Insurance Agent Keeps License Clear Despite Multiple Accusations of Failure to Place Coverage

One of our clients came to us after a former coworker took premiums from their insurance firm, promised to place auto policies, but instead kept the money and blamed it on our client.  The Department filed an Accusation against him alleging mishandled premiums, failure to properly oversee his business, and fraudulent conduct.  The Department refused to enter into a settlement and the case had to be litigated in administrative court. 

As a result of hearing, the client was cleared of all allegations of fraud and mishandled premiums, and was required to pay a modest monetary penalty to the Department in lieu of a suspension.  His license was not otherwise disciplined or restricted in any way, and he was not ordered to pay restitution or costs.  The client was specifically praised for his integrity and his good business reputation.

Department of Social Services Revocation Action Results in Two-Year Probation

We assisted a family child care home after a child in their care wandered away from the facility in the middle of the night.  The Department insisted that the facility be permanently closed.  After hearing, the licensee was described as respected, beloved caregivers, the facility was specifically recognized as being high quality, and the licensee was placed on two years’ probation.  During the period of probation, the licensee must obey all laws.

Probationary Contractor's License Granted to Client Convicted of Attempted Murder

One of our clients now works as a general contractor after he won a hard-fought battle against the Contractor’s State License Board.  Our client served many years in prison after a severe methamphetamine addiction led to an accident involving a young child.  The client came to us after the license application had been denied, and the California Department of Justice attorney indicated to us that CSLB would not issue the client any kind of license. 

We prepared the client for hearing and took the case before an administrative law judge.  We helped the client acquire a package of rehabilitation evidence to present to the judge, prepared the client’s family and friends to testify, and went over every detail of the steps our client had taken to restore his reputation and make amends for his crime and addiction.  Despite strong opposition from the Attorney General’s office, the judge was persuaded that our client deserved his contractor’s license.  Although the Board had opposed licensure from the beginning, they reviewed the ALJ’s decision and adopted it as their own.  Now our client is a successful general contractor.

License Accusation Dismissed Following Hearing

One of our most interesting cases in 2014 involved the Respiratory Care Board.  Many licensed professionals don’t realize that their conduct both inside and outside of the workplace is under scrutiny by the state.  When licensees are accused of a crime, they often express surprise that the Board cares, reasoning that the crime “didn’t happen at work.”   

For one of our clients, a respiratory care therapist, we had to defend him against a non-criminal act: a former employee who accused him of making a bad business deal.  Although the client had satisfied his obligations to his employee, the employee was upset and filed a complaint with the Board, who brought an Accusation seeking to take his license away.  Despite our best efforts, the Board refused to settle on any terms, and demanded revocation of the license. 

We took the client to hearing and argued that the client deserved no discipline at all.  We showed evidence that the client’s conduct had been appropriate and justified, and that all his obligations to his aggrieved coworker had been met.  The judge agreed.  The Accusation was dismissed and the client was able to freely continue his career with no discipline at all. 

Discipline is not the inevitable result of an Accusation by a state agency.  We use our experience at hearing to determine how to achieve the best results for our clients, so that they are not pressured into taking discipline they don’t deserve.

Licensed Vocational Nurse Achieves Two-Year Probationary License After Multiple Alcohol-Related Convictions

Followers of our blog know the uphill battle California nursing applicants face when they suffer more than one conviction for alcohol-related conduct.  Because current California law allows for significant discipline and denial after even a single instance of DUI, multiple convictions can mean a denial and an unwillingness to settle for nurses who have more than one conviction.  However, in 2015, we pursued a case to the administrative hearing and won the client a two-year probationary license.  This is a significant departure from the LVN recommended guidelines, which call for a three-year probation at minimum in cases like these.

Critical to our victory was the relative age of the conviction suffered by the client.  Both convictions were expunged, the client held two other professional licenses in good standing, and most importantly, the client fully acknowledged the wrongfulness of the past conduct and had taken affirmative steps to change the behavior that led to the conviction.

