RCW 9.97.010
Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Qualified applicant" means any adult or juvenile who meets the following requirements:
(a)(i) One year has passed from sentencing for those sentenced by a Washington state court to probation, or receiving a deferred sentence or other noncustodial sentencing for a misdemeanor or gross misdemeanor offense or an equivalent juvenile adjudication; or
(ii) Eighteen months have passed from release from total or partial confinement from a Washington prison or jail or juvenile facility for those sentenced by a Washington state court to incarceration for a misdemeanor or gross misdemeanor or an equivalent juvenile adjudication; or
(iii) Two years have passed from sentencing for those sentenced by a Washington state court to probation, or receiving a deferred sentence or other noncustodial sentencing for a class B or C felony or an equivalent juvenile adjudication; or
(iv) Two years have passed from release from total or partial confinement from a Washington prison or jail or juvenile facility for those sentenced by a Washington state court for a class B or C felony or an equivalent juvenile adjudication; or
(v) Five years have passed from sentencing for those sentenced by a Washington state court to probation, or receiving a deferred sentence or other noncustodial sentencing for a violent offense as defined in RCW 9.94A.030
or an equivalent juvenile adjudication; or
(vi) Five years have passed from release from total or partial confinement from a Washington prison or jail or juvenile facility for those sentenced by a Washington state court for a violent offense as defined in RCW 9.94A.030
or an equivalent juvenile adjudication;
(b) Is in compliance with or has completed all sentencing requirements imposed by a court including:
(i) Has paid in full all court-ordered legal financial obligations;
(ii) Is fully compliant with a payment plan for court-ordered legal financial obligations; or
(iii) Is out of compliance with a payment plan for court-ordered legal financial obligations but has established good cause with the court for any noncompliance with the payment plan;
(c) Has never been convicted of a class A felony, an attempt to commit a class A felony, criminal solicitation of or criminal conspiracy to commit a class A felony, a sex offense as defined in RCW 9.94A.030, a crime that includes sexual motivation pursuant to RCW 9.94A.835, 13.40.135, or
9.94A.535
(3)(f), extortion in the first degree under RCW 9A.56.120, drive-by shooting under RCW 9A.36.045, vehicular assault under RCW 46.61.522
(1) (a) or (b), or luring under RCW 9A.40.090, and is not required to register as a sex offender pursuant to RCW 9A.44.130
; and
(d) Has not been arrested for nor convicted of a new crime and has no pending criminal charge, and there is no information presented to a qualified court that such a charge is imminent.
(2) "Qualified court" means any Washington superior court in the county where an applicant resides or that has sentenced or adjudicated the applicant. If the sentencing or adjudicating court was a court of limited jurisdiction then a qualified court is the superior court in the county of the applicant's conviction or adjudication.
[
2016 c 81 s 2
.]
NOTES:
Finding
—
2016 c 81:
"The legislature finds that employment is a key factor to the successful reintegration to society of people with criminal histories, and is critical to reducing recidivism, promoting public safety, and encouraging personal responsibility.
Occupational licensing and employment laws regulate many professions as well as unskilled and semiskilled occupations. Examples of regulated occupations include alcohol servers, barbers and cosmetologists, body piercers, commercial fishers, contractors, drivers, embalmers, engineers, health care workers, insurance adjusters, real estate professionals, tattoo artists, and waste management workers. Individuals with criminal histories may meet the competency requirements for these occupations through training, experience, or education, but may be disqualified from them based on their criminal history.
Certificates of restoration of opportunity help reduce some barriers to employment for adults and juveniles by providing an opportunity for individuals to become more employable and to more successfully reintegrate into society after they have served their sentence, demonstrated a period of law-abiding behavior consistent with successful reentry, and have turned their lives around following a conviction. Applicants for a certificate must also meet all other statutory licensing requirements.
Certificates of restoration of opportunity offer potential public and private employers or housing providers concrete and objective information about an individual under consideration for an opportunity. These certificates can facilitate the successful societal reintegration of individuals with a criminal history whose behavior demonstrates that they are taking responsibility for their past criminal conduct and pursuing a positive law-abiding future. A certificate of restoration of opportunity provides a process for people previously sentenced by a Washington court who have successfully changed their lives to seek a court document confirming their changed circumstances.
