Restrictions on State Agencies From Utilizing Convictions and False Statements

Effective July 1, 2020, AB 2138 becomes operative as law in California (approved and signed by the Governor 9/30/18), as follows:

Under current law, the licensing and regulation of various professionals and occupations fall within the Department of Consumer Affairs. These state agencies are empowered to take disciplinary action against a licensee, including to deny an applicant a license, or suspend and/or revoke an existing license or on various specified grounds, including but not limited to one having been convicted of a crime. However, they cannot take any such action in the case of a felony the defendant has obtained a certificate of rehabilitation, and/or the person has been convicted of a misdemeanor if (s)he has met the applicable agency requirements of rehabilitation.

In addition, each agency has been mandated to develop objective criteria to consider regarding a denial, suspension, or revocation of a license to determine whether a crime is substantially related to the qualifications, functions, or duties of the business or profession as well as the criteria to evaluate the rehabilitation of any such individual or business.

The above referenced new law places restrictions on a State Agency in denying, suspending or revoking a license to those cases in which the criminal conviction took place within the preceding seven (7) years from the date of application. Moreover, an individual cannot be denied a license based upon the underlying acts surrounding the conviction if the conviction was dismissed or expunged; the individual has provided evidence of rehabilitation; the person was granted a pardon or clemency; or if an arrest resulted in a disposition other than a conviction.

Current law gives a State Agency the authority to deny a license on the grounds that an applicant knowingly made a false statement of fact that is required to be revealed in the application for a license. However, the new law prohibits an agency from denying a license because of false statements made in an application solely on the failure to disclose a fact unless the disclosure of the fact itself would have been cause for denial of the license.

Some have opined this law should have been enacted long ago; and, it should have been made effective July 1, 2019 rather than 2020.

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