Jim Bog
3 Posts
(, CA)
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So heres the deal. In February of this year, I took the class and test to renew my commission that expired March of 2010. Passed and everything, and waited months for them to tell me that they were referring my application to the "Investigation" section to go over my application. Yes, I do have convictions from the past, and that last one was 2005. My record has not changed at all since I got my commission in 2006.
My application was denied because of the convictions. I am at a loss, because I already had it! How can they deny me now, when they gave it to me the first time??!! And yes, everything was disclosed on the first application, as it was on my "renewal" application as well.
I have the option of appealing it, so I suppose I am going to do that. I just don't know what else to do!
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Paul Pitt
28 Posts
(San Diego , CA)
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Generally speaking on any license decision you have a statutory right to an administrative hearing. You contact the licensing authority and request a hearing. You are allowed to be represented by counsel. You can "discover" why the decision was made. You can then present evidence and argument on your behalf and then a final decision will be made withing a time period. It could be worthwhile to do that. A number of real estate brokers have had their license revoked because they have a "trust fund" and there actually s no possible way to keep one correctly (nuts - yes). The correct answer is not to have a trust fund. Each licensing authority has their own inane quirks (and the3re is one bureaucrat in charge of each quirk). When some off/on switch occurs they leap into action (this proves that their job is necessary -- there is an incidence of whatever it they enforce). Nobody outside of the hallowed walls knows what maze of in-boxes participate in a decision.
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Paul Pitt
28 Posts
(San Diego , CA)
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I Don't know if this is the right section BUT here is a place to start: Regulations on Administrative Appeals
These regulations govern all administrative appeals with CalPERS and are part of Title 2 of the California Code of Regulations. Section 555.1. Right of Appeal. Any applicant dissatisfied with the action of the Executive Officer on his application, other than his referral of the matter for hearing, may appeal such action to the Board by filing a written notice of such appeal at the offices of the Board within 30 days of the date of the mailing to him by the Executive Officer, at his most recent address of record, of notice of the action and right of appeal. An appeal shall contain a statement of the facts and the law forming the basis for appeal. Upon a satisfactory showing of good cause, the Executive Officer may grant additional time not to exceed 30 days, within which to file such appeal. Section 555.4. Hearings.
All hearings shall be conducted in accordance with the provisions of Chapter 5, Part 1, Division 3, Title 2 of the Government Code. Each case shall be heard by the hearing officer alone. All proposed decisions of hearing officers shall be referred to the Board. The Executive Officer is hereby authorized and empowered to take, in the name and on behalf of the Board, any action which the Board is authorized or directed by law to take with respect to procedural and jurisdictional matters in connection with any case in which a statement of issues or accusation has been filed
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Lisa Thornton
288 Posts
(Upland, CA)
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Notary's have a commission, not a license. A license gives one permission to do something. A commission is an appointment as a public official representing the State.
No R.E. broker had their license revoked simply for having a trust fund - that is ridiculous. There was a misappropriation of funds - the broker or those licensed under him/her did something illegal/unethical/shady with those funds deserving of having their license revoked. And it is also baloney to say there's no possible way to keep a trust fund correctly.
With fraud, identity theft and scams on the rise, the CA SOS only wants those with clean records being appointed to the public office of Notary Public. I hear there are 65,000 less Notaries this year - they cannot pass the national FBI background check.
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Marian Harmon
273 Posts
(Lancaster, CA)
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Yup... Lisa'a right. Since 2008 when CA started requiring the FBI check, a lot of notaries who had previously received a commission are now being denied or looked at more closely.
There has been a 22% drop (over 1 in 5!) in the number of CA notaries in the last two years (65,000) since that was implemented, and it will probably continue to drop for another couple of years. The economy is one of the reasons, but I'm convinced that growing liability concerns for large employers (UPS/FedEx stores, banks, etc.) and the expanded background checks are really the source of the drop.
And, of course...the cost of the process has gone up, too, since 2008 with having to submit passport photos and paying for the additional FBI fees. Some people (and employers) just don't want to pay for it anymore.
