HB-6110, As Passed House, October 3, 2018
June 6, 2018, Introduced by Reps. Iden, Griffin, Bellino, Hoitenga, Moss and Theis and referred to the Committee on Regulatory Reform.
A bill to amend 1974 PA 381, entitled
"An act to encourage and contribute to the rehabilitation of former
offenders and to assist them in the assumption of the
responsibilities of citizenship; to prescribe the use of the term
"good moral character" or similar term as a requirement for an
occupational or professional license or when used as a requirement
to establish or operate an organization or facility regulated by
this state; and to provide administrative and judicial procedures
to contest licensing board or agency rulings thereon,"
by amending the title and sections 1, 2, 3, 4, 5, 6, and 7 (MCL
338.41, 338.42, 338.43, 338.44, 338.45, 338.46, and 338.47),
section 2 as amended by 2014 PA 361.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to encourage and contribute to the rehabilitation of
former offenders and to assist them in the assumption of the
responsibilities
of citizenship; to prescribe the use of define the
term
"good moral character" or similar term and establish how good
moral character is determined when used as a requirement for an
occupational or professional license or when used as a requirement
to establish or operate an organization or facility regulated by
this state; and to provide administrative and judicial procedures
to
contest licensing board or agency rulings thereon.concerning an
individual's good moral character.
Sec.
1. (1) The phrase "good moral character", or words of
similar
import, when used as a requirement
for an occupational or
professional license or when used as a requirement to establish or
operate
an organization or facility regulated by this state in the
Michigan
Compiled Laws a statute of
this state or administrative
rules
promulgated under those laws shall be construed to mean a
statute
of this state, means the propensity on
the part of the
person
an individual to serve the public in the licensed area in a
fair, honest, and open manner.
(2)
As used in this act: , "principal
(a) "Felony" means a violation of a penal law of this state
for which the offender may be punished by imprisonment for more
than 1 year or an offense expressly designated by law as a felony.
(b) "License" includes a registration.
(c) "Licensing board or agency" means a principal department,
or a board or agency within a principal department, that issues
occupational or professional licenses.
(d)
"Principal department" means the
a department which that
has
jurisdiction over the a
licensing board or agency.
issuing the
license.
Sec.
2. (1) A judgment of guilt in a criminal prosecution or a
judgment
in a civil action shall not be used, in and of itself, by
a
licensing board or agency as proof of an individual's lack of
good
moral character. However, the licensing board or agency may
use
that judgment as evidence in the determination of his or her
good
moral character.
(1) A licensing board or agency shall not consider a judgment
in a civil action against an individual as evidence of his or her
lack of good moral character.
(2) A licensing board or agency shall not consider an
individual's criminal conviction, in and of itself, as conclusive
proof of his or her lack of good moral character. A licensing board
or agency may only consider an individual's criminal conviction as
evidence in the determination of his or her good moral character if
the licensing board or agency finds that all of the following are
met:
(a) The individual's criminal record includes a conviction for
a felony.
(b) The type of felony of which the individual was convicted
is codified as a disqualifying offense in the applicable
occupational or professional licensing statute.
(c) The licensing board or agency concludes that the specific
offense of which the individual was convicted has a direct and
specific negative effect on his or her ability to perform the
duties authorized by the occupational or professional license.
(d) The licensing board or agency determines that the state's
interest in protecting public safety is superior to the
individual's right to pursue the occupation or profession, based on
clear and convincing evidence that all of the following are met:
(i) The specific offense of which the individual was convicted
is substantially related to the state's interest in protecting
public safety.
(ii) The individual, based on the nature of the offense for
which he or she was convicted and on any additional information
provided by the licensee under subsection (3), is more likely to
commit a subsequent offense because he or she has the occupational
or professional license than if he or she does not have the
occupational or professional license.
(iii) A subsequent offense committed with the aid of the
occupational or professional license will cause greater harm to the
public than it would if the individual did not have the
occupational or professional license.
(3) (2)
If a judgment of guilt in a criminal prosecution is
used
as evidence in the determination of an individual's good moral
character
under subsection (1), the A licensing board or agency
shall
also consider his or her an
individual's certificate of
employability, if any, under section 34d of the corrections code of
1953,
1953 PA 232, MCL 791.234d, as evidence in the determination.
and any additional information about his or her current
circumstances, such as how long ago the offense occurred, whether
he or she completed the sentence for the offense, other evidence of
rehabilitation, testimonials, employment history, and employment
aspirations as evidence in the determination of an individual's
good moral character under subsection (2).
