Declining or Refusing Notary Service
Under Colorado notary law, CRS 24-21-508, a notary may refuse to perform a notarial act unless refusal is otherwise prohibited by law. When refusing notary service, the notary should not discriminate, decline or refuse a reasonable and lawful notary request. Notaries are commissioned to serve all of the public.
But, there may be a legitimate reason for a refusing notary service. As a best practice, notaries should make an entry in the notary journal when refusing notary service. This can be evidence that the notary is using reasonable care to prevent improper acts. Some of the reasons for refusing notary service are:
Potential Reasons for Declining or Refusing Notary Service
Lack of Identification
1. If the customer cannot provide satisfactory evidence of identification, as defined by Colorado law.
Lack of Awareness
2. If a customer lacks adequate mental capacity, due to mental impairment, such as a stroke, dementia, Alzheimer’s, brain injury, brain disease, or low IQ, or has been found to be mentally incompetent by a medical professional or court ruling.
A notary should use reasonable care to assess the customer’s awareness, mental capacity, and basic understanding of the document. The customer should be alert, able to carry on a conversation, provide cohesive answers to questions, and demonstrate that they understand the purpose of the document. A drowsy or sedated person may need rest or awakening time before signing.
Under the Influence of Drugs, Alcohol, Emotions
3. If a customer appears to be under the influence of drugs, alcohol, anger, strong emotions, or stress, to an extent that impairs their awareness, judgment, reasoning or understanding.
4. If it appears that a customer is not signing willingly due to pressure, threat, manipulation, indoctrination, brainwashing, extortion, coercion, or duress. If other people are present and trying to wrongly influence the signer, the notary may ask the other people to leave until the customer can make a decision without undue influence.
5. If the customer speaks a foreign language and is unable to communicate directly with the notary, without using a translator, the notary may decline or refer the customer to a notary that speaks the foreign language.
6. If the document has blank spaces to be completed before notarizing, missing pages or attachments, or is incomplete.
Missing or Non-Compliant Notarial Certificate
7. If the document is missing a notarial certificate that complies with Colorado notary law and the customer is unable to decide the type of notarial certificate to attach.
Or, the notarial certificate requires the notary to swear an oath or affidavit, certify facts such as notary status, or a signer’s marital or familial status, or employment status, title or position with a certain business or agency, or that the document, signer or business meets certain legal requirements, or that the notary has verified or copied signer identification, or the certificate includes or requests non-mandatory information or is otherwise not compliant with Colorado notary law.
U.S. Department of State form DS-3053 does not have a Colorado compliant notarial certificate.
8. If a request to notarize is for a time when the notary is closed for business or unavailable, or the requested signing location is outside of a mobile notary’s service area. A mobile notary may also decline due to bad weather, hazard, unsafe, unhealthy or unsanitary conditions, risk of disease, risk of crime, unrestrained pets, etc.
If a request is for multiple, long or complicated documents, and will cause delays for other waiting customers or appointments, the notary may process some of the documents, and ask the customer to reschedule another time to process the remaining documents.
Special Knowledge, Authorization or Technology Needed
9. If the request is for an advanced, unusual, complicated, remote, or online transaction that requires special knowledge, training, or technology that the notary does not have. Or, the law or workplace policy does not authorize the notary to notarize a particular type of document. Some notarial acts are lawful in one state or country, but unlawful in another state or country.
Remote online notarization requires the customer and the notary to have a computer or smartphone, an internet connection, the required software, the technical knowledge to use the technology and the application, and a secure system to protect against unauthorized access and malware. It is not the role of the notary to train computer users or provide tech support.
Unable to Pay
10. If the customer is unwilling or unable to pay the notary fee or travel fee.
Illegal, Fraudulent, Suspicious, Defective or Unauthorized Act
11. If the notary knows or has a reasonable suspicion that can be articulated, that the customer behavior, notarial act, certificate, procedure, document, or the associated transaction is suspicious, illegal, non-compliant, defective, dishonest, deceptive, false, improper, fraudulent, or unauthorized.
Under the law of agency, certain acts involving personal duties, including sworn statements, must be done personally by the principal and may not be delegated to an agent under a power of attorney.
A request for service may be suspicious if it has been declined by another notary or if the customer is offering to pay a higher fee for mobile notary service when they are mobile and could choose to use free notary service at their bank, or lower-priced service at a walk-in notary location.
Defective, non-compliant, or obsolete documents might be old, expired versions of forms, self-prepared homemade documents, documents containing errors, omissions, or compliance violations, or documents prepared by a business, organization, agency or person who is apparently not trained, knowledgeable, experienced, qualified, certified or properly licensed to prepare legal documents.
