BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2423
                                                                  Page  1

          Date of Hearing:   April 15, 2008

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                   Mike Eng, Chair
                  AB 2423 (Bass) - As Introduced:  February 21, 2008
           
          SUBJECT  :   Professions and vocations:  licensure.

           SUMMARY :   Requires specified Department of Consumer Affairs  
          (DCA) boards to conduct a study on barriers to employment as  
          licensed professionals, specifies the terms and conditions under  
          which a probationary license may be issued, and makes other  
          changes related to licensing and discipline to encourage the  
          employment of ex-offenders.  Specifically,  this bill  :  

          1)Requires the Board of Vocational Nursing and Psychiatric  
            Technicians, the Veterinary Medical Board, the director of the  
            DCA, the Structural Pest Control Board, and the Bureau of  
            Automotive Repair (collectively, "the board") to study the  
            effect of current law, regulations, and policy related to the  
            licensing functions of the board that may create unnecessary  
            barriers to employing people with criminal records as licensed  
            vocational nurses, licensed psychiatric technicians,  
            registered veterinary technicians, licensed private  
            investigators, licensed structural pest control operators, and  
            registered automotive repair dealers, respectively.

          2)Requires the board to report its findings to the Legislature  
            by September 1, 2010. 

          3)Requires the board to provide the following information for  
            each of the calendar years 2003, 2004, 2005, 2006, and 2007:

             a)   The total number of applicants for licensure;

             b)   The number of applicants denied licensure;

             c)   The number of applicants who disclosed a criminal record  
               on their application.  Of those applicants:

               i)     The number denied licensure;

               ii)    The number denied licensure who requested a hearing  
                 to appeal the decision, including the issuance of a  
                 probationary license;








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               iii)   The age and severity of each offense;

               iv)    The number of applicants with nonviolent drug  
                 offenses;

               v)     The number of applicants with misdemeanor offenses;

               vi)    The number of applicants that were asked by the  
                 board to supply additional information relating to their  
                 criminal record; and,

               vii)   The number of applicants who provided evidence of  
                 rehabilitation.

             d)   The criteria applied by the board to determine whether  
               an applicant's criminal record is substantially related to  
               the requested license, including the specific categories of  
               disqualifying offenses and any criteria related to the age  
               and severity of the disqualifying offenses;

             e)   The criteria applied by the board to determine whether  
               an applicant has been sufficiently rehabilitated, including  
               an analysis of the factors that most often lead to a  
               determination of rehabilitation resulting in licensing; 

             f)   The average length of time that an appeal was pending  
               relative to the date of the hearing request and final  
               decision; and, 

             g)   The number and percentage of appeals pending longer than  
               30 days and longer than 100 days from the time the  
               applicant requested the hearing. 

          1)Specifies the terms and conditions under which an initial  
            license may be issued on probation, which may include, but are  
            not limited to:

             a)   Continuing medical, psychiatric, or psychological  
               treatment;

             b)   Ongoing participation in a specified rehabilitation  
               program;

             c)   Abstention from the use of alcohol or drugs; and,








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             d)   Compliance with all provisions of law, as specified.

          2)Requires the board, when considering issuing a probationary  
            license, to request that an applicant with a dismissed  
            conviction provide proof of that dismissal and requires the  
            board to take into account whether the applicant's misdemeanor  
            or felony conviction has been dismissed pursuant to Section  
            1203.4 of the Penal Code [which specifies terms and conditions  
            for court to withdraw a plea of guilty or nolo contendere and  
            enter a plea of not guilty; or, if the applicant has been  
            convicted after a plea of not guilty, the court shall set  
            aside the verdict of guilty; and, in either case, the court  
            shall thereupon dismiss the accusations or information against  
            the applicant as specified] and there have been no subsequent  
            misdemeanor or felony convictions, and either at least three  
            years have passed since the dismissal of the misdemeanor or  
            felony conviction or at least five years have passed since the  
            person completed his or her sentence. 

          3)Requires the board to take into account and consider any other  
            reasonable documents or individual character references  
            provided by the applicant that may serve as evidence of  
            rehabilitation as deemed appropriate. 

          4)Permits the board to modify or terminate the terms and  
            conditions imposed on the probationary license upon receipt of  
            a petition from the applicant or licensee.

