How Does an Applicant’s Criminal History Affect an Application for Professional Licensure?PDF
Professional licensing boards in the United States are charged with setting licensure standards that prospective licensees must meet. This article addresses a standard-setting issue on which the law is shifting: boards’ consideration of an applicant’s criminal history.
State legislatures have established new standards for when licensing boards can deny licenses based on criminal convictions. They have also made changes to help applicants understand the impact of their criminal histories on their licensure applications. Finally, legislatures have demanded greater board transparency through reporting requirements.
The proponents of these changes seek to ensure that a person’s criminal history is not a permanent barrier to professional licensure — or, if it is a barrier, to create transparency about the connection between the criminal history and its effects on licensure.
Several states have enacted laws that bar a licensing board from denying an application because of an applicant’s criminal conviction unless the conviction bears in some way on the duties and responsibilities of the relevant profession.
The District of Columbia, for example, now requires a criminal conviction to be “directly related” to the profession for which a license is sought. Ohio also enacted a requirement earlier this year that requires boards to consider the relationship between an offense and the work of the profession at issue. Other states, too, have adopted these types of guidelines.
Historically, some licensing boards have been empowered by statute to deny licenses because of crimes that involved or demonstrated “moral turpitude” or a lack of “moral character.” State legislatures are replacing these potentially vague standards with requirements like a “directly related to professional practice” standard. A state law may even explicitly prohibit a board from denying a license based on moral standards. Ohio’s amended statute, for example, does just that.
Understanding the Impact of an Applicant’s Criminal History
These laws also give applicants the chance to learn exactly how their criminal histories might affect their ability to obtain a license.
The Ohio law, for example, requires licensing boards to publish a list, by profession, of criminal offenses for which a conviction may disqualify a person from obtaining an initial license.
Under some state statutes, an applicant can seek an advance determination from a licensing board on whether his criminal history will prevent him from receiving a license. This procedure enables a prospective applicant to find out whether a criminal conviction might foreclose a license before the applicant invests in pursuing the license. The procedures and fees for these advance determinations vary from state to state.
In North Carolina, a person can petition a board at any time, even before completing (or starting) mandatory training and education in a profession, for a determination on whether the person’s criminal background would likely disqualify her from obtaining a license in a particular profession.
Reporting Requirements for Licensing Boards
These statutory developments bring other forms of accountability as well. Many statutes require boards to track and report statistics on licenses denied because of criminal convictions. The D.C. law requires reporting the number of persons “permitted to practice with a criminal conviction who appealed the board’s final decision, as well as the outcome of each appeal.” Rhode Island now requires licensing bodies to issue an annual report that includes the number of applicants denied a license because of a criminal conviction.
North Carolina’s Position
North Carolina made its own statutory change in 2019.
Before a 2019 statutory amendment, a licensing board in North Carolina could not automatically deny a license to an applicant because of criminal history unless the law provided otherwise. When boards were authorized to consider an applicant’s criminal history, however, some boards could deny a license based on a criminal conviction for a crime involving “fraud or moral turpitude” if it determined, under eight statutory factors, that a license denial was warranted. One of the statutory factors was the “nexus between the criminal conduct and the prospective duties of the applicant as a licensee.”
The 2019 amendment strengthened a board’s obligation to consider the nexus between a crime and the practice of the relevant profession. The amended statute bars a board from denying a license because of a criminal conviction unless the conviction is “directly related to the duties and responsibilities for the licensed occupation” or involves “a crime that is violent or sexual in nature.” The amended statute does not define the phrase “directly related.” It also specifically bars a board from denying a license based on the board’s “determination that a conviction is for a crime of moral turpitude.”
The amendment seeks transparency as well. It requires a licensing board to state on its website and licensure applications whether the board requires a criminal-history check, the statutory factors that the board will consider when deciding whether to grant a license, and the appeal process that an applicant can follow if the board denies a license because of a criminal conviction.
North Carolina has also established a process for applicants to request an advance determination on the impact of their criminal histories. Also, to ensure that boards weigh all of the factors that the statute requires, the statute requires a board that denies a license based on an applicant’s criminal history to “[m]ake written findings specifying the factors . . . the board deemed relevant to the applicant and explaining the reason for the denial.” The board must then provide these findings to the applicant.
Recent statutory changes reflect a continuing evolution on the role of criminal history in licensure. The latitude that boards have to consider criminal history, and the required degree of transparency on these issues, varies by the jurisdiction. The Regulated Professions Practice Group at Robinson Bradshaw can provide advice on this dynamic issue in professional regulation.