SB 493 — Relating to use of criminal records as disqualification from authorization to practice particular profession

Provided, That the commissioner shall apply §17A-6- 6(c) and §17A-6-6(d) of this code in determining subsections (c) and (d) of this section to 3 CS for SB 493 determine whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought;

(6) So far as can be ascertained, has not complied with, and will not comply with, the registration and title laws of this state or any other state or jurisdiction;

(7) Does not or will not have or maintain at each place of business, subject to the qualification contained in §17A-6-1(a)(17) of this code with respect to a new motor vehicle dealer (an established place of business as defined for the business in question) in that section;

(8) Has been convicted of any fraudulent act in connection with the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer, or wrecker or dismantler in this state or any other state or jurisdiction:

Provided, That the commissioner shall apply §17A-6-6(c) and §17A-6-6(d) of this code in determining subsections (c) and (d) of this section to determine whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license being sought;

(9) Has done any act or has failed or refused to perform any duty for which the license certificate sought could be suspended or revoked were it then issued and outstanding;

(10) Is not age 18 years or older;

(11) Is delinquent in the payment of any taxes owed to the United States, the state of West Virginia, or any political subdivision of the state;

(12) Has been denied a license in another state or has been the subject of license revocation or suspension in another state;

(13) Has committed any action in another state which, if it had been committed in this state, would be grounds for denial and refusal of the application for a license certificate;

(14) Has failed to pay any civil penalty assessed by this state or any other state;

(15) Has failed to reimburse, when ordered, any claim against the Dealer Recovery Fund as prescribed in §17A-6-2a of this code;

or 4 CS for SB 493 (16) Has failed to comply with the provisions of §17A-6E-1 et seq.

of this code pertaining to the employment of licensed salespersons.

Otherwise, the commissioner shall issue to the applicant the appropriate license certificate which entitles the licensee to engage in the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer, or wrecker or dismantler, as the case may be.

(b) A license certificate issued in accordance with the provisions of this article is not transferable.

(c) The commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the commissioner shall consider, at a minimum:

(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 profession or occupation;

and (4) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

(i) The age of the individual when he or she committed the offense;

(ii) The completion of the criminal sentence;

(iii) A certificate of rehabilitation or good conduct;

(iv) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;

5 CS for SB 493 (v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;

(vi) Education and training;

(vii) Employment history relevant to the license being sought;

(viii) Whether the individual will be bonded in the occupation;

and (ix) Other evidence of rehabilitation the individual submits to the commissioner.

(d) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the commissioner shall permit the applicant to apply for initial licensure if:

the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense;

and (3) The conviction was not for an offense of a violent or sexual nature:

Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.

(e) An individual with a criminal record who has not previously applied for licensure held a license under this section may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license.

This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

The commissioner shall provide the determination within 60 days of receiving the petition from the applicant.

The commissioner may charge a fee to recoup costs for each petition.

(f) Notwithstanding any other provision of this chapter to the contrary, an individual may not 6 CS for SB 493 be required to disclose, nor may the commissioner consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (e) of this section.

(g) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (e) of this section.

CHAPTER 19.

AGRICULTURE.

ARTICLE 2C.

AUCTIONEERS.

§19-2C-5b.

Background checks required.

(a) A person applying for a license pursuant to §19-2C-5, §19-2C-6, or §19-2C-6c of this code may be required to submit to a state and national criminal history record check.

The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.

(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(1) Submitting fingerprints for the purposes set forth in this subsection;

and (2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(c) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check;

or (3) Pursuant to a court order.

7 CS for SB 493 (d) The criminal history record check and related records are not public records for the purposes of chapter 29B of this code.

(e) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(f) The commissioner may not disqualify an applicant for initial licensure, certification, or registration because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the occupation requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

In determining whether a criminal conviction directly and specifically relates to a profession or occupation, the commissioner shall consider, at a minimum:

(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 profession or occupation;

and (4) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

(i) The age of the individual when he or she committed the offense;

(ii) The completion of the criminal sentence;

(iii) A certificate of rehabilitation or good conduct;

(iv) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;

(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;

(vi) Education and training;

(vii) Employment history relevant to the license being sought;

8 CS for SB 493 (viii) Whether the individual will be bonded in the occupation;

and (ix) Other evidence of rehabilitation the individual submits to the commissioner.

(g) The commissioner may not use crimes involving moral turpitude in making licensure, certification or registration determinations.

Because the terms “moral turpitude” and “good moral character” are vague and subject to inconsistent applications, the commissioner may not rely upon the description of a crime for which an applicant has been convicted as one of “moral turpitude” or the applicant lacking “good moral character” as a basis for denying licensure.

(h) If an applicant is disqualified for licensure, certification or registration because of a criminal conviction that has not been reversed, the commissioner shall afford the applicant the opportunity to reapply for licensure, certification or registration after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time:

Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the individual board or licensing authority.

