BILL NUMBER: SB 900 CHAPTERED
BILL TEXT
CHAPTER 627
FILED WITH SECRETARY OF STATE SEPTEMBER 17, 2002
APPROVED BY GOVERNOR SEPTEMBER 17, 2002
PASSED THE SENATE AUGUST 26, 2002
PASSED THE ASSEMBLY AUGUST 21, 2002
AMENDED IN ASSEMBLY AUGUST 19, 2002
AMENDED IN ASSEMBLY JULY 25, 2002
AMENDED IN ASSEMBLY JUNE 20, 2002
AMENDED IN ASSEMBLY JUNE 4, 2002
AMENDED IN SENATE JANUARY 22, 2002
AMENDED IN SENATE JANUARY 7, 2002
AMENDED IN SENATE MARCH 28, 2001
INTRODUCED BY Senator Ortiz
FEBRUARY 23, 2001
An act to amend Sections 11105, 11105.02, 11105.3, and 11105.4 of
the Penal Code, and to amend Section 15660 of the Welfare and
Institutions Code, relating to criminal history information.
LEGISLATIVE COUNSEL'S DIGEST
SB 900, Ortiz. Criminal history information.
Existing law requires the Department of Justice to furnish various
agencies and entities with a person's state summary criminal history
information when that information is used for employment, licensing,
or certification purposes. Existing law generally provides for the
destruction or return of specified records generated in connection
with requests for criminal history information.
This bill would state the Legislature's findings and declarations
with respect to the complexity of the provisions regarding
dissemination of state summary criminal history information and
resulting problems. It would state the Legislature's intent to
consolidate statutory criteria on dissemination of criminal history
information, not to overrule specified court cases, and not to
discourage further legislative review of the amount and type of
summary criminal history information that should be disseminated.
This bill would consolidate much of the law regarding disclosures
of criminal history information for employment, licensing, or
certification purposes. It would state a general rule applicable to
those whose criminal history information is authorized to be released
for employment, licensing, or certification purposes, a rule that
limits the release to convictions and arrests for which the applicant
is pending trial. It would state special rules for applicants for
positions, licenses, or certification in law enforcement, in-home
care, residential care, child day care, foster care, community care,
banking, security services, and others. These special rules would
detail what information should be disseminated concerning these
applicants, according to the nature of the position, license, or
certification sought, incorporating certain variations in existing
laws authorizing the dissemination, while making some substantive and
conforming changes. The bill would also eliminate the requirement
that specified applications for criminal history information be
destroyed. This bill would provide that it is not to be construed to
relieve the department of its other statutory notification duties.
This bill would incorporate amendments to Section 11105.3 of the
Penal Code proposed by AB 1855 that would become operative if both
bills are enacted and this bill is enacted after AB 1855.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that legislation is
necessary to address through consolidation the problem of numerous
overlapping statutory criteria for the dissemination of state summary
criminal history information for the purposes of protecting
California's citizenry. The Legislature further finds and declares
that the present complexity of the statutory criteria provides a
disservice both to applicants and to the most vulnerable members of
society because the complexity could lead to mistakes, omissions, and
delays in the processing of state summary criminal history
information for employment, licensing, and certification purposes.
The Legislature further finds and declares that the purpose of
this act is to consolidate the statutory criteria for state summary
criminal history information dissemination. It is not intended to
overrule the decisions, orders, or judgments in Central Valley v.
Younger and the related case of Gresher v. Deukmejian (Alameda
Superior Court Nos. 497394-6 and 524298-6).
The Legislature further finds and declares that, except for those
substantive changes to dissemination criteria made by this act, the
Legislature has not attempted to analyze or determine the
appropriateness of the amount and type of state summary criminal
history information provided to agencies, organizations, or
individuals for purposes of employment, licensing, or certification.
