Current through Register Vol. 63, No. 9, September 1, 2024
(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.
Stat. Auth.: ORS
181.534,
696.022,
696.790
Stats. Implemented: ORS
181.534
