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New Arizona Law Eases Restrictions for Obtaining Occupational Licenses for Those with Criminal Histories

On April 1, 2021, Arizona Governor Doug Ducey signed into law House Bill (HB) 2067, which amends Arizona Revised Statute (A.R.S.) Section 13-905 to allow the courts to issue an order for a “Certificate of Second Chance” for individuals “whose judgment of guilt is set aside” after a criminal conviction. The law permits such second chances for employment opportunities, occupational licenses, and housing.

While Arizona does not have a pure expungement law completely erasing convictions from a person’s records, A.R.S. § 13-905 allows for certain convictions to be set aside. However, the amendment permits individuals who successfully complete their probation or sentence conditions to apply to have the court set aside prior convictions and additionally receive a Certificate that prevents them from being barred from obtaining certain occupational licenses if otherwise qualified.

Who Will It Help?

The amendment will take effect on August 27, 2021 and will benefit ex-offenders by allowing them to seek to set aside certain felony and misdemeanor convictions and assisting them in moving past these prior criminal convictions to improve their employment and other opportunities. Courts granting applications to set aside prior convictions must also include a Certificate if not issued previously.

Eligibility includes:

  1. Persons convicted of misdemeanors; or
  2. Class 4, 5, or 6 felonies with at least two years having elapsed since fulfilling probation or sentence conditions; or
  3. Class 2 or 3felonies with at least five years elapsing since fulfilling probation or sentence conditions.

However, the new law does not apply universally to all crimes and convictions.

Convictions excluded from being set aside and obtaining a Certificate of Second Chance include but are not limited to:

  1. Driving on a suspended license;
  2. Violations of ARS Title 28, Chapter 3, which include criminal speeding, felony flight, aggressive driving, and hit and run;
  3. Convictions involving a deadly weapon, or convictions involving infliction of serious physical injury;
  4. Convictions requiring the individual to register as a sexual offender or for offender monitoring;
  5. Sexual motivation convictions; and
  6. Convictions involving victims under age 15.

How Does HB 2067 Help?

Unless specifically excluded, the Certificate releases the person from all barriers and limitations in obtaining an occupational license issued under Title 32[1] resulting from the conviction if the person is otherwise qualified.

Additionally, the law limits the potential tort liability of employers hiring a person with a Certificate. Specifically, employers generally will not be held liable for hiring an employee or independent contractor who has been issued a Certificate for alleged negligent hiring for injuries or damages caused by the worker. A key point for employers is they are not legally precluded from rejecting a candidate with a Certificate, but a measure of liability protection is granted against certain types of liability if they hire such candidates.

Further, criminal convictions that occurred before the person worked for the employer may not be introduced into evidence. Moreover, in lawsuits alleging a failure to provide adequate supervision, the worker’s previous criminal conviction may not be introduced into evidence unless the employer knew or should have known of the conviction and the type of conviction was directly related to the nature of the employee’s job and the conduct gave rise to the alleged injury.

Pursuant to ARS § 32-4701, the licensing authority has the power to issue to an otherwise qualified applicant who has been convicted of an offense either a regular license or a provisional license, which does not preclude a licensing authority from exercising discretion to issue licenses.

 

[1] Occupations and licenses listed under Title 32 include: Architects, Engineers, Geologists, Home Inspectors, Landscape Architects and Surveyors, Barbers, Cosmetology, Certified Public Accountants, Podiatry, Chiropractic, Collection Agencies, Contractors, Dentistry, Funeral Directors and Embalmers, Medicine and Surgery, Naturopathic Medicine, Nursing, Dispensing Opticians, Optometry, Osteopathic Physicians and Surgeons, Pharmacy, Board of Physical Therapy, Psychologists, Real Estate, Veterinarians, Professional Driver Training Schools, Private Investigators, Physicians Assistants, Security Guards, Radiologic Technologists, Homeopathic Physicians, Private Postsecondary Education, Regulation of Health Professions, Health Professionals, Behavioral Health Professionals, Occupational Therapy, Respiratory Care, Real Estate Appraisal, Child Support Obligations, Privacy Rights, Acupuncture, Board of Certified Reporters, Athletic Trainers, Massage Therapy, Licensure, Certification and Registration of Military Members, Regulation of Non-health professions and occupations, Regulation of Out-of-State Businesses and Out-of-State Employees During a Disaster, Art Therapists.