It is not the intent of the Legislature that the enactment of this
act should foreclose future legislative review of the appropriateness
of the amount and type of summary criminal history information that
should be provided to any agency, organization, or individual for
purposes of employment, licensing, or certification.
SEC. 2. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) Probation officers of the state.
(6) Parole officers of the state.
(7) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(8) A public defender or attorney of record when representing a
person in a criminal case and if authorized access by statutory or
decisional law.
(9) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
(10) Any city or county, or city and county, or district, or any
officer, or official thereof if access is needed in order to assist
that agency, officer, or official in fulfilling employment,
certification, or licensing duties, and if the access is specifically
authorized by the city council, board of supervisors, or governing
board of the city, county, or district if the criminal history
information is required to implement a statute, ordinance, or
regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal
history information, and contains requirements or exclusions, or
both, expressly based upon that specified criminal conduct.
(11) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120) of Chapter 1 of Title 1 of Part 4.
(12) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(13) Health officers of a city, county, or city and county, or
district, when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(14) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(15) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of level 1 humane
officers.
(16) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(17) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(c) The Attorney General may furnish state summary criminal
history information upon a showing of a compelling need to any of the
following, provided that when information is furnished to assist an
agency, officer, or official of state or local government, a public
utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) Any public utility as defined in Section 216 of the Public
Utilities Code that operates a nuclear energy facility when access is
needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To a peace officer of another country.
(4) To public officers (other than peace officers) of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(5) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(6) The courts of the United States, other states, or territories
or possessions of the United States.
(7) Peace officers of the United States, other states, or
territories or possessions of the United States.
(8) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(9) Any public utility as defined in Section 216 of the Public
Utilities Code, if access is needed in order to assist in employing
current or prospective employees who in the course of their
employment may be seeking entrance to private residences. The
information provided shall be limited to the record of convictions
and any arrest for which the person is released on bail or on his or
her own recognizance pending trial.
If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
Any information obtained from the state summary criminal history
is confidential and the receiving public utility shall not disclose
its contents, other than for the purpose for which it was acquired.
The state summary criminal history information in the possession of
the public utility and all copies made from it shall be destroyed not
more than 30 days after employment or promotion or transfer is
denied or granted, except for those cases where a current or
prospective employee is out on bail or on his or her own recognizance
pending trial, in which case the state summary criminal history
information and all copies shall be destroyed not more than 30 days
after the case is resolved.
A violation of this paragraph is a misdemeanor, and shall give the
current or prospective employee who is injured by the violation a
cause of action against the public utility to recover damages
proximately caused by the violations. Any public utility's request
for state summary criminal history information for purposes of
employing current or prospective employees who may be seeking
entrance to private residences in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
Nothing in this section shall be construed as imposing any duty
upon public utilities to request state summary criminal history
information on any current or prospective employees.
(10) To any campus of the California State University or the
University of California, or any four-year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may
require the convicted felon to be fingerprinted, and any inquiry to
the department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 12054 of the Penal
Code, and Section 13588 of the Education Code shall be deposited in a
special account in the General Fund to be available for expenditure
by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and is to be used for peace officer employment or
certification purposes. As used in this subdivision, a peace officer
is defined in Chapter 4.5 (commencing with Section 830) of Title 3
of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition, provided that the
Department of Justice first makes a genuine effort to determine the
disposition of the arrest.