Notwithstanding any other provision of this code to the contrary, the commissioner may not disqualify an applicant from licensure because of a prior criminal conviction if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense;

and (3) The conviction was not for an offense of a violent or sexual nature:

Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.

(i) An individual with a criminal record who has not previously applied for licensure held a license, certification, or registration under this section may petition the commissioner at any time for a determination of whether the individual’s criminal record will disqualify the individual from 9 CS for SB 493 obtaining a license or other authorization.

This petition shall include sufficient details about the individual’s criminal record to enable the commissioner to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

The commissioner shall inform the individual of his or her standing within 60 days of receiving the petition from the applicant.

The licensing authority may charge a fee to recoup its costs for each petition.

(j) Nothing in this section alters the standards and procedures the commissioner uses for evaluating licensure, certification, or registration renewals.

(k) The commissioner shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section pursuant to the provisions of §29A-3-1 et seq.

of this code.

within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

(l) The provisions of this section enacted during the 2019 Regular Session of the Legislature shall not apply to current licensees who maintain active licensure, but shall apply to individuals currently holding an apprentice auctioneer license who are applying for an auctioneer license, or to any current license holder whose license lapses and who is required to reapply.

(m) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (i) of this section.

(m) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (i) of this section.

ARTICLE 23.

HORSE AND DOG RACING.

§19-23-8.

Consideration of application for license or permit;

issuance or denial;

contents of license or permit;

grounds for denial of application;

determination of racing dates;

license or permit not transferable or assignable;

limitation on license;

validity of 10 CS for SB 493 permit.

(a) The Racing Commission shall promptly consider any application for a license or permit, as the case may be.

Based upon such application and all other information before it, the Racing Commission shall make and enter an order either approving or denying the application.

The application may be denied for any reason specified in subsection (b) of this section.

If an application for a license is approved, the Racing Commission shall issue a license to conduct a horse or dog race meeting and shall designate on the face of the license the kind or type of horse or dog racing for which the same license is issued, the racing association to which the same license is issued, the dates upon which the horse or dog race meeting is to be held or conducted (which may be any weekdays, or weeknights, including Sundays), the location of the horse or dog racetrack, place, or enclosure where the horse or dog race meeting is to be held or conducted, and other information as the Racing Commission shall consider considers proper.

If an application for a permit is approved, the Racing Commission shall issue a permit and shall designate on the face of the permit such information as the Racing Commission considers proper.

(b) The Racing Commission may deny the application and refuse to issue the license or permit, as the case may be, which denial and refusal is final and conclusive, unless a hearing is demanded in accordance with the provisions of §19-23-16 of this code, if the Racing Commission finds that the applicant individually, if an individual, or the partners or members, if a partnership, firm, or association, or the owners and directors, if a corporation:

(1) Has knowingly made false statement of a material fact in the application or has knowingly failed to disclose any information called for in the application;

(2) Is or has been guilty of any corrupt or fraudulent act, practice, or conduct in connection with a horse or dog race meeting in this or any other state;

(3) Has been convicted, within 10 years prior to the date of the application, of an offense which under the law of this state, of any other state, or of the United States of America shall constitute constitutes a felony:

Provided, That the Racing Commission shall apply §19-23-8(g) 11 CS for SB 493 and §19-23-8(h) of this code in determining whether an applicant’s prior criminal convictions bear a rational nexus directly and specifically relate to the license or permit being sought pursuant to subsection (g) of this section;

(4) Has failed to comply with the provisions of this article or any reasonable rules of the Racing Commission;

(5) Has had a license to hold or conduct a horse or dog race meeting or a permit to participate therein in the meeting denied for just cause, suspended, or revoked in any other state;

(6) Has defaulted in the payment of any obligation or debt due to this state under the provisions of this article;

(7) Is, if a corporation, neither incorporated under the laws of this state nor qualified to do business within this state;

(8) In the case of an application for a license, has failed to furnish bond or other adequate security, if the same is required by the Racing Commission under the provisions of §19-23-7 of this code;

(9) In the case of an application for a permit, is unqualified to perform the duties required for the permit sought;

or (10) In the case of an application for a permit, is, for just cause, determined to be undesirable to perform the duties required of the applicant.

(c) In issuing licenses and fixing dates for horse or dog race meetings at the various horse racetracks and dog racetracks in this state, the Racing Commission shall consider the horse racing circuits and dog racing circuits with which the horse racetracks and dog racetracks in this state are associated or contiguous to and shall also consider dates which are calculated to increase the tax revenues accruing from horse racing and dog racing.

(d) A license issued under the provisions of this article is neither transferable nor assignable to any other racing association and may not permit the holding or conducting of a horse or dog race meeting at any horse or dog racetrack, place, or enclosure not specified thereon.