(4) (3)
If a judgment of guilt in a
criminal proceeding or a
judgment
in a civil action criminal
conviction is used under
subsection
(1) (2) as evidence of an individual's lack of good
moral character, the licensing board or agency shall notify the
individual and he or she is permitted to rebut the evidence by
showing that at the current time he or she has the ability to, and
is likely to, serve the public in a fair, honest, and open manner,
that
he or she is rehabilitated, or that the substance of the
former
offense is not reasonably related to the occupation or
profession
for which he or she is seeking a license.the criteria
under subsection (2) have not been met.
Sec.
3. (1) The following criminal records shall not be used,
examined,
or requested by a A licensing board or agency shall not
use, examine, or request any of the following criminal records in
making
a determination of good moral character
when used for use as
a requirement to establish or operate an organization or facility
regulated
by this state , or pursuant
to for purposes of
occupational or professional licensure:
(a) Records of an arrest that is not followed by a conviction.
(b)
Records of a conviction which that
has been reversed or
vacated, including the arrest records relevant to that conviction.
(c) Records of an arrest or conviction for a misdemeanor or a
felony
unrelated to the person's individual's
likelihood to serve
the public in a fair, honest, and open manner.
(d) Records of an arrest or conviction for a misdemeanor for
the
conviction of which a person an
individual may not be
incarcerated in a jail or prison.
(2) A criminal record shall not be furnished to a licensing
board or agency except by the principal department, and shall be
furnished
only after the director of the principal department or a
person
an individual designated by the director has determined that
the information to be provided to the board or agency meets the
criteria set forth in this section.
(3)
The director or a person an
individual designated by the
director of the principal department shall promulgate rules for
each licensing board or agency under that department's jurisdiction
which
that prescribe the offenses or categories of offenses which
that
the department considers indicate a
person an individual is
not likely to serve the public as a licensee or registrant in a
fair, honest, and open manner. Each licensing board or agency may
make
recommendations to the director regarding the rules to be
promulgated.
described in this subsection.
The rules shall must be
consistent
with this act and promulgated pursuant to Act No. 306 of
the
Public Acts of 1969, as amended, being sections 24.201 to
24.315
of the Michigan Compiled Laws. Prior to under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. Before the promulgation of the rules pertaining to a board
or
agency, all felonies shall be considered by the a board
or
agency shall consider all felonies to be relevant to the ability or
likelihood
the person that an
individual will serve the public in a
fair, honest, and open manner.
Sec.
4. This act shall not bar does
not prohibit the use by a
licensing
board or agency in its determination of a person's
fitness,
an individual's good moral
character of any other public
record , that is not
related to his or her arrest, or prosecution,
or conviction or the use of any other source of unbiased and
accurate information.
Sec.
5. When a person is found to be unqualified If a
licensing board or agency determines that an individual is not
eligible for a license because of a lack of good moral character,
or
similar criteria, the person
shall be furnished by the board or
agency shall provide the individual with a statement to this
effect. The statement shall contain a complete record of the
evidence
upon on which the determination was based. The person
shall
be entitled, as of right, to A
licensing board or agency must
provide an individual described in this subsection an opportunity
for a rehearing on the issue before the board or agency if he or
she
has relevant evidence not previously considered, regarding his
or her qualifications that was not previously considered.
Sec.
6. A person, An individual
who is aggrieved by a
licensing
board or agency or board determination regarding the
person's
possession of his or her good moral character, if
unsatisfied
by his or her administrative appeal as provided in
remedy under section 5, may bring an action in circuit court for a
review of the record. If, in the opinion of the circuit court, the
record
does not disclose a lack of good moral character, as defined
in
determined under this act, the court shall so state and shall
order
the board or agency to issue the license , when the
individual
meets all other licensing requirements. are
complied
with.
Sec. 7. This act does not affect the power of a licensing
board or agency to discipline licensees under its jurisdiction for
prohibited acts of professional misconduct or dishonesty.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.