(D) Every detention or successful diversion.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101 of the Penal Code,
and the criminal history information is to be used for criminal
justice employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition, provided that the
Department of Justice first makes a genuine effort to determine the
disposition of the arrest.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and it is to be used for employment, licensing, or
certification purposes pursuant to any of the following sections, or
pursuant to any statute that incorporates the criteria of any of
these sections by reference:
Section 1522, 1568.09, 1569.17, or 1596.871 of the Health and
Safety Code.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an agency,
organization, or individual pursuant to Section 11105.3 or 11105.4 of
this code, or Section 15660 of the Welfare and Institutions Code and
is to be used for employment, licensing, or certification purposes.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is furnished pursuant to paragraph (1),
the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the application or the conviction is over 10 years old but
the subject of the request was incarcerated within 10 years of the
application.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an agency or
organization pursuant to Section 777.5 of the Financial Code and is
to be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
777.5 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 777.5 of the Financial Code for which
the applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, and is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2. This subdivision shall not supersede sections that
mandate an agency, organization, or individual to contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
SEC. 3. Section 11105.02 of the Penal Code is amended to read:
11105.02. In addition to furnishing state summary criminal
history information to the persons and entities set forth in Section
11105 and subject to the requirements and conditions set forth in
that section, the Attorney General shall furnish state summary
criminal history information upon a showing of a compelling need to
any city, county, city and county, or district, or any officer or
official thereof, when needed to assist in the screening of a
prospective concessionaire and their affiliates or associates, as
these terms are defined in subdivision (k) of Section 432.7 of the
Labor Code for purposes of consenting to, or approving of, the
prospective concessionaire's application for, or acquisition of, any
beneficial interest in a concession, lease, or other property
interest.
Any local government's request for state summary criminal history
information for purposes of screening a prospective concessionaire
and their affiliates or associates before approving or denying an
application for, or acquisition of, any beneficial interest in a
concession, lease, or other property interest is deemed a "compelling
need" as required by this section. However, only state summary
criminal history information pertaining to criminal convictions, or
to arrests for offenses for which the person being screened is
incarcerated or has been released on bail or on his or her own
recognizance pending trial, may be obtained pursuant to this section.
Any information obtained from the state summary criminal history
information is confidential and the receiving local government shall
not disclose its contents, other than for the purpose for which it
was acquired. The state summary criminal history information in the
possession of the local government and all copies made from it shall
be destroyed not more than 30 days after the local government's final
decision to grant or deny consent to, or approval of, the
prospective concessionaire's application for, or acquisition of, a
beneficial interest in a concession, lease, or other property
interest. Nothing in this section shall be construed as imposing any
duty upon a local government, or any officer or official thereof, to
request state summary criminal history information on any current or
prospective concessionaire or the affiliates or associates of that
concessionaire.
SEC. 4. Section 11105.3 of the Penal Code is amended to read:
11105.3. (a) Notwithstanding any other law, a human resource
agency or an employer may request from the Department of Justice
records of all convictions or any arrest pending adjudication
involving the offenses specified in subdivision (a) of Section 15660
of the Welfare and Institutions Code of a person who applies for a
license, employment, or volunteer position, in which he or she would
have supervisory or disciplinary power over a minor or any person
under his or her care. The department shall furnish the information
to the requesting employer and shall also send a copy of the
information to the applicant.
(b) Any request for records under subdivision (a) shall include
the applicant's fingerprints, which may be taken by the requester,
and any other data specified by the department. The request shall be
on a form approved by the department, and the department may charge
a fee to be paid by the employer, human resource agency, or applicant
for the actual cost of processing the request. However, no fee
shall be charged to a
nonprofit organization.
(c) (1) Where a request pursuant to this section reveals that a
prospective employee or volunteer has been convicted of a violation
or attempted violation of Section 220, 261.5, 262, 273a, 273d, or
273.5, or any sex offense listed in Section 290, except for the
offense specified in subdivision (d) of Section 243.4, and where the
agency or employer hires the prospective employee or volunteer, the
agency or employer shall notify the parents or guardians of any minor
who will be supervised or disciplined by the employee or volunteer.
A conviction for a violation or attempted violation of an offense
committed outside the State of California shall be included in this
notice if the offense would have been a crime specified in this
subdivision if committed in California. The notice shall be given to
the parents or guardians with whom the child resides, and shall be
given at least 10 days prior to the day that the employee or
volunteer begins his or her duties or tasks. Notwithstanding any
other provision of law, any person who conveys or receives
information in good faith, and in conformity with this section, is
exempt from prosecution under Section 11142 or 11143 for that
conveying or receiving of information. Notwithstanding subdivision
(d), the notification requirements of this subdivision shall apply as
an additional requirement of any other provision of law requiring
criminal record access or dissemination of criminal history
information.
