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; AB 2423 Page 2 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, AB 2423 Page 3 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: AB 2423 Page 4 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: AB 2423 Page 5 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." AB 2423 Page 6 "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 AB 2423 Page 7 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 AB 2423 Page 8 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