MS 2020-07-D-Smith-January-30-2020-Fresh-Start-Act-of-2019 2020-01-30

Does the Fresh Start Act limit the Mississippi Funeral Services Board from disqualifying applicants for prior crimes?

Short answer: Partly. The AG concluded that the Funeral Services Board's enabling statute, Miss. Code Ann. § 73-11-51, did not bar an applicant for a prior criminal conviction. So Fresh Start Act § 73-77-5 applied directly: the Board could not disqualify someone for a prior conviction unless the crime 'directly relates' to funeral service. But the same statute did require 'good moral character,' which exempted the Board from § 73-77-7(1)'s vague-term ban.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

The Mississippi Board of Funeral Services asked the AG how the 2019 Fresh Start Act, Miss. Code Ann. §§ 73-77-1 et seq., affected its licensure rules. Unlike the social-work, optometry, and nursing-home boards (which got similar opinions from the AG on the same date), the Funeral Services Board's enabling statute, Miss. Code Ann. § 73-11-51, does not specifically bar a person from funeral-service practice based on a prior criminal conviction. That made a real difference in the AG's analysis.

For § 73-77-5 (no disqualification absent direct relation between conviction and the licensed occupation): because § 73-11-51 has no criminal-conviction bar, there is no "applicable state law" exempting the Board from this rule. The Board must comply directly. It cannot disqualify a funeral-service applicant for a prior crime unless the crime directly relates to the duties and responsibilities of funeral service.

For § 73-77-7(1) (no vague terms like "moral turpitude," "any felony," or "good character"): § 73-11-51 does require applicants to "furnish satisfactory evidence" they are of "good moral character." That is "applicable state law" exempting the Board from § 73-77-7(1). The Board could continue applying its good-moral-character standard.

For § 73-77-9 (universal petition right): no exception. Any individual could petition, applicants and non-applicants alike, and the Board had 30 days to inform them of standing, with a $25 fee cap.

The split outcome shows how the Fresh Start Act was actually intended to reach: where an enabling statute is silent on criminal records, the Act narrows what the Board can use as a disqualification.

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 2019 Fresh Start Act consists of three operative pieces:

§ 73-77-5: Disqualification for a prior conviction is limited to convictions "directly related" to the licensed occupation. "Absent applicable state law" carve-out applies.
§ 73-77-7(1): Boards cannot use vague terms like "moral turpitude," "any felony," or "good character" in their licensure rulemaking, and must limit criminal-record review to specific, directly-related records. "Absent applicable state law" carve-out applies.
§ 73-77-9: Anyone with a criminal record can petition any licensing authority for a pre-application disqualification determination. 30-day response, $25 fee cap. No carve-out.

The "absent applicable state law" carve-out is the key analytic step. It asks: does the licensing board's enabling statute already address the question? If yes, the enabling statute is "applicable state law" and the Fresh Start Act's restriction is bypassed. If no, the Fresh Start Act's restriction applies directly.

For the Funeral Services Board, the enabling statute is § 73-11-51. The AG distinguished its content from the other boards' enabling statutes:

The funeral-service statute requires "good moral character," which is the kind of vague term § 73-77-7(1) targets. But because the term is in the enabling statute, the carve-out preserves it. Result: § 73-77-7(1) does not apply to the Board.
The funeral-service statute does NOT bar applicants for prior criminal convictions. There is no "applicable state law" to carve out § 73-77-5. Result: § 73-77-5 applies directly to the Board.

The mismatch is unusual but legally consequential. A funeral-service applicant with a prior conviction could not be disqualified by the Board unless the Board could explain how the conviction "directly relates" to funeral service duties. A prior tax-fraud conviction might directly relate (funeral directors handle prepaid burial trust money). A prior simple drug-possession conviction might not directly relate. The Board would have to make a particularized analysis on each case rather than applying a categorical rule.

The "good moral character" path remained open, but it would have to be applied without leaning on prior convictions as a per-se disqualifier. If the conviction did not directly relate, the Board would need other evidence to support a moral-character finding against the applicant.

The petition right under § 73-77-9 functioned exactly as it did for the other boards. Anyone, applicant or not, could petition for an early determination on disqualification.

Common questions

Q: What kind of crime "directly relates" to funeral service?
A: The opinion does not list specific crimes. The substantive test focuses on the duties and responsibilities of the licensed occupation. Funeral directors handle prepaid burial trusts, embalming, body disposition, and surviving-family interactions. Crimes involving fraud, theft of trust funds, drug abuse around chemicals like embalming fluids, abuse of the dead, or assault on vulnerable persons could plausibly directly relate. Property crimes against unrelated victims, traffic offenses, and many other categories likely would not.

Q: How does this interact with the "good moral character" requirement?
A: The Board can still find an applicant lacks good moral character. But after the Fresh Start Act, the Board cannot lean on a non-directly-related prior conviction alone to support that finding. The moral-character analysis has to draw on other evidence (recent conduct, references, the applicant's account of rehabilitation).

Q: Could a funeral-service applicant with a felony conviction get a license?
A: Yes, under this opinion, if the felony does not "directly relate" to funeral service and the Board does not find a separate ground (lack of good moral character supported by other evidence) to deny.

Q: Does the petition right provide a useful preview?
A: Yes. A person with a criminal record considering funeral-service training could petition the Board first, get a 30-day response on standing, and decide whether to invest in the training based on the answer.

Q: Does this analysis apply to mortuary apprentice or embalmer positions separately?
A: The opinion addresses the Funeral Services Board's licensing authority generally. The Board licenses funeral directors and embalmers. The same analytic framework would apply to each license, with a fact-specific direct-relation test depending on the duties involved.

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. § 73-11-51 (Funeral service licensure, good moral character requirement)

Source

Original opinion text

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

ATTORNEY GENERAL
OPINIONS DIVISION

January 30, 2020

Della Smith
Executive Director
Mississippi Board of Funeral Services
3010 Lakeland Cove, Suite W
Flowood, Mississippi 39232

Re: Fresh Start Act of 2019

Dear Ms. Smith:

Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi Board of Funeral Services ("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: Miss. Code Ann. 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).

If the Board's enabling statute prohibits a person from pursuing, practicing or engaging in the business or practice of funeral service because of a prior criminal conviction, then "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.

The enabling statute of the Board, Miss. Code Ann. Section 73-11-51, does not provide for the disqualification from the business or practice of funeral service based upon a prior conviction of a crime. Thus, it is this office's opinion that the Board is not exempt from Section 73-77-5 of the Act.

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: Miss. Code Ann. 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).

Miss. Code Ann. Section 73-11-51 requires, in pertinent part, that an applicant "furnish satisfactory evidence" he or she "[i]s of good moral character" in order to obtain a license from the Board. Based upon the Board's enabling statute, it is this office's opinion that "applicable state law" exists which therefore exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the requirements set forth by the enabling statute 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).

Miss. Code Ann. Section 73-77-9(1), 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, Miss. Code Ann. Section 73-77-9(1) 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