We successfully convinced the Administrative Law Judge to deviate from the disciplinary guidelines in the Proposed Decision, and the Decision was upheld by the agency.  This case teaches prospective nurses an important lesson: the disciplinary guidelines do not represent the guaranteed result for any particular case.  A poor case presentation can result in a denial or revocation even when the conduct is relatively minor.  An excellent case presentation, coupled with extraordinary evidence, can result in softer discipline, sometimes even less discipline than what the Board would consider the “minimum” discipline.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.

Unrestricted License Granted to Insurance Agent with Multiple Felonies

In 2015, we reached the end of a long, arduous road to licensure for one of our clients who had been convicted of two felonies: the client had stolen a purse, participated in an armed robbery, and damaged a vehicle in a fit of road rage.  However, these crimes were many years in the past, and the client had gone above-and-beyond for years to demonstrate rehabilitation, including significant voluntary charity work, sobriety, and advanced education.

Our readers know that the Department of Insurance places many obstacles before ex-felons who want to be insurance agents.  First, our client had to get the consent of the Insurance Commissioner in order to even be allowed to apply for a license, since the application would involve disclosure of a felony.  This consent, called “1033 consent” because of the code section requiring it, was granted with our help.

Even after consent was obtained, the Department still denied our client’s license application, and did so without even allowing for an administrative hearing.  We filed a Petition for Reconsideration on the “summary denial,” using documentary evidence and legal argument to persuade the Department to reconsider its own decision.  It worked.  The client’s summary denial was vacated, replaced not by an insurance license, but by a “Statement of Issues.” In other words, a refusal to grant a license and a request for an Administrative Law Judge to make a decision in the matter.

We took our client to hearing and, through testimony of the client, character witnesses, and documents attesting to the client’s strong character, including remorse and change, the client was successful.  The ALJ granted the client an unrestricted license, a major victory for the client and for our firm.  The Department adopted this Decision, and the client is now licensed.

The long road and many obstacles faced by this client would discourage some prospective clients from pursuing a license.  However, persistence and quality representation can lead to success, and this client is now enjoying a successful career in insurance.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.

Probationary Vehicle Salesperson's License Issued to Applicant Whose License Had Been Revoked by DMV for Theft From Car Dealership

In early 2015, we won an important victory for a car salesperson who had previously lost a DMV salesperson’s license for theft from a dealership.  The probationary license enabled the salesperson to perform all the functions of any other salesperson, under the condition that the employing broker be notified of the conviction and the discipline.  As part of our case to show rehabilitation, our client notified the prospective employer, who wrote a fine letter of support for the case.

We developed a mitigation and rehabilitation case that met most the Department’s criteria for rehabilitation, and the client was also able to achieve reduction of his crime from a felony to a misdemeanor under Penal Code 17(b).  This case underscores the importance of obtaining all possible post-conviction relief.  Although the reduction did not prevent the Department from considering the case, it was an important factor in demonstrating that our client was a changed person. 

The Department refused to offer a settlement, and so we litigated the case at the Office of Administrative Hearings.  We successfully convinced the Administrative Law Judge to grant a probationary license, and the Proposed Decision was upheld by the agency, granting our client the victory.  Even though the client had previously used his professional license to commit a crime, we were able to assist the client in demonstrating the profound changes made in areas both personal and professional.  That demonstration was sufficient to restart this client’s career.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.

rse and change, the client was successful.  The ALJ granted the client an unrestricted license, a major victory for the client and for our firm.  The Department adopted this Decision, and the client is now licensed.

 

The long road and many obstacles faced by this client would discourage some prospective clients from pursuing a license.  However, persistence and quality representation can lead to success, and this client is now enjoying a successful career in insurance.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.

Registered Nurses Must Report Criminal Convictions and Other Adverse Actions or Face Discipline

The California Board of Registered Nursing has made important changes to the duty of a nurse to report a criminal conviction or other license discipline and to cooperate with the Board’s investigation of that conviction.  We have begun to see Board staff implement this new law in 2016. 