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Paul Pitt
28 Posts
(San Diego , CA)
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More than half of the R.E. brokers I know do not have a trust fund and with no fraud or error the DRE the license. In 1995 I thought what you think (because that makes sense) but wiser minds (SDAR and several lawyers) recommend not having a trust fund. I never had one and I had 8 agents. We merely had buyers deposit their check in escrow when it opened. (Escrow is audited as a corporation by SOS not by DRE). If you check the DRE bulletin MOST of the revocations are trust fund. There can is no wrong doing needed to lose your license. (I still have mine) I have had a DRE license since 1980 and a PI license since 1978. No violations on either license (ever). I will add that when I originated a mortgage I never charged more than 1% and got compliments from all of my lenders regarding my GFE being "honest." (so many were not) None of my borrowers defaulted (most are upside down)
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Paul Pitt
28 Posts
(San Diego , CA)
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Marion .. I am new at Notary and so must admit absolute ignorance (and inexperience) regarding Notary commission. I also know that there are millions of warrants because I managed IT in Orange County (CHS) before it went BK. Delinquent fathers (child support) are a large number of warrants. (also scoff law who accumulate parking tickets). Each county has a local warrant system and the felony warrants go to "Cal-Net" -- CAlDOJ which is queried by the FBI system (NCIC). As an Illinois Trooper (long ago) we'd run "hot & cold" on every car plate and every DL for every stop. (so as not to inadvertently release murders). It was not unusual to discover serious felonies during a traffic stop back in the 60's and 70's. routine today (and fast). I also work with a prominent military group here in San Diego and it is surprising what comes and goes in a sea port. Well so I need to bear in mind that they can have notary services gratis.
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Linda Hubbell
209 Posts
(Fort White, FL)
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Paul...
When you refer to "trust fund" are you meaning "escrow account"? I'm thinking that's what you mean - an escrow account to hold funds for pending deals until the deal closes. Trust Funds and Escrow Accounts are two different things...and I know in my past life as a paralegal the attornies I worked were very accountable to the bar association AND their clients for their "escrow" account...
Please clarify ... thanks..:)
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Linda Hubbell
209 Posts
(Fort White, FL)
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Meant to address this statement too:
" I am new at Notary and so must admit absolute ignorance (and inexperience) regarding Notary commission"
You may be new, but there should be no "ignorance" at all with regard to your commission and your notary laws. Inexperience with notary work, yes - ignorance of your commission process and the laws that govern you - absolutely not.
MHO
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Paul Pitt
28 Posts
(San Diego , CA)
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OK. You are right. I claimed "absolute ignorance" to avoid feckless debate over semantic variation .. the original question is whether someone has a right to an appeal and hearing related to a decision affecting their livelihood. Generally speaking they do. Then I found a statute and suggested it as an example -- (and perhaps a source) which grants just such appeals. I knew from experience that trust funds are a major source of DRE penalties including REVOCATION of licenses and that many brokers (myself included) avoid having one since there are so many license revocations related to them (hundreds .. DRE used to publish a monthly newsletter with pages full of revocations mainly based on trust funds) A trust fund is not an escrow account. An escrow is a formal (contractual) service purchased by buyer/seller from a corporation to assure that all conditions and contractual obligations are completed prior to execution of a purchase. A trust fund is a holding of a "good faith" check or cash that had been written and attached to an offer to purchase. The check was (customarily) held for a brief time (a few hours) in the broker's office (often in a three ring binder) until the offer was accepted and escrow was opened. But THAT is what caused all of the discipline (and still does). To avoid this risk CAR added a check box that says "buyer will deposit $XXX in escrow within YY hours of opening an escrow." Thus eliminating the need for a 3 ring binder (or a log or a debit/credit ledger .. all of which are illegal). Not ever having had such a notebook or such an account, I was never involved in any trust fund discipline (or in any DRE discipline)(nor was I ever involved in an SDAR ethics complaint or an SDAR hearing). I stayed clean by not doing things that lead to problems (and that is why DRE published the newsletter). But appeals hearings are routinely given to real estate licensees and other state licensees who depend on their licenses to make a living. The distinction was then made that a Notary is not a license but a commission (which is true). Well then none of the preceding discussion could be offered as a precedent in terms of a Notary commission because that relates to licenses. So one could say it is kind of "demurrer" to plead ignorance (to the license/commission distinction) but someone mention "ignorance is no excuse" ...ignorancia non excusat. But all of the foregoing having been said resolves nothing because the original question remains indeterminate and probably requires representation by counsel to obtain a hearing. The preceding is mostly what I was trying to avoid by claiming absolute ignorance.
