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Prior criminal convictions, real estate licensing & 2911 rehabilitation factors!

Mar 10th, 2015 | By | Category: Real Estate Broker Law

Tips for applying for your real estate license when you have a prior criminal conviction in California!  Does the “substantial relationship” apply?

2911 rehab factors prior crimes

Click on the picture above to watch our video where Attorney Steve discusses the Section 2911 rehabilitation factors.  Click on the RED “V” to subscribe to our YouTube Channel.  Great for business and real estate professionals.

Introduction

When you are applying for a real estate license in California, you have to pass the test, and fill out forms to apply for your license.  One of the questions you will see on the application is to disclose whether or not you have ever been convicted of any crimes, whether expunged or not.  When you are filling out the forms you have to DISCLOSE EVERYTHING INCLUDING PRIOR CRIMINAL CONVICTIONS.  Do not try to fool the regulatory agencies, because as many people find out, THEY WILL FIGURE OUT whether or not you have ever been arrested or convicted of a crime.  The California Department of Justice helps out with the background research.  This blog discusses what happens when you are asked to explain why you failed to disclose prior criminal convictions, or why you should be allowed to be granted a real estate license even though you have prior criminal convictions.

Sample Letter – 2911 Rehabilitation Factors

Pasted below is a sample BRE rehabilitation letter that discusses the factors you will need to show if you want to get your real estate license after having a prior criminal conviction.

NOTE:  (This letter is subject to federal copyright laws, this is general legal information only), do not use without consulting our firm and obtaining a license to use the letter.  In most cases, clients hire us to submit the letter, and make the case for them.


March 10, 2015

 

California Bureau of Real Estate

P.O. Box 138040
Los Angeles, CA 90027

Attn: XXXXX, Special Real Estate Investigator

VIA U.S. CERTIFIED MAIL

RE: PETITION FOR REAL ESTATE LICENSE RIGHTS FOR XXXXXXX; CRIMINAL CASE DOCUMENTS; AND STATEMENT OF REHABILITATION FACTORS. (CalBRE#XXXXXXX).

 Dear Licensing Division:

          Please be advised that my firm has been retained by XXXXXXXX to help her apply for real estate licensing rights in the state of California. XXXXXXX has recently passed the salesperson examination and now wishes to be considered for a sales persons license so that she can pursue her passions in a career in real estate property management.

            I am in receipt of your letter dated February XX, 2015 wherein you have requested my Client provide you with a completed RE 515 and 515(d) forms, and a statement as to rehabilitation factors. Please find attached the requested forms, and the explanation letter and exhibits below. We trust that upon a final review, you will see that the prior criminal incident was a ONE-TIME incident, and something XXX deeply regrets.

FAILURE TO DISCLOSE PRIOR CIRMINAL CONVICTIONS

Her failure to disclose this prior conviction was due to a complete oversight and a mental block in believing that having expunged her criminal conviction that she would never have to relive those moments, leading to an accidental and unintentional failure to disclose. She is also dealing with XXXXXX AND XXXXXX which has also contributed to the oversight.

ORIGINAL LICENSE APPLICATION

Attached please find the following:

  1. RE 515 Form (Confidential interview statement); (Exhibit “A”)
  2. RE 515(d) Criminal Conviction Details (Exhibit “B”)
  3. Character reference letters (Exhibit “C”)

If you require any additional information, please let me know. Thank you for your time and consideration in reviewing these materials.

CRIMINAL CASE BACKGROUND

The arrest and Court records are set forth in the Exhibits to this letter. My Client went out with friends on the night of XXXX. They went to a local bar to have fun and unwind and meet with friends. After a few drinks my Client became extremely intoxicated and does not recall what happened next. To this day she is not sure whether she simply had too much to drink (because she was not a heavy drinker), or if someone had possibly slipped something into her drink. Regardless, as the police report points out, my Client was convicted of a DUI, her second DUI.  The arrest occurred on December 10, 2010, at the Wild Animal Sports Bar in San Francisco. The arrest was made by the San Francisco Police Department. [See Exhibit “D” – arrest report].

