SENATE BILL 385

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Mark Moores and Bill B. O’Neill and Andrea Romero

AN ACT

RELATING TO PROFESSIONAL LICENSURE; ENACTING A NEW SECTION OF CHAPTER 61 NMSA 1978 TO PROHIBIT THE EXCLUSION FROM PROFESSIONAL LICENSURE OF PERSONS CONVICTED OF CERTAIN FELONIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of Chapter 61 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] EXCLUSION FROM PROFESSIONAL LICENSURE-- PROHIBITION--EXCEPTIONS.--

          A. A board that grants professional licensure under the provisions of Chapter 61 NMSA 1978 shall not deny licensure to an individual who is otherwise qualified for licensure on the sole basis that the individual has been previously convicted of a felony, unless the conviction was for a crime related to the profession for which the individual seeks licensure.

          B. By September 1, 2019, a board shall adopt and promulgate rules relating to licensing requirements to explicitly list the specific criminal convictions that could disqualify an applicant from receiving a license on the basis of a previous felony conviction. A board shall not use vague or generic terms, including "moral turpitude" or "good character", or consider arrests without a subsequent conviction. A board may only list disqualifying felony convictions that are specific and directly related to the duties and responsibilities for the licensed occupation.

          C. A board shall use the clear and convincing standard of proof in examining the factors to determine whether an applicant with a disqualifying felony conviction will be denied a license. The board shall make its determination based on the following factors:

                (1) the nature and seriousness of the crime for which the individual was convicted;

                (2) the passage of time since the commission of the crime;

                (3) the relationship of the crime to the ability, capacity and fitness required to perform the duties and discharge the responsibilities of the occupation; and

                (4) any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a disqualification.

          D. If an individual has a felony conviction for a crime that could disqualify the individual from receiving a license, the disqualification shall not last longer than five years from the date of conviction; provided that:

                (1) the individual has not been convicted of any other felony during the five-year disqualification period; and

                (2) the disqualification period permitted pursuant to this subsection may last longer if an applicant with a disqualifying criminal conviction was incarcerated for a felony at any time during the preceding five years. In this case, the disqualification may last no longer than five years from the date the individual was released from incarceration.

          E. An individual with a felony conviction may petition a board at any time for a determination of whether the individual's felony convection will disqualify the individual from obtaining a license as follows:

                (1) the petition shall include details on the individual's felony conviction; and

                (2) the board shall inform the individual of the individual's standing within thirty days of receiving the petition from the applicant. The board may charge a fee to recoup its costs not to exceed twenty-five dollars ($25.00) for each petition.

          F. If a board denies an individual a license solely or in part because of the individual's prior conviction of a crime, the board shall notify the individual in writing of the following:

                (1) the grounds and reasons for the denial or disqualification;

                (2) that the individual has the right to a hearing to challenge the board's decision;

                (3) the earliest date the person may reapply for a license; and

                (4) the evidence of rehabilitation that may be considered upon reapplication.

          G. Any written determination by the board that an applicant's felony conviction is specifically listed as a disqualifying conviction and is directly related to the duties and responsibilities for the licensed occupation shall be documented in written findings for each of the factors listed in Subsection C of this section by clear and convincing evidence sufficient for a reviewing court.

          H. In any administrative hearing or civil litigation authorized under this section, the board shall carry the burden of proof on the question of whether the applicant's criminal conviction directly relates to the occupation for which the license is sought.

          I. A board shall adopt and promulgate necessary rules for the implementation of this section.

          J. As used in this section:

                (1) "board" means a professional licensing body that regulates a professional practice pursuant to Chapter 61 NMSA 1978; and

                (2) "felony" means any crime so designated by law or if upon conviction thereof a sentence of death or of imprisonment for a term of one year or more is authorized."

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