12 CS for SB 493 However, if the specified horse or dog racetrack, place, or enclosure becomes unsuitable for the horse or dog race meeting because of flood, fire, or other catastrophe, or cannot be used for any reason, the Racing Commission may, upon application, authorize the horse or dog race meeting, or any remaining portion thereof, to be conducted at any other racetrack, place, or enclosure available for that purpose, provided that the owner of the racetrack, place, or enclosure willingly consents to the use.

(e) No type of horse racing or dog racing shall be conducted by a licensee at any race meeting other than that type for which a license was issued.

(f) Each permit issued under the provisions of this section shall be for a period of one year, unless approved otherwise by the commission.

Effective January 1, 2012, each permit shall be renewed according to the following schedule:

Permits issued to persons whose date of birth is January 1 through and including April 30 shall be renewed no later than April 30 of each year;

permits issued to persons whose date of birth is May 1 through and including August 31 shall be renewed no later than August 31 of each year;

and permits issued to persons whose date of birth is September 1 through and including December 31 shall be renewed no later than December 31 of each year.

Each permit shall be valid at all horse or dog race meetings during the period for which it was issued unless it be sooner suspended or revoked in accordance with the provisions of this article.

A permit issued under the provisions of this article is neither transferable nor assignable to any other person.

(g) The Racing Commission may not disqualify an applicant from an initial license or permit because of a prior criminal conviction that remains unreversed, unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the activity requiring a license or permit such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the Racing Commission shall consider at a minimum:

13 CS for SB 493 (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 profession or occupation;

and (4) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

(i) The age of the individual when he or she committed the offense;

(ii) The completion of the criminal sentence;

(iii) A certificate of rehabilitation or good conduct;

(iv) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;

(v) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;

(vi) Education and training;

(vii) Employment history relevant to the license being sought;

(viii) Whether the applicant will be bonded in the occupation;

and (ix) Other evidence of rehabilitation the applicant submits to the commissioner.

(h) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from a license or permit because of a prior criminal conviction, the commissioner shall permit the applicant to apply for an initial license or permit if:

the commissioner may not disqualify an applicant from initial licensure because of a prior criminal conviction if:

(1) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(2) The individual has not been convicted of any other crime during the period of time following the disqualifying offense;

and (3) The conviction was not for an offense of a violent or sexual nature:

Provided, That a 14 CS for SB 493 conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the commissioner.

(i) An individual with a criminal record who has not previously applied for held a license or permit under this section may petition the Racing Commission at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or permit.

This petition shall include sufficient details about the individual’s criminal record to enable the Racing Commission to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

The Racing Commission shall provide the determination within 60 days of receiving the petition from the applicant.

The Racing Commission may charge a fee to recoup its costs for each petition.

(j) The Racing Commission may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq.

of this code which establish the criteria for the approval or denial of a license or permit.

(k) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the Racing Commission consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subsection (i) of this section.

(l) The Racing Commission shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (i) of this section.

CHAPTER 21.

LABOR ARTICLE 1.

(a) The commissioner may not disqualify an applicant from initial licensure, as required in 15this CSchapter, except for SB§21-5-5c 493of this chapter,code, because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

In determining whether a criminal conviction bears a rational nexus adirectly professionand orspecifically occupationrelates makingto itsa determination,profession or occupation, the commissioner shall consider, at a minimum:

(i)(A) The age of the individual when he or she committed the offense;

(ii)(B) The completion of the criminal sentence;

(iii)(C) A certificate of rehabilitation or good conduct;

(iv)(D) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;

(v)(E) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;

(vi)CS for CS for SB 493 (F) Education and training;

(vii)(G) Employment history relevant to the license being sought;

(viii)(H) Whether the individual will be bonded in the occupation;

and (ix)(I) Other evidence of rehabilitation the individual submits to the commissioner.

the commissioner may not disqualify an applicant from 16 CS for SB 493 initial licensure because of a prior criminal conviction if:

(d) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the commission consider, an arrest not followed by a CS for CS for SB 493 conviction in an application for initial licensure or a determination under subsection (c) of this section.

(e) The commissioner shall update his or her licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subsection (c) of this section.

ARTICLE 5.

WAGE PAYMENT AND COLLECTION.

§21-5-5c.

License required for psychophysiological detection of deception examiners;

qualifications;

promulgation of rules governing administration of 17 CS for SB 493 psychophysiological detection of deception examinations.

(a) No person, firm, or corporation shall administer a psychophysiological detection of deception examination, lie detector, or other similar examination utilizing mechanical or electronic measures of physiological reactions to evaluate truthfulness without holding a current valid license to do so as issued by the Commissioner of Labor.

No examination shall be administered by a licensed corporation except by an officer or employee thereof who is also licensed.

