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