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

Plain-English summary

The Mississippi State Board of Examiners of Physical Therapists asked how the Fresh Start Act applied to its licensing decisions. The AG addressed the Board's own enabling statute and the Act's provisions on prior convictions, character requirements, and petitions for a criminal-record determination.

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, subject to that section's "absent applicable state law" condition. A person with a criminal record may petition for a determination of whether the record would disqualify them, and the Board must inform the petitioner of their "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 Board's request was framed "primarily by reference to hypothetical scenarios." The AG said it could not issue an opinion on scenarios the Act does not specifically address, and answered only the questions the Act's text let it reach.

The opinion addresses only the Physical Therapy Board. It says Section 73-23-47 does not prohibit issuing a license based on a prior conviction, so the Board is subject to Section 73-77-5.

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 must the Physical Therapy Board comply with Section 73-77-5?

That section begins "Absent applicable state law." The AG found that the Board's enabling statute, Section 73-23-47, does not prohibit issuing a license because of a prior criminal conviction. The Board therefore must apply Section 73-77-5's requirement that the crime directly relate to the licensed occupation.

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

The Act does not define the phrase beyond its plain wording, and the AG did not interpret it further here. It restates the statutory standard: a prior conviction can disqualify only where the crime directly relates to the duties and responsibilities of the licensed occupation.

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 that the provision covers applicants and non-applicants alike, subject to its "absent applicable state law" condition. 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): absent applicable state law, lets "an individual" with a record petition a licensing authority for a determination, caps the fee at $25, and requires a response about the petitioner's standing within 30 days.

Section 73-23-47 is the Physical Therapy Board's licensure statute. Subsection (1) requires applicants to "be of good moral character," but, as the AG noted, the statute "does not prohibit the issuance of a license to an applicant based upon a prior conviction of a crime."

The opinion is signed by Special Assistant Attorney General Tommy D. Goodwin on behalf of Attorney General Lynn Fitch. The opinion request came from Stephanie Boyette, Executive Director of the Mississippi State Board of Physical Therapy. It was attached to the opinion rather than reproduced in it, and the AG noted it was framed mainly by reference to hypothetical scenarios.

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)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/07/S.Boyette_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

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

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