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Question - can application ask if you've been arrested   

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Ken:

    The Tennessee Alarm Systems Contractors Board has a question on their Alarm Application that asks the following:

    Have you ever been arrested in Tennessee or any other state?

Is this legal? I understand the question regarding prior convictions but arrests? Does that mean the board can deny a license for an arrest even when the charges were dropped? 

    I have a client applying for a license and Tennessee is now requesting the disposition of his arrest record, stating they have no evidence he wasn’t convicted. I tried to argue that their own FBI background report would have indicated a conviction had it been so but they scoffed at the idea. 

    I’d appreciate any guidance you could lend me. Thanks!

Sincerely,

Angela

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Answer 

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    I am going to answer this without doing any research - so those in the "know" feel free to blast me.  

    I think the questionaire can ask the question if you've been arrested.  Keep in mind that asking about arrests on a questionaire is not the same as asking a witness on the stand testifying in court about arrests - that you can't do because the arrest itself, without a conviction, is meaningless.  However, on an application it could lead to inquiry by the licensing board.  Having said that, I don't think it would be sufficient justification to deny a license because of an arrest only.  

    I want to try and reason this out - which by the way is a bad idea when trying to figure out what the law is because not all laws seem to make sense and defy logic.  An applicant could have one or more arrests but no convictions.  The licensing requirements are not going to make an arrest a bar to a license, but a felony conviction or bad character will be grounds to deny the license.  Arrest followed by felony conviction makes it easy.  But what about arrests that are plead down to violations [so not a "crime"] or dismissed because of technicality, may lead the licensing agency to determine that the applicant has bad character.

    I agree with your skepticisim because asking about arrests may not be proper in an employment interview [I really need to ask our head of Employment Law, Judge Ruth Kraft about that since I think I violate just about every law when I do an interview] and isn't generally probative in court, so you can't ask about it. 

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I decided to ask Judge Kraft to comment.  Here is her comment:

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Ken

    The short answer is that a licensing agency has much more leeway under the police power than a private employer in asking these questions.   A licensure board may inquire about arrests because, as you so correctly note, it does go to the issue of character.  You definitely got that one right!!  The TN board is not using this information to make an employment decision.

    Interviewing prospective employees raises other issues.  An inquiry as to arrests which did not result in conviction and the use of that info in making an employment decision is prohibited based on EEO guidance and decisional law under the Title VII principle of disparate impact.  The problem with just asking is that a prospective employee can then claim disparate impact even though you chose not to hire him for lack of experience or training. In terms of whether TN would automatically pick these things up on an FBI screen, records aren't as perfect as we would like to believe.  Also, keep in mind that an adjournment in contemplation of dismissal is not the equivalent of charges being withdrawn. It is actually the result of a plea entered during a courtroom proceeding. 

    I recommend that clients distance themselves from these inquiries by using a third party vendor to perform background checks.  An offer of employment should not be made until after the full check has been completed.  Many employers will hire after the preliminary 48 hour check and then discover material information upon receipt of the full report. Then, when they want to terminate the relationship based on that report, they will have exposure if the background information isn't directly relevant to the job description. For example,we know that the profile of an embezzler will include debt, proclivity to gambling, bankruptcy, and defaults on financial obligations. But, if the job description does not directly relate to handling of cash or negotiable instruments, the employee may well sue for wrongful termination.  That said, any employee with access to a debit card or valuable equipment could pose a risk to the employer.  

    The best advice I can give to any client, when confronted with one of these scenarios, is to call me for a brief consultation so I can help to mitigate their exposure and to create an appropriate paper trail.

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Question - Is alarm monitoring legally subject to communication's tax

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Ken, 

    Subject: Is alarm monitoring legally subject to communication's tax? 

    Arizona Cities charge a communications tax ranging from 2% in Tucson to 4.7% in Phoenix. The tax only applies if the monitoring station is in Arizona. Out of State monitoring stations are not subject to pay it. This provides Out of State monitoring companies as much as a 4.7% advantage in Phoenix and deters Alarm Dealers from doing business in Arizona. 

    Ref: Arizona Model City Code:

470(a)(2) Gross income from the business activity of providing telecommunication services to consumers within this City shall include:

(D) charges for monitoring services relating to a security or burglar alarm system located within the City where such system transmits or receives signals or data over a communications channel.

 

    Our association is taking the Cities to task on the tax. This tax causes unfair burden upon those who do business in Arizona and rewards those who take their business out of State. We hope this has national implications and helps Alarm Dealers across the country.

 

Ref: Arizona Attorney General Opinion;

 

“It is immediately apparent that a person in the burglar alarm business does not furnish “public telegraph or telephone service”. If such a person falls within this constitutional provision it must be on the basis that he is “transmitting messages”. We think that the words transmitting messages”, necessarily imply that the messages be transmitted for the public or at least a portion of the public."

 

"It seems to us that a person in the business you described does not transmit messages even for his customers, much less the public, and even if the impulses which are received in his central office are deemed to be messages, it seems that he is transmitting them for no one but himself in the furtherance of his business. The essence of the business seems to be protection and the use of telegraph or telephone wires is only incident to the main service. Article 15, Section 10 of the Arizona Constitution is similar in substance and almost identical in effect with Article 15, Section 2, supra. For the reason just enumerated we do not believe that a person in the business which you inquire about is a common carrier under the provision of Article 15, Section 10. “ Fred O Wilson, Arizona Attorney General

 

    According to the Arizona Constitution, if an Alarm Businesses actually engaged in the business of charging for communications, Alarm Businesses would then be deemed public service corporations. 

 

Article 15, Section 2. "Public service corporations" defined

Section 2. All corporations other than municipal engaged in furnishing gas, oil, or electricity for light, fuel, or power; or in furnishing water for irrigation, fire protection, or other public purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or engaged in collecting, transporting, treating, purifying and disposing of sewage through a system, for profit; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers, shall be deemed public service corporations.

 

    The tax on alarm monitoring is coming under fire this year in Arizona. This tax is charged to the alarm provider and may be passed onto the client. Refunds are obtainable for up to 4 years. It is the opinion of our association that if Alarm Business are not allowed, by law, to charge for communications, Alarm Businesses cannot be legally required to pay tax on communications.

Roger D. Score

President, Arizona Alarm Dealers Association, LLC

http://arizonaalarmdealers.org/Monitoring_tax_.html

(520) 419-4677


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TO SUBMIT QUESTIONS OR COMMENTS REPLY TO THIS EMAIL OR EMAIL Ken@Kirschenbaumesq.com.  Most comments and questions get circulated.

Webinar:  

Date and time:  January 14, 2014  12 noon  EST    

Register here:  
 https://attendee.gotowebinar.com/register/4283010462266875649
Title:  Pitfalls for New and Emerging Businesses

Topic:  Issues to be covered include consequences of incomplete/no/poor documentation, mishandling of employee leaves, problems arising from the use of technology, protection of employer’s interests by employment contracts and how to handle severance pay.  This is a broad ranging webinar addressing the areas in which employers, by failing to create a proper structure, set themselves up for more costly and problematic consequences.

 

Presented by Judge Ruth Kraft, Chair of the Employment and Labor Department at Kirschenbaum & Kirschenbaum PC

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