(2) The notification requirement pursuant to paragraph (1) shall
not apply to a misdemeanor conviction for violating Section 261.5 or
to a conviction for violating Section 262 or 273.5. Nothing in this
paragraph shall preclude an employer from requesting records of
convictions for violating Section 261.5, 262, or 273.5 from the
Department of Justice pursuant to this section.
(d) Nothing in this section supersedes any law requiring criminal
record access or dissemination of criminal history information. In
any conflict with another statute, dissemination of criminal history
information shall be pursuant to the mandatory statute. This
subdivision applies to, but is not limited to, requirements pursuant
to Article 1 (commencing with Section 1500) of Chapter 3 of, and
Chapter 3.2 (commencing with Section 1569) and Chapter 3.4
(commencing with Section 1596.70) of, Division 2 of, and Section 1522
of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of
the Family Code.
(e) The department may adopt regulations to implement the
provisions of this section as necessary.
(f) As used in this section, "employer" means any nonprofit
corporation or other organization specified by the Attorney General
which employs or uses the services of volunteers in positions in
which the volunteer or employee has supervisory or disciplinary power
over a child or children.
(g) As used in this section, "human resource agency" means a
public or private entity, excluding any agency responsible for
licensing of facilities pursuant to the California Community Care
Facilities Act (Chapter 3 (commencing with Section 1500)), the
California Residential Care Facilities for the Elderly Act (Chapter
3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with
Section 1568.01), and the California Child Day Care Facilities Act
(Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the
Health and Safety Code, responsible for determining the character and
fitness of a person who is (1) applying for a license, employment,
or as a volunteer within the human services field that involves the
care and security of children, the elderly, the handicapped, or the
mentally impaired, or (2) applying to adopt a child or to be a foster
parent.
(h) Except as provided in subdivision (c), any criminal history
information obtained pursuant to this section is confidential and no
recipient shall disclose its contents other than for the purpose for
which it was acquired.
SEC. 4.5. Section 11105.3 of the Penal Code is amended to read:
11105.3. (a) Notwithstanding any other law, a human resource
agency or an employer may request from the Department of Justice
records of all convictions or any arrest pending adjudication
involving the offenses specified in subdivision (a) of Section 15660
of the Welfare and Institutions Code of a person who applies for a
license, employment, or volunteer position, in which he or she would
have supervisory or disciplinary power over a minor or any person
under his or her care. The department shall furnish the information
to the requesting employer and shall also send a copy of the
information to the applicant.
(b) Any request for records under subdivision (a) shall include
the applicant's fingerprints, which may be taken by the requester,
and any other data specified by the department. The request shall be
on a form approved by the department, and the department may charge
a fee to be paid by the employer, human resource agency, or applicant
for the actual cost of processing the request. However, no fee
shall be charged to a nonprofit organization.
(c) (1) Where a request pursuant to this section reveals that a
prospective employee or volunteer has been convicted of a violation
or attempted violation of Section 220, 261.5, 262, 273a, 273d, or
273.5, or any sex offense listed in Section 290, except for the
offense specified in subdivision (d) of Section 243.4, and where the
agency or employer hires the prospective employee or volunteer, the
agency or employer shall notify the parents or guardians of any minor
who will be supervised or disciplined by the employee or volunteer.