A certificate of restoration of opportunity does not affect any employer's or housing provider's discretion to individually assess every applicant and to hire or rent to the applicants of their choice. Employers will not have to forego hiring their chosen applicants because they face statutory bars that prevent obtaining the necessary occupational credentials." [
2016 c 81 s 1
.]
Conflict with federal requirements
—
2016 c 81:
"If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state." [
2016 c 81 s 20
.]
RCW 9.97.020
Certificate of restoration of opportunity
—
Qualified applicants
—
States, counties, municipal departments, boards, officers, or agencies authorized may not disqualify
—
Exceptions
—
Immunity
—
Qualified courts have jurisdiction to issue certificates
—
Employers, housing providers
—
Department of social and health services and department of children, youth, and families
—
Washington state patrol
—
Court records
—
Judicial proceedings
—
Department of health
—
Notice by applicant
—
Certain superior courts may decline to consider applications
—
Certificate transmittal
—
Duties of administrative office of the courts.
(1) Except as provided in this section, no state, county, or municipal department, board, officer, or agency authorized to assess the qualifications of any applicant for a license, certificate of authority, qualification to engage in the practice of a profession or business, or for admission to an examination to qualify for such a license or certificate may disqualify a qualified applicant, solely based on the applicant's criminal history, if the qualified applicant has obtained a certificate of restoration of opportunity and the applicant meets all other statutory and regulatory requirements, except as required by federal law or exempted under this subsection. Nothing in this section is interpreted as restoring or creating a means to restore any firearms rights or eligibility to obtain a firearm dealer license pursuant to RCW 9.41.110
or requiring the removal of a protection order.
(a)(i) Criminal justice agencies, as defined in RCW 10.97.030, and the Washington state bar association are exempt from this section.
(ii) This section does not apply to the licensing, certification, or qualification of the following professionals: Accountants, RCW 18.04.295
; bail bond agents, RCW 18.185.020
; escrow agents, RCW 18.44.241
; nursing home administrators, RCW 18.52.071
; nursing, chapter
18.79
RCW; physicians and physician assistants, chapters
18.71
and
18.71A
RCW; private investigators, RCW 18.165.030
; receivers, RCW 7.60.035
; teachers, chapters
28A.405
and
28A.410
RCW; notaries public, chapter
42.45
RCW; private investigators, chapter
18.165
RCW; real estate brokers and salespersons, chapters
18.85
and
18.86
RCW; security guards, chapter
18.170
RCW; and vulnerable adult care providers, RCW 43.43.842, who are not home care aides, chapter
18.88B
RCW, or contracted providers or licensees as defined in RCW 43.20A.715
.
(iii) To the extent this section conflicts with the requirements for receipt of federal funding under the adoption and safe families act, 42 U.S.C. Sec. 671, this section does not apply.
(b) Unless otherwise prohibited by law, in cases where an applicant would be disqualified under RCW 43.216.170, and the applicant has obtained a certificate of restoration of opportunity for a disqualifying conviction, the department of children, youth, and families may, after review of relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought, at their discretion:
(i) Allow the applicant to have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities if the applicant is otherwise qualified and suitable; or
(ii) Disqualify the applicant solely based on the applicant's criminal history.
(c) Unless otherwise prohibited by law, in cases in which an applicant would be disqualified under RCW 43.20A.710, 43.43.842, or department rule, and the applicant has obtained a certificate of restoration of opportunity for a disqualifying conviction, the department of social and health services may, after review of relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought, at its discretion:
(i) Allow the applicant to have unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities if the applicant is otherwise qualified and suitable; or
(ii) Disqualify the applicant solely based on the applicant's criminal history.
(d) If the practice of a profession or business involves unsupervised contact with vulnerable adults, children, or individuals with mental illness or developmental disabilities, or populations otherwise defined by statute as vulnerable, the department of health may, after review of relevant factors, including the nature and seriousness of the offense, time that has passed since conviction, changed circumstances since the offense occurred, and the nature of the employment or license sought, at its discretion:
(i) Disqualify an applicant who has obtained a certificate of restoration of opportunity, for a license, certification, or registration to engage in the practice of a health care profession or business solely based on the applicant's criminal history; or
(ii) If such applicant is otherwise qualified and suitable, credential or credential with conditions an applicant who has obtained a certificate of restoration of opportunity for a license, certification, or registration to engage in the practice of a health care profession or business.