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Robert T. Koehler
104 Posts
(Tampa, FL)
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Bottom line... A commission as a notary public is a privilege, not a right. The SOS is not obligated to appoint anyone to this position whom the SOS does not deem worthy of same.
I commend California authorities for making efforts to limit the insane number of unneeded and naive notaries. I wish Florida would do the same.
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Paul Pitt
28 Posts
(San Diego , CA)
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Bottom line is that NEITHER a notary commission NOR a license is a right and all of them can be suspended and revoked. Lawyers, physicians, chiropractors, beauticians, barbers, masseurs, guards, nurses, bus drivers, truck drivers, boat captains, CPA's, airline pilots, enrolled agents, pest control workers, airplane pilot and airplane mechanics are BUT A FEW of the licenses that are required (and can be suspended or revoked). Notary is no different than a thousand other vocations regulated. Nobody is obliged to appoint anyone and most of them have rules and regulations pertaining to exercising the privileges of a licensee (or commission). All of the 50 states and the several territories regulate vocations including suspension and revocation. Many cities and counties have additional regulations that must be obeyed by practitioners.
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Marian Harmon
273 Posts
(Lancaster, CA)
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While the requirements seem the same, a commission is not the same as a license. A commission is an appointment and charge to perform a duty... not simply a permission to operate. It's a distinct difference -- people with licenses are NOT public officials. Having a commission means one has a responsibility primarily to the authority from which they obtained their charge. People with a license have primary responsibility to their customers/clients.
The really big difference is that one who holds a commission is generally required to act in a certain way -- whereas those with licenses are have more choice. For example, a Notary Public in California is not allowed to turn down a reasonable and legal request for a notarization. We can't just pick and choose -- if somebody comes to us and asks for something to be notarized, and we don't have a good, legal reason not to... we have to do it. That's our charge -- by taking our oath of office, we agree to do this. A lot of people don't understand that we are public officials.
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Robert T. Koehler
104 Posts
(Tampa, FL)
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IMO the difference is that a license gives you government permission to perform some act that you already can do. For example, to get a driver license you must first prove you have the ability to drive. To get a medical license, you must prove that you have the proper training to know how to practice medicine. Even if you are denied a driver license - you still know how to drive and have the ability to do so (the only kicker is that you can't drive on a government-maintained road without the license). Similarly, even if denied a medical license, you would still know how to practice medicine and could, albeit illegally, do "under the table" medical practice.
To the contrary, a commission gives its holder the power to perform an act that he or she otherwise would be unable to do. Without the notary commission you can not take acknowledgments, period. You have no way of performing "under the table" notarial acts unless you have a notary commission. Similarly, a judicial commission gives a person the authority to enter legally binding orders. Without the commission, the judge has no power.
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Jim Bog
3 Posts
(, CA)
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Thanks for all the responses. I still do not understand why an FBI check would have anything to do with my denial. I do not have any felonies, just some misdemeanors. In their denial letter, they quoted some notary application handbook from 2001 or something, saying in order to be eligible for a commission, 10 years since being off probation (for a misdemeanor) must have passed. Obviously this "regulation" was in effect when I got my commission the first time, and again, nothing has changed since 2006.
I have requested a hearing, but what good would it do? They have their mind made up, so I doubt anything would change on their decision...
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Robert T. Koehler
104 Posts
(Tampa, FL)
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Not to be an a$$, but if you don't respect the public enough to live a life without crime, why should the state entrust you as a public servant? You have several misdemeanors... Would you elect a governor with a criminal record? No? Well as notaries we probably have a more direct impact on serving the public than the governor does. The public needs to be able to trust us.