Client was charged with three misdemeanor counts, and she plead guilty (no contest, nolo contendre) to two counts:

  1. Violation of California Penal Code Section 415 (disturbing the peace, loud noises, offensive language);
  1. Violation of California Penal Code Section 148(A)(1)(Resisting, delaying, and obstructing a police officer in the line of duty.
  1. Drunk Driving (DUI “extreme” over .20)

The case was heard in Superior Court of San Francisco, 94111. [See Exhibit “E” – Complaint].

         Both of these are misdemeanors. As part of her sentence issued on 02/15/06 she received two years of jail time, two years probation, a $2,500 fine (See Exhibit “F” – No Contest Plea and Penalties), and 60 days weekend work program (which she also completed). There were no other injuries to any parties.

         XXXX served her time, paid her fines (See Exhibit “G” proof of payment of $XXX fine and $XXXX for work program fee was paid), and apologized for her involvement. She filed a motion for early termination of probation on 9/19/07, (See Exhibit “H”),which was granted. On or around 08/20/08 her attorney moved to have the crimes expunged (See Exhibit “G”) which order was granted. At this point, being highly embarrassed about the conviction, she put this out of her mind and wanted to forget it and focus on re-building her life. When she passed her real estate examination and filled out the forms, she did not think to disclose the conviction, and had assumed based on conversations with her prior attorney, that she would no longer have a crime on her record (thus leading her to believe she had no duty to report it). Having discussed this with current counsel, she is aware that this should have been disclosed. Again, this was an inadvertent and unintentional error on her part.

As this letter indicates, XXXXX admits and takes responsibility for her conduct in the past. She has served her time and paid her dues.  My Client minimized the damage by pleading no contest (not filing any appeals) and accepting accountability for these actions, and she is extremely regretful for his actions and/or omissions and is committed to never committing any crimes in the future.

THE MISDEMEANORS ARE NOT SUBSTANTIALLY REALTED TO THE DUTIES, QUALIFICATIONS, AND FUNCTIONS OF A REAL ESTATE LICENSE.

According to the real estate law in California:

2910. Criteria of Substantial Relationship

(a) When considering whether a real estate license should be denied, suspended or revoked on the basis of the conviction of a crime, or on the basis of an act described in Section 480(a)(2) or 480(a)(3) of the Code (see full description below), the crime or act shall be deemed to be substantially related to the qualifications, functions or duties of a licensee of the Department within the meaning of Sections 480 and 490 of the Code if it involves:

(1) The fraudulent taking, obtaining, appropriating or retaining of funds or property belonging to another person.

(2) Counterfeiting, forging or altering of an instrument or the uttering of a false statement.

(3) Willfully attempting to derive a personal financial benefit through the nonpayment or underpayment of taxes, assessments or levies duly imposed upon the licensee or applicant by federal, state or local government.

(4) The employment of bribery, fraud, deceit, falsehood or misrepresentation to achieve an end.

(5) Sexually related conduct affecting a person who is an observer or non-consenting participant in the conduct or convictions which require registration pursuant to the provisions of Section 290 of the Penal Code.

(6) Willfully violating or failing to comply with a provision of Division 4 of the Business and Professions Code of the State of California. [Basically real estate licensing and related sections]

(7) Willfully violating or failing to comply with a statutory requirement that a license, permit or other entitlement be obtained from a duly constituted public authority before engaging in a business or course of conduct.

(8) Doing of any unlawful act with the intent of conferring a financial or economic benefit upon the perpetrator or with the intent or threat of doing substantial injury to the person or property of another.

(9)  Contempt of court or willful failure to comply with a court order.

(10) Conduct which demonstrates a pattern of repeated and willful disregard of law.

