WSLCB Overhauls Criminal History Point System

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[author: Danica Paddock]

Amendments to WAC 314-55-040, establishing new “threshold review” criteria for licensees and license applicants.
WSR 21-18-125, published September 1, 2021, establishes several amendments to WAC 314-55-040, previously entitled “What criminal history might prevent a marijuana license applicant from receiving or keeping a marijuana license?”

The first amendment implemented by the WSR changes the title of WAC 314-55-040 to “Cannabis applicant or licensee background checks.” The amendment strikes the point system previously used by the Washington State Liquor and Cannabis Board (WSLCB) when processing criminal history background checks to determine an applicant’s qualification for a cannabis license or a renewal thereof. The new language of the WAC states that “the background check may not preclude approval, [sic] but will be considered in determining the applicant’s eligibility for licensure.” The WSLCB establishes a new “threshold review” provision for felony and misdemeanor convictions that have occurred within a certain time period. Where previously a criminal history could prevent an applicant from being granted a cannabis license if the applicant’s history amounted to a value in excess of the desired criteria, as determined by the WSLCB’s previous point system, the changes to this WAC remove that hard-line division and instead implement a review system whereby those determined to be in excess of the newly established criteria undergo a more thorough review process.

The new criteria separates types of convictions into subsets of conviction with each having its own time consideration and corresponding determination of review. Felonies are broken down into “Class A and B convictions” and “Class C convictions.” Classes A and B have a time consideration of 10 years and require a threshold review if the individual has 1 or more conviction in this category. Class C convictions have a time period of 7 years with a threshold review if the applicant has 2 or more convictions in this category. All misdemeanor convictions have a time consideration of 3 years with a threshold review enacted if 3 or more convictions are present on the applicant’s criminal history. Additionally, an applicant who is actively under either state or federal supervision will be required to undergo threshold review. An applicant’s pending criminal charges will be assessed to determine whether the charges, either individually or jointly, would place the applicant over the allotted criteria if convicted.

The threshold review itself will be evaluated using newly established criteria which includes:
Time since the conviction or pending offenses; nature and specific circumstances of the offense; relationship of the offense or incident to the nature of the work performed; number of offenses or incidents; if criminal, any relevant evidence of rehabilitation…and the individuals conduct and experience since the time of the offense; and any other relevant information…

The WAC now includes a “Continued Reporting” section which requires licensees to report any newly occurring convictions to the board within thirty days of its occurrence. New convictions may either be assessed for threshold review upon receipt by the LCB or at the time of license renewal.

The Memorandum, published in conjunction with WSR 21-18-125, establishes that these amendments are implemented as a means to move towards more socially equitable conditions in Washington’s cannabis industry. Specifically, the WSR states that it intends to change such conditions “for individuals who have been disproportionately impacted by marijuana [cannabis] criminalization…” and that these amendments are designed to remove barriers for those applicants’ entrance to the legal cannabis industry.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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