(e) The state of Washington, any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, the department of health, the department of social and health services, and its officers, employees, contractors, and agents are immune from suit in law, equity, or any action under the administrative procedure act based upon its exercise of discretion under this section. This section does not create a protected class; private right of action; any right, privilege, or duty; or change to any right, privilege, or duty existing under law. This section does not modify a licensing or certification applicant's right to a review of an agency's decision under the administrative procedure act or other applicable statute or agency rule. A certificate of restoration of opportunity does not remove or alter citizenship or legal residency requirements already in place for state agencies and employers.
(2) A qualified court has jurisdiction to issue a certificate of restoration of opportunity to a qualified applicant.
(a) A court must determine, in its discretion whether the certificate:
(i) Applies to all past criminal history; or
(ii) Applies only to the convictions or adjudications in the jurisdiction of the court.
(b) The certificate does not apply to any future criminal justice involvement that occurs after the certificate is issued.
(c) A court must determine whether to issue a certificate by determining whether the applicant is a qualified applicant as defined in RCW 9.97.010
.
(3) An employer or housing provider may, in its sole discretion, determine whether to consider a certificate of restoration of opportunity issued under this chapter in making employment or rental decisions. An employer or housing provider is immune from suit in law, equity, or under the administrative procedure act for damages based upon its exercise of discretion under this section or the refusal to exercise such discretion. In any action at law against an employer or housing provider arising out of the employment of or provision of housing to the recipient of a certificate of restoration of opportunity, evidence of the crime for which a certificate of restoration of opportunity has been issued may not be introduced as evidence of negligence or intentionally tortious conduct on the part of the employer or housing provider. This subsection does not create a protected class, private right of action, any right, privilege, or duty, or to change any right, privilege, or duty existing under law related to employment or housing except as provided in RCW 7.60.035
.
(4) The department of social and health services, and contracted providers and licensees as defined in RCW 43.20A.715, when hiring, licensing, certifying, contracting with, permitting, or continuing to permit a person to be employed in any position caring for or having unsupervised access to vulnerable adults or children, may, in their sole discretion, determine whether to consider a certificate of restoration of opportunity issued under this chapter. If the department or a consumer directed employer as defined in RCW 74.39A.009
determines that an individual with a certificate of restoration of opportunity is qualified to work as an individual provider as defined in RCW 74.39A.240, the department or the consumer directed employer must provide the client, and their guardian if any, with the results of the state background check for their determination of character, suitability, and competence of the individual before the individual begins providing services. The department of social and health services, or contracted providers or licensees as defined in RCW 43.20A.715, when hiring, licensing, certifying, contracting with, permitting, or continuing to permit a person to be employed in any position caring for or having unsupervised access to vulnerable adults or children, have a rebuttable presumption that their exercise of discretion under this subsection or the refusal to exercise such discretion was appropriate. This subsection does not create a protected class, a private right of action, or any right, privilege, or duty, or to change any right, privilege, or duty existing under law related to the department of social and health services, contracted providers, and licensees as defined in RCW 43.20A.715
.
(5)(a) Department of social and health services: A certificate of restoration of opportunity does not apply to the state abuse and neglect registry. No finding of abuse, neglect, or misappropriation of property may be removed from the registry based solely on a certificate. The department must include such certificates as part of its criminal history record reports, qualifying letters, or other assessments pursuant to RCW 43.43.830
through
43.43.838
. The department shall adopt rules to implement this subsection.
(b) Washington state patrol: The Washington state patrol is not required to remove any records based solely on a certificate of restoration of opportunity. The state patrol must include a certificate as part of its criminal history record report.
(c) Court records:
(i) A certificate of restoration of opportunity has no effect on any other court records, including records in the judicial information system. The court records related to a certificate of restoration of opportunity must be processed and recorded in the same manner as any other record.
(ii) The qualified court where the applicant seeks the certificate of restoration of opportunity must administer the court records regarding the certificate in the same manner as it does regarding all other proceedings.