          5)Permits the board, notwithstanding any other provision of law,  
            to revoke, suspend, or deny at any time a license on any of  
            the grounds for disciplinary action, as specified.

          6)Permits the board to deny a license to an applicant on any of  
            the grounds specified current law, which includes any act  
            involving dishonesty, fraud or deceit with the intent to  
            substantially benefit or injure the applicant or another  
            person.

          7) Specifies that, in addition to the requirements provided in  
            current law dictating the procedure to be followed and  
            contents of a decision or notice sent by the board upon denial  
            of a license, the board shall provide a statement of reasons  
            for the denial that does the following:









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             a)   Evaluates evidence of rehabilitation submitted by the  
               applicant, if any.

             b)   Provides the board's criteria relating to rehabilitation  
               that takes into account the age and severity of the  
               offense, and the evidence relating to participation in  
               treatment or other rehabilitation programs.

             c)   Justifies the board's denial of a license and conveys  
               the reasons why the prior criminal conviction is  
               substantially related to the qualifications, functions, or  
               duties of a licensed vocational nurse if the board's  
               decision was based on the applicant's prior criminal  
               conviction

          8)Requires the board to conduct a hearing of a license denial  
            within 90 days of receiving an applicant's request for a  
            hearing.  For all other hearing requests, the board shall  
            determine when the hearing shall be conducted.

          9)Permits an administrative law judge (ALJ) to, in any case in  
            which the ALJ recommends that the board revoke, suspend, or  
            deny a license, order the licensee to pay the board's  
            reasonable costs of the investigation and adjudication of the  
            case. 

          10)Permits the board to enforce the order for payment in the  
            superior court in the county where the administrative hearing  
            was held. 

          11)Specifies that, in any judicial action for the recovery of  
            costs, proof of the board's decision shall be conclusive proof  
            of the validity of the order of payment and the terms for  
            payment.

          12)Specifies that, notwithstanding any other provision of law,  
            all costs recovered by the board under this section shall be  
            deposited in, respectively, the Vocational Nursing and  
            Psychiatric Technicians Fund, the Veterinary Medical Board  
            Contingent Fund, the Private Investigator Fund, the Structural  
            Pest Control Fund, or the Vehicle Inspection and Repair Fund  
            as a scheduled reimbursement in the fiscal year in which the  
            costs are actually recovered.

           EXISTING LAW:  








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          1)Provides for the licensure, registration, and regulation of  
            various professions and vocations by boards and bureaus under  
            DCA. 

          2)Authorizes a board to deny licensure on certain bases,  
            including an applicant's conviction of a crime substantially  
            related to the qualifications, functions, or duties of the  
            licensed business or profession, regardless of whether the  
            conviction has been dismissed.

          3)Provides that no person shall be denied a license solely on  
            the basis that he or she has been convicted of a felony,  
            obtained a specified certificate of rehabilitation, or has met  
            certain rehabilitation requirements.

          4)Requires a board that denies an application for licensure to  
            either file and serve a statement of issues or provide the  
            applicant with certain information upon doing so.  

          5)Authorizes a board to suspend or revoke a license on the basis  
            that a licensee has been convicted of a crime that is  
            substantially related to the qualifications, functions, or  
            duties of the licensed business or profession, regardless of  
            whether the conviction has been dismissed, and requires the  
            board to provide the ex-licensee with certain information upon  
            doing so.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill  .  According to the author's office, "This  
          bill protects workers whose criminal record has been expunged  
          from being unfairly denied employment based on a DCA-regulated  
          criminal background check.  Under California law, rehabilitation  
          of those with a criminal record is promoted and rewarded by  
          expunging an individual's record after he or she has  
          successfully completed probation and paid all restitution and  
          fines, or after a judge has made a special determination that  
          the individual has been rehabilitated.  Currently, those whose  
          records have been expunged (as set forth in Section 1203.4 of  
          the Penal Code) are "released from all penalties and  
          disabilities." 









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          "This bill authorizes the boards and bureaus to award  
          probationary licenses to applicants but requires them to request  
          and consider evidence of rehabilitation including the  
          individual's expunged records prior to making its final  
          decision.  Expungement is not available in the case of any  
          offense where the individual was sentenced to prison or in the  
          case of certain crimes, including most sex offenses.

