Licence Suspension and Denial: Overview of a New Mechanism for Child Support Enforcement

3.1 State Legislative Authority[10]

A notable difference among the states is the number of statutes amended as a result of the PRWORA requirements; the number ranged from one or two to numerous statutes, as in Florida where there was one for every licensing body in the state. It is likely that some states were able to amend the practices of licensing agencies administratively, e.g., to introduce the requirement of social security numbers on licensing applications and renewals without statutory amendments, whereas others must pass legislation enabling the suspension process in each licensing agency. Indeed, a feature that differentiates the state legislation is complexity. At one extreme is the 1997 amendment to the Utah Code Annotated (62A-11-107), which must be the shortest enabling statute in the country:

The office [of the support enforcement agency] has the power to pursue through court action the withholding, suspension and revocation of drivers' licences, professional and occupational licences, and recreational licences of individuals owing overdue support or failing, after receiving appropriate notice to comply with subpoenas or orders relating to paternity or child support proceedings...

In other states, the statute was silent except on the main elements of the process, such as the amount of arrears that would trigger suspension proceedings (e.g. in South Dakota). Elsewhere, the legislation was almost as detailed as a procedures manual (e.g. in Montana and California). In the former instances, administrative rules or regulations governing the child support agency, the motor vehicle licensing agency (MVA) and the occupational boards contained the finer points of the process.

It was common pattern for state legislatures to amend statutes relating to child support and to professional, occupational and motor vehicle legislation simultaneously.

Some state laws expanded the licences subject to suspension by the state to other levels of government. Changes to the Texas Family Code (Chapter 232, section 232.001) in 1995 provide an illustration:

Any licence, certificate, registration, permit, or other authorization issued by a department, commission, board, office or other agency of the state or a political subdivision of the state, [italics added] that is subject before expiration to suspension, revocation, forfeiture, or termination, and that a person must obtain to:

  1. practice or engage in particular business, occupation or profession;
  2. operate a motor vehicle; or
  3. engage in any other regulated activity including hunting, fishing, or other recreational activity for which a licence or permit is required.

The reference to a political subdivision suggests that county or municipally issued licences could also be suspended, although the Texas Family Code lists only state licensing agencies, 56 of them, which are subject to the statute. Maine and Massachusetts also included municipally issued licences in their definitions.[11]

In Minnesota, the state legislature required that it be provided with the following data every two years:

  • the number of child support payors notified of intent to suspend a driver's licence;
  • the amount collected in payments from the child support payors so notified;
  • the number of cases paid in full and payment agreements executed;
  • the number of cases in which there has been notification and no payments or payment agreements;
  • the number of drivers' licences suspended; and
  • the costs of implementation and operation of the requirements of this section.

Why these provisions were included in the statute is not known. Perhaps they were designed to ensure the cost-effectiveness of the legislation or to ensure that there would be legislative monitoring of effectiveness or because state legislators were uncertain of the efficacy of this enforcement action.

Another distinction among the state laws is the existence of protection for the licensing agencies (Myers, 1999). Colorado, New Jersey and Pennsylvania gave limited immunity to administrators who restrict licences as required by law. In addition, New Jersey and Pennsylvania included provisions that forbid insurance companies from increasing rates based on a licence suspension stemming from a child support obligation.

3.2 The Types of Occupational Licences Subject to Suspension

All states have laws enabling the suspension of drivers' licences for failure to comply with child support obligations.

Of the 52 states and territories for which data were available, 52 had legislation authorizing professional licence suspensions, 44 could suspend occupational and/or trade licences, 25 had authority to suspend business licences, and 39 were able to suspend recreational licences, such as fishing and hunting permits[12] (see Table 1). As discussed next, the differences by state in the types of occupational licences eligible for suspension may be due to terminology as much as real variations.

3.2.1 Occupational, Professional and Business Licences

The variations among the states in the occupational and professional licences subject to suspension may not be meaningful differences. Architects and dentists at times are found in the occupational rather than the professional category. Conversely, the professional category in many states includes what most people would regard as occupations, such as cosmetologists and real estate salespersons. Other differences may depend on state differences in licensing authority. For example, one state might have responsibility for regulating barbers, but another may not.

Table 1: Professional, Occupational/Trade, Business and Recreational Licence Suspensions in the U.S.

State Professional Occupational Business Recreational
Alabama X X   X
Alaska X X   X
Arizona X X X X
Arkansas X X X X
California X X X X
Colorado X X X X
Connecticut X X   X
Delaware X   X  
District of Columbia X   X  
Florida X X X X
Georgia X     X
Hawaii X X   X
Idaho X X X X
Illinois X X X X
Indiana X X X
Iowa X X X X
Kansas X     X
Kentucky X X   X
Louisiana X     X
Maine X X X X
Maryland X     X
Massachusetts X X X X
Michigan X X    
Minnesota X X    
Mississippi X X X X
Missouri X X X X
Montana X X X X
Nebraska X X   X
Nevada X X   X
New Hampshire X     X
New Jersey X X   X
New-Mexico X X    
New York X X X X
North Carolina X X X X
North Dakota X X   X
Ohio X X   X
Oklahoma X X X X
Oregon X X    
Pennsylvania X X   X
Puerto Rico X X    
Rhode Island X X X X
South Carolina X X X X
South Dakota X X   X
Tennessee X X   X
Texas X X X X
Utah X X   X
Vermont X X X X
Virginia X X X X
Washington X X   X
West Virginia X X X X
Wisconsin X X X X
Wyoming X X   X
Total number 52 44 25 39

Source: U.S. DHHS, OCSE, 1998, and state legislation. Note, all states have drivers' licence suspension legislation.

