MS 2020-07-P-Johnson-January-30-2020-Fresh-Start-Act-of-2019 January 30, 2020

Does Mississippi's Fresh Start Act let people with criminal records get a nursing license, or can the Board of Nursing still bar them?

Short answer: The AG concluded that the Mississippi Board of Nursing's existing enabling statute, which let it deny a license for felony or moral-turpitude convictions, qualified as 'applicable state law' that exempted the Board from the Fresh Start Act's restrictions on using criminal-record disqualifications. The Act's petition right under Section 73-77-9 still applied to anyone with a record, applicant or not.

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 AG opinions are persuasive authority but not binding precedent.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 Fresh Start Act of 2019 (Sections 73-77-1 et seq.) was Mississippi's effort to limit how heavily a criminal record could weigh against someone trying to get an occupational license. The Act's headline rule, Section 73-77-5, said that "absent applicable state law" no one should be disqualified from a licensed occupation just because of a prior conviction unless that crime "directly relates to the duties and responsibilities for the licensed occupation." Section 73-77-7 banned licensing boards from rulemaking that used vague language like "moral turpitude," "any felony," or "good character," again "absent applicable state law." Section 73-77-9 gave any individual with a criminal record the right to petition a licensing authority for a determination of whether the record would disqualify them, and required a written response within 30 days for a fee capped at $25.

The Mississippi Board of Nursing asked the AG how the Act fit alongside its existing enabling statutes, which already allowed it to refuse or revoke a license for "a felony, or a crime involving moral turpitude" (Section 73-15-29(1)(b)) and required statutory background checks (Sections 73-15-19 and 73-15-33).

The AG concluded that the Board's enabling statute counted as "applicable state law." Because that earlier statute explicitly contemplated felony and moral-turpitude disqualifications, the Board was not required to comply with Section 73-77-5 or with Section 73-77-7(1)'s ban on those vague terms. The AG also held that Section 73-77-9's petition right was broader: it covered "an individual," not just a license applicant, so non-applicants could file the petition too, and the Board had to respond within 30 days. The Act did not specify what kind of response satisfied the 30-day rule, only that the petitioner be informed of his or her "standing." Because Section 73-77-9 applied to non-applicants, its remaining provisions, including any hearing rights in subsection 2, applied to non-applicants too. As to a number of detailed implementation questions ("does this require rulemaking," "who pays for the background check," and so on), the AG said the office could not answer scenarios the Act did not address.

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.

Common questions

What did the Fresh Start Act of 2019 try to change?

It tried to make occupational licensing more accessible to people with old criminal records. It banned reflexive denials based on any prior conviction, banned vague rulemaking standards like "good character" or "any felony," and gave individuals a low-cost way to ask for an early read on whether their record would block licensure.

Why did the Board of Nursing think it might be exempt?

Each of the Act's substantive limits begins with the phrase "absent applicable state law." The Board's enabling statute, Section 73-15-29, already authorized refusing or revoking a nursing license for a felony or a crime involving moral turpitude. Section 73-15-19 required statutory background checks. The Board read those provisions as exactly the kind of pre-existing state law that the Fresh Start Act preserved.

Did the AG agree?

Yes, on the disqualification side. The AG concluded that the Board's enabling statute was "applicable state law" that exempted the Board from Section 73-77-5 and Section 73-77-7(1)'s prohibition on vague terms like "moral turpitude" or "felony." Whether a particular applicant met the statutory criteria was a factual call for the Board to make.

Did the Board still owe anything to people with records?

Yes. The Section 73-77-9 petition right remained. The AG read its phrase "an individual" to cover both applicants and non-applicants, so anyone with a record could ask the Board for a determination of whether the record would disqualify them. The Board had to inform the petitioner of "his standing" within 30 days. The Act capped the fee at $25 and let licensing authorities recoup their costs up to that amount.

Does subsection 2's hearing requirement apply if the petitioner has not even applied yet?

The AG said yes. Once the AG concluded Section 73-77-9 reached non-applicants, the rest of that section, including its procedural protections, traveled with it.

What questions did the AG decline to answer?