(b) A person is qualified to receive a license as an examiner if he or she:

(1) Is at least 21 years of age;

(2) Is a citizen of the United States;

(3) Has not been convicted of a felony:

Provided, That the commissioner shall apply §21-1- 6 of this code to determine if whether the prior criminal conviction bears a rational nexus directly and specifically relates to the license being sought;

(4) Has not been released or discharged with other than honorable conditions from any of the armed services of the United States or that of any other nation;

(5) Has passed an examination conducted by the Commissioner of Labor or under his or her supervision to determine his or her competency to obtain a license to practice as an examiner;

(6) Has satisfactorily completed not less than six months of internship training;

and (7) Has met any other qualifications of education or training established by the Commissioner of Labor in his or her sole discretion which qualifications are to be at least as stringent as those recommended by the American Polygraph Association.

(c) The Commissioner of Labor may designate and administer any test he or she considers appropriate to those persons applying for a license to administer psychophysiological detection of deception, lie detector, or similar examination.

The test shall be designed to ensure that the applicant is thoroughly familiar with the code of ethics of the American Polygraph Association and has been trained in accordance with association rules.

The test must also include a rigorous examination of the applicant’s knowledge of and familiarity with all aspects of operating CS for SB 493 psychophysiological detection of deception equipment and administering psychophysiological detection of deception examinations.

(d) The license to administer psychophysiological detection of deception, lie detector, or similar examinations to any person shall be issued for a period of one year.

It may be reissued from year to year.

The licenses to be issued are:

(1) “Class I license” which authorizes an individual to administer psychophysiological detection of deception examinations for all purposes which are permissible under the provisions of this article and other applicable laws and rules.

(2) “Class II license” which authorizes an individual who is a full-time employee of a law- enforcement agency to administer psychophysiological detection of deception examinations to its employees or prospective employees only.

(e) The Commissioner of Labor shall charge an annual fee to be established by legislative rule.

All fees paid pursuant to this section shall be paid to the Commissioner of Labor and deposited in an appropriated special revenue account hereby created in the State Treasury to be known as the Psychophysiological Examiners Fund and expended for the implementation and enforcement of this section.

Through June 30, 2019, amounts collected which are found from time to time to exceed funds needed for the purposes set forth in this section may be utilized by the commissioner as needed to meet the division’s funding obligations:

Provided, That beginning July 1, 2019, amounts collected may not be utilized by the commissioner as needed to meet the division’s funding obligations.

In addition to any other information required, an application for a license shall include the applicant’s Social Security number.

(f) The Commissioner of Labor shall propose rules for legislative approval in accordance with §29A-3-1 et seq.

of this code governing the administration of psychophysiological detection of deception, lie detector, or similar examination to any person:

Provided, That all applicable rules in effect on the effective date of §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of this code will remain in effect until amended, withdrawn, revoked, repealed, or replaced.

The legislative rules shall CS for SB 493 include:

(1) The type and amount of training or schooling necessary for a person before which he or she may be licensed to administer or interpret a psychophysiological detection of deception, lie detector, or similar examination;

(2) Testing requirements, including the designation of the test to be administered to persons applying for licensure;

(3) Standards of accuracy which shall be met by machines or other devices to be used in psychophysiological detection of deception, lie detector, or similar examination;

(4) The conditions under which a psychophysiological detection of deception, lie detector, or similar examination may be administered;

(5) Fees for licenses, renewals of licenses, and other services provided by the commissioner;

(6) Any other qualifications or requirements, including continuing education, established by the commissioner for the issuance or renewal of licenses;

and (7) Any other purpose to carry out the requirements of §21-5-5a, §21-5-5b, §21-5-5c, and §21-5-5d of this code.

(1) The license was granted upon an application or documents supporting the application CS for SB 493 which materially misstatedmis-stated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatementmis-statement in his or her application for licensure;

(a) The Commissioner of Labor may deny a license to any applicant who fails to comply with the provisions of this article or the rules established by the Commissioner of Labor, or who CS for CS for SB 493 lacks the necessary qualifications:

(1) The license was granted upon an application or documents supporting the application which materially misstatedmis-stated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatementmis-statement in his or her application for licensure;

CS for SB 493 CHAPTER 29.

When considering whether an applicant possess the qualifications for the class of license, the State Fire Marshal CS for CS for SB 493 shall consider whether an applicant’s prior criminal convictions bear a rational nexus on directly and specifically relate to the license being sought.

and 22 CS for SB 493 (D) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

CS for CS for SB 493 (2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, the State Fire Marshal shall permit the applicant to apply for initial licensure if:

(3) An individual with a criminal record who has not previously applied for licensure held a 23 CS for SB 493 license under this section may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license.

CS for CS for SB 493 (e) In addition to any other information required, the applicant’s social security number shall be recorded on any application for a license submitted pursuant to the provisions of this section.