(d) Effect in other judicial proceedings: A certificate of restoration of opportunity may only be submitted to a court to demonstrate that the individual met the specific requirements of this section and not for any other procedure, including evidence of character, reputation, or conduct. A certificate is not an equivalent procedure under Rule of Evidence 609(c).
(e) Department of health: The department of health must include a certificate of restoration of opportunity on its public website if:
(i) Its website includes an order, stipulation to informal disposition, or notice of decision related to the conviction identified in the certificate of restoration of opportunity; and
(ii) The credential holder has provided a certified copy of the certificate of restoration of opportunity to the department of health.
(f) Department of children, youth, and families: A certificate of restoration of opportunity does not apply to founded findings of child abuse or neglect. No finding of child abuse or neglect may be destroyed based solely on a certificate. The department of children, youth, and families must include such certificates as part of its criminal history record reports, qualifying letters, or other assessments pursuant to RCW 43.43.830
through
43.43.838
. The department of children, youth, and families shall adopt rules to implement this subsection (5)(f).
(6) In all cases, an applicant must provide notice to the prosecutor in the county where he or she seeks a certificate of restoration of opportunity of the pendency of such application. If the applicant has been sentenced by any other jurisdiction in the five years preceding the application for a certificate, the applicant must also notify the prosecuting attorney in those jurisdictions. The prosecutor in the county where an applicant applies for a certificate shall provide the court with a report of the applicant's criminal history.
(7) Application for a certificate of restoration of opportunity must be filed as a civil action.
(8) A superior court in the county in which the applicant resides may decline to consider the application for certificate of restoration of opportunity. If the superior court in which the applicant resides declines to consider the application, the court must dismiss the application without prejudice and the applicant may refile the application in another qualified court. The court must state the reason for the dismissal on the order. If the court determines that the applicant does not meet the required qualifications, then the court must dismiss the application without prejudice and state the reason(s) on the order. The superior court in the county of the applicant's conviction or adjudication may not decline to consider the application.
(9) Unless the qualified court determines that a hearing on an application for certificate of restoration is necessary, the court must decide without a hearing whether to grant the certificate of restoration of opportunity based on a review of the application filed by the applicant and pleadings filed by the prosecuting attorney.
(10) The clerk of the court in which the certificate of restoration of opportunity is granted shall transmit the certificate of restoration of opportunity to the Washington state patrol identification section, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol shall update its records to reflect the certificate of restoration of opportunity.
(11)(a) The administrative office of the courts shall develop and prepare instructions, forms, and an informational brochure designed to assist applicants applying for a certificate of restoration of opportunity.
(b) The instructions must include, at least, a sample of a standard application and a form order for a certificate of restoration of opportunity.
(c) The administrative office of the courts shall distribute a master copy of the instructions, informational brochure, and sample application and form order to all county clerks and a master copy of the application and order to all superior courts by January 1, 2017.
(d) The administrative office of the courts shall determine the significant non-English-speaking or limited English-speaking populations in the state. The administrator shall then arrange for translation of the instructions, which shall contain a sample of the standard application and order, and the informational brochure into languages spoken by those significant non-English-speaking populations and shall distribute a master copy of the translated instructions and informational brochures to the county clerks by January 1, 2017.
(e) The administrative office of the courts shall update the instructions, brochures, standard application and order, and translations when changes in the law make an update necessary.
[
2021 c 219 s 3
;
2017 3rd sp.s. c 6 s 806
;
2017 c 281 s 35
;
2016 c 81 s 3
.]
NOTES:
Rules
—
Conflict with federal requirements
—
2021 c 219:
See notes following RCW 43.20A.715
.
Effective date
—
2017 3rd sp.s. c 6 ss 102, 104-115, 201-227, 301-337, 401-419, 501-513, 801-803, and 805-822:
See note following RCW 43.216.025
.
Conflict with federal requirements
—
2017 3rd sp.s. c 6:
See RCW 43.216.908
.
Effective date
—
2017 c 281:
See RCW 42.45.905
.
Finding
—
Conflict with federal requirements
—
2016 c 81:
See notes following RCW 9.97.010
.