Any correction to the document should be made by striking out the incorrect information with a single horizontal line and writing in the correct information, initials, and date. Corrections may not be made using correction tape or correction fluid.
[See Notary Code of Professional Responsibility, Section IV-E-2, Improper Transaction.]
If the notary knows or has a reasonable belief that the notarial act or the associated transaction is unlawful.
[See Model Notary Act, Section 5-6(b)(1), Refusal to Notarize]
Illegal acts include acts against public policy, that are in violation of, or promote a breach of federal, state or local laws or regulations, or case law from court rulings, or tend to harm the country, state or its citizens.
Note: starting July 1, 2018, under RULONA laws, the Colorado SOS will not certify notarial acts on records: (I) regarding allegiance to a government or jurisdiction; (II) relating to the relinquishment or renunciation of citizenship, sovereignty, in itinere status or world service authority; or (III) setting forth or implying for the bearer a claim of immunity from the law of this state or federal law.
12. In some states, notaries take an oath or affirmation to support and defend the Constitution of the United States and of their state of residence. See Constitutional oath of office form. Threats, violence, terrorism, violations of rights, or unlawful acts or plans against persons, businesses, public officials, government employees, agencies or property will be reported to the authorities for criminal and civil rights investigation.
Interfering with, Bribing or Influencing a Public Official
13. If the customer makes threats, assaults, or attempts to interfere with, obstruct, intimidate, deceive, bribe, influence, or coerce the notary.
14. If the notary is a named party in the document, or the signer is a family member or relative, or the notary has a disqualifying interest in the transaction or a significant conflict of interest that would compromise the impartiality of the notary. The value of the money, goods, benefits, or services received by the notary should not exceed compensation for the value of the services rendered by the notary.
State laws may allow a public official to receive a minimal or trivial amount as a courtesy thank you, such as some food, snack, or a beverage. The total dollar value limits allowed per transaction and per year are defined in the state “gift ban” laws.
15. Most customers are polite and cooperative when seeking notary services. Some customers are rude, insulting, disrespectful, angry, enraged, loud, disruptive, abusive, condescending, lecturing, degrading, uncooperative, immature, or unreasonable. A business may establish policies for dealing with disruptive customers.
A judge in court would likely give a warning to a disruptive party, and then issue a contempt of court charge if the disruptive behavior continues. The U.S. Post Office has refused service to disruptive customers who refused to follow rules of conduct. A notary may decline, refuse or postpone notarial service until the customer showing contempt agrees to act in a manner showing respect for the dignity of office.
Health, Safety and Security Issues
16. Notaries should not put themselves or others at risk in situations involving health, safety, or security. Hazardous situations should be resolved, remedied, safely accommodated, or eliminated before proceeding. During an epidemic or pandemic infectious disease outbreak or emergency, public health orders, medical guidance, and infection prevention and control policies including social distancing, disinfection, and wearing personal protective equipment (PPE) including face masks must be followed.
17. Notaries should not decline or refuse service or charge different fees because a person is not a client or customer of a business. The public should not be required to buy goods or services or open an account as a prerequisite to receiving notary service. Employers should not impose company rules on notary employees that contradict notary laws. A notary public should serve the public, not private customers only.
Model Notary Act
18. The Model Notary Act, published by the National Notary Association (NNA), Section 5-6, Refusal to Notarize, states:
A notary shall not refuse to perform a notarial act based on a person’s race, advanced age, gender, sexual orientation, religion, national origin, disability, or status as a non-client or non-customer of the notary’s employer.
Colorado Civil Rights Anti-Discrimination Laws
19. The Colorado Civil Rights Division enforces the Colorado Anti-Discrimination laws. A Colorado business serving the public must not discriminate based on race, color, religion, creed, national origin, ancestry, sex, age, physical or mental disability, sexual orientation (including transgender status), marital status, and retaliation for engaging in protected activity (opposing a discriminatory practice or participating in a public accommodations discrimination proceeding).
Illegal discrimination includes providing unequal terms and conditions, discriminatory advertising, denial of service, unequal service, retaliation, and harassment when based on a protected class.
The notary should serve all of the public, in a fair, honest and unbiased manner, when a reasonable and lawful notary request is received, or attempt to help the customer find another notary that can provide the requested service.
A helpful notary may receive a positive customer review from a thankful customer for providing good customer service.
Disclaimer: This information is not legal advice. Consult with a licensed, competent attorney for legal advice about your specific situation.