I only wish the Florida SOS took the position as seriously as they do in California.
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Marian Harmon
273 Posts
(Lancaster, CA)
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"nothing has changed since 2006"
That's not true... a LOT of things have happened with California's Notary regulations and requirements since 2006. Your background may not have changed, but the state's requirements have... and there are many, many notaries who previously held commissions who no longer meet the standards.
As I mentioned before, since 2008, California has lost 22% of it's notaries. 22% in just two years...and that number is going to get bigger over the next 2 years.
The Guidelines are pretty clear...
"All persons with felony convictions are disqualified from notary public commissioning. All persons with disqualifying convictions currently incarcerated or on active criminal probation, or who have been discharged from probation for less than ten years, are disqualified from notary
public commissioning."
Your conviction is only 5 years ago... which means you're disqualified.
It seems that you may have just been lucky the last time you got your commission...just a year or less after being convicted? Sounds to me like somebody in the SoS's office wasn't paying attention...or perhaps the 2005 conviction didn't show up on the records search at the time they did your DOJ screening. Back at that time, the SOS was processing a LOT more commission applications that it is now. Honestly, I think you got lucky.
If you want to be successful at the hearing, you'll need to find a good attorney willing to argue that you qualify for a commission. I think it will be a really tough sell. I mean, your only argument is, "well, they issued my commission last time!"
Did you accurately disclose the 2005 conviction on your application in 2006?
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Marian Harmon
273 Posts
(Lancaster, CA)
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PS - the hearing is not just with the SoS's office. It's in front of an Administrative Law Judge. If having the commission means that much to you, then hire a GOOD attorney who has been successful arguing against ALJs and the State. If you go to the hearing alone, you'll likely lose your argument.
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Paul Pitt
28 Posts
(San Diego , CA)
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<<... if you don't respect the public enough to live ..without crime, why should the state entrust you as a public servant? ..... Would you elect a governor with a criminal record? .... direct impact on serving the public than the governor does. The public needs to be able to trust us. ..>>
Oh how I wish we could spread this notion around and BE like that. We cannot trust the president, the California legislature, the city government (all of them) and most of the special districts. How refreshing it would be to adopt an attitude of I have to BE crime free. It can be done (so many seem unable).
The state government is broke BUT they refuse to manage spending. They KNOW what they need to do BUT they refuse to do it. The city has been bankrupt for more than ten years and a string of consultants have told them its the police pension that is bankrupting the city BUT they will not even discuss it. It stands.
Orange County went bankrupt. They LOST $3 billion. The bought "derivatives" and it evaporated. They all had an excellent education BUT they could not be trusted. Nobody ever apologized.
Outside of California the city of E. St. Louis has been a case study of corruption for many Phd thesis. It is a cesspool and nobody ever does a thing to end it. New York went bankrupt in the 70's and still is bankrupt. They don't care.
Now the entire United States is bankrupt. THEY can't trusted.
I'd like to suggest that everybody start with #1 and BE TRUSTWORTHY. Clean it up and keep it cleaned up. Then adopt a simple rule suggested by Robert T. Koehler and not only BE trustworthy but EXPECT IT of others. (If you can DEMAND it)
I liked that post. It is good. (what changed that this topic came up again?)
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Paul Pitt
28 Posts
(San Diego , CA)
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I went and looked this up (partly because of the hoopla last time or whether there was a right to a hearing and how this is not a license -- so that is a major qualification to bear in mind in reading all of this) I am putting a double asterisk for a highlight ...
Convictions
Applicants are **required to disclose** on their applications all **arrests** for which trials are pending
and all convictions, including convictions that have been dismissed under Penal Code section 1203.4 or 1203.4a. If you have any questions concerning the disclosure of convictions **or arrests,** contact the Secretary of State’s office prior to signing the application. If you do not recall the specifics about your arrest(s) and/or conviction(s), you can contact the California Department of Justice at (916) 227-3849 for information. The Secretary of State **may deny** an application for the following reasons: (For a complete list of reasons the Secretary of State may deny an application, please refer to Government Code section 8214.1 and the Notary Public Disciplinary Guidelines (2001)).
