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.

Important Choices To Preserve Humanity

President Harry Truman, on April 11, 1952, signed into law a bill that proclaimed the National Day of Prayer. Thereafter in 1988, President Ronald Reagan amended the law designating the first Thursday of May each year as the National Day of Prayer. While it is not a public holiday, there are countless prayer gatherings across the United States, many of which are non-denominational.  As we all know, these are troubling times when we read about or view news accounts of horrific crimes and mass killings, hate mongers, widespread and highly polarized dissension, along with an increasing number of individuals who can be classified as morally bankrupt and/or lawless, lacking integrity, respect and appreciation of others. The new reality has brought forward the adage (click this link), “If we see something, say something.

Nonetheless, all of us need to underscore the world is a magnificent place and people are basically good, even though there are exceptions which are often characterized as the new norm. Aside from what solid values, positive attitudes as well as divergent ideas, opinions and religious beliefs can bring to humanity, we need to have healthy relationships and strong support systems. We can make important choices to preserve humanity in today’s world,  and make all of our lives better.

Let us start by smiling (click this link), as when it comes from the heart, it can be priceless.  And, if you are not used to or feel comfortable smiling, try to think of a good reason to do so in a genuine way. The social value of a smile is that it shows we are likeable, happy and content. A smile is our gift to others, but most importantly (click this link), smiles are infectious for those in our surrounding to feel important, and appreciated. In addition, smiling can improve our own mood and, therefore, increase our positive thoughts and feelings.

Taking this one step further, we have all heard that “laughter is the best medicine.” And, studies have shown (click this link to read) how laughter can be powerful, referencing among other consequences, happier individuals live longer. In contrast to a “toxic” life filled with, among other emotions,  stress from negativity, exposure to violence, and/or loneliness,  positive thinking can produce a healthier and happier life.

Rabbi Dorsch of the Tifereth Israel Synagogue in San Diego was interviewed by KGTV Channel 10 News on Sunday, April 28, 2019 in response to the horrific killing at a local synagogue was quoted saying (click this link), “We have to give one another hugs and say we are not going to let this destroy us.” There has been a great deal written, considered highly effective and adopted by therapists that hugs have a synergistic effect (the whole is greater than the parts, or 2+2 =5 or 6), including the famous author and psychotherapist Virginia Satir, who is is a pioneer in the messaging value of hugs in family therapy and quoted in “10 Reasons Why We Need at Least 8 Hugs a Day” (click this link).

In conclusion, all of us can provide to others, and realize for ourselves, happiness, along with innumerable social and health benefits from a smile; and smiling can turn into laughter, which in and of itself is worth celebrating. Let’s not be part of the problem, but part of the solution, as we take each step today and forever. We can indeed make important choices in today’s world to preserve humanity, one person and one day at a time.

Exceptional Attorney and Essential

There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

Canadian Government Legalizes Marijuana

On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

SUPERIOR ADVOCACY

How does one define the role of a lawyer? What are your expectations? Do you want an average lawyer or a truly great attorney? Here is a list of questions you might want to ask yourself and the lawyer with whom you consult:

  1. Do you want a lawyer who is pro-active, meticulous and believes in YOU?
  2. Are you intent on seeking the advice of a highly regarded attorney with boundless experience; superior knowledge and skills; is smart and knows how to persuasively articulate the case on your behalf?
  3. Do you place more value on the fees and cost of the lawyer, or are the primary factors both the direct impact of the case and the unintended consequences, now and in the future?
  4. Using objective criteria, one can read about the rating for the attorney; client reviews; attorney endorsements; full resume, including the nature, frequency and number of total and recent awards.
  5. Do you have the utmost trust and confidence in the lawyer with whom you consult, seek legal advice and representation? One of the ways to determine the character, expertise, history, and winning results can be evaluated by viewing the description and details at, and click the following link as it regards the author, on www.Avvo.com, which is a national legal directory that provides profiles of nearly every lawyer in the United States.
  6. Does your selection of an attorney also encompass whether the lawyer has respect for YOU as a valued individual, instead of  you just being another “case?”
  7. Does the lawyer have a genuine care and appreciation of YOU and your legal issue(s)?
  8. Do you want to retain a lawyer who works long and hard to solely refute, dispel or deny wrongdoing?
  9. Would you prefer a lawyer who not only does the obvious by presenting a thorough defense, but also pursues a comprehensive “offense,” which can involve a painstaking effort to marginalize the charges, allegations, as well as the inferences and conclusions?
  10. Is the attorney mindful of YOUR best interests?
  11. Despite the huge responsibilities a lawyer has to protect your rights and advance your interests, do you want an attorney who not only creates an action plan for himself/herself, but gives YOU a detailed roadmap and plan of action that focuses on what is best about YOU; your redeeming qualities; and, who involves you as an integral part of the “team,” instead of you not being actively involved?
  12. Do you want a lawyer who takes a huge number of cases (as an assembly line) and, therefore, does less on each one and charges less? On the other hand, many clients’ primary goal is to have a lawyer who has a deep commitment, is hard working, considers the advantage of a thorough investigation, research, analysis, strategizing, and has an online presence establishing their proven record.

