

Citations and references

Statutes:

• Miss. Code Ann. § 73-77-1 et seq. (Fresh Start Act of 2019)
• Miss. Code Ann. § 73-77-5 (Disqualification limited to directly related convictions)
• Miss. Code Ann. § 73-77-7(1) (Prohibits vague terms; limits criminal-record review)
• Miss. Code Ann. § 73-77-9(1) (Petition right, 30-day response, $25 fee cap)
• Miss. Code Ann. § 73-19-23(1) (Optometry licensure: refusal, cancellation, revocation, or suspension grounds)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/B.Limbaugh_January-30-2020-Fresh-Start-Act-of-2019.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OPINIONS DIVISION

January 30, 2020

Beverly Limbaugh
Executive Director
Mississippi State Board of Optometry
Post Office Box 12370
Jackson, Mississippi 39236-2370

Re: Fresh Start Act of 2019

Dear Ms. Limbaugh:

Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi State Board of Optometry ("the Board") and has assigned it to me for research and reply.

Questions Presented

Due to the length of your request and the number of questions presented, a copy of the same is attached hereto.

Response

Your request seeks an interpretation of the Fresh Start Act of 2019, Miss. Code Ann. Sections 73-77-1, et seq. ("the Act"), primarily by reference to hypothetical scenarios. This office cannot issue an opinion with regard to those scenarios which are not specifically addressed by the Act. However, to the extent an opinion may be provided, we offer the following guidance.

Question: Is Miss. Code Ann. Section 73-77-5 applicable where a Board's enabling statute allows for denial of licensure or the imposition of discipline based on the conviction of any crime or felony?

Response: Section 73-77-5 of the Act provides as follows:

> 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.

(Emphasis added).

Section 73-19-23(1), Miss. Code Ann., grants the Board the authority to "refuse to grant a certificate of licensure to any applicant and may cancel, revoke or suspend the operation of any certificate by it granted for ... the conviction of a crime involving moral turpitude." Pursuant to this statute, the Board is entitled to disqualify an individual from pursuing, practicing or engaging in the practice of optometry based upon the applicant's conviction of a crime involving moral turpitude. It is therefore this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-5 of the Act. A determination of whether an applicant has met the licensure requirements of Section 73-19-23, Miss. Code Ann., is a factual determination to be made by the Board.

Question: Are licensing boards to interpret Section 73-77-7(1) as "not applicable" or "controlling" when a Board's enabling statute authorizes boards to deny licensure based upon a determination of good moral character or upon a conviction of any crime involving moral turpitude?

Response: Section 73-77-7(1) of the Act states:

> (1) 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." Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.

(Emphasis added).

Reference is made to the relevant portion of Section 73-19-23, Miss. Code Ann., set forth above. Pursuant to this statute, the Board is entitled to refuse to grant a license to any applicant and may cancel, revoke or suspend a license previously granted based upon an applicant's conviction of a crime involving moral turpitude. It is this office's opinion that "applicable state law" therefore exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the licensure requirements of Section 73-19-23, Miss. Code Ann., is a factual determination to be made by the Board.

Question: Is Section 73-77-9 applicable only when an individual has filed an application for license or may an individual who has not filed an application for license, petition at any time for a determination of criminal record disqualification?

Response: Section 73-77-9(1) of the Act provides as follows:

> Absent applicable state law, an individual with a criminal record may petition a licensing authority 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 details on the individual's criminal records. The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant. The licensing authority may charge a fee to recoup its costs not to exceed Twenty-Five Dollars ($25.00) for each petition.

(Emphasis added).

Section 73-77-9(1), Miss. Code Ann., does not differentiate between applicants and non-applicants, but refers only to "an individual." Thus, the above-cited section applies to both applicants and non-applicants alike.

Question: What type of response is required of the licensing Board within thirty (30) days of receiving the petition regarding the criminal record disqualification?

Response: Section 73-77-9(1) of the Act provides, in part, as follows:

> The licensing authority shall inform the individual of his standing within thirty (30) days of receiving the petition from the applicant.

The Act is not specific as to the "type" of required response, requiring only that the individual be informed of his or her "standing" within thirty (30) days.

Question: If Section 73-77-9 is applicable to non-licensure applicants, does subsection 2 require a hearing for the non-licensing applicants?

Response: As stated above, Section 73-77-9(1) of the Act is applicable to both applicants and non-applicants alike. Thus, the remaining provisions of this section would likewise apply to both applicants and non-applicants.

If we may be of further service, please let us know.

Very truly yours,

LYNN FITCH, ATTORNEY GENERAL

By: Tommy D. Goodwin
Special Assistant Attorney General

Attachment