OH Senate Bill 131

Legislation

State: Ohio
Signed: January 02, 2023

Effective: December 29, 2023

Summary
A controversial new law would allow Notaries commissioned in other states who meet certain requirements, as specified, to obtain an Ohio Notary Public commission or Online Notary authorization.

Affects
Adds Sections 4796.01 through 4796.35 to and amends Sections 147.01 and 147.63 of the Ohio Revised Code.

Changes

Definitions

Defines “license” to mean an authorization evidenced by a license, certificate, registration, permit, card, or other authority that is issued or conferred by a licensing authority to an individual by which the individual has or claims the privilege to engage in a profession, occupation, or occupational activity over which the licensing authority has jurisdiction.
Defines “licensing authority” to mean a state agency or political subdivision that issues licenses or government certifications.

Notary Public Commission; Online Notary Public Authorization

Directs the Secretary of State to appoint and commission as a Notary Public an applicant who is commissioned or licensed as a Notary Public in another state in accordance with the provisions of new ORC Chapter 4796.
Directs the Secretary of State to issue a written authorization to perform online notarizations to an applicant who holds an authorization or license to perform online notarizations in another state in accordance with the provisions of new ORC Chapter 4796.

Requirements for Applicants

Requires an individual who holds an occupational license in another state to meet the following requirements to be granted the same license in Ohio: (a) the applicant must hold a substantially similar out-of-state occupational license that authorizes the applicant to engage in the same profession, occupation, or occupational activity as the license for which the applicant is applying in Ohio; (b) the applicant must have held the out-of-state occupational license for at least 1 year immediately preceding the date of application and have been actively engaged in the practice of the same profession, occupation, or occupational activity as the license for which the applicant is applying in Ohio for at least 1 of the 5 years immediately preceding the date the application is submitted (but the licensing authority may waive this requirement); (c) the applicant must be in good standing in all jurisdictions in which the applicant holds an out-of-state occupational license to practice the same profession, occupation, or occupational activity for which the applicant is applying in Ohio; (d) the applicant must have satisfied the minimum education, training, or experience requirements or passed an examination to receive a Notary commission in the other state; (e) The applicant must not have surrendered or had revoked a license, out-of-state occupational license, or government certification because of negligence or intentional misconduct related to the applicant's work in the same profession, occupation, or occupational activity for which the applicant is applying in Ohio; (f) the applicant pays a licensing fee as determined by the licensing authority; and (g) the applicant must not have been convicted of, found guilty pursuant to a judicial finding of, or plead guilty to a criminal offense for which a licensing authority may deny an application for a license or government certification or that would otherwise disqualify the applicant for the license or government certification under the applicable law of this state governing the profession, occupation, or occupational activity for which the applicant is applying.
Provides that a licensing agency must issue a license to an applicant if: (a) the applicant has been actively engaged in the same profession, occupation, or occupational activity as the license for which the applicant is applying in this state for at least 3 of the 5 years immediately preceding the date the application is submitted (although the licensing authority may waive the requirement) in either a state that does not issue an out-of-state occupational license for the respective profession, occupation, or occupational activity or the application is submitted in service of the uniformed services; and (b) the applicant meets the requirements under #1(e)-(g) above.
Provides that if a licensing authority requires an applicant to pass an examination on Ohio’s laws and rules governing the applicable profession, occupation, or occupational activity to receive a license or government certification under the applicable law, a licensing authority may require an applicant to pass the examination to receive a license.
Provides that if a licensing authority requires an applicant to submit to a criminal records check, the licensing authority must require the out-of-state applicant to satisfy this requirement (Ohio has a criminal records check requirement).
Provides that if an applicant would be disqualified from obtaining a license because of a conviction, judicial finding of guilt, or plea of guilty to a disqualifying criminal offense as described in #1(g) above, the licensing authority may, in accordance with rules adopted under ORC 4796, issue a restricted or limited license to the applicant, provided the limitation or restriction is relevant to the offense.
Clarifies that an individual who applies for an occupational license in Ohio must have applied as an individual both in Ohio and in the state where the applicant holds the similar occupational license.
Requires each licensing authority to adopt rules as necessary to implement ORC 4796.01 through 4796.35.