A long list of "what if" implementation questions: whether implementing Section 73-77-7(2) requires rulemaking or just board action; whether the Board can rely solely on the petitioner's own description of the record or must run a background check; who pays for the background check given the $25 fee cap; and whether a determination under Section 73-77-9 binds the Board if the petitioner later applies. The AG cited Section 7-5-25's limit on issuing opinions about scenarios the statute does not specifically address.

Background and statutory framework

Section 73-77-5 is the Fresh Start Act's general non-disqualification rule:

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.

Section 73-77-7(1) is the corresponding rulemaking restriction:

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.

Section 73-77-9(1) creates a petition mechanism:

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.

The Board of Nursing's enabling statutes pull in the opposite direction. Section 73-15-19(1) requires applicants to clear a check that includes "verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-15-29 or guilty of any offense specified in Section 73-15-33." Section 73-15-29(1)(b) authorizes the Board to refuse, revoke, suspend, or discipline a license for conviction of "a felony, or a crime involving moral turpitude" or a nolo plea to either.

The AG's reasoning treats those Board-specific statutes as exactly the "applicable state law" that the Fresh Start Act preserves in its opening clauses. Whether a specific applicant has met the statutory bar is a factual question for the Board.

The opinion is signed by Special Assistant Attorney General Tommy D. Goodwin on behalf of Attorney General Lynn Fitch. The full opinion request from Phyllis Johnson, Executive Director of the Board of Nursing, was attached and contained additional implementation questions the AG declined to answer.

Citations

Miss. Code Ann. Sections 73-77-1 et seq. (Fresh Start Act of 2019)
Miss. Code Ann. Section 73-77-5
Miss. Code Ann. Section 73-77-7(1)
Miss. Code Ann. Section 73-77-9
Miss. Code Ann. Section 73-15-19 (Board of Nursing license requirements)
Miss. Code Ann. Section 73-15-29 (grounds for refusal/revocation)
Miss. Code Ann. Section 73-15-33 (offenses listed)
Miss. Code Ann. Section 7-5-25 (limits on AG opinions)

Source

Original opinion text

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

LYNN FITCH
ATTORNEY GENERAL

OPINIONS DIVISION

January 30, 2020

Phyllis Johnson
Executive Director
Mississippi Board of Nursing
713 S. Pear Orchard Road
Plaza II, Suite 300
Ridgeland, Mississippi 39157

Re: Fresh Start Act of 2019

Dear Ms. Johnson:

Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi Board of Nursing ("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).

If the Board's enabling statute prohibits the issuance of an appropriate license based upon 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.

Among the requirements set forth by Section 73-15-19(1), Miss. Code Ann., an applicant for a license to practice as a registered nurse must have been successfully cleared through an investigation consisting, in part, of a "verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-15-29 or guilty of any offense specified in Section 73-15-33."

Pursuant to Section 73-15-29(1), Miss. Code Ann., the Board is empowered:

to revoke, suspend or refuse to renew any license issued by the board, or to revoke or suspend any privilege to practice, or to deny an application for a license, or to fine, place on probation and/or discipline a licensee, in any manner specified in this article, upon proof that such person:

(b) Has been convicted of a felony, or a crime involving moral turpitude or has had accepted by a court a plea of nolo contendere to a felony or a crime involving moral turpitude . . . ;

Based upon the Board's enabling statute, it is 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 requirements of the applicable statute(s) is a factual determination to be made by the Board.

Question: Are licensing boards to interpret Section 73-77-1(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).

Referencing Sections 73-15-19 and 73-15-29, Miss. Code Ann., quoted, in part, above, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the qualifications set forth by the statute(s) 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

[Attachment: opinion request from Phyllis Johnson, MSN, RN, FNP-BC, Executive Director of the Mississippi Board of Nursing, dated December 18, 2019, asking for clarification, interpretation, and compliance guidance on the Fresh Start Act of 2019 (SB 2781), with additional implementation questions about Section 73-77-7(2) rulemaking timing, the interplay with criminal background checks, who pays for those checks given the $25 cap, and whether a determination under Section 73-77-9(1) binds the Board if the petitioner later applies.]