H. 3605 Results in New Programs and Procedures for the SC Department of Labor, Licensing and Regulation

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The 2023 legislative session has seen the passage of several bills that garnered a great deal of attention in the media, but the SC General Assembly passed a number of other noteworthy pieces of legislation that were not as much in the public eye.  One of those bills is H. 3605 (Act No. 13 of 2023) sponsored by House Speaker Murrell Smith, which made several changes in Chapter 1 of Title 40 governing the Boards under the purview of the SC Department of Labor, Licensing and Regulation (“LLR”).

H.3605 addresses three areas:  one pertaining to disciplinary procedures, one dealing with prospective licensees who have a prior criminal conviction, and the last enacting the “Earn to Learn Act of 2023” providing for apprenticeship programs for certain professions or occupations regulated by LLR Boards. H. 3605 was signed by Governor McMaster on May 8, 2023, and took effect on that date.

The first area addressed by H. 3605, and of greatest interest to current licensees and counsel who represent them, consists of the changes regarding information to be provided to the licensee in the event that a complaint is filed against the licensee.

One issue that licensees often encounter is obtaining information about the complaint and the identity of the complainant. The provisions regarding the release of information were not consistent from Board to Board, and H. 3605 should address that issue. 

Under the new law, the LLR Director is required to send the following information to the licensee within 30 days of the initiation of an investigation:

1. a letter advising the licensee that a complaint has been filed and that an investigation has been initiated and a request that the licensee respond in writing within 14 days;
2. a copy of the complaint;
3. the name of the complainant, unless the relevant Board believes there is good cause to withhold that name; and
4. all materials filed with the complaint.

The enactment of H. 3605 is likely to result in more frequent release of the identity of the complainant even by Boards who previously could release the name of a complainant but often found good cause to withhold that information.

H. 3605 also requires that the LLR Director ensure that certain procedural steps set out in the legislation have been taken in any case that a Board recommends for a formal complaint. The Director must ensure that LLR mailed the notice of the investigation to the licensee and that the licensee was provided an opportunity to respond. The Director must also verify that LLR mailed a copy of the complaint to the licensee, that the name of the complainant was provided to the licensee unless there was good cause to withhold the name, that the licensee was notified of the opportunity to respond, and that the licensee’s response was included and considered in the investigative file. If the Director determines that any of the required procedural steps have not been followed in the investigative process, the formal complaint cannot be issued until the procedural steps have been rectified. The Director’s review is not required if a case is disposed of by any means other than a formal complaint.

The second area addressed by H. 3605 is the effect of a prior criminal conviction on an applicant seeking a license from an LLR Board.

The new law prohibits the denial of a license solely on the basis of a prior criminal conviction unless the conviction related to the duties, responsibilities, or the fitness for the occupation or profession for which the applicant is seeking a license. If a Board denies an applicant a license, it is prohibited from using vague or generic terms such as “moral turpitude” or “good character” and from considering charges that have been dismissed, nol prossed, or adjudicated with a finding of not guilty. An applicant cannot be denied a license on the basis of a prior criminal conviction unless the applicant has been given an opportunity to appear at an application hearing. If a Board denies an application solely or in part on the basis of a prior criminal conviction, the Board must issue a final written order within 30 days of the application hearing stating the grounds for the denial and stating that the order is appealable to the SC Administrative Law Court.

The third and final portion of H. 3605 is the “Earn to Learn Act” which is intended to give potential licensees for certain occupations or professions to opportunity to earn a paycheck while fulfilling applicable licensing requirements.  

The new law authorizes an LLR Board to issue an initial license to an applicant who completes an apprenticeship and meets certain other requirements. The apprenticeship must be one approved by the US Department of Labor or an industry recognized apprenticeship for an occupation or profession licensed by an LLR Board as approved by that Board. The apprenticeship approach does not apply to a license that requires the educational equivalent of a bachelor’s degree or higher.

Summary

In summary, H. 3605 makes legislative changes that should be helpful to licensees who find themselves facing an LLR investigation and possible disciplinary sanctions by giving them information that is important to their effective participation in that process. It will also be helpful to potential licensees who have had a criminal conviction in the past that is unrelated to their fitness and competency to practice a particular profession or occupation.