Does Mississippi's Fresh Start Act limit the Massage Therapy Board's ability to deny a license based on a criminal record?

Plain-English summary

In 2020, the Mississippi AG addressed how the new Fresh Start Act of 2019 (Miss. Code Ann. § 73-77-1 et seq.) interacted with the Mississippi State Board of Massage Therapy's existing licensing statutes. Section 73-77-5 generally restricts denial based on a prior conviction unless the crime directly relates to the licensed occupation, but begins with the condition "Absent applicable state law."

The Board's chairman asked ten questions about how the Act applied to the massage therapy licensing scheme. The AG's central conclusion was that because the massage therapy statutes (§§ 73-67-21 and 73-67-27) specifically addressed licensure denial based on convictions, those statutes qualified as "applicable state law" under the Act. That meant the more permissive Fresh Start protections in §§ 73-77-5 and 73-77-7(1) did not override the Board's existing authority to deny or revoke licenses for criminal convictions.

The opinion also read § 73-77-9(1) to cover non-applicants as well as applicants. That provision itself begins "Absent applicable state law"; the AG did not decide whether the Massage Therapy Board's statutes exempt it from that petition provision.

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.

What the opinion said for each audience, at the time

For massage therapy license applicants in 2020

The AG found the Board exempt from Sections 73-77-5 and 73-77-7(1). The Board's existing statutes (§§ 73-67-21 and 73-67-27) explicitly listed conviction-based grounds for denial, including conviction of "any felony, other than a violation of federal or state tax laws" and conviction of crimes that "directly relate" to the practice. Because those statutes already existed, the AG read them as "applicable state law" that exempted the Board from the Fresh Start Act's protections in §§ 73-77-5 and 73-77-7(1). So the Board could continue evaluating criminal history under its own framework.

For other Mississippi occupational licensing boards

The AG explained the statutory condition: an enabling statute prohibiting licensure based on prior convictions can be "applicable state law" for Section 73-77-5. It made that determination for the Massage Therapy Board. Another board would need an analysis of its own statute.

For people considering a licensed Mississippi occupation

The opinion said § 73-77-9(1) does not distinguish applicants from non-applicants. Absent applicable state law, an individual with a criminal record may petition at any time, with a fee capped at $25; the authority must inform the person of their standing within 30 days. The AG did not define the response further or decide whether the Board's own statutes exempt it from this section.

For reentry programs and advocates in 2020

The opinion found the Massage Therapy Board exempt from Sections 73-77-5 and 73-77-7(1) because its enabling statutes address conviction-based licensing decisions. It did not decide how every other board's statute interacts with those sections or with the petition provision.

Common questions

Q: What was the Fresh Start Act of 2019?
A: A Mississippi law (Miss. Code Ann. § 73-77-1 et seq.) limiting state licensing boards from denying occupational licenses based on a person's criminal record, unless the prior conviction directly related to the duties of the licensed occupation. Section 73-77-7(1) also restricts vague terms in rulemaking, subject to "applicable state law." Section 73-77-9(1) permits a criminal-record petition, likewise subject to that stated condition.

Q: What does "applicable state law" mean in the Act?
A: The Act repeatedly carves out an exception when "applicable state law" already addresses the issue. For this Board, the AG found Sections 73-67-21 and 73-67-27 to be applicable state law exempting it from Sections 73-77-5 and 73-77-7(1). The opinion did not decide whether those provisions also affect Section 73-77-9.

Q: Does the petition provision cover people who have not applied for a license?
A: Yes. The AG said Section 73-77-9(1) uses "an individual" and covers applicants and non-applicants alike. Its text begins "Absent applicable state law," and this opinion does not decide whether the Board's statutes trigger that exception. The section requires notice of the petitioner's standing within 30 days and caps the fee at $25.

Q: Did the Board's existing statutes really override the Act?
A: According to the opinion, yes. The opinion cited § 73-67-21 (background-check verification) and § 73-67-27 (specifically authorizing the Board to deny or revoke a license for crimes "directly related to massage therapy" or for "any felony, other than a violation of federal or state tax laws"). Because the Board's statutes specifically addressed criminal-history denials, the AG concluded the Board was exempt from the Act's general restrictions.

Q: Were there questions the AG declined to answer?
A: Yes. The AG noted that the request sought interpretation of the Act "primarily by reference to a series of hypothetical scenarios," and that the office "cannot issue an opinion with regard to those scenarios which are not specifically addressed by the Act." Several of the Board's ten questions went unanswered for that reason; the AG addressed questions 1, 2, 6, 7, and 9.

Background and statutory framework

The opinion quotes the Act's restrictions on conviction-based disqualification and vague rulemaking terms. Both quoted restrictions begin "Absent applicable state law."

The Massage Therapy Board's enabling statutes listed conviction-based grounds for denial. The AG therefore found "applicable state law" exempting this Board from §§ 73-77-5 and 73-77-7(1), while leaving factual qualifications of individual applicants to the Board.

