NH limits denial of licenses based on criminal record
On July 2, 2018, New Hampshire’s Governor Sununu signed into law SB 589, making his state the 10th so far in 2018 to approve comprehensive limits on consideration of criminal record in occupational and professional licensing. Like enactments earlier this year in Indiana, Kansas, Tennessee, and Wisconsin, New Hampshire’s new law is intended to ensure that people with the requisite professional qualifications will not be unfairly denied a license based on their record of arrest or conviction. In this respect, it reflects the provisions of the Institute for Justice’s model occupational licensing act.
New Hampshire’s new law, which goes into effect on August 31, authorizes individuals to seek a preliminary determination as to whether their criminal record will be disqualifying, and allows disqualification only based on a demonstrated public safety concern arising from the facts and circumstances of an individual’s situation. It requires a board to give reasons for denial in writing, to explain what remedial measures an individual may take to address the board’s concerns, and limits the amount of the fee the board may charge to render its determination. Finally, it requires each board to report annually on the number of licenses granted and denied to people with a criminal record. The provisions of the new law are explained in further detail below.
The law, which goes into effect on August 31, adds a new section § 332-G:13 to the New Hampshire Code titled “Petition for Review of a Criminal Record,” whose premise is that “the right of an individual to pursue an occupation is a fundamental right.” It provides that an individual with a criminal record “may petition a board or commission at any time, including before obtaining any required education or training, for a determination of whether the individual’s criminal record will disqualify the individual from obtaining state recognition.” The petition “may include additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.”
Standards for disqualification: The new law, which is effective August 31, 2018, provides that an individual may be disqualified from licensure based on criminal record (“notwithstanding any other statute or rule”) only if the person has been convicted of a felony or violent misdemeanor, and only if the licensing board concludes that “the state has an important interest in protecting public safety that is superior to the individual’s right” to be licensed. In turn, the board may reach this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that:
(1) The specific offense for which the individual was convicted is substantially related to the state’s interest;
(2) The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances . . . , is more likely to re-offend by virtue of having the license than if the individual did not have the license; and
(3) A re-offense will cause greater harm than it would if the individual did not have the license.
Procedure for determination and appeal: The board shall issue its determination within 90 days after the board or commission receives the petition. The determination shall be in writing and include the criminal record, findings of fact, and conclusions of law. If the board determines that the state’s interest is superior to the individual’s right, the board may may advise the individual of actions the individual may take to remedy the disqualification. The individual may submit a revised petition reflecting the completion of the remedies at any time after 90 days following the board’s judgment.
In the event of a negative determination, the individual may appeal the board’s determination through the administrative procedure act. The individual may submit a new petition to the board or commission at any time after 2 years following a final judgment on the initial petition. The board may rescind its determination at any time if the individual is convicted of an additional offense that the board determines meets the criteria for initial disqualification. The board may charge a fee to recoup its costs not to exceed $100 for each petition.
Annual reporting requirement: The state office of professional licensure and certification shall establish an annual reporting requirement of the (a) number of applicants petitioning each board (or commission), (b) the numbers of each board’s approvals and denials, (c) the type of offenses for which each board approved or denied the petitions, and (d) other data the office determines. The office will compile and publish annually a report on a searchable public website.
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