WRITTEN BY BOB HUNT
It may come as a surprise to some, but, as a matter of fact, one or more prior legal convictions may prevent a person from obtaining a California real estate license. There is emphasis on the may. It is within the discretion of the Bureau (CalBRE). Rather than denial, the Bureau may issue a restricted license. This is what happened in the case of Brenda Skulason. (It is with some reluctance that I mention Ms. Skulason’s name here. She doesn’t need any more publicity regarding this matter. However, her name is on the court case, and it can’t very well be avoided.)
In 2010, Ms. Skulason was issued an unrestricted license. Three years after that, her convictions were dismissed under section 1203.4 of the Penal Code. That section of the code provides, “In any case in which a defendant has fulfilled the conditions of probation, … or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section … the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and … he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”
It is also a little-known fact that section 10083.2 of the Business and Professions Code requires that “The [Real Estate] commissioner shall provide on the Internet information regarding the status of every license issued by the department… The public information to be provided on the Internet shall include information on suspensions and revocations of licenses issued by the department and accusations filed pursuant to the Administrative Procedures Act…”
Thus it was that information about Ms. Skulason’s convictions was linked to the CalBRE web page which provided the standard information about her license status. It used to be that such information stayed there forever. However, in 2016, the Business and Professions Code was amended to allow (but not require) the information to be removed if it was more than 10 years old and “… the licensee provides evidence of rehabilitation indicating that the notice is no longer required in order to prevent a credible risk to members of the public …”
Ms. Skulason sought to have the Bureau remove from its website the references to her now-dismissed convictions. For reasons we don’t know, the Bureau declined to do so. Ms. Skulason brought suit. “Specifically, she sought an order requiring the Bureau ‘to remove any document referencing her expunged convictions from its website.'”
The trial court granted her request. The court stated, “The point of the expungement law is to allow those who have completed their criminal sentences to wipe their slates clean, apply for work, and build careers and lives without the specter of old convictions haunting them.” The court remarked, “It is profoundly unjust [for the Bureau] to frustrate the purpose of the Penal and Labor Codes by posting an expunged conviction information with full knowledge of the harm it can cause.”
The Bureau appealed. And guess what? The appellate court reversed the trial court’s decision. (Skulason v. California Bureau of Real Estate, First Appellate District, August 16, 2017)
The Appellate Court acknowledged, “…that increased access to information about prior convictions brings with it additional and potentially harmful, collateral consequences.” It said, “… we agree that posting information on the Internet allows the public far more access to that information than it might otherwise have. And this increased accessibility makes it easier for employers, intentionally or inadvertently, to use information ‘concerning a conviction that has been judicially dismissed’ in making an employment decision.”
Having said that, the court wrote, “Although we acknowledge these adverse consequences, Skulason has not provided, and we have not found, any legal authority establishing, or defining the scope of, any duty that would restrict the Bureau’s ability to post publicly available information about a licensee on its website.”
Simply put, the court found that, although the law does not require the Bureau to post information about dismissed convictions, it does not prohibit it either. It wrote that, “the Bureau’s posting of the information is therefore, quintessentially discretionary…” The court could not order it to remove that information.
As of this writing, the information at issue is not linked to the CalBRE website. It had been removed as a result of the trial courts’ order. It will be interesting to see how the Bureau exercises its discretionary ability. Will it restore the link to the information, or will it leave things as they are?