MS 2020-07-S-Boyette-January-30-2020-Fresh-Start-Act-of-2019 January 30, 2020

Does the Fresh Start Act force the Mississippi Board of Physical Therapy to ignore prior felony convictions when licensing applicants?

Short answer: The AG concluded that because the Physical Therapy Board's enabling statute did not bar licensure based on prior convictions, the Board had to comply with Section 73-77-5 of the Fresh Start Act. Its good-moral-character requirement, however, counted as 'applicable state law' that exempted the Board from Section 73-77-7(1)'s ban on vague licensing terms.

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 AG opinions are persuasive authority but not binding precedent.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 State Board of Examiners of Physical Therapists asked the same set of Fresh Start Act questions that the Board of Nursing asked on the same day, and the AG's office walked through them in parallel. The bottom-line answers were similar in structure but split differently because of how each board's enabling statute was written.

For the Physical Therapy Board, the AG drew this picture:

Section 73-77-5 (no disqualification absent applicable state law): The Physical Therapy enabling statute, Section 73-23-47, did not prohibit the Board from issuing a license based on a prior criminal conviction. Because there was no "applicable state law" that exempted the Board, the Board had to comply with Section 73-77-5. That meant the Board could not disqualify someone for a prior conviction unless the crime "directly relates to the duties and responsibilities" of physical therapy.
Section 73-77-7(1) (no vague rulemaking absent applicable state law): Section 73-23-47(1) required physical therapy applicants to "be of good moral character." The AG held that requirement was itself applicable state law that exempted the Board from Section 73-77-7(1)'s ban on vague terms like "moral turpitude" or "good character." Whether an applicant met the good-moral-character requirement was a factual call for the Board.
Section 73-77-9 (petition right): The AG read "an individual" to cover both license applicants and non-applicants. Anyone with a record could petition the Board for a determination of whether the record would disqualify them, and the Board had to inform the petitioner of his or her "standing" within 30 days. The remaining provisions of Section 73-77-9, including subsection 2's hearing-related rules, applied to non-applicants too.
Implementation questions: The AG declined to opine on hypothetical scenarios the Act did not specifically address (whether implementing Section 73-77-7(2) requires rulemaking versus an administrative order, whether the Board can rely solely on a petition's self-disclosure, who pays for background checks given the $25 fee cap, and whether a petition determination binds the Board if the petitioner later applies). Section 7-5-25 limits AG opinions to prospective state-law questions.

The contrast with the Nursing Board opinion (issued the same day to Phyllis Johnson) is instructive: nursing licensure was exempt from Section 73-77-5 because the Nursing Board's enabling statute expressly authorized denial for felony or moral-turpitude convictions; physical therapy licensure was not exempt because its enabling statute did not.

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

Why did the Physical Therapy Board have to comply with Section 73-77-5 when the Nursing Board did not?

Each section of the Fresh Start Act starts with "absent applicable state law." For the Nursing Board, Section 73-15-29 expressly let the Board refuse a license for a felony or a crime involving moral turpitude. For the Physical Therapy Board, Section 73-23-47 had no such conviction-based bar. So the Nursing Board could keep doing what its enabling statute always let it do; the Physical Therapy Board had to fit its decisions to the Fresh Start Act's "directly relates" test.

What does "directly relates" mean under Section 73-77-5?

The Act does not define the phrase any more precisely than its plain meaning. The AG did not interpret it further. In practice, it means a board needs a reasoned link between the underlying conduct of the crime and the duties and responsibilities of the licensed profession.

Why was the good-moral-character requirement still allowed?

Because Section 73-23-47(1) explicitly required applicants to "be of good moral character." Section 73-77-7(1) bans rulemaking that uses vague terms "absent applicable state law." Since the requirement was already in the Board's enabling statute, the AG read that as applicable state law that satisfied the carve-out.

Can someone who has not yet applied for a physical therapy license file a petition?

Yes. Section 73-77-9 refers to "an individual" without distinguishing between applicants and non-applicants. The AG held the petition right was available to anyone with a record. The Board had to respond within 30 days informing the petitioner of his or her standing. The fee was capped at $25.

Does subsection 2's hearing requirement apply to non-applicants?

