An Act To Remove Barriers to Occupational Licensing Due to Criminal Records
Maine Legislature, Session 130, LD 1465
Committee: Judiciary
Sponsors: O'NEIL
Amends: 5 MRSA §5301, 5 MRSA §5302, 5 MRSA §5303, 5 MRSA §5305, 5 MRSA §5306

Legislative Document
No. 1465
H.P. 1081
House of Representatives, April 12, 2021
An Act To Remove Barriers to Occupational Licensing Due to 
Criminal Records
Received by the Clerk of the House on April 8, 2021.  Referred to the Committee on 
Judiciary pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint Rule 401.
ROBERT B. HUNT
Clerk
Presented by Representative O'NEIL of Saco.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §5301, as amended by PL 2011, c. 286, Pt. O, §1 and PL 2015, c. 
429, §23, is further amended to read:
§5301.  Eligibility for occupational license, registration or permit
1.  Effect of criminal history record information respecting certain convictions.  
Subject to subsection 2 this section and sections 5302 and 5303, in determining eligibility 
for the granting of any occupational license, registration or permit issued by the State, the 
appropriate State state licensing agency may take into consideration criminal history record 
information from Maine or elsewhere relating to certain convictions which that have not 
been set aside, dismissed, sealed or expunged or for which a full and free pardon has not 
been granted, but the existence of such information shall may not operate as an automatic 
bar to being licensed, registered or permitted to practice any profession, trade or 
occupation.
2.  Criminal history record information which that may be considered.  A licensing 
agency may not inquire into or consider the criminal history of an applicant until after the 
applicant has been found to be otherwise qualified for the license, registration or permit.  
A licensing agency may use shall consider only the following in connection with an 
application for an occupational license, registration or permit criminal history record 
information pertaining to the following:
A.  Convictions for which incarceration for less than one year may be imposed and 
which that involve dishonesty or false statement;
B.  Convictions for which incarceration for less than one year may be imposed and 
which that directly relate to the profession, trade or occupation for which the license or 
permit is sought;
C.  Convictions for which no incarceration can be imposed and which directly relate to 
the trade or occupation for which the license or permit is sought;
D.  Convictions for which incarceration for one year or more may be imposed; or
E.  Convictions for which incarceration for less than one year may be imposed and that 
involve sexual misconduct by an applicant for massage therapy licensure or a licensed 
massage therapist or an applicant or licensee of the Board of Licensure in Medicine, 
the Board of Osteopathic Licensure, the Board of Dental Practice, the State Board of 
Examiners of Psychologists, the State Board of Social Worker Licensure, the Board of 
Chiropractic Licensure, the State Board of Examiners in Physical Therapy, the State 
Board of Alcohol and Drug Counselors, the Board of Respiratory Care Practitioners, 
the Board of Counseling Professionals Licensure, the Board of Occupational Therapy 
Practice, the Board of Speech, Audiology and Hearing, the Radiologic Technology 
Board of Examiners, the Nursing Home Administrators Licensing Board, the Board of 
Licensure of Podiatric Medicine, the Board of Complementary Health Care Providers, 
the Maine Board of Pharmacy, the Board of Trustees of the Maine Criminal Justice 
Academy, the State Board of Nursing and the Emergency Medical Services' Board.
3.  Criminal history record information directly related to the profession, trade 
or occupation.  In determining pursuant to subsection 2 whether criminal history record 
information is directly related to the profession, trade or occupation for which the license, 
registration or permit is being sought, the licensing agency must consider the following 
factors:
A.  Whether the conviction is directly related to the duties and responsibilities of that 
position or profession, trade or occupation;
B.  Whether the position or profession, trade or occupation offers the opportunity for 
the same or a similar offense to occur;
C.  Whether circumstances leading to the conduct for which the person was convicted 
will recur in the position or profession, trade or occupation; and
D.  The length of time since the offense occurred.
4.  Criminal convictions prohibited by statute.  Notwithstanding subsection 2, a 
licensing agency may consider criminal convictions that are explicitly prohibited by statute 
for the license, registration or permit sought.
Sec. 2.  5 MRSA §5302, as amended by PL 1989, c. 84, §2, is further amended to 
read:
§5302.  Denial, suspension, revocation or other discipline of licensees because of 
criminal record
1.  Reasons for denial or disciplinary action; process.  Licensing agencies may 
refuse to grant or renew, or may suspend, revoke or take other disciplinary action against 
any occupational license, registration or permit based in whole or in part on the basis of the 
criminal history record information relating to convictions denominated in section 5301, 
subsection 2, but only if the licensing agency determines has complied with the notice 
requirements of this section and after the licensing agency has properly considered a timely 
appeal of its preliminary determination, if any, and has determined that the applicant, 
licensee, registrant or permit holder so convicted has not been sufficiently rehabilitated to 
warrant the public trust as described in subsection 3.  The applicant, licensee, registrant or 
permit holder shall bear bears the burden of proof that there exists sufficient rehabilitation 
to warrant the public trust.
2.  Reasons to be stated in writing Preliminary determination.  The Before a 
licensing agency may make a final decision, the licensing agency shall explicitly state in 
writing the reasons for a decision which prohibits preliminary determination that the 
applicant, licensee, registrant or permit holder should be prohibited from practicing the 
profession, trade or occupation if that decision is based in whole or in part on conviction 
of any crime described in that may be considered pursuant to section 5301, subsection 2. 
The licensing agency shall issue a notice containing the written preliminary determination 
to the applicant, licensee, registrant or permit holder.  The written notice required by this 
subsection must include the following information:
A.  The criminal conviction or convictions that are the basis for the preliminary denial;
B.  A copy of the criminal history record information, if any;
C.  Information about the applicant's, licensee's, registrant's or permit holder's right to 
appeal the preliminary determination; and
D.  Any examples of mitigation or rehabilitation evidence that the applicant, licensee, 
registrant or permit holder may voluntarily provide.
