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 explained one Fresh Start Act provision that runs without exception: § 73-77-9 lets any individual with a criminal record petition the board for a pre-application determination of whether the record disqualifies them. The right runs to applicants and non-applicants alike, the board has 30 days to inform the petitioner of his or her standing, and the board may charge up to $25.
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
Mississippi enacted the Fresh Start Act of 2019 (Senate Bill 2781, codified at Miss. Code Ann. §§ 73-77-1 et seq.) as part of a national wave of occupational-licensing reform aimed at lowering barriers for people with criminal records. The Act has three operative provisions:
- § 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."
- § 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.
- § 73-77-9 gives any individual the right to petition for a determination on criminal-record disqualification, with a 30-day response and a $25 fee cap.
The first two provisions are subject to "absent applicable state law." Because the Optometry Board's enabling statute, § 73-19-23(1), grants the board 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," the AG found that "applicable state law" existed and the board could continue using its enabling-statute criteria. Whether a particular applicant had committed a moral-turpitude crime that warranted denial or revocation remained a factual call for the board to make case by case.
The petition right under § 73-77-9 is unaffected by enabling-statute carve-outs. The Optometry Board had to accept and process petitions from any individual with a criminal record, applicant or not, and respond on standing within 30 days.
Common questions
Q: What does "moral turpitude" mean for an optometry license?
A: The Mississippi Supreme Court has historically defined crimes involving moral turpitude as those involving baseness, vileness, or depravity, or conduct contrary to honesty and good morals. Crimes of fraud, theft, and certain violent offenses are typically included. The opinion did not narrow the term; it confirmed only that the board could continue using the term as written in its enabling statute, even though the Fresh Start Act otherwise prohibits "vague or generic" criteria.
Q: What did the Fresh Start Act actually change for optometry applicants in Mississippi?
A: The substantive licensure standards under § 73-19-23 were preserved. The functional change was the petition mechanism in § 73-77-9, which gave a person with a criminal record the ability to ask the board, before applying or paying fees, whether the record was disqualifying.
Q: How does the board decide whether a specific moral-turpitude conviction warrants license denial?
A: The opinion called that a "factual determination" for the board. The board is bound by its own rules of practice and the procedural-due-process protections that attach to license denial or revocation, but the substantive call (whether the conviction is moral-turpitude in nature and warrants denial) was preserved as a board judgment.
Q: Could a non-applicant petition for a determination?
A: Yes. The AG read § 73-77-9 to apply to "an individual," whether or not the individual had filed an application. The mechanism was designed to give people with criminal records a way to get a board determination before investing in education, training, or application fees.
Citations and references
Statutes:
- Miss. Code Ann. § 73-77-1 et seq. (Fresh Start Act of 2019, SB 2781)
- 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