§ 93B-8.1. Use of criminal history records.
(a) The following definitions apply in this section:
(1) Applicant. - A person who makes application for licensure from an occupational licensing board.
(2) Board. - An occupational licensing board or a State agency licensing board as defined in G.S. 93B-1.
(3) Criminal history record. - A State or federal history of conviction of a crime, whether a misdemeanor or felony, that bears upon an applicant's or a licensee's fitness to be licensed or disciplined.
(4) Licensee. - A person who has obtained a license to engage in or represent himself or herself to be a member of a particular profession or occupation.
(b) Unless federal law governing a particular board provides otherwise, a board may deny an applicant on the basis of a conviction of a crime only if the board finds that the applicant's criminal conviction history is directly related to the duties and responsibilities for the licensed occupation or the conviction is for a crime that is violent or sexual in nature. Notwithstanding any other provision of law, a board shall not automatically deny licensure on the basis of an applicant's criminal history, and no board may deny an applicant a license based on a determination that a conviction is for a crime of moral turpitude. The board shall make its determination based on the factors specified in subsection (b1).
(b1) Before a board may deny an applicant a license due to a criminal conviction under subsection (b) of this section, the board must specifically consider all of the following factors:
(1) The level and seriousness of the crime.
(2) The date of the crime.
(3) The age of the person at the time of the crime.
(4) The circumstances surrounding the commission of the crime, if known.
(5) The nexus between the criminal conduct and the prospective duties of the applicant as a licensee.
(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.
(6a) The completion of, or active participation in, rehabilitative drug or alcohol treatment.
(6b) A Certificate of Relief granted pursuant to G.S. 15A-173.2.
(7) The subsequent commission of a crime by the applicant.
(8) Any affidavits or other written documents, including character references.
(b2) If the board denies an applicant a license under this section, the board shall:
(1) Make written findings specifying the factors in subsection (b1) of this section the board deemed relevant to the applicant and explaining the reason for the denial. The board's presiding officer must sign the findings.
(2) Provide or serve a signed copy of the written findings to the applicant within 60 days of the denial.
(3) Retain a signed copy of the written findings for no less than five years.
(b3) Each board shall include in its application for licensure and on its public Web site all of the following information:
(1) Whether the board requires applicants to consent to a criminal history record check.
(2) The factors under subsection (b1) of this section which the board shall consider when making a determination of licensure.
(3) The appeals process pursuant to Chapter 150B of the General Statutes if the board denies an applicant licensure in whole or in part because of a criminal conviction.
(b4) If a board requires an applicant to submit a criminal history record, the board shall require the provider of the criminal history record to provide the applicant with access to the applicant's criminal history record or otherwise deliver a copy of the criminal history record to the applicant. If an applicant's criminal history includes matters that will or may prevent the board from issuing a license to the applicant, the board shall notify the applicant in writing of the specific issues in sufficient time for the applicant to provide additional documentation supporting the application for consideration by the board prior to any final decision to deny the application. After being notified of any potential issue with licensure due to criminal conviction(s), an applicant shall have 30 days to respond by either correcting any inaccuracy in the criminal history record or submitting evidence of mitigation or rehabilitation for consideration by the board.
(b5) If, following a hearing, a board denies an application for licensure, the board's written order shall include specific reference to any criminal conviction(s) considered as part or all of any basis for the denial and the rationale for the denial, as well as a reference to the appeal process and the applicant's ability to reapply. No applicant shall be restricted from reapplying for licensure for more than two years from the date of the most recent application.
(b6) Notwithstanding any other provisions in the law, an individual with a criminal history may petition a board at any time, including before an individual starts or completes any mandatory education or training requirements, for a predetermination of whether the individual's criminal history will likely disqualify the individual from obtaining a license. This petition shall include a criminal history record report obtained by the individual from a reporting service designated by the board, the cost of which shall be borne by the applicant. Criminal history records relating to a predetermination petition shall not be considered public records under Chapter 132 of the General Statutes. A board may predetermine that the petitioner's criminal history is likely grounds for denial of a license only after the board has applied the requirements of subsection (b) of this section. Each board shall delegate authority for such a predetermination to its Executive Director or their equivalent, or a committee of the board, so that the predeterminations can be made in a timely manner. No board member having served on a predetermination committee for an individual shall be required to recuse in any later determinations or hearings involving the same applicant. The board shall inform the individual of the board's determination within 45 days of receiving the petition from the individual. The board may charge a fee to recoup its costs not to exceed forty-five dollars ($45.00) for each petition. If the board determines an applicant would likely be denied licensure based on their criminal history, the board shall notify the individual in writing of the following:
(1) The grounds and reasons for the predetermination.
(2) That the petitioner has the right to complete any requirements for licensure and apply to the board and have their application considered by the board under its application process.
(3) That further evidence of rehabilitation will be considered upon application.
(b7) A predetermination made under this section that a petitioner's criminal history would likely prevent them from licensure is not a final agency decision and shall not entitle the individual to any right to judicial review under Article 4 of Chapter 150B of the General Statutes.
(b8) A predetermination made under subsection (b6) of this section that a petitioner is eligible for a license shall be binding if the petitioner applies for licensure and fulfills all other requirements for the occupational license and the applicant's submitted criminal history was correct and remains unchanged at the time of application for a license.
(c) The board may deny licensure to an applicant who refuses to consent to a criminal history record check or use of fingerprints or other identifying information required by the State or National Repositories of Criminal Histories.
(c1) Nothing in this section or in G.S. 93B-1 shall be construed as authorizing an occupational licensing board or a State agency licensing board to require an applicant to consent to a criminal history record check or use of fingerprints or other identifying information required by the State or National Repositories of Criminal Histories as a condition of granting or renewing a license.
(d) This section does not apply to The North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs' Education and Training Standards Commission. (2013-24, s. 1; 2019-91, s. 4; 2020-77, s. 5(b).)