OAR 863-005-0020: Criminal Background Fitness Determination

(1) An authorized designee shall make a criminal background fitness determination about a subject individual based on: (a) Background check application and fingerprint card; (b) Any criminal records check(s) conducted; and (c) Any false statements made by the subject individual. (2) In addition to the information in section (1) of this rule, an authorized designee may obtain any other criminal records information about the subject individual from any source, including law enforcement agencies or courts within or outside of Oregon. (3) A criminal background fitness determination shall be based on the factors described in section (5) of this rule in relation to information provided by the subject individual under OAR 863-005-0010. (4) An authorized designee may request to meet with the subject individual to obtain additional criminal offender information necessary to complete a criminal background fitness determination. (5) An authorized designee shall consider all collected information in determining: (a) Whether the subject individual has been convicted of, found guilty except for insanity (or a comparable disposition) of, or has a pending indictment for a crime listed in OAR 863-005-0030; (b) The nature of any crime identified under subsection (a) of this section of the rule; (c) The facts that support the conviction, a finding of guilty except for insanity, or that a pending indictment or uncompleted diversion exists; (d) The facts that indicate the subject individual made a false statement; (e) The relevance, if any, of a crime identified under subsection (a) of this section of the rule or of a false statement made by the subject individual to the specific requirements of the subject individual’s license or registration; and (f) The following intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the license or registration for which the criminal background fitness determination is being made: (A) The passage of time since the commission or alleged commission of a crime identified under subsection (a) of this section of the rule; (B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under subsection (a) of this section of the rule; (C) The likelihood of a repetition of offenses or of the commission of another crime; (D) The subsequent commission of another crime listed in OAR 863-005-0030; (E) Whether a conviction identified under subsection (a) of this section of the rule has been set aside or pardoned, and the legal effect of setting aside the conviction or pardon; (F) The disposition of a pending indictment identified under subsection (a) of this section of the rule; (G) Whether the subject individual: (i) Has been arrested for or charged with a crime listed under OAR 863-005-0030 within the last five years; (ii) Is being investigated, or has an outstanding warrant, for a crime listed under OAR 863-005-0030; (iii) Is currently on probation, parole or another form of post-prison supervision for a crime listed under OAR 863-005-0030; (iv) Has a deferred sentence or conditional discharge or is participating in a diversion program in connection with a crime listed under OAR 863-005-0030; (v) Has been adjudicated in a juvenile court and found to be within the court’s jurisdiction for an offense that would have constituted a crime listed in OAR 863-005-0030 if committed by an adult; (vi) Has been incarcerated and length of incarceration; and (vii) Has a history of drug or alcohol abuse which relates to the criminal activity and the history of treatment or rehabilitation for such abuse. (6) Approval. An authorized designee shall approve a criminal background clearance application if the information described in sections (1) and (2) of this rule shows no credible evidence that the subject individual: (a) Has been convicted of, has a pending indictment or has been found guilty except for insanity (or comparable disposition) of a crime listed in OAR 863-005-0030; (b) Has an uncompleted diversion; or (c) Has made a false or incomplete statement or omitted information; and (d) No discrepancies exist between the criminal offender information, other criminal records information and information obtained from the subject individual. (7) Denial. An authorized designee shall not approve a criminal background clearance application if a criminal background fitness determination based on the factors described in section (5) of this rule demonstrates that the subject person is not trustworthy and competent to hold a professional real estate license or registration in a manner that protects the public. (8) A denial of a criminal background clearance shall become a final order of the agency unless the subject individual appeals the authorized designee’s criminal background fitness determination by requesting a contested case hearing as provided by OAR 863-005-0070.