(f) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3),(b)(3) subsection (b) of this section.

(g) The State Fire Marshal shall update hisits or her licensure forms, other relevant public-public-facing facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (b)(3) of this section.

24 CS for SB 493 §29-3C-4.

CS for CS for SB 493 (1) The State Fire Marshal may not disqualify an applicant from initial certification because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the activity requiring certification such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

and 25 CS for SB 493 (D) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

(2) Notwithstanding any other provision of this code to the contrary, if an applicant is disqualified from certification because of a prior criminal conviction, the State Fire Marshal shall CS for CS for SB 493 permit the applicant to apply for initial certification if:

(3) An individual with a criminal record who has not previously applied for held a 26 CS for SB 493 certification under this section may petition the State Fire Marshal at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a certification.

(d) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3),(c)(3) subsection (c) of this section.

(e) The State Fire Marshal shall update hisits or her licensure forms, other relevant public-public-facing facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (3),(c)(3) subsection (c) of this section.

Denial, suspensionsuspension, and revocation of license.

When CS for CS for SB 493 considering whether an applicant possesses the qualifications for a license, the State Fire Marshal shall consider whether an applicant’s prior criminal convictions bear a rational nexus on directly and specifically relatesrelate to the license being sought.

In determining whether a 27 CS for SB 493 criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the State Fire Marshal shall consider, at a minimum:

and CS for CS for SB 493 (ix) Other evidence of rehabilitation the individual submits to the State Fire Marshal.

(B) The individual has not been convicted of any other crime during the period of time CS for SB 493 following the disqualifying offense;

(1) The license was granted upon an application or documents supporting the application which materially misstatedmis-stated the terms of the applicant’s qualifications or experience;

(2) The licensee subscribed or vouched for a material misstatementmis-statement in his or her application for licensure;

CS for CS for SB 493 (c) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may the State Fire Marshal consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (3),(a)(3) subsection (a) of this section.

(d) The State Fire Marshal shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (3),(a)(3) subsection (a) of this section.

CHAPTER13 30.

PROFESSIONS AND OCCUPATIONS.

CS for SB 493 ARTICLE 1.

GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.

§30-1-24.

Use of criminal records as disqualification from authorization to practice.

(a) Definitions.

— For the purposes of this section:

(1) “Board” means the board, authority, or other agency authorized by the provisions of this chapter to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.

(2) “License” or “licensure” means the official authorization to engage in a profession or occupation issued by a board, pursuant to the requirements of this chapter.

(3) “Unreversed”, as that term refers to a criminal conviction, means that a conviction has not been set aside, vacated, pardoned, or expunged.

(b) Notwithstanding any provision of this chapter to the contrary, except for the professions and occupations regulated by §30-2-1 et seq., §30-3-1 et seq., §30-3E-1 et seq., §30-14-1 et seq., §30-18-1 et seq., and §30-29-1 et seq.

of this code, and where not in conflict with an existing compact or model act:

(1) Boards subject to the requirements of this section may not disqualify an applicant from initial licensure to engage in a profession or occupation because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the duties and responsibilities of the profession or occupation requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.

In determining whether a criminal conviction bears a rational nexus directly and specifically relates to a profession or occupation, the board shall consider, at a minimum:

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

(B) The passage of time since the commission of the crime;

CS for SB 493 (C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation;

and (D) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

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

(ii) The passage of time since the commission of the crime;

(iii) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation;

and (iv) Any evidence of rehabilitation or treatment undertaken by the individual, including the following, if applicable:

(I) The age of the individual when he or she committed the offense;

(II) The completion of the criminal sentence;

(III) A certificate of rehabilitation or good conduct;

(IV) Completion of, or active participation in, rehabilitative mental health, drug, or alcohol treatment;

(V) Testimonials and recommendations, which may include a progress report from the individual’s probation or parole officer;

(VI) Education and training;

(VII) Employment history relevant to the license being sought;

(VIII) Whether the individual will be bonded in the occupation;

and (IX) Other evidence of rehabilitation the individual submits to the board.

(2) Because the term terms “moral turpitude” and “good moral character” is are vague and subject to inconsistent applications, boards subject to the requirements of this section may not rely upon the description of a crime for which an applicant has been convicted as one of “moral turpitude” or the applicant lacking “good moral character” as a basis for denying licensure.

Provided, That if the prior conviction for the underlying crime bears a rational nexus to the CS for SB 493 profession or occupation requiring licensure, the board may consider the conviction according to the requirements of subdivision (1) of this subsection.

