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.

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.

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.

 

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.

Click here to find out more about how Ray & Bishop defends registered nurses and RN license applicants.

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.  There 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.

 

The Medical Board of California’s physician license application asks about "unusual circumstances" in both medical school and during residency.  These questions can be a trap for the unwary.  First off, the applicant sends forms to the medical school and residency program(s) which have identical "unusual circumstances" questions.  The program or school responds directly to the Medical Board.  Expect the program to be thorough, honest and candid. Therefore, any type of investigation, discipline, probation or leave of absence must be disclosed and explained on the physician’s license application to match the program’s answers.  The only exception would be if some sort of incident was disposed of in an entirely informal way without any break in study/work or effect upon study/work, and only then if the applicant is 100% sure that the school or program would never disclose the event in any circumstances.  If your program checks "yes" and you check "no", the Board assumes applicant dishonesty until they are persuaded, or a judge finds otherwise.

Another issue is that even if the "yes" answers acknowledging "unusual circumstances" match on both the application and the L2 returned from the medical school or the L3 returned from the residency program, the school or program director must send a letter explaining the "unusual circumstances".   The applicant must also send in an explanation of the "unusual circumstances" with the application.  If the applicant’s explanation is inaccurate or misleading because it significantly fails to match the program’s explanation, the Board may view that as dishonesty, the same as if the applicant failed to answer "yes" acknowledging an adverse event.

It is a good idea for medical students or residents who have suffered from an adverse action or have taken a leave of absence to ask their program for the program’s records of the action.  At the time of license application, this information can be used to draft an accurate disclosure.  If the program’s disclosure differs, the source documents can be cited.

California has a well-earned reputation as a tough state for professional licensing.  The questions posed on the application are far more detailed and thorough than most other states.  The best course of action is to seek legal counsel experienced with the application to ensure that full, accurate disclosures are made.

The California Department of Insurance, pursuant to Title 10 California Code of Regulations section 2190.7, requires that an insurance producer maintain certain records that must be open and available for Department inspection at the agent’s place of business.   The principal rule, found under section 2190.3, requires an agent to keep his file for 18 months after an insurance transaction, which includes the following items: 1) the identity of each person who transacted the insurance, 2) all binders showing the names of the insured and insurer, the nature of the coverage, and the effective and termination dates as well as premium, 3) a copy of the application or memorandum requesting the insurance, and 4) correspondence, notes, memoranda and other records.

Under the broader rule of Title 10 California Code of Regulations section 2190.2, certain information must be kept for every insurance transaction for five years.   There are 18 items of information, which include the parties, particulars of the policy and information about what payment was made and how it was handled by the agent (including banking information).  Although whole files do not have to be maintained for the five years, this information must be traceable back to whatever source documents were used to assemble the information.

The main areas of concern when the Department wants to inspect a file are typically appropriate handling of premium monies and the presence of signatures on carrier forms.  Also, if an insured is over age 65 and the policy is solicited or sold through a house call, the mandated advance notice of that visit should be kept in the file.

Ray & Bishop, PLC, defends insurance producers in Department of Insurance investigations, accusations, and other disciplinary matters.

The agreement by which almost all California license discipline or denial cases are settled is called a stipulated settlement.  In a stipulated settlement, a licensee or license applicant usually makes admissions of some wrongdoing and agrees to accept an administrative sanction.  The stipulated settlement is usually prepared by the attorney for the licensing agency, which is often a deputy attorney general.  The stipulated settlement is a proposal sent to the agency head or license board for adoption, which in the case of a board usually means a vote.  Although the stipulated settlement is binding upon the licensee or license applicant unless it is rejected, it does not bind the licensing agency unless it is approved.

The language of the stipulated settlement is usually provided by the licensing agency’s disciplinary guidelines, which almost all agencies have.  However, certain parts of the stipulated settlement can be negotiated, including what if any admissions will be made, and if so what, the amount of cost recovery to be paid by the licensee, the duration of probation (if probation is included), and what conditions will be required during probation or what tasks are to be performed.

The agency’s attorney, often a deputy attorney general, receives settlement terms from a representative of the agency’s enforcement unit.  That representative sets the terms based upon what they believe will be acceptable to the decision making body or agency head.  There can sometimes be a range of possible outcomes, and within that range negotiations can take place.  If the agency does not adopt the settlement, the decision maker(s) will sometimes indicate what settlement terms would be acceptable.  The alternative is to proceed to hearing.

I advise clients who we represent in settlement negotiations to set priorities for what terms are most important to avoid or reduce.  For some clients, they might want  the shortest possible probation, if probation is the best possible outcome.  For other clients, their priority might be reducing the amount of cost recovery, or avoiding making damaging admissions of wrongdoing.

The stipulated settlement should never be viewed as a take-it-or-leave-it proposition. Sometimes the offered settlement is just so painful and punitive that it is preferable to put the case before an administrative law judge.  An experienced license law attorney will have a good idea of what a case is worth in settlement, in order to strike the best possible deal.

The Third District Court of Appeal in the case of Ryan-Lanigan v. Bureau of Real Estate (Third Dist. App. Ct. No. C066848) has held that where a judge dismissed a conviction "in the interests of justice," the Bureau of Real Estate cannot use that conviction to discipline a licensee under Business and Professions Code section 10177.  The Bureau of Real Estate had argued, among other things, that the dismissal was tantamount to an expungement.  However, the court found that although the order was made "nunc pro tunc" without specific language for a dismissal under Penal Code section 1385, the court order was nonetheless tantamount to a 1385 dismissal which wiped away the conviction.

Situations such as Ryan-Lanigan are quite rare, as most Superior Court judges are not willing to routinely dismiss convictions.  However, this case illustrates the power of such a dismissal if a judge is willing.  It certainly helped that the conviction was not serious, just a misdemeanor hit-and-run.  Also, one should keep in mind that many agencies have statutes that can impose license discipline for unprofessional conduct even if the conduct did not result in a conviction.

Investigations of alleged misconduct by California registered nurses are investigated by two agencies, either the Board of Registered Nursing, by its own investigators, or by the Division of Investigation of the Department of Consumer Affairs.  When a complaint is received by the Board, if Board enforcement believes the complaint has sufficient merit, the complaint is transmitted to an investigator with an internal memo directing the investigation.  Typically an investigator will start with interviewing the complainant, then seek records, investigate other knowledgeable persons or percipient witnesses, and at the end want to interview the registered nurse.

Since most complaints arise at the registered nurse’s workplace, it is very common for the investigator to want to obtain the nurse’s employment records.  However, these records are confidential, and may include testing results (such as psychological testing, drug testing or physical examination results), salary information, personal data and the details of workplace investigations.  Further, the employment records may contain information that could strengthen the Board’s potential case for license discipline against the registered nurse.

Our initial advice to every client, as an advocate for their privacy and in seeking to prevent license discipline, is to not agree to the release of employment records.  Nevertheless,  it is almost always beneficial to be open and cooperative with the Board.  Stonewalling a licensing Board will usually only make the Board more alarmed and can fuel concerns about the licensee’s fitness to practice.  Reconciling these two contrary positions (asserting one’s right to privacy, but also being open and honest with the Board) requires a careful strategic analysis.  Another consideration is that the Board may ultimately subpoena the records and obtain them by court order.

In this situation, an attorney can serve the most valuable function of being an intermediary between Board and licensee.  As an intermediary, an attorney can assess the inquiries from the Board and determine the best course of action for the registered nurse.  Making the best decisions at the investigation stage is almost always the best way, if possible, to resolve a complaint against a licensee without damaging public disciplinary proceedings occurring.