In summary, take sufficient quality time to research the lawyer you are considering, focus on the impact the outcome can have on YOU now and in the future, rather than solely upon the costs in retaining an attorney. This situation may be a defining moment in YOUR personal and professional life. Give a great deal of weight to the objective facts set forth in the lawyer’s ratings,  attorney’s integrity,  respect by other lawyers and admiration by the countless past and current clients who have provided consistent testimonials month after month, year after year to document the knowledge, experience, skills, concern, and overwhelming energy, along with documented and proven results. Your family, friends, associates, and particularly YOU deserve superior advocacy.

US Supreme Court Invalidates Federal Ban on Sports Betting

In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

Beware of Cyber Attacks

It has been said, and bears repeating:

  1. There are those that know they have been hacked and those that do not.
  2. There are those who have been hacked and those that will be;
  3. There are those who will be hacked again;
  4. Our devices and products, at home, at work and on the go, are connected to the internet (via wireless networks, millions of Hotspots or Wi Fi). These include the web sites and pages we view online; the social media we view &/or utilizing our own accounts; the GPS we use or are integrated into our computers, smart phones, lap tops, tablets, the cloud, and the hugely increasing products constantly and newly introduced into the marketplace; and,
  5. Cyber attacks are growing beyond our imagination, and they are more sophisticated every day.

In addition, we need to remind ourselves and be constantly vigilant to appreciate that it is not enough to have antivirus, spyware, spam filters and malware programs because it is painfully obvious no one is immune from the targets of malicious others who are thrilled in breaching our devices. And, what could be worse than this unlawful interference with our privacy, as well as our sensitive personal data, confidential business and individual information stolen Be diligent in preventing cyber attacks, detecting, and responding to breaches,

DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

Rehabilitation of Inmates and Prisoners

When we go back in history, there was a time when those incarcerated would receive vocational training, such as wood shop, electric shop, metal shop, upholstery, plumbing, gardening, and most importantly learn any other skill that would increase their basic knowledge, enhance their self esteem, provide an opportunity for a more positive transition to life outside of prison or jail, and decrease recidivism.

Unfortunately, as the budgets for nearly everything else seem to have increased, the amount allocated to skills building activities within the penal system has substantially decreased and to some extent has become nonexistent.

Recently, with the devastating wildfires, inmates have been allowed to volunteer to assist in fighting these catastrophic disasters throughout California. It has been reported the savings to taxpayers has been in the millions of dollars. Inmates get paid a $1. an hour for fighting the fires, and two days off their sentence while serving in this capacity (in contrast for one day off a sentence for each day of good behavior.

Some commentators object to this policy as they believe the prisoners are being treated as a “captive labor force.”Although there are clearly disadvantages to the utilization of inmates to fight wildfires, there are countless proponents who believe the benefits far outweigh any drawbacks.

Only more time and continued [forensic] studies will produce reliable data evidencing the nature and extent of support and/or activities associated with time spent in prison or jail greatly enhance an inmate’s knowledge, social, physical, vocational, emotional and other positive skills, contributing to unprecedented levels of rehabilitation.

PUBLIC DISCLOSURE OF VIDEO AND AUDIO RECORDINGS BY LAW ENFORCEMENT

In California, an increasing number of law enforcement officers are using body cameras [more commonly referred to as “body cams”], which are attached to their clothing to record the encounters and work they perform while on duty.

Proponents claim the goal is to increase the public’s trust and confidence in all peace officers, including the most obvious such as the police, sheriffs and CHP; as such, there may be 25% or more police agencies currently utilizing these devices. Additionally, it affords officers an opportunity to have actual evidence of their work in the field, and to defend against false accusations such as police brutality. Others accept transparency and police accountability as a valid premise, however, note the fact these devices can be shut-off and/or not turned on as a reason they feel far less confident in the process.

In criminal cases, body cam footage is available to defense lawyers as part of the discovery. On the other hand, such video records are not readily available in civil cases. However, during the earlier 2017 sessions of the California legislature, Assembly Bill 748 would have made the footage of body cams a public record; although proposed and later amended, AB 748 remains unapproved at this point. Hence, the public does not have an absolute right to the disclosure of video and audio recordings by law enforcement officers.

This subject might seem straightforward to most observers however, it is not. One of the arguments against the public’s right to obtain such audio and video recordings involves a person’s individual right to privacy. Whether it is a traffic violation, a misdemeanor &/or a serious felony, all of us believe in the premise “one is innocent until proven guilty.” As such, an individual’s identity, license number, address and other personal information that is part of the cam footage is and should remain protected. Until the Legislature adopts standards that can be incorporated into a bill that is passed and then signed by the governor, or becomes a referendum initiated by a vote of the public,  the matter remains an open issue depending upon the local jurisdictions in California and/or the courts that may deal with it on a case by case basis.

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