(3) Notwithstanding any other provision of this chapter to the contrary, if an applicant is disqualified from licensure because of a prior criminal conviction, a board shall permit the applicant to apply for initial licensure if:

a board may not disqualify an applicant from initial licensure because of a prior criminal conviction if:

(A) A period of five years has elapsed from the date of conviction or the date of release from incarceration, whichever is later;

(B) The individual has not been convicted of any other crime during the period of time following the disqualifying offense;

and (C) The conviction was not for an offense of a violent or sexual nature:

Provided, That a conviction for an offense of a violent or sexual nature may subject an individual to a longer period of disqualification from licensure, to be determined by the individual board.

(4) An individual with a criminal record who has not previously applied for licensure held a license under this section may petition the appropriate board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license.

This petition shall include sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

The board shall provide the determination within 60 days of receiving the petition from the applicant.

The board may charge a fee to recoup its costs for each petition.

(5) The requirements of this section do not apply to the criteria that boards may consider when making determinations regarding relicensure or discipline of licensees or reinstatement of a license following discipline.

(c) Every board subject to the provisions of this section shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section.

These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq.

of this code.

CS for SB 493 within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

(d) Notwithstanding any other provision of this chapter to the contrary, an individual may not be required to disclose, nor may a board consider, an arrest not followed by a conviction in an application for initial licensure or a determination under subdivision (b)(4) of this section.

(e) Every board subject to the provisions of this section shall update its licensure forms, other relevant public-facing documents, and website to explain the requirements of this section, including, but not limited to, the availability of the process set forth in subdivision (b)(4) of this section.

ARTICLE 5.

PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.

§30-5-9.

Qualifications for licensure as pharmacist;

(a) To be eligible for a license to practice pharmacist care under the provisions of this article, the applicant shall:

(1) Submit a written application to the board;

(2) Be 18 years of age or older;

(3) Pay all applicable fees;

(4) Graduate from an accredited school of pharmacy;

(5) Complete at least 1,500 hours of internship in a pharmacy under the instruction and supervision of a pharmacist;

(6) Pass an examination or examinations approved by the board;

(7) Not be an alcohol or drug abuser, as these terms are defined in §27-1A-11 of this code:

Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;

CS for SB 493 (8) Present to the board satisfactory evidence that he or she is a person of good moral character, has not Not have been convicted of a felony involving the sale or distribution of controlled substances;

(9) Not have been convicted in any jurisdiction of any other felony or crime which bears a rational nexus directly and specifically relates to the individual's ability to practice pharmacist care pursuant to §30-1-24 of this code:

Provided, That an applicant with a felony conviction other than the felony conviction specified in subdivision eight of this section may apply to the board for licensure no sooner than five years after the date of the conviction.

The board shall evaluate each applicant on a case by case basis;

and (10) Have fulfilled any other requirement specified by the board in rule.

(b) An applicant from another jurisdiction shall comply with all the requirements of this article.

§30-5-11a.

Pharmacy technician trainee qualifications.

(a) To be eligible for registration as a pharmacy technician trainee to assist in the practice of pharmacist care, the applicant shall:

(1) Submit a written application to the board;

(2) Pay the applicable fees;

(3) (A) Have graduated from a high school or obtained a Certificate of General Educational Development (GED), or (B) Be currently enrolled in a high school competency based pharmacy technician education and training program;

(4) (A) Be currently enrolled in a competency-based pharmacy technician education and training program of a learning institution or training center approved by the board;

or (B) Be an employee of a pharmacy in an on-the-job competency-based pharmacy technician training program.

(5) Not be an alcohol or drug abuser as these terms are defined in §27-1A-11of this code:

CS for SB 493 Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a 12-step program or other similar group or process, may be considered;

(6) Not have been convicted of a felony in any jurisdiction within 10 years preceding the date of application for registration, which conviction remains unreversed;

(7) Not have been convicted of a misdemeanor or felony in any jurisdiction which bears a rational nexus directly and specifically relates to the practice of pharmacist care, which conviction remains unreversed pursuant to §30-1-24 of this code;

and (8) Have requested and submitted to the board the results of a fingerprint-based state and a national electronic criminal history records check.

(b) The rules, authorized duties, and unauthorized prohibitions as set out in §30-5-12 of this code for pharmacy technicians apply to pharmacy technician trainees.

(c) The board shall promulgate an emergency rule and legislative rule pursuant article two, chapter twenty-nine-a to §29A-3-1 et seq.

of this code to authorize the requirements of this section to permit pharmacy technician trainees.

ARTICLE 6.

BOARD OF FUNERAL SERVICE EXAMINERS.

§30-6-8.

Embalmer license requirements.