          "This bill balances consumer protection with the creation of  
          opportunities for ex-offenders.  It provides a study regarding  
          the application and denial process for individuals seeking a  
          license (specifically those with criminal records), allows the  
          Board to issue a "probationary" license under specified  
          conditions, requires the Board to provide specific information  
          to applicants on the reason for license denial and requires the  
          Board to conduct a hearing within 90 days of receiving an  
          applicant's request." 

           Background  .

          The Assembly Business and Professions Committee held two  
          hearings in 2005 to examine            issues related to this  
          bill.  The first hearing explored the issue of barriers to  
          employment for individuals with criminal records and its  
          relationship to the growing recidivism rate in California, and  
          the second hearing examined obstacles to state licensure for  
          individuals with criminal records, and the government's role in  
          balancing consumer protection with creating opportunities for  
          ex-offenders.  This bill is in response to those hearings.   

          This bill addresses a critically important issue in California -  
          recidivism.  Over the 20 years from 1980 to 2000, the adult  
          prison population in California has increased seven-fold, from  
          24,000 to nearly 160,000.  The number of parolees released has  
          increased ten-fold, from 12,000 in 1980 to over 126,000 in 2000.  
           These numbers represent a revolving door: 67% of the inmates in  
          California prisons are returning parolees.  Nationally, only 35%  
          of prison inmates are returning parolees.  In other words,  
          California's two-thirds recidivism rate is almost double the  
          rate seen across the country.

          The most proven method to reducing recidivism is creating a  
          sustainable lifestyle through employment.  The Department of  
          Corrections and Rehabilitation and many not-for-profit,  
          community-based organizations provide vocational training to  








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          persons convicted of non-violent drug-related offenses.   
          However, due to arbitrary criteria, these persons are unable to  
          obtain licenses in these vocational professions.

          Existing law expressly authorizes DCA-regulated boards to take  
          into account records that have been expunged under the Penal  
          Code.  The statute undermines the goal of expungement policies,  
          which seek to encourage individuals to successfully serve their  
          terms of probation, find work, and not commit other crimes.   
          Given the importance of these re-entry policies, individuals are  
          not required to disclose expunged convictions to private  
          employers.  The author's office argues that DCA practice should  
          be brought into line with these policies, and DCA boards should  
          acknowledge the judgment of the criminal justice system that  
          this person has been rehabilitated.  Thus, this bill requires  
          the DCA boards strongly consider individuals with criminal  
          history records fit for licensure unless there is strong  
          evidence to the contrary that the expunged conviction is  
          substantially related to the qualifications, functions, or  
          duties of the profession for which application is made.

           Related legislation  .  AB 861 (Bass) Chapter 411, Statutes of  
          2006, requires the State Board of Barbering and Cosmetology  
          (board) to give specified additional information to a person who  
          has been denied a license, and requires the board to conduct a  
          hearing within 90 days of receiving an applicant's request for a  
          hearing for a license denial.  The bill authorizes the board to  
          issue a probationary license to an applicant, subject to  
          specified terms and conditions. 

          SB 1759 (Ashburn) Chapter 902, Statutes of 2006, revises  
          procedures for criminal record information searches and  
          clearances, and provides applicants for community care positions  
          with a copy of their criminal history record with the State  
          Department of Health Services initial employment determination.

          AB 1025 (Bass) of 2007, provides that a person may not be denied  
          licensure based solely on a criminal conviction if the person  
          has been rehabilitated, as specified.  The bill was vetoed. 

          The governor's veto message stated, "I am concerned that this  
          bill goes too far in taking away a licensing entity's discretion  
          to deny a license or take other licensing actions, even if it is  
          in the best interest of the state's consumers. ? AB 1025 creates  
          a presumption of rehabilitation based on an expungement of a  








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          conviction.  This is problematic for two reasons.  First,  
          expungement is not intended to be indicative of rehabilitation.   
          Second, this provision places  the burden of proof on state  
          licensing bodies to show than an individual is not  
          rehabilitated, which would result in increased litigation and  
          extensive investigations." 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file.

           Opposition 
           
          Citizens Commission on Human Rights
           
          Analysis Prepared by  :    Sarah Huchel / B. & P. / (916) 319-3301