What the Investigation Encompasses
Brokers considering hiring an applicant as well as Appraiser and Real Estate Applicants with a criminal conviction or convictions frequently ask the Commission's staff: What are the chances of a person who has a criminal conviction or a sanction on another professional license getting a license/certification?
The best answer is "It depends."
Meeting the age, education, examination, and experience requirements of the law qualifies most applicants for a license/certification. Meeting those requirements reflects minimum competence. The absence of any prior criminal conviction or prior disciplinary action on another professional; license (hereinafter "prior record") gives the applicant a presumption of a good reputation for honesty, trustworthiness, and integrity (hereinafter "good reputation").
However, when an applicant has a prior record, he or she must provide additional proof that he or she currently possesses the requisite good reputation since the prior record is proof that at least at one time the applicant lacked that good reputation. The law provides that the Commission/Board shall grant licenses:
. . . only to persons who bear a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such manner as to safeguard the interest of the public and only after satisfactory proof of such qualifications has been presented to the Commission/Board.
Applicants with prior convictions begin that proof process by submitting a variety of additional documents with their applications. Each year from 450 to 650 applicants (10-15% of all applicants) report (or the Commission discovers) a criminal conviction or a licensing disciplinary action. For about 85% of such applicants the documentation that they provide and the Commission's background investigation generally produce sufficient evidence to satisfy the Commission that despite the prior record, the applicant possesses the requisite good reputation. In those cases, it issues a license.
In most of those cases the applicant reported a single conviction or disciplinary action that the Commission/Board could classify under one or more of such categories as: a misdemeanor, a relatively minor disciplinary action, a violation that posed little harm to the public, a youthful indiscretion, or an offense occurring so long ago that the applicant's subsequent behavior makes it unlikely it will recur.
In most years the Commission's/Board's completion and review of its background investigations lead it to deny issuing a license to about 15% of applicants who report a prior record. These cases lead to denials of applications for a variety of reasons. Those reasons include, but are not limited to:
- the nature of the offense:
- Almost all felony convictions will result in a denial. The courts have held that all felonies are crimes of moral turpitude. (While most so-called sex crimes are "crimes of moral turpitude," the phrase includes a far broader range of crimes. Thus, for licensing purposes the phrase "crimes of moral turpitude" is often defined as any crime that shocks the conscience).
- The Commission/Board will likewise deny many applicants who report misdemeanor convictions that are crimes of moral turpitude or that involve such offenses as forgery, embezzlement, obtaining money under false pretenses, theft, extortion, or conspiracy to defraud. The courts have deemed a number of misdemeanor offenses (that some applicants argue are minor) to be crimes of moral turpitude. For example, a good number of applicants report misdemeanor convictions for writing bad checks and shoplifting. The courts have found such crimes may be "crimes of moral turpitude."
- Most DUI offenses are misdemeanors that are not crimes of moral turpitude. Thus, an isolated DUI offense will not lead to a license denial. However, repeated DUIs may lead to a conviction as an habitual violator, a felony. Similarly, DUIs many times are coupled with other charges that make them felonies, for example, fleeing the scene of an accident or homicide or feticide by automobile.
Similarly, many applicants mistakenly assume that they need not report criminal actions that did not involve a guilty plea or a finding of guilt. For example, a licensee who pleads nolo contendere to a charge or who is sentenced as a first offender often believes that they need not report such pleas. However, the license law defines the word "conviction" to include not only guilty pleas, but nolo contendere pleas and first offender sentencing. In addition, a pardon does not remove the requirement for reporting a conviction.
Denial of license can be a two stage process. The Commission/Board initiates stage one. After its investigation, the Commission/Board votes to issue or deny based on those findings. All but 3 or 4% of application cases end at this stage.
The applicant initiates stage two. In that stage the applicant requests a formal hearing before the Office of the State Administrative Law Judge (ALJ). At that time the applicant must present evidence and testimony to support why the Commission/Board should grant a license in spite of the prior record. Applicants should note that the law permits denial of a license based solely on the basis of certain convictions (felonies and crimes of moral turpitude). Over 95% of the time the ALJ has affirmed the initial denial.
Applicants and others often make the mistaken assumption that completion of the rehabilitation process of serving a criminal sentence or of obtaining a pardon entitles one to a license. Successful rehabilitation does not entitle one to a license. Sometimes the crime committed is itself such that it permanently disqualifies the applicant from holding a license. Thus, even though a licensee and his or her witnesses may believe that the applicant has succeeded in the rehabilitation process, the criminal conviction alone authorizes the Commission/Board and the ALJ to deny the license.
Thus, most brokers interviewing applicants with prior records will find a fairly high likelihood of the applicant's obtaining a license unless he or she falls into one of the five categories above. Yet, brokers should conduct their own background checks on such applicants. The broker's particular business needs may make an applicant with some types of convictions a poor risk even though the Commission found no basis to deny a license.
The information contained in this article is believed to be current and accurate. The GREC staff reviews the contents periodically and updates it when appropriate. If you have questions or comments about this article, you may contact us at firstname.lastname@example.org . Last reviewed August, 2006.