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. The Fresh Start Act was designed to limit how state licensing boards use criminal history to block people from earning a living, by saying boards generally cannot deny a license "solely or in part" because of a prior conviction unless the crime relates directly to the duties of the licensed occupation.
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 did clarify one Fresh Start provision favorably for individuals: the petition right in § 73-77-9, which lets a person ask a board in advance whether their criminal record will disqualify them, applies to anyone, not just current applicants. Someone considering a career change could petition before paying tuition.
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 opinion was bad news. The Board's existing statutes (§§ 73-67-21 and 73-67-27) explicitly listed conviction-based grounds for denial, including "conviction of any felony" and conviction of crimes "directly related" 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 broader protections. So the Board could continue evaluating criminal history under its own framework rather than the Act's narrower "directly related" test.
For other Mississippi occupational licensing boards
This opinion gave a roadmap for any board with conviction-based provisions in its enabling statute to argue that the Fresh Start Act's general rules in §§ 73-77-5 and 73-77-7(1) did not apply. Boards without such specific provisions in their enabling statutes had to follow the Fresh Start Act's narrower standard.
For people considering a licensed Mississippi occupation
The opinion confirmed that the petition right in § 73-77-9 was open to non-applicants. A person who had a conviction in their past and was thinking about pursuing a licensed career could petition the relevant board, pay a fee capped at $25, and get a 30-day determination on whether the record would block them. That avoided spending money on training only to find out later that licensure was off the table.
For reentry programs and advocates in 2020
The opinion narrowed the Fresh Start Act's reach. Boards with pre-existing conviction-based licensing statutes were largely outside the Act's most protective provisions, even when those older statutes used vague terms like "any felony" that the Act otherwise prohibited. Anyone advising returning citizens needed to check both the Act and the specific board's enabling statute.
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. It also barred boards from rulemaking that used vague terms like "moral turpitude," "any felony," or "good character," and gave individuals a right to petition for an advance disqualification ruling.
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. The AG read this to include any pre-existing licensing statute that specifically allowed the board to deny licensure based on criminal convictions, even if the older statute used the kinds of vague terms the Act otherwise prohibited.
Q: Could someone petition a Mississippi licensing board before applying for a license?
A: Yes, per the opinion. Section 73-77-9(1) gives "an individual" the right to petition, and the AG read that to include people who were not yet applicants. The board had 30 days to inform the petitioner of their standing, and could charge up to $25 for the petition.
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 opinions of the office are limited to prospective legal questions and cannot address hypothetical scenarios that the Act does not specifically cover. Several of the Board's questions were declined for that reason.
Background and statutory framework
The Fresh Start Act was Mississippi's version of an "occupational licensing reform" wave that swept many states in the late 2010s. The premise: blanket bans on licensing for anyone with a felony record were keeping people out of work in occupations that had nothing to do with their conviction. The Act required boards to evaluate whether the conviction directly related to the duties of the specific licensed occupation, and barred them from using catchall terms like "moral turpitude" or "any felony" in their rulemaking.
The catch was the "applicable state law" exception. Pre-existing board enabling statutes that already addressed criminal-history denials, even ones using the kinds of vague terms the Act prohibited in new rulemaking, escaped the Act's main restrictions. The Massage Therapy Board's enabling statute (Title 73, Chapter 67) specifically listed conviction-based grounds for denial, so the AG's 2020 reading exempted the Board from §§ 73-77-5 and 73-77-7(1).
The petition right in § 73-77-9 was a separate mechanism that did not depend on the "applicable state law" exception. The AG read it to apply broadly, giving Mississippians an advance-ruling tool independent of whether their target board was otherwise covered by the Act's substantive protections.
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
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective legal questions
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:
- 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?
- 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?
- 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)?
- 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?
- 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?
- 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?
- 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?
- 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?
- 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?
- 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