Request By:
Mr. James F. Runke
Acting Commissioner
Bureau of Vehicle Regulation
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on several questions pertaining to the licensing of motor vehicle dealers or salesmen as affected by the applicant having been convicted of a felony. We will first set forth the applicable statutes and then undertake to answer your questions in the light of the statutes.
The 1978 General Assembly enacted KRS Chapter 335B titled Licensing and Public Employment Qualifications. KRS 335B.020 reads as follows:
"(1) No person shall be disqualified from public employment, nor shall a person be disqualified from pursuing or practicing or engaging in any occupation for which a license is required solely because of a prior conviction of a crime, unless the crime for which convicted is one described in KRS 335B.010(4) or otherwise directly relates to the position of employment sought or the occupation for which the license is sought.
"(2) In determining if the conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider:
"(a) the nature and seriousness of the crime for which the individual was convicted;
"(b) the relationship of the crime to the purposes of regulating the position of public employment sought or the occupation for which the license is sought;
"(c) the relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.
"(3) Nothing in KRS 335B.020 - 335B.070 shall be construed so as to limit the power of the hiring or licensing authority to determine that an individual shall be entitled to public employment or a license regardless of that individual's conviction if the hiring or licensing authority determines that the individual has been successfully rehabilitated. " (Emphasis added.)
Please note that the above subsection (1) refers to KRS 335B.010(4), a definition which reads as follows:
"'Conviction of crime' shall be limited to conviction of felonies, high misdemeanors, and misdemeanors for which a jail sentence may be imposed. No other criminal conviction shall be considered unless moral turpitude is involved."
You point out in your letter that Section 1 of KRS 190.040 declares that a license may be denied, suspended or revoked on the grounds of proof of financial or moral unfitness of the applicant or that the applicant has violated any law relating to the sale, distribution or financing of motor vehicles. KRS 190.140(1)(a)(1). However, as far a conviction of crime is concerned, all laws, rules and regulations which purport to govern the granting, denial, renewal, suspension, or revocation of a license, have been superseded by KRS Chapter 335B by the explicit wording of KRS 335B.060.
Having above quoted or referred to the applicable statutes, we will now address your questions, seriatim.
1. Does the conviction of a felony constitute "moral unfitness" requiring the rejection of a person for a dealer's or salesman's license?
Answer. The conviction of a felony requires a licensing board to deny a license unless it determines that the applicant has been successfully rehabilitated. KRS 335B.020(3). This is just another way of saying that the licensing authority has the responsibility to determine whether the applicant is morally fit for the occupation covered by the license. It also places upon the applicant the burden of demonstrating to the licensing authority that he has been rehabilitated since his conviction of a felony.
2. Does a governor's pardon or other type of rehabilitative action or law constitute a "reprieve" thus qualifying an applicant, who has been convicted of a felony, for a license?
Answer. A pardon by the governor under Kentucky Constitution § 77 restores a convicted felon's civil rights to vote and hold office.
Arnett v. Stumbo, 287 Ky. 433, 153 S.W.2d 889 (1941). We believe that a pardon is not conclusive proof of rehabilitation. It is for the licensing authority to decide whether the applicant has been rehabilitated.
Baldi v. Gilchrist, N.Y. 189 NYS 493;
Prichard v. Battle, 178 Va. 455 (1941).
3. Does the bureau have discretion to weigh all factors in an individual background, including felonies, before deciding to grant or deny the license?
Answer. Yes.
4. What are the parameters in the exercise of our discretion?
Answer. The matters to be considered by the licensing authority are set forth in KRS 335B.020(2) which we have quoted above.
5. If the bureau issues a license to a dealer or salesman knowing him to be a former felon and he later commits other crimes in the area of the activities for which we licensed him, what is our liability?
Answer. The members of a licensing board are immune from civil liability for the quasi-judicial decisions within the scope of their authority without regard for bad faith, malice or other evil motives.
Rodway v. Wiswall, Ma., 267 A.2d 374 (1970);
Gildea v. Ellershaw, Mass., 363 Mass. 800 (1973).
6. Are we justified in rejecting out of hand all applications from prospective dealers and salesmen who are former felons of any kind, or only former felons convicted of laws relating to the sale and financing of motor vehicles?
Answer. We believe that the implication of KRS Chapter 335B is that a licensing authority should look beyond the mere record of a felony conviction and should not arbitrarily refuse all former felons. However, the chapter does not expressly order the authority to consider former felons. In this respect, the legislative intent of the statute is not real clear. We believe that the better policy is to review each case on its merits and not to have a policy of arbitrary rejection. A former felon, however, has a burden to convince the authority that he has been rehabilitated. KRS 335B.020(3) says:
"Nothing in (this chapter) shall be construed so as to limit the power of the hiring or licensing authority to determine that an individual shall be entitled to public employment or a license regardless of that individual's conviction if the hiring or licensing authority determines that the individual has been successfully rehabilitated. "
The wording of the statute is permissive rather than mandatory, but state court law suits and federal civil rights suits will probably be avoided if the Board considers the applicant's case thoroughly and documents its reasons for its decisions.