- Failure to disclose any conviction;
- Conviction of a felony; or
- Conviction of a disqualifying lesser offense when less than 10 years have passed since
the completion of probation.
The applicant has the right to appeal the denial through the administrative hearing process. (Government Code section 8214.3)
Please refer to the Secretary of State’s Notary Public Disciplinary Guidelines (2001), for a list of the most common disqualifying convictions. The disciplinary guidelines are available on the Secretary of State’s website or can be mailed to you upon request. Please refer to the inside front cover of this handbook for our website and mailing addresses.
OK that's in the handbook and for this purpose you might as well regard that as gospel eve IF you have a lawyer. Notice that in the first sentence a key factor is **required to disclose** and if you failed to disclose it's a done deal. If you did not disclose and did not anticipate the FBI check THEN you messed up.
Ten years ago they may not have had access to FBI (NCIC) records. But now the do. So ten years ago they obtained no evidence that you failed to disclose. Now they have evidence. Most public agencies do not have access to ARREST records (only to court filings) and you can be arrested but not convicted (however if you had probation of some kind then you had a conviction of some kind)
So it seems like the **failed to disclose** (and that is a BIG criterion in the first sentence.
Now notice in the middle section it says the SOS **may deny** (not shall but may) The word MAY makes it entirely discretionary. So how could you argue the statute? It's a judgment call. They exercised judgment. Notice that ARRESTS are mentioned twice. These are important.
So Marian Harmon is most likely right -- about losing the argument since there is no argument. There is no law requiring anything. It is up to the SOS to exercise its judgment (and they did that).
I am glad I looked it up though. I know more now than when you first asked the question. This forum is excellent for this kind of learning.
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Linda Hubbell
209 Posts
(Fort White, FL)
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One thing I want to ask about here..
Paul;, you said.." Ten years ago they may not have had access to FBI (NCIC) records. But now the do. So ten years ago they obtained no evidence that you failed to disclose. Now they have evidence." He got a commission in 2006 - they had this procedure in place in 2006, not 10 years ago..that's what the OP is trying to figure out..why was he okay in 2006 but not now? Where was the ball dropped.
I'd say OP is a victim of someone not doing their job adequately in 2006 or there was NOT full disclosure at that time.
MHO
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Paul Pitt
28 Posts
(San Diego , CA)
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Yes definitely somebody in the chain of command has changed and has a different way to exercise the discretion. I worked for the Orange County government in the 80's and they did not have a high speed interface with Sacramento (in 1985). In fact there was a "night Stalker" who was eluding the constabulary in Orange and L.A then they got "Cal-Net" a high speed broadband trunk and Cal-Id (where you can use "live scan" to get and run a set of prints in minutes. They found the Night Stalker ID 45 minutes after they ran him on Cal-Id (using Cal-net). Back in Illinois a similar system was called LEADS (Law enforcement agencies data system). All of the state and regional "nodes" over rode into NCIC (National crime Information Center -- FBI) NCIC does not take local warrants (like child support) but it gets all felony warrants all stole auto (VINs & Plates) and wants and warrants. So on a traffic stop today they have run your plate by the time you pull over and they already have warrant info. They run the person once they have the DL and that is super fast too. That used to be called 28/29 (10-28 and 10-29 or "hot" and "cold") .. today it is a key stroke. Very very fast. So this information is MUCH more available today and what they do about it has changed too. It is important NOT to get into their system. For the last 45 years I never drink any alcohol when I have car keys in my pocket. (it is just a rule with me).. DUI is a "moral problem" more than a legal problem (for me). So the Calif. SOS organization changes and no doubt goes through phases .. and it looks like they USE the NCIC information in their decisions. [I don't think I answered anything about what changed ... people changed ... policy application changed ]
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Linda Hubbell
209 Posts
(Fort White, FL)
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" [I don't think I answered anything about what changed ... people changed ... policy application changed ]"
Heh....no, you didn't...but that's okay - I get your point...