Under Title 16 California Code of Regulations section 1441, if a nurse fails to report a felony or misdemeanor conviction within 30 days of the date of conviction, it is considered unprofessional conduct.  Discipline taken by another agency, such as a nursing board of another state, must also be reported.  As of the writing of this article, the Board of Registered Nursing has no reporting form for this purpose, nor has it given specific guidance on how or to whom to report these adverse events.  The only specific reporting form currently available from the Board is its “License Discipline / Conviction Certification.”  This form only applies to a license application that is being held due to failure to report a conviction on a renewal application form.  Also, the exact information required to notify the Board is not yet specified.  Specific information about the date and place of the conviction, and law violated, sent in a manner that provides evidence of timely reporting. would appear to be enough to meet this requirement. 

The Board has also amended section 1441 to require that a licensee who is asked for “documents” within 15 days of receipt of a request (or a longer time if specified) must supply those “documents” or be found to have committed unprofessional conduct.  From the context of the statute, it would appear that these “documents” would be court conviction documents and police reports, however, “documents” theoretically could include confidential employment, medical and psychiatric records.   There is an exception that excludes documents that the licensee does not have access to or control over. 

Finally, section 1441 also provides that “failure to cooperate and participate in” a board investigation constitutes unprofessional conduct.  It is common that a Board of Registered Nursing investigator or an investigator from the Department of Consumer Affairs will contact licensees about a pending complaint or, rarely, a criminal conviction (unless the conduct occurred at the nursing workplace).  The only exception provided is if a licensee asserts their Fifth Amendment or other constitutional or statutory privileges.  In our opinion, the involvement of an attorney is essential to identify constitutional and statutory privileges and to assert those to the Board in a timely and effective manner. 

The Board of Registered Nursing continues to tighten its regulatory noose around the necks of is RN, NP and CRNA licensees with these very strict investigatory tools.  If you have received a letter from the Board of Registered Nursing or the Department of Consumer Affairs demanding an interview, documents, or both, do not hesitate to contact our office for a consultation.     

Nursing Board Consideration of Criminal Convictions Disclosed on License Applications

Because of our expertise and the sheer amount of material available on our website and blog, our office often hears from prospective registered nurses and licensed vocational nurses, sometimes even before they apply to nursing school.  For young people considering a career in nursing, it's never been more important to stay out of trouble before applying to nursing school.  Even minor misdemeanor crimes—such as simple battery, driving under the influence, or petty theft—can result in obstacles that can seriously affect the first few years of a young nurse's career.

Young applicants don't realize how much power licensing agencies have to look at the facts of what happened in a particular criminal case, rather than just the penal code section violated or the terms of a particular sentence.  Let's say a young woman is arrested for domestic violence after someone witnesses her push her boyfriend during a heated argument.  If the police are called to the scene, they are very often compelled to make an arrest, and so the young woman may end up in court facing charges of assault and domestic battery.  After a frank discussion about the case with the district attorney, let's assume our young woman accepts a plea to disturbing the peace.  This represents a very good outcome in criminal court—the crime itself doesn't reference "battery" or "domestic violence" at all.

However, when our young woman finishes nursing school and applies for a license, she will have to disclose the conviction to the Board of Registered Nursing (BRN).  The BRN will ask for copies of the paperwork from criminal court, but they will also evaluate the police reports from the night of the incident.  These police reports might contain embarrassing details our young woman would be embarrassed to admit—might she have cursed at her boyfriend that evening?  Was she drinking that night?  Was she disagreeable with the police when they showed up?  The BRN can consider all of these details when they evaluate a license application.  Suddenly, the potential nurse is having to answer questions about whether or not she was abusive, or has a problem with alcohol, or demonstrates bad judgment—all stemming from a single misdemeanor conviction.

