All businesses are required to abide by certain regulations and law when granting employment or a license to applicants with a criminal history. In some cases, having a record means automatic denial. However, exceptions apply when the applicant can show that he or she has been rehabilitated and is now a lawful member of society.
According to California Business and Professions Code 480, a business and licensing agency has the right to deny an applicant a license based on a criminal conviction in which the applicant was given a guilty verdict, pleaded guilty or no contest. The request for a license may also be denied if the applicant has demonstrated any unethical acts involving dishonesty, deceit or fraud with the intention benefiting oneself. This code, however, only applies if the offense is related to the duties, functions and qualifications of the license for which the applicant is seeking.
The Bus & P C 480 also states that agencies cannot automatically deny applicants a license if he or she has been granted a Certificate of Rehabilitation. In the legal justice system, those released from prison after serving their time are able to apply for what is known as a Certificate of Rehabilitation. Basically, this is a certificate that declares you a rehabilitated person following your stint in prison and that you are no longer a risk to society. The application process is normally done with the help of an attorney.
It is important to understand what a certificate of rehabilitation is and isn’t. For one thing, it does not expunge your criminal records; it merely states that your criminal conviction was a thing of the past and that you are ready to reenter society as a law abiding citizen. With the certificate granted, it is then forwarded to the governor as a recommendation for a pardon.
A Certificate of Rehabilitation is beneficial for those reentering society following release from incarceration. For those seeking some form of licensure, the granting agency cannot deny the request entirely on the grounds of the conviction. While the conviction still appears on the record, the certificate shows that the person applying has made efforts and has satisfactorily proven that he or she is a rehabilitated individual and no longer poses a risk to society.
Not all criminal offenders can apply for a Certificate of Rehabilitation. Under Penal Code Section 4852.01(d), those with the following are ineligible:
• Persons awaiting a death sentence for the conviction of a capital crime
• Persons under mandatory life parole
• Persons under military service
• Persons currently registered as a sex offender (though certain exceptions may apply which prevents certain offenders from having to register).
So who is eligible for a Certificate of Rehabilitation? Generally, those who meet the following criteria are eligible:
• Were sentenced to a state prison following a felony conviction
• Have been released from prison under probation and have since been a law abiding citizen
• Have been a resident of the state for a minimum of five years at the time of the filing for an
application. The requirement is three years if you were placed under parole.
A Certificate of Rehabilitation is beneficial to the license seeker, employers and the state in more ways than one:
• Businesses and licensing agencies retain their right and discretion to assess every applicant using their own set of guidelines and criteria. While past convictions can be a factor in the decision, it cannot be the sole means for license denial.
• Individuals who have the right qualifications can apply for jobs and licensure without fear that they will be instantly denied due to a criminal background check.
• Criminal records continue to remain accessible for law enforcement purposes.
All licensing agencies governed under the Business and Professions Code are required to formulate their own criteria for what constitutes successful rehabilitation. Under Bus & P C 482, such agencies must come up with valid and fair criteria for evaluating applicants who have been granted a Certificate of Rehabilitation. This means taking certain factors into consideration, such as the applicant’s family life, involvement in his or her community and the amount of time that has passed since the conviction. If the applicant’s criminal records were expunged altogether, then that is another factor that should be taken into consideration.
Licensing agencies, however, do have the discretion to grant an applicant a restricted license if theydeem that he or she is only partially rehabilitated. Such an instance was demonstrated in the case of Donley v Davi.
Donley v Davi
California’s Department of Real Estate Commissioner Jeff Davi denied Bruce D. Donley’s request for areal estate license based on the grounds of a misdemeanor arrest and conviction committed by Donley in 2003. The crime consisted of assault and battery of his live-in girlfriend. He was sentenced to probation for which he successfully completed and satisfied all the terms and conditions. His conviction was eventually expunged from his records. Donley took the case to a California Appeals Court arguing that the arrest does not constitute a violation of moral turpitude and has no relation to the duties of a licensed real estate agent.
The administrative law judge later proposed that Donley be denied a salesperson license but be granted a conditional and restricted one. Davi rejected the proposal and instead issued Donley a limited and restricted license on the grounds that his conviction was in fact related to the duties of a real estate licensee and that Donley has only been partially rehabilitated. The trial court ultimately stood by Davi’s decision and rejected Donley’s challenge.
Why a Certificate of Rehabilitation can be of Tremendous Benefit
A blemish on one’s record in the form of a criminal conviction can greatly hamper one’s ability to find employment or be approved for a license. With a Certificate of Rehabilitation, agencies can see that in spite of your past offenses that you have made significant strides to turn your life around and become a productive member of society. This has helped many obtain a license in order to find steady employment despite any unlawful activities they may have committed in the past.
