Indiana enacts progressive new licensing law

The race is on in 2018 to see which State can enact the most progressive new laws on restoration of rights.  As in the past, Indiana is at the forefront of reform.  On March 21, Governor Eric Holcomb signed into law HB 1245, which appears to be the most progressive and comprehensive scheme for regulation of occupational and professional licensure in the country.  It applies not only to state licensing agencies, but also to units of county and municipal government that issue licenses, and requires that state agencies work with them to eliminate redundant and overlapping rules.  Agencies must report to the legislature respecting their implementation of the new law by November 1, 2018.

Effective July 1, 2018, Indiana State licensing boards and commissions are required to “explicitly list” all disqualifying convictions in their licensing requirements, each one of which must “specifically and directly” relate to the duties and responsibilities of the occupation or profession.  See Ind. Code § 25-1-1.1-6(d), (e).  Licensing authorities may not “use nonspecific terms, such as moral turpitude or good character, as a licensing or certification requirement” and may not “consider an arrest that does not result in a conviction.” § 25-1-1.1-6(d).  If an applicant has a disqualifying criminal history, the board, commission, or committee shall consider the following in determining whether to deny a license to the applicant, based on a “clear and convincing showing”:

(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.

(4) Evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation.§ 25-1-1.1-6(f).

§ 25-1-1.1-6(f).

The disqualification period for convictions listed by the agency as disqualifying is limited to five years, as long as the applicant has kept a clean record during the disqualification period and the conviction was not a violent crime or criminal sexual act. § 25-1-1.1-6(g).  Note, however, that crimes involving sexual conduct and violence are not exempted from the new law entirely, only from the disqualification period’s 5-year limitation.

It is not entirely clear how drug convictions, which are made absolutely disqualifying by older provisions of the law, should be treated under the new law.  However, a reasonable harmonization of the two laws would apply to drug crimes the same criteria for deciding to disqualify in (f) and the 5-year period of disqualification in (g).

Under the new authority, persons with a felony or misdemeanor conviction may seek an advisory opinion from the licensing agency as to whether their convictions would be disqualifying.  The agency may charge a fee for this review that does not exceed $25.  § 25-1-1.1-6(h), (j).

If a person is denied a license in whole or in part based on their conviction, the agency must make “written findings” for each of the mitigating factors set forth in § 25-1-1.1-6(f), “by clear and convincing evidence sufficient for review by a court.”  § 25-1-1.1-6(i).  Further, “[i]n an administrative hearing or civil action reviewing the denial of a license, a board, commission, or committee has the burden of proof on the question of whether the individual’s criminal history directly relates to the occupation for which the license is sought.”  Id. 

Local government licensing:  Essentially identical requirements are extended to professional and occupational licensing by units of county and municipal governments.  Ind. Code § 36-1-26.  Each state licensing agency is required to consult with the small business ombudsman, the office of management and budget, and representatives of units of local government that issue licenses to develop and submit to the legislature by November 1, 2018, a report concerning “proposed policies and parameters” for the licensing of occupations and professions by local units in order to reduce or eliminate redundant licensing by the state and multiple local units.  Ind. Code § 25-1-16-16.

Other Indiana restoration authorities:

A recent post on Indiana’s comprehensive expungement law is worth a look, to get a fuller picture of how that state is dealing with the problem of criminal records:  Expungement in Indiana – A radical experiment and how it is working so far (December 17, 2017).


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