as introduced - 91st Legislature (2019 - 2020) Posted on 03/11/2019 02:52pm
A bill for an act
relating to occupational licensing; to provide a prerecognition petition for offenders
seeking state occupational licensing; proposing coding for new law in Minnesota
Statutes, chapter 214.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
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For the purposes of this chapter, the words defined in this section
have the meaning given.
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"Board" includes all state licensing boards or an agency or department
that issues an occupational license.
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"Government certification" means a voluntary,
government-granted, and nontransferable recognition to an individual who meets personal
qualifications related to a lawful occupation. Upon the government's initial and continuing
approval, the individual may use "government certified" or "state certified" as a title.
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"Lawful occupation" means a course of conduct, pursuit,
or profession that includes the sale of goods or services that are not themselves illegal to
sell irrespective of whether the individual selling them is subject to an occupational
regulation.
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"Occupational license" means a nontransferable
authorization in law for an individual to perform exclusively a lawful occupation for
compensation based on meeting personal qualifications. In an occupation for which a license
is required, it is illegal for an individual who does not possess a valid occupational license
to perform the occupation for compensation.
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"Occupational regulation" means a statute, rule,
practice, policy, or other state law that allows an individual to use an occupational title or
work in a lawful occupation. It includes a government certification and occupational license.
It excludes a business license, facility license, building permit, or zoning and land use
regulation except to the extent those state laws regulate an individual's personal qualifications
to perform a lawful occupation.
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"Personal qualifications" means criteria related to an
individual's personal background and characteristics. Personal qualifications may include
one or more of the following: completion of an approved educational program, satisfactory
performance on an examination, work experience, apprenticeship, other evidence of
attainment of requisite skills or knowledge, criminal record, and completion of continuing
education.
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"State recognition" means the government's grant or renewal
of an occupational title or authorization to work in a lawful occupation. It includes
government certification, an occupational license, and other recognition of an individual's
personal qualifications.
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The right of an individual to pursue a lawful occupation is a fundamental right.
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This chapter supersedes any other statute or rule that denies,
diminishes, suspends, revokes, withholds, or otherwise limits state recognition because of
a criminal conviction.
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A board must not automatically bar an individual from state
recognition because of a criminal record and must provide individualized consideration.
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When considering
state recognition, a board may only consider a conviction of a nonexcluded crime that is a
felony or violent misdemeanor.
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When considering state
recognition, a board must not consider:
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(1) nonconviction information from the criminal justice system including information
related to a deferred adjudication, participation in a diversion program, or an arrest not
followed by a conviction;
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(2) a conviction for which no sentence of incarceration can be imposed;
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(3) a conviction that has been sealed, dismissed, expunged, or pardoned;
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(4) a juvenile adjudication;
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(5) a nonviolent misdemeanor; or
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(6) a conviction that occurred more than three years before the date of the board's
consideration except for a conviction of:
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(i) a felony crime of violence under section 624.712, subdivision 5;
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(ii) a felony criminal sexual conduct under sections 609.341 to 609.3451; or
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(iii) a felony related to fraud or embezzlement under section 609.52, 609.527, 609.611,
609.631, 609.82, or 609.821.
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(a) Any ambiguity in an occupational regulation relating to a
board's use of an individual's criminal record will be resolved in favor of the individual.
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(b) The board must not use vague terms in its consideration and decision including but
not limited to:
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(1) good moral character;
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(2) moral turpitude; or
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(3) character and fitness.
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When considering state recognition, the board shall
consider the individual's current circumstances including:
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(1) the age of the individual when the individual committed the offense;
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(2) the time since the offense;
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(3) the completion of the criminal sentence;
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(4) a certificate of rehabilitation or good conduct;
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(5) completion of, or active participation in, rehabilitative drug or alcohol treatment;
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(6) testimonials and recommendations including a progress report from the individual's
probation or parole officer;
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(7) other evidence of rehabilitation;
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(8) education and training;
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(9) employment history;
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(10) employment aspirations;
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(11) the individual's current family responsibilities; and
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(12) other information that the individual submitted to the board.
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(a) The board may deny, diminish, suspend,
revoke, withhold, or otherwise limit state recognition only if the board determines:
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(1) the state has an important interest in the regulation of a lawful occupation that is
directly, substantially, and adversely impaired by the individual's nonexcluded criminal
record as mitigated by the individual's current circumstances in subdivision 6; and
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(2) the state's interest outweighs the individual's fundamental right to pursue a lawful
occupation.
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(b) The board has the burden of making its decision by clear and convincing evidence.
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An individual with a criminal record may petition a board at
any time, including before obtaining any required personal qualifications, for a decision
whether the individual's criminal record will disqualify the individual from obtaining state
recognition.
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The individual must include in the petition the individual's criminal
record or authorize the board to obtain the individual's criminal record.
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The board must make its decision under this section using the
criteria and process in section 214.52.
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The board must issue its decision under this section no later than 60
days after the board receives the petition. The decision must be in writing and include the
criminal record, findings of fact, and conclusions of law.
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A decision concluding that state recognition should be granted
or granted under certain conditions is binding on the board in any later ruling on state
recognition of the petitioner unless there is a relevant, material, and adverse change in the
petitioner's criminal record.
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If the board decides that state recognition should
not be granted, the board may advise the petitioner of actions the petitioner may take to
remedy the disqualification.
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The petitioner may submit a revised petition reflecting
completion of the remedial actions before a deadline the board sets in its alternative advisory
decision.
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The petitioner has the right to contest the board's
decision by requesting a hearing as provided under chapter 14. Upon receiving the petitioner's
request, the board must refer the matter to an administrative law judge for a hearing under
chapter 14. The administrative law judge must make findings of fact and conclusions of
law and issue an order. The determination must be the final decision of the board.
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The final decision of the board may be appealed under chapter 14.
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The petitioner may submit a new petition to the board one year
following a final decision on the initial petition or upon obtaining the required personal
qualifications, whichever is earlier.
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The board may charge a fee to the petitioner to recoup its costs not to
exceed $100 for each petition.
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(a) The commissioner of administration must establish an annual reporting requirement
of the:
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(1) number of times that each board acted to deny, diminish, suspend, revoke, withhold,
or otherwise limit state recognition from a licensed individual because of a criminal
conviction;
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(2) offenses for which each board acted in clause (1);
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(3) number of applicants petitioning each board under section 214.53;
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(4) numbers of each board's approvals and denials under section 214.53;
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(5) offenses for which each board approved or denied petitions under section 214.53;
and
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(6) other data the commissioner determines applicable.
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(b) The commissioner shall compile and publish annually a report on a searchable public
website.
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Nothing in sections 214.50 to 214.54 shall be construed to require a private certification
organization to grant or deny private certification to any individual.
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This act is effective on August 1, 2019.
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