A conviction for a violation or attempted violation of an offense
committed outside the State of California shall be included in this
notice if the offense would have been a crime specified in this
subdivision if committed in California. The notice shall be given to
the parents or guardians with whom the child resides, and shall be
given at least 10 days prior to the day that the employee or
volunteer begins his or her duties or tasks. Notwithstanding any
other provision of law, any person who conveys or receives
information in good faith and in conformity with this section is
exempt from prosecution under Section 11142 or 11143 for that
conveying or receiving of information. Notwithstanding subdivision
(d), the notification requirements of this subdivision shall apply as
an additional requirement of any other provision of law requiring
criminal record access or dissemination of criminal history
information.
(2) The notification requirement pursuant to paragraph (1) shall
not apply to a misdemeanor conviction for violating Section 261.5 or
to a conviction for violating Section 262 or 273.5. Nothing in this
paragraph shall preclude an employer from requesting records of
convictions for violating Section 261.5, 262, or 273.5 from the
Department of Justice pursuant to this section.
(d) Nothing in this section supersedes any law requiring criminal
record access or dissemination of criminal history information. In
any conflict with another statute, dissemination of criminal history
information shall be pursuant to the mandatory statute. This
subdivision applies to, but is not limited to, requirements pursuant
to Article 1 (commencing with Section 1500) of Chapter 3 of, and
Chapter 3.2 (commencing with Section 1569) and Chapter 3.4
(commencing with Section 1596.70) of, Division 2 of, and Section 1522
of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of
the Family Code.
(e) The department may adopt regulations to implement the
provisions of this section as necessary.
(f) As used in this section, "employer" means any nonprofit
corporation or other organization specified by the Attorney General
which employs or uses the services of volunteers in positions in
which the volunteer or employee has supervisory or disciplinary power
over a child or children.
(g) As used in this section, "human resource agency" means a
public or private entity, excluding any agency responsible for
licensing of facilities pursuant to the California Community Care
Facilities Act (Chapter 3 (commencing with Section 1500)), the
California Residential Care Facilities for the Elderly Act (Chapter
3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with
Section 1568.01), and the California Child Day Care Facilities Act
(Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the
Health and Safety Code, responsible for determining the character and
fitness of a person who is:
(1) Applying for a license, employment, or as a volunteer within
the human services field that involves the care and security of
children, the elderly, the handicapped, or the mentally impaired.
(2) Applying to be a volunteer who transports individuals impaired
by drugs or alcohol.
(3) Applying to adopt a child or to be a foster parent.
(h) Except as provided in subdivision (c), any criminal history
information obtained pursuant to this section is confidential and no
recipient shall disclose its contents other than for the purpose for
which it was acquired.
SEC. 5. Section 11105.4 of the Penal Code is amended to read:
11105.4. (a) Notwithstanding any other provision of law, a
contract or proprietary security organization may request any
criminal history information concerning its prospective employees
that may be furnished pursuant to subdivision (n) of Section 11105.
(b) The Department of Justice shall promulgate regulations to
assure that criminal record information is not released to persons or
entities not authorized to receive the information under this
section.
(c) Any criminal history information obtained pursuant to this
section shall be subject to the same requirements and conditions that
the information is subject to when obtained by a human resource
agency or a bank.
(d) The Legislature finds that contract security organizations and
private security organizations often provide security service for
financial institutions and human resource agencies, and,
consequently, they have the same need for criminal history
information as do those entities. Therefore, the Legislature intends
to provide authority for contract security organizations and
proprietary security organizations to obtain criminal history
information to the extent that financial institutions and human
resource agencies have that authority concerning their own employees.
(e) As used in this section, "contract security organization"
means a person, business, or organization licensed to provide
services as a private patrol operator, as defined in subdivision (a)
of Section 7582.1 of the Business and Professions Code.
As used in this section, "proprietary security organization" means
an organization within a business entity that has the primary
responsibility of protecting the employees and property of its
employer, and which allocates a substantial part of its annual budget
to providing security and protective services for its employer,
including providing qualifying and in-service training to members of
the organization.
(f) Any criminal history information obtained pursuant to this
section is confidential and no recipient shall disclose its contents
other than for the purpose for which it was acquired.