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

Background and statutory framework

The Fresh Start Act of 2019 (Sections 73-77-1 et seq.) limits how Mississippi licensing authorities may use criminal records and vague character standards in occupational licensing decisions. Each substantive section has an "absent applicable state law" carve-out, which means a more specific board-enabling statute can displace it.

Section 73-77-5: prevents disqualification for any prior conviction unless the conviction "directly relates" to the duties of the licensed occupation.

Section 73-77-7(1): bans rulemaking with vague terms ("moral turpitude," "any felony," "good character") and limits boards to specific, directly-related criminal records.

Section 73-77-9(1): creates a petition mechanism letting "an individual" with a record ask any licensing authority for an early determination, capped at a $25 fee, with a 30-day response window.

Section 73-23-47 is the Mississippi Physical Therapy Practice Law's licensure statute. Subsection (1) requires applicants to "be of good moral character," but the statute did not include a felony or moral-turpitude bar. (Section 73-23-59, not directly invoked here, deals with discipline of existing licensees and does mention felony convictions, but the AG's analysis turned on the application-side statute.)

The opinion is signed by Special Assistant Attorney General Tommy D. Goodwin on behalf of Attorney General Lynn Fitch. The full opinion request from Stephanie Boyette, Executive Director of the Mississippi State Board of Physical Therapy, was attached. The request listed multiple implementation questions and a long footnote of comparable enabling statutes from other Mississippi licensing boards (Nursing, Pharmacy, Social Workers, Barber Instructors, Dietitians, Medical Licensure, Engineers, Real Estate Appraisers, Athlete Agents, Massage Therapy, Nursing Home Administrators, Funeral Service, Physical Therapy disciplinary statute).

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 73-23-47 (Physical Therapy licensure)
Miss. Code Ann. Section 73-23-47(1) (good-moral-character requirement)
Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
MS AG Op., Johnson (January 30, 2020) (companion Nursing Board opinion)

Source

Original opinion text

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

OPINIONS DIVISION

January 30, 2020

Stephanie Boyette
Executive Director
Mississippi State Board of Physical Therapy
Post Office Box 55707
Jackson, Mississippi 39296

Re: Fresh Start Act of 2019

Dear Ms. Boyette:

Attorney General Lynn Fitch has received your opinion request on behalf of the Mississippi State Board of Examiners of Physical Therapists ("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.

The enabling statute of the Board, Section 73-23-47, Miss. Code Ann., does not prohibit the issuance of a license to an applicant based upon a prior conviction of a crime. Based upon the Board's enabling statute, 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 73-77-1(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).

Section 73-23-47(1), Miss. Code Ann., requires an applicant seeking licensure to "be of [g]ood moral character." Based upon the Board's enabling statute, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-7(1) of the Act. A determination of whether an applicant has met the qualification as 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).

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 Stephanie Boyette, Executive Director, Mississippi State Board of Physical Therapy, dated December 6, 2019, asking for clarification, interpretation, and compliance guidance on the Fresh Start Act of 2019 (SB 2781). The request listed multiple implementation questions about Section 73-77-7(2) rulemaking timing, what response satisfies the 30-day Section 73-77-9(1) deadline, who pays for criminal background checks given the $25 cap, and whether a petition determination binds the Board if the petitioner later applies. The request also enumerated comparable enabling statutes from other Mississippi licensing boards: Nursing Practice Act (Section 73-15-29(1)(b)); Pharmacy Practice Act (Section 73-21-97(1)(c)); Social Workers and Marriage and Family Therapists (Section 73-53-17(1)(g)); Barber Instructors (Section 73-5-8(b)); Dietitians (Section 73-10-21(4)(a)(3)); Medical Licensure (Section 73-25-29(4) and (6)); Engineers (Section 73-13-23(1)(e)); Real Estate Appraisers (Section 73-34-14(2)(a)); Athlete Agents (Section 73-42-11(3)(a)); Massage Therapy (Section 73-67-21(3)(f)); Nursing Home Administrators (Section 73-17-11(1)(b)); Funeral Service and Funeral Directing (Sections 73-11-51(3)(e) and (4)(f)); and the Physical Therapy disciplinary provision (Section 73-23-59(1)).]