3.  Appeal of preliminary determination.  An applicant, licensee, registrant or permit 
holder may appeal a preliminary determination of a licensing agency made pursuant to 
subsection 2 by challenging the accuracy of the criminal history record information or by 
demonstrating that the applicant, licensee, registrant or permit holder is sufficiently 
rehabilitated to warrant the public trust.  An applicant, licensee, registrant or permit holder 
may demonstrate sufficient rehabilitation to warrant the public trust by providing the 
licensing agency:
A.  Evidence demonstrating that at least one year has elapsed since the applicant's, 
licensee's, registrant's or permit holder's release from any correctional institution 
without criminal conviction or arrest; or
B.  Any other information or evidence of mitigation or rehabilitation and present fitness 
to practice the profession, trade or occupation for which the license, registration or 
permit is being sought, including, but not limited to, letters of reference.
If the applicant, licensee, registrant or permit holder demonstrates sufficient rehabilitation 
to warrant the public trust, the licensing agency may not deny the applicant, licensee, 
registrant or permit holder the license, registration or permit based in whole or in part on 
the applicant's, licensee's, registrant's or permit holder's prior criminal conviction.
After receiving notice of the preliminary denial issued pursuant to subsection 2, the 
applicant, licensee, registrant or permit holder must send or hand deliver the appeal within 
business days.
4.  Final determination.  If the licensing agency has made a final determination that 
the applicant, licensee, registrant or permit holder should be prohibited from practicing the 
profession, trade or occupation because the applicant, licensee, registrant or permit holder 
has not been sufficiently rehabilitated to warrant the public trust as described in subsection 
3, the licensing agency must notify the applicant, licensee, registrant or permit holder in 
writing of the following:
A.  The final determination;
B.  Information about the right to appeal pursuant to section 5304 the licensing agency's 
decision;
C.  A statement that the applicant, licensee, registrant or permit holder may be eligible 
for a different license, registration or permit; and
D.  The earliest date on which the applicant, licensee, registrant or permit holder may 
reapply with the licensing agency, if applicable.
Sec. 3.  5 MRSA §5303, as amended by PL 2017, c. 288, Pt. A, §12, is further 
amended to read:
§5303.  Time limit on consideration of prior criminal conviction
1.  Three-year limits.  Except as set forth in this subsection and subsection 2, the 
procedures outlined in sections 5301 and 5302 for the consideration of prior criminal 
conviction as an element of fitness to practice a licensed profession, trade or occupation 
shall requiring a license, registration or permit apply within 3 years of the applicant's or, 
licensee's final discharge, if any, from the correctional system, registrant's or permit 
holder's criminal conviction.  Beyond the 3-year period, ex-offender applicants or, 
licensees, registrants or permit holders with no additional convictions are to be considered 
in the same manner as applicants or, licensees, registrants or permit holders possessing no 
prior criminal record for the purposes of licensing decisions.  There is no time limitation 
for consideration of an applicant's or, licensee's, registrant's or permit holder's conduct 
which that gave rise to the criminal conviction if that conduct is otherwise a ground for 
disciplinary action against a licensee, registrant or permit holder.
2.  Ten-year limits.  For applicants to and licensees and registrants of the Board of 
Licensure in Medicine, the Board of Osteopathic Licensure, the Board of Dental Practice, 
the State Board of Examiners of Psychologists, the State Board of Social Worker Licensure, 
the State Board of Nursing, the Board of Chiropractic Licensure, the Board of Trustees of 
the Maine Criminal Justice Academy, the State Board of Examiners in Physical Therapy, 
the State Board of Alcohol and Drug Counselors, the Board of Respiratory Care 
Practitioners, the Board of Counseling Professionals Licensure, the Board of Occupational 
Therapy Practice, the Board of Speech, Audiology and Hearing, the Radiologic 
Technology Board of Examiners, the Nursing Home Administrators Licensing Board, the 
Board of Licensure of Podiatric Medicine, the Board of Complementary Health Care 
Providers, the Maine Board of Pharmacy, and the Emergency Medical Services' Board and 
applicants for massage therapy licensure or licensed massage therapists, the following 
apply.
A.  The procedures outlined in sections 5301 and 5302 for the consideration of prior 
criminal conviction as an element of fitness to practice a licensed profession, trade or 
occupation apply within 10 years of the applicant's or licensee's final discharge, if any, 
from the correctional system.
B.  Beyond the 10-year period, ex-offender applicants or licensees with no additional 
convictions must be considered in the same manner as applicants or licensees 
possessing no prior criminal record for the purposes of licensing decisions.
C.  There is no time limitation for consideration of a registrant's, an applicant's or 
licensee's conduct that gave rise to the criminal conviction if that conduct is otherwise 
a ground for disciplinary action.
Sec. 4.  5 MRSA §5305 is enacted to read:
§5305.  Confidential
Criminal history record information, and any other information pertaining to an 
applicant's, licensee's, registrant's or permit holder's background check obtained in 
conjunction with a screening, in the possession of a licensing agency is confidential and 
may not be disclosed if the information is being requested for use in connection with any 
application for employment or a license, registration or permit.
Sec. 5.  5 MRSA §5306 is enacted to read:
§5306.  Application
The provisions of this chapter apply notwithstanding any provision of law to the 
contrary, except to the extent the provision of law contains additional limitations on the 
consideration of criminal history record information by licensing agencies.
SUMMARY
This bill adds restrictions to the use of criminal history record information in the 
context of licensing decisions by licensing agencies.  It also makes certain criminal history 
record information in the possession of a licensing agency confidential.