Only a few states (e.g. Alaska and South Dakota) identified specific occupations to be included within the purview of licence suspension.[13] The documents available do not indicate why some licences are included and others are not. More typically, the legislation simply stated that all state-issued licences and certificates, are subject to denial and suspension.

It may be that some states did not include 'business' licences in their post-PRWORA legislation because businesses were not specified in PRWORA. There is some evidence to support this hypothesis. More than 60 percent of states that instituted licence suspensions before PRWORA included business licences, compared to 37 percent of those that passed legislation in 1996 or later.

3.2.2 Lawyers' Licences

Several states, including Arkansas and Minnesota, specifically cite lawyers in their legislation. In Arkansas,

the state Supreme Court may each year furnish the Office of Child Support Enforcement with a list of those persons who possess a law licence and the Office shall notify the Clerk of the Supreme Court regarding a review of the law licence whenever a noncustodial parent on the list is delinquent on a court-ordered child support payment... in an amount equal to six months' obligation or more...[14]

The "may" in the first line of this quotation is related to the constitutional separation of powers. In Minnesota, similar legislation was passed in 1992. The Lawyers Professional Responsibility Board subsequently developed administrative suspensions; as long as there is no "unprofessional" conduct, suspended attorneys will not have a disciplinary record.[15] On the other hand, other states have made failure to pay child support a disciplinary infraction (Johnson, 1996). In Kansas, if the lawyer is found guilty of contempt of court as a result of failure to pay arrearages, "the court may file a complaint with the disciplinary administrator if the licensing agency is the Kansas Supreme Court" (Kansas Statutes, section 20-1204a(f)). The child support agency in Indiana is required to issue notice to the "Supreme Court disciplinary commission if the payor is licenced to practice law" (Indiana Code, 12-17-2-34).

A substantial proportion of state laws lacked specific references to attorneys. One would expect that they would fall into the generic group of licensees defined in statutes. For example, in Iowa licence is defined as "any licence or renewal of a licence, certification, or registration to a person to conduct a trade or business, including but not limited to a licence to practice a profession or occupation or to operate a commercial motor vehicle."[16]

3.2.3 Recreational Licences

The suspension of recreational licences is contentious in some jurisdictions in the United States. Critics point out that hunting and fishing licences are often sold at retail outlets (e.g. bait stores), and there is no centralized record of the persons who are issued with these licences. Lack of automation means that the child support payor can easily replace the suspended hunting or fishing licence. A "question and answer" response on the Web page of the Pennsylvania Fish and Boat Commission (a state agency) criticized the federal government for requesting social security numbers on fishing and hunting licences on the grounds that suspending these licences is not effective in enforcing child support, "unduly inconveniences" the buyers of licences, and raises privacy concerns "with little corresponding benefit" (1999). As far as we are aware, PRWORA did not specify that recreational licences required SSNs.

One way of meeting the federal requirement is to introduce "conditional" legislation, as was done in Ohio. Its legislation permits suspension of recreational licences issued by the Division of Wildlife effective January 1998. If a person is in default of a child support order, the enforcement agency may determine whether the individual holds such a licence (or has applied or is likely to apply for) using the same procedures as for other licence suspensions, if both of the following apply:

  1. The Division of Wildlife has implemented a computer system that maintains licence numbers for licences issued by the Division, the names of persons to whom licences are issued, and the social security numbers of persons to whom licences are issued; and
  2. The Division has established safeguards that eliminate the risk that social security numbers provided to the Division for the purpose of child support enforcement may be used for purposes other than those permitted by federal law.

It is not known at the time of this writing if the Wildlife Division has met these conditions.

A second way of minimizing the administrative problems associated with the federal requirement is found in Nevada, where suspensions do not apply to recreational licences of less than six months duration (Nevada Revised Statutes 425.540).

3.2.4 Related Provisions

Other actions taken as part of the licence suspension initiative in the United States were suspension of boat registrations, rules that prohibited students with child support delinquencies from participating in sports and other extracurricular activities, and suspension of student grants. In Maine, contractors for the state government were obliged to be up-to-date in child support payments. Oregon specified that operators of bars and liquor stores must be compliant, although we expect that in other states they would be classified as business owners/operators and hence liable to licence suspension. In Idaho, permits to carry concealed weapons were eligible for suspension for failure to pay child support.

Idaho, Michigan and Pennsylvania laws allowed for licence suspension for violating visitation orders, i.e., when a parent interferes with the visitation rights of the other parent.

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