The board shall issue a license to practice embalming to an applicant who:

(a) Is free of a felony conviction bearing a rational nexus which directly and specifically relates to the profession pursuant to §30-1-24 of this code;

(b) Is 18 years of age or over;

(c) Is a citizen of the United States or is eligible for employment in the United States;

(d) Has a high school diploma or its equivalent;

(e) Has completed one of the following education requirements, as evidenced by a transcript submitted to the board for evaluation:

(1)(A) Has an associate degree from an accredited college or university;

or CS for SB 493 (B) Has successfully completed at least 60 semester hours or 90 quarter hours of academic work in an accredited college or university toward a baccalaureate degree with a declared major field of study;

and (2) (A) Has graduated from a school of mortuary science, accredited by the American Board of Funeral Service Education, Inc., which requires as a prerequisite to graduation the completion of a course of study of not less than 12 months;

or (B) Has a bachelor degree in mortuary science from an accredited college or university;

(f) Has completed a one-year apprenticeship, under the supervision of a licensed embalmer and funeral director actively and lawfully engaged in the practice of embalming and funeral directing in this state, which apprenticeship consisted of:

(1) Diligent attention to the work in the course of regular and steady employment and not as a side issue to another employment;

and (2) The apprentice taking an active part in:

(A) The operation of embalming not less than 35 dead human bodies;

and (B) Conducting not less than 35 funeral services;

(g) Passes, with an average score of not less than 75 percent, the following examinations:

(1) The International Conference of Funeral Service Examining Boards examination at a testing site provided by the national conference, which passage is a condition precedent to taking the state law examination;

(2) The West Virginia Laws, Rules, and Regulations Examination, administered by the International Conference of Funeral Service Examining Boards;

and (3) Any other examination required by the board;

and (h) Has paid all the appropriate fees.

A license to practice embalming issued by the board prior to July 1, 2012, shall for all purposes be considered a license issued under this section:

Provided, That a person holding a license issued prior to July 1, 2012, must renew the license pursuant to the provisions of this CS for SB 493 article.

§30-6-17.

Apprenticeship.

(a) After July 1, 2022, the board shall issue a registration to be an apprentice funeral service licensee to an applicant who meets the following requirements:

(1) Is free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;

(2) Is 18 years of age or over;

(3) Is a citizen of the United States or be eligible for employment in the United States;

(4) Has a high school diploma or its equivalent;

(5) The required 60 semester hours or 90 quarter hours of college or university credits and mortuary school can be completed prior to, during, or after the apprenticeship;

and (6) Has paid the appropriate fees.

(b) Any person that commences an apprenticeship prior to January 1, 2003, may continue to serve such apprenticeship and is not subject to the requirements set forth in this section, but is subject to board approval.

(c) The board may set the requirements for an apprenticeship, including the manner in which it shall be served and the length of time, which shall not be more than one year for a funeral service licensee and shall not be more than two years for a funeral director.

(d) No licensed funeral director or licensed embalmer shall be permitted to register or have registered more than five apprentices under his or her license at the same time.

ARTICLE 20.

PHYSICAL THERAPISTS.

§30-20-8a.

West Virginia Board of Physical Therapy criminal history record checks.

(a) The West Virginia Board of Physical Therapy is authorized to require state and national criminal history record checks for the purpose of issuing licenses.

The West Virginia Board of Physical Therapy shall require an applicant, including physical therapists and physical therapy CS for SB 493 assistants, as a condition of eligibility for initial license to submit to a state and national criminal history record check as set forth in this section.

(b) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:

(1) Submitting fingerprints for the purposes set forth in this subsection;

and (2) Authorizing the board, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.

(c) The results of the state and national criminal history record check may not be released to or by a private entity except:

(1) To the individual who is the subject of the criminal history record check;

(2) With the written authorization of the individual who is the subject of the criminal history record check;

or (3) Pursuant to a court order.

(d) The criminal history record check and related records are not public records for the purposes of §29B-1-1 et seq.

of this code.

(e) The applicant shall ensure that the criminal history record check is completed as soon as possible after the date of the original application for registration.

(f) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.

(g) The board may not disqualify an applicant for initial licensure because of a prior criminal conviction that has not been reversed unless that conviction is for a crime that bears a rational nexus directly and specifically relates to the occupation requiring licensure pursuant to §30-1-24 of this code.

(h) The board may not use crimes involving moral turpitude in making licensure determinations.

CS for SB 493 (i) If an applicant is disqualified for licensure because of a criminal conviction that has not been reversed, the board shall afford the applicant the opportunity to reapply for licensure after the expiration of five years from the date of conviction or date of release from the penalty that was imposed, whichever is later, if the individual has not been convicted of any other crime during that period of time:

Provided, That convictions for violent or sexual offenses or offenses shall subject an individual to a longer period of disqualification, to be determined by the board.

(j) An individual with a criminal record who has not previously applied for licensure, certification, or registration may petition the board at any time for a determination of whether the individual’s criminal record will disqualify the individual from obtaining a license or other authorization to practice.

This petition shall include sufficient details about the individual’s criminal record to enable the board to identify the jurisdiction where the conviction occurred, the date of the conviction, and the specific nature of the conviction.

The board shall inform the individual of his or her standing within 60 days of receiving the petition from the applicant.

