Senate Bill 1351 — Occupational licensure, creation of new licenses and stripping of morality requirements

Lindsay Atkinson 2020 Senate bill ratings Leave a Comment

Bill description: SB 1351 would create Idaho’s Occupational Licensing Reform Act and remove most of the undefined morality requirements that exist in state licensing laws.

Rating: +6

Does it increase barriers to entry into the market? Examples include occupational licensure, the minimum wage, and restrictions on home businesses. Conversely, does it remove barriers to entry into the market? 

SB 1351 would grant universal licensure in the state of Idaho. Universal licensure is the process by which Idaho grants an occupational license to an applicant who is licensed in another U.S. state or territory and who meets most of the requirements currently imposed on state-based applicants. Specifically, an applicant must apply to the relevant licensing board in Idaho and “complete an application, submit supporting materials, and undergo the same background checks as required of other applicants for licensure.” The applicant will also need to pay the relevant fees and may have to take an exam.

The “scope of practice” (what a person can legally do under the specific license) a person can have in Idaho will be based on what Idaho law allows. So even if someone enters the state with a license that allows for a broader scope-of-practice than is allowed under Idaho law, Idaho law will prevail. The applicant could do only what Idaho regulations allow, not what the other state would allow. And if, under an out-of-state license, an applicant can do only a portion of what an Idaho license would allow, the Idaho licensing board would likely make an adjustment. It would grant an applicant a limited license so they can work in a limited scope until they have fulfilled all the training or other requirements needed in order to qualify for the full scope of practice granted by Idaho.

This universal licensure provision is a gamechanger for many new Idaho residents. With universal licensure, new residents will not have to repeat most of the licensing requirements that they have already completed in another state just to become qualified in Idaho. The state of Idaho will recognize the efforts that they have already put towards licensure in another state.

(+1)

In Idaho, criminal history can spell doom for many applicants who need an occupational license to work. Currently, about 59% of Idaho’s occupational licensing boards will unconditionally deny a license to an applicant who has a felony or misdemeanor conviction, has committed a crime involving “moral turpitude,” or lacks “good moral character,” which is an undefined term. About 27% of Idaho’s licensing boards consider criminal history as a factor in granting a license, but they will also consider the rehabilitation of an applicant before making their final licensure decision. And 14% of licensing boards do not consider the criminal history of an applicant at all.

SB 1351 would require all licensing boards to have a proof-of-rehabilitation process (which only about 27% currently have) for anyone with a criminal record. This bill would specifically require licensing boards to consider certain factors about applicants before denying them a license because they have a criminal record. These factors include the relationship of the crime to the occupation, “the nature and seriousness of the crime for which the individual was convicted … the passage of time since the commission of the crime; [and] any evidence of rehabilitation or treatment undertaken by the individual.”

Ensuring that all licensing boards in the state consider whether the applicant has been rehabilitated ensures that due consideration is given to applicants with criminal convictions.

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SB 1351 also prevents licensing boards from denying licensure “on the basis of vague or generic terminology related to a criminal conviction, including but not limited to ‘moral turpitude’ or ‘moral character.’” Furthermore, this legislation would strip the authority licensing boards currently have, in various state statutes related to occupational licensure, to deny applicants based on these two terms. It would, for example, apply to the statutes governing licensure of log scalers, accountants, geologists, shorthand reporters, and others.

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SB 1351 would also allow applicants with criminal convictions to request that a licensing board give them an opinion on whether they would likely be denied a license based on their particular conviction. However, the licensing board is not “bound by an opinion issued under this section if it later determines that the facts and circumstances submitted in the individuals’ inquiry were not complete and accurate, that the individual’s criminal background is different than described in the inquiry, that a subsequent criminal offense or other relevant conduct occurred after the inquiry was submitted, or that a change in law or regulation requires a different determination.”

Even if a licensing board is not bound by the advisory opinion it gives to an applicant, it is still worthwhile for the board to issue one. Doing so helps applicants to better judge whether it is worth the trouble of trying to meet a particular set of requirements. This is especially true for applicants who are told they would be denied a license.

(+1)

SB 1351 would form a three-year pilot sunrise committee for new occupational licenses, certifications, and permits. This sunrise committee would be composed of 8 members (half from the Senate and half from the House) and would have two primary duties. 

The first duty of this committee would be to review proposals of new occupational licenses. This means that any organization or individual Idahoan that believes a certain occupation that is not currently regulated by the state needs to be, would have to prove the need to the committee members. They would have to prove that the licensing of an occupation is absolutely necessary to protect public safety, that “the public cannot be effectively protected by other means,” and that the proposed license is in a form that presents the least restrictive regulations.

This committee would have to review the proposal for a new occupational license before legislation regarding the creation of such a license could be introduced by a legislator. However, the recommendations made by this committee (to either license or not license an occupation) would not be binding.

Consider the following example as a method to lay out the role of this committee: John Doe had a bad experience with journalists. He thinks they should be licensed, but they are currently not. John Doe proposes to Idaho’s occupational licensing sunrise committee that journalists in Idaho become a licensed occupation. The committee makes a judgement about whether or not they think journalists should be licensed. They send that recommendation to the Legislature. No matter whether the committee recommends licensure or that journalists remain unlicensed, a legislator can propose a bill to license journalists, and the bill will go through the regular legislative process that all other bills go through.

Though the recommendations of this sunrise committee would be non-binding, it would ensure that the Legislature receives an adequate report that has studied the pros and cons of imposing a barrier to entry into the free market before passing legislation to do so.

The second duty of this sunrise committee would be “to study and review occupational licensing and certification laws in general in order to determine, as applicable, how the legislature may be able to ease occupational licensing barriers while still protecting the public health and safety.”

(+1)

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability? 

SB 1351 requires that proposals to license a new occupation be considered by a sunrise committee before such a license is introduced to the Legislature. This requirement expands the government’s accessibility. Idahoans affected by a proposed new license would have the opportunity both to testify before the sunrise committee and to testify before the Legislature. 

Even though the recommendation of the sunrise committee to either license or not license a proposed occupation is not binding, it would provide a transparent record of government thought. Both legislators and civically-involved Idahoans would be able to view the recommendation of the committee and use it to analyze proposed legislation regarding new occupational licenses. 

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Analyst’s Note: For more information regarding how occupational license applicants with past criminal convictions are treated, please read our report Lockdown To Liberty.

Our rating of this bill is not altered by any amendments made to it on 2/27.