If you're a license applicant with a criminal conviction, and those answers are potentially embarrassing, you need an experienced license defense attorney to represent you against the Board.  Denials for single criminal convictions are becoming commonplace, but a denial doesn't represent the end of a potential nursing career.  The challenge is to show that you are rehabilitated, which means more than just doing all your classes and paying all your fines.  You need to be prepared to explain to the Board enforcement why the incident happened and why it won't happen again.  You need documentary evidence that supports the kind of person you are, and you need to be prepared to distinguish the person who committed the crime from the person applying for a license.  BRN settles a majority of single-conviction cases for a probationary license, which can dramatically restrict the opportunities available to a young nurse.  If you want to avoid probation or if you are worried about getting an RN license, contact an experienced license defense attorney for advice.

Governor Brown Signs AB 2396, Limiting the Use of Expunged Convictions to Deny License Applications

On September 28, 2014, Governor Brown signed Assembly Bill 2396, which added language to Business and Professions Code section 480.  This addition to the law provides that an individual with an expunged conviction cannot be denied a license solely because of the expunged conviction, notwithstanding any other law in the Business and Professions Code.  This new law will give relief to certain applicants applying to certain state agencies for licenses, once it becomes effective on January 1, 2015.

An expungement in California is a court order issued after probation is complete, or after more than one year after a conviction for which no probation was ordered, dismissing the conviction in a limited fashion.  Expungement is granted upon a motion after successful completion of probation, although there is no uniform definition of what "successful" means.  For example, if a defendant failed to complete community service and was found in violation of probation, although the issue was ultimately resolved (say, by additional punishment) and probation was completed, some judges might conclude probation was not "successfully" completed.  An expungement is not available if the defendant served time for the conviction in state prison.  There is no equivalent to California's expungement in federal courts.  

The new law only applies to agencies under the Department of Consumer Affairs (DCA).  So, for example, the Department of Insurance and the Department of Social Services (which are not under DCA) are not affected by this change.  Also, some agencies under the Department of Consumer Affairs, such as the Medical Board of California, have their own laws which allow expunged convictions to be used to deny a license application.  Under the laws that govern expungements, an expunged conviction always has to be revealed to a licensing agency if they ask.  Also, an agency may still use the facts and evidence in the criminal case to prove unprofessional conduct, which is possible under a number of other laws.  The is no federal court expungement.  Out-of-state convictions are not affected by this change.

One agency certainly affected by this change is the Bureau of Real Estate (BRE).  It appears that starting in 2015, an expunged conviction cannot be used by BRE to deny a license.  However, if a licensee fails to disclose a conviction, or has some other adverse action in their background, that could be used as an independent ground for denial, which then allows the conviction to be used as well.  Also, dishonest conduct or theft leading to a conviction could be used as an independent ground for license denial.

It remains to be seen how other agencies under DCA will implement this law.  There are other legal ways for most agencies to use the conduct in criminal matters to deny licenses.  However, where a conviction is rather old and the police reports have been destroyed or are otherwise unavailable, it will be very difficult or impossible for an agency to prove the conduct leading to a conviction in order to deny a license.   

An example of one category of applicants that would probably not be affected is nurses with drunk driving convictions.  A drunk driving conviction constitutes the dangerous use of alcohol, an independent basis for denial of a license regardless of conviction.   Since the new law only applies if the sole ground for denying an applicant is the expunged conviction, if an agency can come up with any other theory for denial, presumably the expunged conviction can still be used.  This is only one example of the ways in which an agency can bring up past adverse events and problems from the application process to broaden the reasons for license denial and then use the expunged conviction.

We look forward with great interest to the implementation of this new law in 2015.  In the meantime, expungement has been and continues to be helpful to show rehabilitation that can be persuasive  in a license application and license denial appeal.   Therefore license applicants should seek expungement of prior convictions whenever possible.  Since these laws are complicated, if you are applying for a license and have convictions in your background, call our office for a consultation to see if these laws will apply to your situation.