2008 -- S 2718

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LC01080

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2008

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A N A C T

RELATING TO BUSINESSES AND PROFESSIONS

     Introduced By: Senator C Levesque

     Date Introduced: February 26, 2008

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 5 of the General Laws entitled "Businesses and Professions" is hereby

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amended by adding thereto the following chapter:

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     CHAPTER 26.1

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EXPUNGEMENT OF DISCIPLINARY RECORDS

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     5-26.1-1. Definitions. – For purposes of this chapter only, the following definitions

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apply:

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     (1) "Department" means the Rhode Island department of health, and any division or

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board created within the department of health pursuant to chapters 10, 19.1, 26, 29, 30, 31.1, 32,

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34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 and 68 of this title.

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     (2) "Expungement of records" means the sealing and retention of all records of a

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disciplinary action taken pursuant to chapter 10, 19.1, 26, 29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2,

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40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this title and the removal from active files of

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all records and information relating to the disciplinary action.

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     (3) "First offender" means a licensee who has been found in violation of chapter 10, 19.1,

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26, 29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this

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title, and who has not been previously found in violation of any of the aforementioned chapters.

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     (4) “Licensee” means a person licensed or registered pursuant to chapters 10, 19.1, 26,

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29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this

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title.

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     (5) "Records" and "records of discipline" include all records in the possession of the

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department relating to any disciplinary action taken by the department against a licensee.

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     5-26.1-2. Motion for expungement. – (a) Any licensee who is a first offender may file a

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motion for the expungement of all records of discipline by filing a motion with the department,

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provided that no licensee who has been previously found in violation of chapter 10, 19.1, 26, 29,

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30, 31.1, 32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this title

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shall have his or her records of discipline expunged.

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     (b) Subject to subsection (a) of this section, a licensee who is in good standing under

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chapter 10, 19.1, 26, 29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60,

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63.2, 64 or 68 of this title may file a motion for the expungement of the records relating to the

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violation after five (5) years from the date of the department's decision.

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     5-26.1-3. Motion for expungement -- Notice -- Hearing -- Criteria for granting. – (a)

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The department, after a hearing at which all relevant testimony and information shall be

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considered, may in its discretion order the expungement of the records of discipline of the

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licensee filing the motion if it finds:

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     (1) That in the five (5) years preceding the filing of the motion, the licensee has not been

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convicted nor arrested for any felony or misdemeanor, there are no criminal proceedings pending

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against the licensee, he or she has exhibited good moral character and is in good standing

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pursuant to chapter 10, 19.1, 26, 29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54,

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59.1, 60, 63.2, 64 or 68 of this title; and

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     (2) That the licensee's rehabilitation has been attained to the department's satisfaction and

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the expungement of the records of his or her discipline is consistent with the public interest.

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     (c) If the department grants the motion, it shall order all records of discipline relating to

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the violation expunged and all index and other references to it deleted. A copy of the order of the

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department shall be sent to any governmental or law enforcement agency required to have

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possession of such records. Compliance with the order shall be according to the terms specified

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by the department.

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     5-26.1-4. Effect of expungement of records -- Access to expunged records --

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Wrongful disclosure. – (a) Any licensee having his or her record expunged shall be released

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from all penalties and disabilities resulting from the violation of which he or she had been

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disciplined, except, upon conviction of any subsequent violation, the expunged violation may be

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considered as a prior violation in determining the discipline to be imposed.

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     (b) In any application for employment, license, or other civil right or privilege, or any

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appearance as a witness, a licensee whose discipline has been expunged pursuant to this chapter

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may state that he or she has never been found in violation of chapter 10, 19.1, 26, 29, 30, 31.1,

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32, 34, 34.2, 35, 37, 37.2, 40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this title; provided,

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that if the licensee is an applicant for a law enforcement agency position, for admission to the bar

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of any court, an applicant for a teaching certificate, under chapter 11 of title 16, a coaching

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certificate under section 16-11.1-1, or the operator or employee of an early childhood education

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facility pursuant to chapter 48.1 of title 16, the licensee shall disclose the facts of the violation.

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     (c) Whenever the records of any discipline have been expunged under the provisions of

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this chapter, any custodian of the records relating to that discipline shall not disclose the existence

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of the records upon inquiry from any source unless the inquiry is that of the individual whose

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record was expunged, that of a sentencing court following the conviction of the individual for the

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commission of a crime, or that of a bar admission, character and fitness, or disciplinary

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committee, board, or agency, or court which is considering a bar admission, character and fitness,

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or disciplinary matter, or that of the commissioner of elementary and secondary education, or that

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of any law enforcement agency when the nature and character of the offense with which an

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individual is to be charged would be affected by virtue of the licensee having been previously

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convicted, or found in violation, of chapter 10, 19.1, 26, 29, 30, 31.1, 32, 34, 34.2, 35, 37, 37.2,

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40, 40.1, 44, 48, 49, 54, 59.1, 60, 63.2, 64 or 68 of this title.

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     (d) The custodian of any records which have been expunged pursuant to the provisions of

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this chapter shall only release or allow access to those records for the purposes specified in

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subsections (b) or (c) of this section or by order of a court. Any agency and/or person who

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willfully refuses to carry out the expungement of the records pursuant to this chapter, or willfully

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releases or willfully allows access to records of discipline, knowing them to have been expunged,

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shall be civilly liable.

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     SECTION 2. This act shall take effect upon passage.

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LC01080

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO BUSINESSES AND PROFESSIONS

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     This act would provide a procedure to allow various boards and divisions of the Rhode

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Island Department of Health to expunge disciplinary records of certain licensees.

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     This act would take effect upon passage.

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LC01080

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