The board may charge a fee established by rule to recoup its costs for each petition.

(k) The board shall propose rules or amendments to existing rules for legislative approval to comply with the provisions of this section.

These rules or amendments to rules shall be proposed pursuant to the provisions of §29A-3-1 et seq.

of this code.

within the applicable time limit to be considered by the Legislature during its regular session in the year 2020.

ARTICLE 32.

SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS.

§30-32-10a.

Application for licensure;

qualification for licensure;

examination.

(a) Each person desiring to obtain a license from the board to engage in the practice of dealing in or fitting of hearing aids shall make application to the board.

The application shall be made in such manner and form as prescribed by the board and shall be accompanied by the prescribed fee.

The application shall state under oath that the applicant:

(1) Is a resident of this state;

CS for SB 493 (2) Is free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;

(3) Is 18 years of age or older;

(4) Has an education equivalent to a four-year course in an accredited high school;

and (5) Is free of chronic infectious or contagious diseases.

(b) The board, after first determining that the applicant is qualified and eligible to take the examination, shall notify the applicant that he or she has fulfilled all of the qualifications and eligibility requirements as required and shall advise him or her of the date, time, and place for him or her to appear to be examined as required by the provisions of this article and the regulations promulgated by the board pursuant to this article.

The board may promulgate rules relating to the frequency of examinations and other such related topics pursuant to §29A-3-1 of this code.

(c) Before obtaining a license to engage in the practice of dealing in or fitting of hearing- aids, an applicant must meet the following requirements:

(1) The applicant must pass the International Licensing Examination for Hearing Healthcare Professionals, prepared by the International Hearing Society, or an equivalent examination selected by the board.

(2) The applicant must pass a practical examination, which shall be a nationally recognized test selected by the board, or a test designed by the board to test the applicant’s proficiency in the following techniques as they pertain to the fitting of hearing aids:

(A) Pure tone audiometry, including air conduction testing;

(B) Live voice or recorded voice speech audiometry, including speech reception threshold testing and speech discrimination testing;

and (C) Masking when indicated and effective masking.

(3) The applicant must pass an examination, which shall be developed by the board, to test an applicant’s competency in the following subjects:

(A) Ability to counsel the person or family who will receive the hearing aid relative to the CS for SB 493 care and use of the instrument;

(B) Knowledge regarding the medical and rehabilitative facilities for hearing-handicapped children and adults in the area being served;

(C) Knowledge and understanding of the grounds for revocation, suspension, or probation of a license as outlined in this article or in rule;

and (D) Knowledge and understanding of criminal offenses relating to the profession.

(d) The board may promulgate rules to implement the requirements of this section, including emergency rules promulgated pursuant to the provisions of §29A-3-1 of this code.

(e) The provisions of this section will take effect upon the sunset or termination of the Board of Hearing Aid Dealers and Fitters, which in no event will be later than July 1, 2023.

ARTICLE 36.

ACUPUNCTURISTS.

§30-36-10.

Qualifications of applicants for licensure;

and qualifications for certificate holders.

(a) To qualify for a license, an applicant shall:

(1) Be free of a felony conviction bearing a rational nexus that directly and specifically relates to the profession pursuant to §30-1-24 of this code;

(2) Be at least 18 years of age;

(3) Demonstrate competence in performing acupuncture by meeting one of the following standards for education, training, or demonstrated experience:

(A) Graduation from a course of training of at least 1,800 hours, including 300 clinical hours, that is:

(i) Approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine;

or (ii) Found by the board to be equivalent to a course approved by the national accreditation commission for schools and colleges of acupuncture and oriental medicine;

(B) Achievement of a passing score on an examination that is:

CS for SB 493 (i) Given by the national commission for the certification of acupuncturists;

or (ii) Determined by the board to be equivalent to the examination given by the national commission for the certification of acupuncturists;

(C) Successful completion of an apprenticeship consisting of at least 2,700 hours within a five-year period under the direction of an individual properly approved by that jurisdiction to perform acupuncture;

or (D) Performance of the practice of acupuncture in accordance with the law of another jurisdiction or jurisdictions for a period of at least three years within the five years immediately prior to application that consisted of at least 500 patient visits per year;

and (4) Achievement of any other qualifications that the board establishes in rules.

(b) Notwithstanding any other provisions of this code to the contrary, to qualify for a certificate as an auricular detoxification specialist, an applicant shall:

(1) Be at least 18 years old;

(2) Be authorized in this state to engage in any of the following:

(A) Physician assistant, pursuant to §30-3E-1 et seq.

of this code;

(B) Dentist, pursuant to §30-4-1 et seq.

of this code;

(C) Registered professional nurse, pursuant to §30-7-1 et seq.

of this code;

(D) Practical nurse, pursuant to §30-7A-1 et seq.

of this code;