AB 2138 – New CA Law Changes Professional License Criminal Records Limits

AB 2138—The Fair Chance for Occupational Licensing Act—Big Changes to How an Applicant’s Criminal Record May be Considered by a State Board.

There has been a fairly drastic change in the way most State Boards and Bureaus may consider criminal conviction records of applicants for licensure and these changes are quite favorable to the applicant.  The new law is known as AB 2138, and was signed into law by Governor Brown in September of 2018, becoming effective July 1, 2020.

This new law only applies to Boards which follow Business and Professions Code Section 480, and includes most of the Boards under the Department of Consumer Affairs.  The Department of Consumer Affairs (DCA) is the largest oversight Department and regulates over 40 different Boards throughout California.  It is important to note that AB 2138 does not change the law regarding the review of prior convictions for the following three Boards under the DCA: Bureau for Private Post-Secondary Education, The State Athletic Commission and The California Horse Racing Board.

Otherwise, this major change in the law favorable to applicants applies to all other Boards.

AB 2138 law changes how criminal records may be considered and gives people who were formally convicted and/or incarcerated a fair chance to apply for licensure with the various Boards which follow Business and Professions Code Section 480, as discussed above.  The major change in the law, effective July 1, 2020, means that if you have a criminal history and apply for licensure after July 1, 2020, with a Board that follows Business and Professions Code Section 480, most Boards cannot deny a license on the basis of:

1. Many* criminal convictions that are 7 years or older.
2. Convictions that have been dismissed for Penal Code Sections 1203.4, 1203.4a, 1203.41, 1203.42, all commonly known as an “expungement.”
3. Convictions for which the person has received a Certificate of Rehabilitation (COR) or a pardon.
4. Arrests, diversions, deferred entry of judgment, infractions, citations, or juvenile adjudications.

*The 7- year rule does not apply to the following:

1. Serious felonies—for more information, see California Penal Code Section 1192.7(c).
2. Convictions requiring Tier 2 or Tier 3 sex offender registration under Penal Code Section 290.
3. Felony financial crimes if the applicant is seeking a license under the following 6 Boards: California Bureau of Accountancy, Contractors State License Board, Professional Fiduciaries Bureau, Private Investigators Under The Bureau of Security and Investigative Services, Cemetery and Funeral Bureau and The California Department of Real Estate.

Convictions which can be considered under AB 2138 are convictions which occurred within the last 7 years, are an exception to the 7-year rule, or are “substantially related” to the qualifications, functions, or duties of the business or profession to which the application is submitted.

Also note that felony financial fine convictions must be directly and adversely related to the fiduciary qualifications, functions, or duties of the business or profession regarding the 6 Boards above.

This change in the law is obviously of great significance to our clients and future clients who are applicants for licensure as it provides them with a fair chance to be considered for licensure after the passage of 7 years or more since their last conviction.  This is only fair to applicants, as many people make mistakes early in their lives, learn hard lessons from those mistakes and accordingly resolve not to repeat those mistakes.  The California legislature has finally taken note of this fact and provided applicants for licensure with a fair chance to rebuild their lives and obtain licensure after not reoffending for at least the 7-year period listed in AB 2138.

When applying for a licensure under an AB 2138 regulated Board, most of these Boards cannot ask about your criminal history information on the license application after July 1, 2020.  This does not mean that they will not run a fingerprint or background check, which they will, however, The California Architects Board, Landscape Architects Technical Committee, Board of Barbering and Cosmetology, Bureau of Household Goods and Services and The Bureau of Automotive Repair may ask applicants about their criminal history on their application despite the provisions of AB 2138.

Beginning January 1, 2021, the California Architects Board and Landscape Architects Technical Committee will run a fingerprint background check as well.

As AB 2138 is new change in the law, it is extremely important to consult qualified counsel to assist you in determining whether or not to apply for licensure depending on the type and seriousness of your past conviction or convictions.  Disclosing additional information about your criminal history and mitigating information and explanation is voluntary, however, the decision to not provide additional information to the Board should not be used as a factor in determining whether to grant or deny your application.

Despite the very favorable change in the law for applicants, it is imperative that you consult with a qualified licensing attorney such as our attorneys at Brown and Brown to ensure that you are answering every question asked on the application truthfully and accurately.  If the board determines that, in their opinion you have not answered a question truthfully or accurately, they will likely deny your application and you will be subjected to a considerable waiting period to reapply for licensure.  This is why it is so important to consult qualified counsel to assist you with the application itself, including understanding and correctly answering all questions, as they can be quite ambiguous.

If you are denied a license because of your criminal history under AB 2138, the Board must notify you in writing of:

1. The denial of your application.
2. Any procedure that Board has for you to challenge the decision denying your application or to request reconsideration
3. Your right to appeal the decision denying your application, also known as your “Due Process” rights
4. Your right to request a copy of the entire conviction history record and to question the accuracy of it.

Even if the background check is correct, and you received a decision denying your application, you have a due process right to challenge that denial and many times our attorneys are successful in obtaining licensure for clients, despite the original denial of the application.  You may proceed to a hearing, where evidence, witnesses and testimony are heard/received.  You will need to show that your criminal history is not “substantially related” to the license type you are requesting and that you have successfully been rehabilitated.  This requires a great deal of preparation and legal experience, and it is imperative you seek highly experienced counsel to have any real chance of success.

These are exciting times for our clients and our future clients who are applying for licensure despite previous convictions, including nurses, physicians, pharmacists, dentists, and more, and we welcome your call or email at any time to discuss your case and provide you with a free consultation.