The petition provision in § 73-77-9(1) also starts with "Absent applicable state law." The AG answered only that its reference to "an individual" includes non-applicants as well as applicants. It did not decide whether an applicable state law exempts this Board from that section.

Citations and references

Statutes:

• Miss. Code Ann. § 73-77-1 et seq., Fresh Start Act of 2019
• Miss. Code Ann. § 73-77-5, prohibiting disqualification "solely or in part" based on prior conviction unrelated to occupation
• Miss. Code Ann. § 73-77-7(1), barring licensing boards from using "moral turpitude," "any felony," or "good character" in new rulemaking
• Miss. Code Ann. § 73-77-7(2), implementation factors for licensing decisions
• Miss. Code Ann. § 73-77-9, petition for advance disqualification ruling, 30-day response, $25 fee cap
• Miss. Code Ann. § 73-67-21, massage therapy license investigation requirements
• Miss. Code Ann. § 73-67-27, conviction-based grounds for Board action

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2020/11/S.Parker_November-5-2020-Fresh-Start-Act-of-2019.pdf

Original opinion text

November 5, 2020

Scott Parker, Chairman
Mississippi State Board of Massage Therapy
Post Office Box 20
Morton, Mississippi 39117

Re: Fresh Start Act of 2019

Dear Mr. Parker:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

You ask the following questions related to the impact of the Fresh Start Act of 2019 on the Mississippi State Board of Massage Therapy:

1. Is Mississippi Code Annotated 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?
2. 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?
3. The Fresh Start Act of 2019 requires implementation of Section 73-77-7(2) within 120 days after its enactment. Does implementation require rule making? Or, will Board action be sufficient (i.e., where the Board's administrative order covers the factors listed in Section 73-77-7(2)?
4. Is Section 73-77-9 applicable to require licensing boards to make a determination as to whether the individual would be disqualified from licensure solely on the basis of the individual's petition and information provided in the petition as to the individual's criminal record? Or, may the Board consider additional information available to the Board (e.g., information from a criminal background check)? Based upon a $25 cap prescribed by this Section, who is going to be responsible for the costs of a criminal background check?
5. If a Board's enabling statute grants authority to a Board to deny a license or impose discipline on the basis of any crime, does the Board have to make a determination at any time prior to the Board obtaining all information, including a criminal background check, to determine whether the individual is disqualified from obtaining a license?
6. 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 (i.e., prior to entering college) for a determination of criminal record disqualification?
7. What type of response is required of the licensing Board within thirty (30) days of receiving the petition regarding the criminal record disqualification? Is it sufficient, for example, if the response is to acknowledge receipt of the petition and to advise that the Board will provide a determination upon completion of its investigation and/or submission of a complete application and/or review of the criminal record?
8. Will the Board be bound by its determination pursuant to Section 73-77-9(1) at the time that a non-licensure applicant files an application for licensure?
9. If Section 73-77-9 is applicable to non-licensure applicants, does Section 73-77-9(2) require a hearing for the non-licensing applicants?
10. Under Section 73-77-9, can the Board make a determination based upon the information provided by an applicant who has not been subject to a Board authorized criminal background check and include a disclaimer?

Response

Your request seeks an interpretation of the Fresh Start Act of 2019, codified at Mississippi Code Annotated Sections 73-77-1 et seq. (the "Act"), primarily by reference to a series of 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.

In response to your first question, 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.

Miss. Code Ann. § 73-77-5 (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 Section 73-77-5. However, if no such "applicable state law" exists, then the Board must comply with that section.

Among the requirements set forth by Section 73-67-21, an applicant for licensure 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 73-67-27."

Section 73-67-27 provides that the Board:

> may refuse to issue or renew or may deny, suspend or revoke any license held or applied for upon a finding that the holder of a license or applicant:
> ...
> (e) Has been convicted of a crime, or has charges or disciplinary action pending that directly relates to the practice of massage therapy or to the ability to practice massage therapy. Any plea of nolo contendere shall be considered a conviction for the purposes of this section;
> ...
> (j) Has been convicted of any felony, other than a violation of federal or state tax laws.

Based upon the applicable law cited above, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-5. 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.

With respect to your second question, 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.

Miss. Code Ann. § 73-77-7(1) (emphasis added).

Referencing Sections 73-67-21 and 73-67-27, it is this office's opinion that "applicable state law" exists which exempts the Board from Section 73-77-7(1). 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.

Turning to your sixth question, 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.

Miss. Code Ann. § 73-77-9(1) (emphasis added). This section does not differentiate between applicants and non-applicants, referring only to "an individual." Thus, the above-cited section applies to both applicants and non-applicants alike.

With respect to your seventh question, Section 73-77-9(1) requires the licensing authority to "inform the individual of his standing within thirty (30) days of receiving the petition." 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.

With respect to your ninth question, as stated above, 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 this office may be of any further assistance to you, please do not hesitate to contact us.

Very truly yours,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Kyle Williams
Kyle Williams
Special Assistant Attorney General