(11) Two or more convictions involving the consumption or use of alcohol or drugs when at least one of the convictions involve driving.

Applying these factors, the criminal conviction of XXXXXXX does not qualify as “substantially related” offense and more leniencies should be given in determining whether or not to grant a real estate license. The conviction is not substantially related to the duties, functions and qualifications of a real estate professional, and as such, given the rehabilitation factors set forth below, my Client should be given a chance to make things right despite her inadvertent failure to disclose. This was a ONE-TIME incident and there are no other problems with drugs, or alcohol as noted below.

Section 480(a)(2) and (a)(3)

CalBRe defense attorney

SECTION 2911 REHABILITATION FACTORS

In attempting to demonstrate her rehabilitated character and changed attitudes in accordance with CCR 2911, XXXXXX has asked me to advise the commissioner as to the following:

California Code of Regulations, Title 10, §2911 provides: “The following criteria have been developed by the department pursuant to Section 482(a) of the Business and Professions Code for the purpose of evaluating the rehabilitation of an applicant for issuance or for reinstatement of a license in considering whether or not to deny the issuance or reinstatement on account of a crime or act committed by the applicant:

(a)             The passage of not less than two years since the most recent criminal conviction or act of the applicant that is a basis to deny the departmental action sought.

         Here, the guilty conviction was entered into on XXXX (this is almost ten years ago now) and one of the reasons she nearly forgot about the incident. Her probation term has been served and no further incidents of any nature have occurred during the last decade and XXXX has made significant changes to herself personally to ensure there are no risks in the future. Since the crime is not substantially related to the duties, qualifications and functions of a real estate license, no additional wait time periods should be imposed. 

(b)          Restitution to any person who has suffered monetary losses through “substantially related” acts or omissions of the applicant. 

There were no restitution orders made. 

(c)         Expungement of criminal convictions resulting from immoral or antisocial acts. 

        Yes, as set forth above, the conviction was expunged. 

(d)      Expungement or discontinuance of a requirement of registration pursuant to the provisions of Section 290 of the Penal Code. 

Same answer as above. 

(e)       Successful completion or early discharge from probation or parole. 

         Yes. XXXXXX served her probation period with good behavior and was released on early termination on or around XXXXXX. 

(f)        Abstinence from the use of controlled substances or alcohol for not less than two years if the conduct which is the basis to deny the departmental action sought is attributable in part to the use of controlled substances or alcohol.

         Yes. Because the incident was very scary, and ultimately costly and embarrassing, XXXXX does not abuse drugs or alcohol in any form.

(g)  Payment of the fine or other monetary penalty imposed in connection with a criminal conviction or quasi-criminal judgment.

         Yes. The $XXXXX fine was paid in full See attached exhibits as referenced above.

(h)  Stability of family life and fulfillment of parental and familial responsibilities subsequent to the conviction or conduct that is the basis for denial of the agency action sought.

         Since the criminal court conviction, XXXXX has maintained a close relationship with her husband XXXXXX and she badly needs his real estate license so that she can help contribute financially to the family and serve as a role model for her family.

(i)  Completion of, or sustained enrollment in, formal education or vocational training courses for economic self-improvement.

         Since the time of the conviction, XXXXX has engaged in self-study in regard to the property management business which is the business her mom is in (as a licensed California real estate agent). She has been learning about the business from her mom and through NARPM (National Association of Real Property Management) online research, and her plans, if granted a real estate license, is to enter the property management business. As such, she has been self studying in the business management aspects of the business, trust fund accounting, and general research about news concerning the business.

(j)  Discharge of, or bona fide efforts toward discharging, adjudicated debts or monetary obligations to others.

          XXXXX has no outstanding liens, judgments, or debts that she is aware of and believes her FICO credit score is in the mid to high 700’s, (which is a top tier credit rating).

(k)  Correction of business practices resulting in injury to others or with the potential to cause such injury.