Regulatory Provisions

Provides that if the law governing the applicable profession, occupation, or occupational activity allows or requires a licensing authority to take disciplinary action against an applicant, including but not limited to refusing to issue, limiting, or restricting a license for a reason that is not related to minimum education, training, or experience requirements or an examination requirement, the licensing authority may apply the applicable provision of law to an applicant in the same manner as to an applicant for an initial license under the applicable law.
Provides that If the law governing the applicable profession, occupation, or occupational activity allows or requires a licensing authority to deny an applicant a license if the applicant was subject to discipline by an entity that regulates a license, out-of-state occupational license, or government certification, the licensing authority may apply the applicable provision of law to an applicant.
Clarifies that an applicant who is issued a license is subject to the laws regulating the practice of the applicable occupation or profession in this state and is subject to the licensing authority's jurisdiction.
Clarifies that an applicant who is issued a license may practice the applicable occupation or profession in Ohio only within the scope and practice that is permitted under Ohio law and that does not exceed the applicant's training.

Analysis

As part of a broad occupational licensing bill, Ohio Senate Bill 131 introduces a new — and controversial — law that would allow Notaries Public of other states to apply to become an Ohio Notary Public and receive authorization to perform online notarizations if they have a similar authorization in their home state.

There isn’t a law of its kind in any other U.S. state or jurisdiction. The state of Wisconsin allows any resident of the United States to apply to become a Wisconsin Notary, but there is no requirement that the applicant already be a Notary for at least 1 year in another state. There are other states that allow residents of contiguous or bordering states to apply to become a Notary if they have employment or a practice within the state. In the case of the Ohio new law, there is no requirement that an out-of-state applicant reside in a bordering state or have employment or a practice in Ohio. Then there are a couple of states that grant reciprocity to Notaries of bordering states. To cite one example, Montana Notaries may perform notarial acts in Wyoming and Wyoming Notaries in Montana, but that isn’t the same concept as Ohio’s new law. Conceivably, under Ohio's new law a Notary in California or Oregon could apply to become an Ohio Notary.

The qualifications to apply for and be granted an Ohio occupational license, including a Notary commission and authorization to perform online notarizations, are extensive. In the main set of requirements, the applicant must have been a Notary for at least 1 year and satisfied any minimum education, training, or experience requirements or passed an examination to receive a Notary commission in the other state. The applicant would be required to take an Ohio required education course, pass an exam, pass a criminal records check, and pay a fee as determined by the licensing authority. The qualifications and requirements noted under “Changes” above are the provisions that would most likely apply to persons applying for a Notary commission or authorization to perform online notarizations. There are other requirements not noted, such as the requirement to provide financial responsibility (for example a surety bond) if the similar license in Ohio requires it, because they do not apply to Notaries specifically.

The new law does not give out-of-state applicants who are granted an Ohio Notary commission or online notarization authorization the ability to perform notarial acts in their state of residence in the same way an insurance agent who lives out of state can transact insurance for Ohio consumers if they have an Ohio insurance license. The new law provides that the applicant is subject to Ohio law regulating the occupation. Ohio statute requires notarial acts to be performed in the state of Ohio. (See ORC 147.07 and 147.64(B)(2).)

The National Notary Association cannot agree with the policy behind the new law because even though out-of-state applicants who are granted an Ohio Notary commission legitimately can perform notarial acts when they are physically in Ohio, it is inevitable that there will be instances in which the out-of-state Ohio Notary intentionally or unintentionally performs notarial acts (and particularly online notarial acts) when they are located in their home state. This puts notarial acts in risk of challenge and poses a risk to Ohio consumers, although it could also put at risk a consumer located in another state who engages an out-of-state Ohio Online Notary. We see a need in certain states to commission as Notaries residents of bordering states who work across state lines, but the Ohio new law doesn't limit the scope in this fundamental way. Why be granted a Notary commission if you have no demonstrable need to use it?

The Ohio Secretary of State is required to adopt rules to implement the new law and the law has a delayed effective date of December 29, 2023.

On October 19, 2023, the Secretary of State clarified that applicants must only take and pass the Ohio Notary examination, not take a mandatory education course.

Read Senate Bill 131.