Martin Kidston

(Missoula Current) Individuals looking to start a business but have a criminal record may find it easier to get a business license under changes adopted by the Missoula City Council on Monday.

Under the change, applicants convicted of felony-level offenses involving a sexual or violent crime, or a crime related to theft or fraud, will no longer be automatically denied a business license by the city for a range of business practices.

But they may still be subject to a background check and a hearing process that determines whether approval of the business application is in the public's best interest. The business types range from sales and solicitation to tree trimming and spraying.

“Currently the city is automatically denying business licenses for those types of businesses if the applicant has past felony or misdemeanor charges of theft or fraud, or things like that,” said council member Daniel Carlino. “Rather than automatically denying people, this ordinance change makes it where we declare it city policy to grant businesses licenses.”

In the past, individuals flagged for a criminal history are automatically denied a business license but can apply to have the denial heard by an appeal board. The board determines if there's a specific threat to the public when considering approval or denial of the license.

According to city officials, the change in ordinance places the burden on the city to make a case why it shouldn't grant the individual a business license, rather than the individual arguing why he or she should be granted the license.

“It puts the onus on the city to make the case why it shouldn't be granted rather than putting in on the person to why it should,” said City Attorney Ryan Sudbury. “Somebody will be looking at the circumstances around the conviction and any relevant history of the individual, and weighing the nature of the business they're engaged in and if the criminal history has a nexus with the business they're engaged in.”

Supporters of the proposal said that under state law, a person who has been pardoned or had their rights fully restored can't be discriminated against, including the denial of a business license.

But some suggested that even under the ordinance change, the city may be infringing upon the constitutional rights of some felons by leaving room for “discretion” when considering the license.

“They cannot be discriminated against in any way, shape or form,” said David Aronofsky, the former general counsel for the University of Montana. “I don't see any way the council can legally apply discretion on what to do with someone who has fully served a sentence. I don't think you can condition a license to that person.”

Council member Sandra Vasecka, who serves on the business license appeals board, said recent history suggests that nearly all appeals brought before the board are approved. She said the change in ordinance still allows room for review to ensure the license doesn't conflict with one's criminal past or put the public at risk.

“They just want to start their own business, and we should strive to ease this process,” she said. “This ordinance change does not dismiss the due diligence of the staff, and the city can still deny it up to their discretion. It's just saying the policy is not to automatically deny it.”

Advocates of the change said it could help reformed criminals get back on their feet and become contributing members of society.

“When people are coming out of prison or jail and get good jobs, access to housing or start their own business, it's important to provide those opportunities in our community and not put up more and more barriers,” Carlino said. “When people have those barriers in place, it makes it more likely they can re-offend or (not) get a good job or provide for their family.”