To the OP, giving you the benefit of the doubt that you DID provide full disclosure in 2006, I'd say it's possible your info maybe wasn't in the system yet or you caught someone ready to go to lunch or itching to go home. Either way, I'd gueess you can try to appeal it but I'd put myself in the hands of a GOOD attorney who can handle administrative appellate law.
Good Luck.
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Paul Pitt
28 Posts
(San Diego , CA)
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<...many Florida notaries think that the only statutes which apply to them are found in Chapter 117 of the Florida Statutes..>> Robert T. Koehler
Marian Harmon Linda Hubell
These three people are incredibly well informed about the Notary function and ALWAYS seem to give accurate information and experience for the rest of us to learn. They get right to the point and related it directly to the topic. They seem to have quite a wealth of experience. You will benefit greatly by reading what they have to say and how it applies to the issue.
Now this statute quote is from the national section but so appropriate. All statutes apply to all people (even non-citizens). There are federal statutes and there are state statutes. There are also local ordinances. Judicial cases frequently explain how a statute will be applied (case law).
Statutes can be applied in a number of ways. If you violate one you can be charged (and fined) with violating a statute. Or you can be sued for not doing what a statute required and you may need to pay damages. Or your insurer can precondition their coverage by requiring that payment will only be made if the insured acted lawfully.
And you can have administrative problems when a state or local administrator "applies" a statute or ordinance to a specific request or situation (such as zoning, licensing, or business operation).
Nobody memorizes all of the statutes and ordinances, but you "know" you have to pay taxes and probably need a business license.
Since acting as a Notary exposes you to greater exposure for those statutes and ordinances you cannot learn too much about them and these three people can "clue you in" to where your focus ought to be to avoid run ins. You can benefit by their experience. At least I can affirm that I read their posts and glean quite a bit from them.
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Jim Bog
3 Posts
(, CA)
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Yes, I did disclose everything in 2006, and everything again in my "renewal." That's why its so crazy. This "Notary Handbook" from 2001 was around for my first application, so why all of a sudden are they using it this time to deny me? I had no idea it would be such an issue since I already had a commission. There's no way my convictions wouldn't have been in the system, my first application was a year and a half after my last conviction.
At this point, I don't want to get a lawyer, because it would take years of notarizations to recoup the fees. Its just not really worth it to sink that much money into it. That rule of having to wait 10 years since the end of probation is ridiculous too.
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Marian Harmon
273 Posts
(Lancaster, CA)
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I don't know that the rule is that ridiculous... there's a reason for it. Having a notary commission isn't a "right" it's a responsibility and, per state law, requires individuals are have a demonstrated record of obeying the law. That ten year time frame is intended to help prove to the state that you can do that.
Without an attorney, you're going to have a difficult time. Do you have copies of your application and paperwork from your original application? It may be a point in your favor to argue that you did disclose this information and were issued a commission despite it.... but then again, it might not.
I still think that your last commission was a lucky break, and the State is simply correcting an error they made 4 years ago.
In a way, I think you're lucky that they haven't suspended or revoked your current commission, too, pending a hearing.
Definitely go for the hearing...but it won't be easy. The only thing you have on your side is that the State has already made an error in your favor... and I'm sure the judge will ask them to explain that one. But, all the same... he still has to make a ruling based on the law. That's where a good attorney would come in handy.
The one thing that has changed in that time is how they look at and process background checks. It very well could be that you slipped through the cracks last time, but now with the updated background check requirements, you didn't.
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Linda Hubbell
209 Posts
(Fort White, FL)
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If memory serves me correctly, this is the second person who has posted here about this problem...in the other person's case they claim she had a record in HI, she said she'd never lived there and they obviously had her confused with someone else but she had a commission for quite some time and is being denied now...
IMO this explains your plight: "The one thing that has changed in that time is how they look at and process background checks. It very well could be that you slipped through the cracks last time, but now with the updated background check requirements, you didn't."
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