Licensing board agencies are required to abide by the criteria set forth in the Business and Professions Code. This lays out all the guidelines and the conditions in which agencies can lawfully deny, suspend or revoke a license. Bus & P C §475 explicitly states that a license can be denied based on factors like a criminal conviction or acts of dishonesty and deception done to benefit oneself or hurt another’s reputation. This section, however, also clearly states that a license shall not be denied due to objections of the applicant’s behavior, personality or moral character.
Bus & P C §480 and §490 go into further detail about the grounds for license denial and revocation. This includes the specific steps that must be taken by the board upon imposing a license denial or suspension. Under these codes, agencies are granted the right to deny an applicant’s request for alicense or suspend an existing practitioner’s license in the event that he or she is charged of an offense in which the individual was found guilty by a trial of peers, pleaded guilty or no contest. However, the offense must be substantially related to the practice in which the individual held a license for.
The term “substantially related” has a lot of grey areas and every board has its own criteria defined under the Business and Profession Codes as to the offenses that may be considered substantially related. A few professional licenses, however, are exempt from Bus & P C§475, §480 and §490. This includes licenses for practicing law (Bus & P C §6000) and gaming licenses (Bus & P C §19850).
Jim Petropoulos v Department of Real Estate
The case of Petropoulos v DRE was a major turning point that really brought out the definition of scenarios and circumstances that would constitute as “substantially related.” Under Bus & P C§490, the DRE revoked the broker license of Jim Petropoulos after a misdemeanor arrest of battery and assault. Petropoulos appealed his license revocation on the grounds that his arrest did not involve moral turpitude and that the offense did not relate in any shape or form to his duties as a real estate broker.
In short, Petropoulos was arrested and pleaded no contest to battery stemming from a January 9, 2000 incident involving his then-girlfriend, Patricia Cardenas. After having a few drinks, the couple got into an argument over Petropoulos’ two children sleeping over at Cardenas’ home. The argument escalated in bed in which Cardenas claimed Petropoulos struck her, leaving a bruise on her face. Petropoulos denied hitting his girlfriend and alleged that Cardenas injured herself by slamming her head against the bed post during a fit of rage. Petropoulos’ conviction was later expunged in 2003.
The DRE subsequently suspended Petropoulos’ license on the ground that the incident involved moral turpitude and was substantially related to his duties as a broker agent. Petropoulos contested the DRE’s ruling in court held before an administrative law judge. While the DRE later conceded that a misdemeanor did not constitute a crime of moral turpitude, the incident itself did involve moral turpitude as Petropoulos intended to inflict bodily harm on his girlfriend.
The issue then resides on whether the incident was substantially related to the duties of a broker. The DRE cited one of its regulations which states that any intent or threat of doing substantial injury to a person does constitute as being substantially related to the duties of a licensed broker. The ALJ, however, dismissed the case, saying that the DRE failed to demonstrate that the incident was a clear case of Moral turpitude. DRE rejected the ALJ’s proposed decision and maintained that the incident was indeed a case of moral turpitude under Bus & P C§490 and that its decision to revoke Petropoulos’ license was warranted. The DRE later allowed Petropoulos to apply for a restricted license.
The Role of Bus & P C§490
Bus & P C§490 clearly states that a board has the authority to revoke a license on the grounds of a conviction that is substantially related to the profession. The question then is whether 490 on its own gives boards the power to exercise full authority to revoke or suspend a license or whether it is set in place to limit a board’s power over what it can and cannot do when taking disciplinary action. Each board also has its own definition of moral turpitude and whether certain scenarios can be interpreted as substantially related to the duties and practices of a profession.
Later rulings have determined that 490 has given boards too much authority under their licensing statutes and too many boards are automatically penalizing license holders for offenses that proved to have little or no substantial relation to the duties and practice of the license holder. Many are now in agreement that 490 is in place to limit, and not augment a board’s authority. A separate court case, Golde v Fox, declared that a license may only be revoked in the event that the licensee is convicted of a crime that constituted both moral turpitude and was substantially related to the duties and practice of the profession.
The Substantial Relation Test
Since each practice has its own set of ethics, 490 on its own is insufficient in determining whether a licensee’s criminal conduct is substantially related to his or her profession. Every board, therefore, has set up its own criteria that define what may or may not be considered as substantially related. Factors like moral turpitude or lack of moral character in of itself is not enough for a board to take disciplinary action that involves license suspension or revocation.
Business and Profession Codes like 480 and 490 have been refined over the years through various court cases. These changes may enhance or limit the way boards are able to exercise their authority when it comes to actions pertaining to license revocation or issuing a restricted and conditional license. Future cases will continue to shape the way the Business and Profession Codes are interpreted.