Older Criminal Convictions No Longer Bar to Licensing Applications -Update on AB 2138.

Californians with past criminal convictions seeking a professional license should soon have an easier time doing so. On September 30, 2018, AB 2138 was signed into law, which will remove barriers for close to 8 million California workers with criminal records seeking vocational and professional licenses. The new bill will apply to 42 California licensing boards under the California Department of Consumer Affairs.

AB 2138 is designed to minimize the number of licenses that are denied to applicants due to criminal convictions that are either irrelevant or dismissed. Specifically, it creates a seven-year “washout” period by prohibiting licensing boards from denying a license based on certain acts unrelated to the conviction, or less serious convictions that occurred in the last seven years. It also requires licensing boards to consider rehabilitation evidence for any conviction, not just misdemeanors, in order to establish mitigating factors.

Now, in order for a licensing board to deny, suspend, or revoke a license based on a criminal conviction, that conviction must be “substantially related” to the qualifications or duties required by the license or profession. A licensing board may still consider convictions older than seven years if they fall under the following: any serious felonies per California Penal Code Sec. 1192.7, convictions requiring sex offender registration per California Penal Code sections 290(d)(2) or (d)(3), and for certain licenses, financial crimes “directly and adversely” related to certain occupations. There are no time limits for considering convictions for purposes of suspending or revoking licenses.

AB 2138 narrows the grounds that a licensing board can deny a license based on a criminal record to only include those with a conviction or formal professional discipline in their record. Currently, boards can deny a license based on “any act involving dishonesty, fraud, or deceit” for self-benefit or harm to others. The new law would prohibit denials based on dispositions other than convictions, such as infractions, citations, arrests, juvenile adjudication, etc. Specifically, the bill lays out the grounds for a license denial as follows:

“The applicant has been convicted of a crime within the preceding seven years from the date of application that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made and for which the applicant is presently incarcerated or for which the applicant was released from incarceration within the preceding seven years from the date of application.”

The circumstances upon which a board can deny a license based on professional discipline will also now be narrowed. The new bill states that a denial based on formal discipline must have occurred within the last seven years, and the misconduct needs to have been cause for discipline before the board now making the decision and “is substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made….”

Additionally, a denial cannot be issued because of a conviction if the potential licensee was granted clemency or a pardon, made a showing of rehabilitation for a felony conviction, or had the conviction dismissed or set aside per California Penal Code section 1203.42.

Finally, a license can be denied if the applicant knowingly made a false statement required in an application, but not based solely on their failure to disclose a fact that would not have been cause for denial had it been disclosed. This would apply to the self-disclosure requirements required by a California Department of Justice background check, which is required for the majority of license applications.

Each individual licensing board must develop their own more specific guidelines that address the following regarding how it determines if a convictions is substantially related to the qualifications, functions, or duties of an occupation that must include: (1) the nature and gravity of the offense; (2) the number of years elapsed since the offense occurred; (3) the nature and duties of the profession; and (4) any evidence of rehabilitation submitted by an applicant. Any denial based on a conviction must be accompanied by a notice to the applicant in writing of their right to appeal, any procedure by which the decision can be challenged, and how to request a complete conviction history.

The Bill also includes an annual reporting requirement on behalf of the licensing boards, wherein they must provide information regarding how many applications they received, who received denials, whether they provided mitigating evidence, and whether a denial or disqualification was appealed. This information can give an applicant vital insight into the conditions they need to meet in order to obtain or defend a license.

AB 2138 is an exciting step forward for California. It would allow Californians to obtain licenses when they were previously barred due to old or immaterial criminal histories. Not only that, but studies show that states with fairer processes for occupational licensing have dramatically lower recidivism rates. The changes are also aimed at creating a more fair and consistent licensing process, and to help more Californians secure steady, meaningful employment.

Despite being signed in 2018, the bill will not go into effect until July 2020. The bill applies to occupational and professional licensing boards within California’s Department of Consumer Affairs, but excludes the State Athletic Commission, Bureau for Private Postsecondary Education, and Horse Racing Board.

Defending the licenses of California’s professionals is our bread and butter. If you need help obtaining or defending a license with any of California’s government licensing boards, please do not hesitate to call the experienced lawyers of Simas & Associates. Contact us at 1 (888) 999-0008 or info@simasgovlaw.com.


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