Or. Admin. Code § 836-072-0015

Current through Register Vol. 63, No. 12, December 1, 2024

Section 836-072-0015 - Fitness Determination

(1) An authorized designee shall make a fitness determination about an applicant based on information provided by the applicant under OAR 836-072-0010, any LEDS-based criminal history check or other criminal history check conducted and any false statements made by the applicant.

(2) When making a fitness determination about an applicant, an authorized designee shall also consider the factors in this section in relation to information provided by the applicant under OAR 836-072-0010, any LEDS-based criminal history report or criminal offender information obtained through a criminal records check and any false statement made by the applicant. To assist in considering these factors, the authorized designee may obtain other criminal records information from the applicant or any other source, including law enforcement agencies or courts within or outside of Oregon. To acquire other criminal offender information from the applicant, an authorized designee may request a meeting with the applicant and may request from the applicant written materials or authorization to obtain criminal offender information. The applicant must meet with the authorized designee if requested and provide additional information or authorization within a reasonable period of time, as established by the authorized designee. The authorized designee shall use all collected information in considering the following factors:

(a) Whether the applicant 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 836-072-0020;

(b) The nature of any crime identified under subsection (a) of this section;

(c) The facts that support the conviction, finding of guilty except for insanity or pending indictment;

(d) The facts that indicate the applicant made a false statement;

(e) The relevance, if any, of a crime identified under subsection (a) of this section or of a false statement made by the applicant to the specific requirements of the applicant's present or proposed employment; and

(f) The following intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the license application or renewal for which the 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;

(B) The age of the applicant at the time of the commission or alleged commission of a crime identified under subsection (a) of this section;

(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 836-072-0020;

(E) Whether a conviction identified under subsection (a) of this section has been set aside or pardoned, and the legal effect of setting aside the conviction or of a pardon;

(F) A recommendation of an employer;

(G) The disposition of a pending indictment identified under subsection (a) of this section;

(H) Whether the applicant has been arrested for or charged with a crime listed under OAR 836-072-0020 within the last five years;

(I) Whether the applicant is being investigated, or has an outstanding warrant, for a crime listed under OAR 836-072-0020;

(J) Whether the applicant is currently on probation, parole or another form of post-prison supervision for a crime listed under OAR 836-072-0020;

(K) Whether the applicant has a deferred sentence or conditional discharge or is participating in a diversion program in connection with a crime listed under OAR 836-072-0020;

(L) Whether the applicant 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 836-072-0020 if committed by an adult, unless that adjudication has been reversed or set aside by a subsequent court decision;

(M) Periods of incarceration of the applicant;

(N) Whether the applicant has a history of drug or alcohol abuse that relates to the applicant's criminal activity, and the applicant's history of treatment or rehabilitation for such abuse; and

(O) The education and work history (paid or volunteer) of the applicant since the commission or alleged commission of a crime.

(3) The following are possible outcomes of a final fitness determination:

(a) An authorized designee shall approve an applicant if the authorized designee determines pursuant to sections (1) and (2) of this rule that:

(A) No credible evidence that the applicant has been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed as a permanent review crime in OAR 836-072-0020;

(B) No credible evidence that the applicant had been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed as a ten-year review crime in OAR 836-072-0020 within ten years of the date that the applicant signed the DCBS Criminal Records Request form;

(C) No credible evidence that the applicant had been convicted of, or found guilty except for insanity (or comparable disposition) of a crime listed as a five-year review crime in OAR 836-072-0020(3) within five years of the date that the applicant signed the DCBS Criminal Records Request form;

(D) No credible evidence that the applicant has a pending indictment for a crime listed in OAR 836-072-0020;

(E) No credible evidence of the applicant having made a false statement; and

(F) No discrepancies exist between the criminal offender information, other criminal records information and information obtained from the applicant.

(b) An authorized designee shall deny issuance or renewal of a license to an applicant:

(A) If a fitness determination under this rule shows credible evidence of any of the factors identified in subsection (a) of this section and, after evaluating the information described in sections (1) and (2) of this rule, an authorized designee concludes that the applicant acting in the scope of the license for which the fitness determination is being conducted would pose a risk of harm to the insurance-buying public.

(B) If the applicant refuses to submit or consent to a criminal records check including fingerprint identification.

Or. Admin. Code § 836-072-0015

ID 19-2008, f. & cert. ef 12-10-08

Stat. Auth.: ORS 181.534, 705.135, 731.244

Stats. Implemented: ORS 181.534, 705.141, 744.001, 744.059, 744.326