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Disclosing marijuana convictions on real estate broker applications

May 19th, 2015 | By | Category: Real Estate Broker Law

 Tips to Avoid Denial of your California Real Estate Sales or Broker’s License

Tips to avoid denial of real estate license

Note the EXCEPTION TO “CONVICTED DO NOT DISCLOSE” section above.

Introduction

When you pass your broker’s examination you as excited as can be.  Then, the mail comes from the California Bureau of Real Estate (“CalBRE”) and you get even more excited, it is your application materials (which is the application RE 200 form that you need to fill out to get your broker’s license).  Only one problem IT ASKS YOU TO DISCLOSE ALL PRIOR CRIMINAL CONVICTIONS NO MATTER WHEN THEY HAPPENED.  Now as long as you disclose and explains your priors, you might be okay, especially if the crimes are not substantially related to the duties, qualifications, and functions of a real estate profession. This blog discusses one item that (somewhat curiously) does NOT have to be disclosed per the literal reading of the form (always check with legal counsel to be sure) – specified MARIJUANA CONVICTIONS under the Health and Safety Code where at least two years have passed since the date of conviction.

California Health & Safety Code §11357(b)(c)(d)(e)

Cal. Health and Safety Code 11357.  (a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.

(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).    

(c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment.    

(d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in a county jail for a period of not more than 10 days, or both.    

(e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school .

California Health & Safety Code §11360(b)

§11360. Transportation, importation, sale, or gift of marijuana; penalty.

(a) Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.

(b) Except as authorized by law, every person who gives away, offers to give away, transports, offers to transport, or a tempts to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars ($ 100). In any case in which a person is arrested for violation of this subdivision and does not demand to be taken before a magistrate, such person shall be released by the ar- resting officer upon presentation of satisfactory evidence of identity and giving his written promise to appear in court, as provided in Section 853.6 of the Penal Code, and shall not be subjected to booking.

These two code sections are exceptions to “CONVICTIONS” that must be disclosed, but make sure that two years or more has passed since the conviction before you try to take advantage of this exception.  If you are not sure, before you check the boxes and make the decision whether to disclose or not to disclose, consult with a real estate license lawyer to make sure you are not falling into a trap.  The instructions can be a little confusing so take your time, read it slowly, and the best policy is usually to DISCLOSE and EXPLAIN.

What happens if I fail to disclose prior criminal convictions on a real estate application?

Your license might be denied.  If it is overlooked by the BRE and later caught (for example, when your real estate license comes up for renewal), you could be charged with trying to “procure a real estate license via fraud or misrepresentation” and your license can be immediately suspended subject to the outcome of a hearing.  In these types of cases it is arguable whether or not a 10 year statute of limitations would apply to prevent an accusation.

Contact a real estate licensing law firm

Our law firm can help you fight to obtain and retain real estate licensing rights in California and Arizona. We have helped a countless number of brokers get their salesperson or brokers license, obtain advance fee agreements, handle real estate commission disputes, handle breach of fiduciary duty cases and represent clients in accusations and investigations.  We offer flexible legal fees.  Contact us at (877) 276-5084 to discuss your case in confidence.  You can also fill out the contact form below to have one of our real estate lawyers call you, normally within the hour.

 

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