         XXXXXX has discontinued prior relationships and associations that got her into trouble, and she instead focuses her life around her close family and friends. At the time of the incident, XXXXX was young and single and now she is married and has a safe and secure family life, and this requires her full attention and maturity.

(l)  Significant or conscientious involvement in community, church or privately-sponsored programs designed to provide social benefits or to ameliorate social problems.

         XXXX and her family are active in their community and involved in raising their child. Most of her time is devoted to this as raising her family, which is a full time job.

(m) New and different social and business relationships from those which existed at the time of the conduct that is the basis for denial of the departmental action sought.

           Again, XXXXXXX has continued to make new business and personal contacts and some of those individuals have attested to her positive character as the attached Exhibits demonstrate (See Exhibit “C”). As we hope the Commissioner’s office will agree, XXXXX never intended any harm or injury to any persons, and she has distanced herself from some of her friends from the past who perhaps led her down the wrong path on that night.

(n)  Change in attitude from that which existed at the time of the conduct in question as evidenced by any or all of the following:

(1)  Testimony of applicant.

(2)  Evidence from family members, friends or other persons familiar with applicant’s previous conduct and with her subsequent attitudes and behavioral patterns.

(3)  Evidence from probation or parole officers or law enforcement officials competent to testify as to applicant’s social adjustments.

(4)  Evidence from psychiatrists or other persons competent to testify with regard to neuropsychiatric or emotional disturbances.

(5)  Absence of subsequent felony or misdemeanor convictions that are reflective of an inability to conform to societal rules when considered in light of the conduct in question.

            We attached numerous reference letters from individuals who can vouch for XXXXX character, positive attitude, and work ethic. (See Exhibit “C”). The letters are from co-workers and other individuals that XXXXX has, and continues to mentor and associate with. In regard to other disclosures, we do wish to point out that there was a traffic ticket that turned into an arrest warrant (accidentally) also approximately 20 years ago, that was immediately remedied when she learned about it, and if any information is required we are happy to provide that.

As demonstrated by the above, and as part of her effort to move on, and to rehabilitate herself, XXXXXX has complied with all mandates of the California criminal courts, and has paid all fees and fines and performed the mandatory weekend work hours. She has re-educated herself to ensure the public is protected in the future if she is granted a license, and she has been at all times a model citizen since the incident that she seeks to put behind her. We all deserve a second chance. XXXXX has definitely learned her lessons and paid her debts to society. She asks for a chance to be a professional member of the California real estate community so she can make a positive impact for herself and her family.

CONCLUSION

In closing, we respectfully request that this letter, including all attachments and exhibits, be considered by the BRE licensing division and/or the commissioner in seeking to grant my Client original real estate licensing rights. We believe the petition has established the rehabilitation factors under Section 2911 and that the factors weigh toward rehabilitation and granting of real estate licensing rights. The failure to disclose the criminal conviction (which was a ONE TIME blunder that will never happen again) was an oversight and she believed that her criminal conviction did not have to ever surface again. Raising a family and fighting for her career, we hope the Commissioner’s office can see past this unintentional error.

 Can you please let me know if any additional information is required. Should you wish to discuss, I can be reached directly at XXXXXXXX.   Thank you for your time, courtesy, and prompt attention to this very important matter.

Very truly yours,

 

      Real Estate Lawyer.

 

Cc: XXXXX

Encl: Exhibits A-XXX

Contact a California BRE real estate licensing, compliance & defense law firm

If you need help with real estate licensing issues in California (BRE) or Arizona (DRE) contact us to discuss your situation.  When your licensing rights are on the line, you need experienced real estate counsel to assist you.  We have helped many other licensees and potential licensees with investigations, property management audits, broker accusations, “statement of issues” response, advance fee agreements. and other matters  before the Cal. Bureau of Real Estate.  We can be reached at (877) 276-5084 or by emailing us at the address on the sidebar of this page.

 

 

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