§ 90-345. Criminal history record checks of applicants for licensure as professional counselors. - North Carolina Statutes

§ 90‑345.  Criminalhistory record checks of applicants for licensure as professional counselors.

(a)        Definitions. – Thefollowing definitions shall apply in this section:

(1)        Applicant. – Aperson applying for licensure as a licensed professional counselor associatepursuant to G.S. 90‑336(b) or licensed professional counselor pursuant toG.S. 90‑336(c).

(2)        Criminal history. – Ahistory of conviction of a State or federal crime, whether a misdemeanor orfelony, that bears on an applicant's fitness for licensure to practiceprofessional counseling. The crimes include the criminal offenses set forth inany of the following Articles of Chapter 14 of the General Statutes: Article 5,Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executiveand Legislative Officers; Article 6, Homicide; Article 7A, Rape and Other SexOffenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article13, Malicious Injury or Damage by Use of Explosive or Incendiary Device orMaterial; Article 14, Burglary and Other Housebreakings; Article 15, Arson andOther Burnings; Article 16, Larceny; Article 17, Robbery; Article 18,Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, ObtainingProperty or Services by False or Fraudulent Use of Credit Device or OtherMeans; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds;Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency;Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury;Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35,Offenses Against the Public Peace; Article 36A, Riots and Civil Disorders;Article 39, Protection of Minors; Article 40, Protection of the Family; Article59, Public Intoxication; and Article 60, Computer‑Related Crime. Thecrimes also include possession or sale of drugs in violation of the NorthCarolina Controlled Substances Act in Article 5 of Chapter 90 of the GeneralStatutes and alcohol‑related offenses including sale to underage personsin violation of G.S. 18B‑302 or driving while impaired in violation ofG.S. 20‑138.1 through G.S. 20‑138.5. In addition to the NorthCarolina crimes listed in this subdivision, such crimes also include similarcrimes under federal law or under the laws of other states.

(b)        The Board mayrequest that an applicant for licensure, an applicant seeking reinstatement ofa license, or a licensee under investigation by the Board for alleged criminaloffenses in violation of this Article consent to a criminal history recordcheck. Refusal to consent to a criminal history record check may constitutegrounds for the Board to deny licensure to an applicant, deny reinstatement ofa license to an applicant, or revoke the license of a licensee. The Board shallensure that the State and national criminal history of an applicant is checked.The Board shall be responsible for providing to the North Carolina Departmentof Justice the fingerprints of the applicant or licensee to be checked, a formsigned by the applicant or licensee consenting to the criminal record check andthe use of fingerprints and other identifying information required by the Stateor National Repositories of Criminal Histories, and any additional informationrequired by the Department of Justice in accordance with G.S. 114‑19.26.The Board shall keep all information obtained pursuant to this sectionconfidential. The Board shall collect any fees required by the Department ofJustice and shall remit the fees to the Department of Justice for expensesassociated with conducting the criminal history record check.

(c)        If an applicant orlicensee's criminal history record check reveals one or more convictions listedunder subdivision (a)(2) of this section, the conviction shall notautomatically bar licensure. The Board shall consider all of the followingfactors regarding the conviction:

(1)        The level ofseriousness of the crime.

(2)        The date of thecrime.

(3)        The age of theperson at the time of the conviction.

(4)        The circumstancessurrounding the commission of the crime, if known.

(5)        The nexus betweenthe criminal conduct of the person and the job duties of the position to befilled.

(6)        The person's prison,jail, probation, parole, rehabilitation, and employment records since the datethe crime was committed.

(7)        The subsequentcommission by the person of a crime listed in subdivision (a)(2) of thissection.

If, after reviewing thesefactors, the Board determines that the applicant or licensee's criminal historydisqualifies the applicant or licensee for licensure, the Board may denylicensure or reinstatement of the license of the applicant or revoke thelicense of the licensee. The Board may disclose to the applicant or licenseeinformation contained in the criminal history record check that is relevant tothe denial. The Board shall not provide a copy of the criminal history recordcheck to the applicant or licensee. The applicant or licensee shall have theright to appear before the Board to appeal the Board's decision. However, anappearance before the full Board shall constitute an exhaustion ofadministrative remedies in accordance with Chapter 150B of the GeneralStatutes.

(d)        Limited Immunity. –The Board, its officers, and employees, acting in good faith and in compliancewith this section, shall be immune from civil liability for denying licensureor reinstatement of a license to an applicant or revoking a licensee's licensebased on information provided in the applicant or licensee's criminal historyrecord check.  (2009‑367,s. 9.)