New Law Allowing an RPS to Renew a Registration Creates Legal Conflict

The Registered Process Server Act was amended, effective January 1, 2016, allowing a renewing registered process server to be issued the same registration number if there has not been a 3 or more year lapse of the period of registration. (B&P § 22355).

B&P § 22355

(a) The county clerk shall maintain a register of process servers and assign a number and issue an identification card to each process server. The county clerk shall issue a temporary identification card, for no additional fee, to applicants who are required to submit Request for Live Scan forms for background checks to the Federal Bureau of Investigation and the Department of Justice. This card shall be valid for 120 days. If clearance is received from the Federal Bureau of Investigation and the Department of Justice within 120 days, the county clerk shall immediately issue a permanent identification card to the applicant. Upon request of the applicant, the permanent identification card shall be mailed to the applicant at his or her address of record. Upon renewal of a certificate of registration, the same number shall be assigned, provided that the applicant is renewing registration in the same county in which he or she was previously registered and there is no lapse of three or more years in the period of registration.

 

(b) The temporary and permanent identification cards shall be not less than 3¹/₄ inches by 2 inches and shall contain at the top the title, “Registered Process Server,” followed by the registrant’s name, address, registration number, date of expiration, and county of registration. In the case of a natural person, it shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph.

 

The 2016 amendment created a conflict with B&P § 22351 regarding the fingerprinting requirement because the County Clerk is mandated in the statute to notify the Department of Justice upon lapse in the registration that the subsequent arrest notification is no longer needed.

 B&P Code § 22351.5

(a) At the time of filing an initial certificate of registration or renewing a certificate of registration that has lapsed, the registrant shall also submit a completed Request for Live Scan form confirming fingerprint submission to the Department of Justice and the Federal Bureau of Investigation, in order to verify that the registrant has not been convicted of a felony. The clerk shall utilize the Subsequent Arrest Notification Contract provided by the Department of Justice for notifications subsequent to the initial certificate of registration.

 

(b) If, after receiving the results of the Request for Live Scan, the clerk is advised that the registrant has been convicted of a felony, the presiding judge of the superior court of the county in which the certificate of registration is maintained is authorized to review the criminal record and, unless the registrant is able to produce a copy of a certificate of rehabilitation, expungement, or pardon, as specified in paragraph (2) of subdivision (a) of Section 22351, notify the registrant that the registration is revoked. An order to show cause for contempt may be issued and served upon any person who fails to surrender a registered process server identification card after a notice of revocation.

 

B&P Code § 22351.5

• Language in section directs the County Clerk to notify the DOJ after the RPS is no longer eligible for registration
• Before 2016, that date was the day after the registration lapsed
• Language was placed into the statute so that County Clerk complied with Penal Code 11105.2(d)

Penal Code § 11105.2(d)

Any entity that submits the fingerprints of applicants for licensing, employment, certification, or approval to the Department of Justice for the purpose of establishing a record of the applicant to receive notification of subsequent state or federal arrests or dispositions shall immediately notify the department when the employment of the applicant is terminated, when the applicant’s license or certificate is revoked, when the applicant may no longer renew or reinstate the license or certificate, or when a relative caregiver’s or nonrelative extended family member’s approval is terminated. The Department of Justice shall terminate state or federal subsequent notification on any applicant upon the request of the licensing, employment, certifying, or approving authority.

• The County Clerk was mandated then to give notice to the DOJ terminating subsequent arrest notification after the registration lapsed, resulting in a gap which required another fingerprint submission.
• Penal Code § 11105.2(d) only requires notification when the applicant may no longer renew or reinstate the license or certificate
• DOJ does not require notification after the date of the lapse because the applicant is still eligible for renewal for 3 years after that date
• This presents an unnecessary burden for renewing process servers who must be re fingerprinted when they renew their registration when this 3 year window