SEC. 6. Section 15660 of the Welfare and Institutions Code is
amended to read:
15660. (a) The Department of Justice shall secure any criminal
record of a person to determine whether the person has ever been
convicted of a violation or attempted violation of Section 243.4 of
the Penal Code, a sex offense against a minor, or of any felony which
requires registration pursuant to Section 290 of the Penal Code, or
whether the person has been convicted or incarcerated within the last
10 years as the result of committing a violation or attempted
violation of Section 273a, 273d, or subdivision (a) or (b) of Section
368, of the Penal Code, or as the result of committing a theft,
robbery, burglary, or any felony, and shall provide a subsequent
arrest notification pursuant to Section 11105.2 of the Penal Code, if
both of the following conditions are met:
(1) An employer of the person requests the determination and
submits fingerprints of the person to the Department of Justice. For
purposes of this paragraph, "employer" includes, but is not limited
to, an in-home supportive services recipient, as defined by Section
12302.2 and any recipient of personal care services under the
Medi-Cal program pursuant to Section 14132.95.
(2) The person is unlicensed and provides nonmedical domestic or
personal care to an aged or disabled adult in the adult's own home.
(b) (1) If it is found that the person has ever been convicted of
a violation or attempted violation of Section 243.4 of the Penal
Code, a sex offense against a minor, or of any felony which requires
registration pursuant to Section 290 of the Penal Code, or that the
person has been convicted or incarcerated within the last 10 years as
the result of committing a violation or attempted violation of
Section 273a, 273d, or subdivision (a) or (b) of Section 368, of the
Penal Code, or as the result of committing a theft, robbery,
burglary, or any felony, the Department of Justice shall notify the
employer of that fact. If no criminal record information has been
recorded, the Department of Justice shall provide the employer with a
statement of that fact.
(2) Any employer may deny employment to any person who is the
subject of a report under paragraph (1) when the report indicates
that the person has committed any of the crimes identified in
paragraph (1).
(3) Nothing in this section shall be construed to require any
employer to hire any person who is the subject of a report under
paragraph (1) when the report indicates that the person has not
committed any of the crimes indicated in paragraph (1).
(c) (1) Fingerprints shall be on a card provided by the Department
of Justice for the purpose of obtaining a set of fingerprints. The
employer shall submit the fingerprints to the Department of Justice.
Within 30 calendar days of the receipt of the fingerprints, the
Department of Justice shall notify the employer of the criminal
record information, as provided in this subdivision. If no criminal
record information has been recorded, the Department of Justice shall
provide the employer with a statement of that fact as soon as
possible, but not later than 30 calendar days of receipt of the
fingerprints. If new fingerprints are required for processing, the
Department of Justice shall, as soon as possible, but not later than
30 calendar days from the date of receipt of the fingerprints, notify
the employer that the fingerprints were illegible.
(2) Fingerprints may be taken by any local law enforcement officer
or agency for purposes of paragraph (1).
(3) Counties shall notify any recipient of, or applicant for,
in-home supportive services or personal care services under the
Medi-Cal program, upon his or her application for in-home supportive
services or personal care services or during his or her annual
redetermination, or upon the recipient's changing providers, that a
criminal record check is available, and that the check can be
performed by the Department of Justice.
(d) The Department of Justice shall charge a fee to the employer
to cover the costs of administering this section.
(e) It is the intent of the Legislature that the Department of
Justice charge a fee to cover its cost in providing services in
accordance with this section to comply with the 30-calendar-day
requirement for provision to the department of the criminal record
information, as contained in subdivision (c).
SEC. 7. Section 4.5 of this bill incorporates amendments to
Section 11105.3 of the Penal Code proposed by both this bill and AB
1855. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2003, (2) each bill
amends Section 11105.3 of the Penal Code, and (3) this bill is
enacted after AB 1855, in which case Section 4 of this bill shall not
become operative.