BILL ANALYSIS
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|Hearing Date:June 23, 2008 |Bill No:AB |
| |2423 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC
DEVELOPMENT
Senator Mark Ridley-Thomas, Chair
Bill No: AB 2423Author:Bass
As Amended:June 17, 2008 Fiscal: Yes
SUBJECT: Professions and vocations: licensure.
SUMMARY: Requires specified boards and bureaus under the
Department of Consumer Affairs 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 the
revocation, suspension or denial of a license in
consideration of those applicants and licensees who have
prior criminal records.
Existing law, the Business and Profession Code:
1)Provides for the licensure, registration, and regulation
of various professions and vocations by boards and
bureaus, including, but not limited to, the Board of
Vocational Nursing and Psychiatric Technicians, the
Veterinary Medical Board, the Structural Pest Control
Board, the Bureau of Security and Investigative Services,
and the Bureau of Automotive Repair, within the
Department of Consumer Affairs (DCA).
2)Authorizes a board within the DCA to deny licensure on
certain bases, including:
a) 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 on specified
grounds.
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b) an applicant's performance of any act involving
dishonesty, fraud, or deceit with the intent to
substantially benefit himself or herself or another or
to substantially injure another.
c) an applicants performance of any act that would be
grounds for suspension or revocation of the license.
3)Provides that no person shall be denied a license solely
on the basis that he or she was convicted of a felony, if
he or she has obtained a specified certificate of
rehabilitation, or that he or she has been convicted of a
misdemeanor; if he or she has met certain rehabilitation
requirements developed by the board to evaluate the
rehabilitation of a person when considering the denial of
a license.
4)Requires a board that denies an application for licensure
to either file and service a statement of issues or
provide the applicant with certain information upon doing
so and to provide procedural due process including
notice, reasons for denial and a right to a hearing.
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 on specified grounds, and requires the board to
provide the licensee with certain information upon doing
so and to provide procedural due process including
notice, reasons for denial and a right to a hearing.
6)Provides that in a proceeding conducted by the board to
deny an application, or suspend or revoke a license or
take other disciplinary action, on the grounds that the
applicant or licensee has been convicted of a crime
substantially related to the qualifications, functions,
and duties of the applicant or licensee in question, that
the record of the conviction of the crime is conclusive
evidence of the fact that the crime occurred, but only of
that fact, and the board may inquire into the
circumstances surrounding the crime in order to fix the
degree of discipline or to determine if the conviction is
substantially related.
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7)Requires each board to develop criteria when considering
the denial of a license or suspension or revocation of a
license and to take into account all competent evidence
of rehabilitation furnished by the applicant or licensee.
8)Provides that the registrar for contractors may, in lieu
of denying licensure for specified grounds, issue an
applicant a probationary license with terms and
conditions and may revoke the probationary license for
any act or omission of the licensee constituting grounds
for discipline or denial of licensure.
9)Provides that the Board of Vocational Nursing and
Psychiatric Technicians may issue an initial license on
probation, with specific terms and conditions, to any
applicant who has violated any term of the Vocational
Nursing Practice Act or the Psychiatric Technicians Law,
but who has met all other requirements for licensure and
who has successfully completed the examination for
licensure within four years of the date of issuance of
the initial license.
10)Provides that the BBC may, in its sole discretion, may
issue a probationary license to an applicant subject to
terms and conditions deemed appropriate by the BBC,
including but not limited to, the following:
a) Continuing medical, psychiatric, or psychological
treatment.
b) Ongoing participation in a specified rehabilitation
program.
c) Abstention from the use of alcohol or drugs.
d) Compliance with all provisions of the law, as
specified.
11)Provides that the BBC may modify or terminate the terms
and conditions imposed on the probationary license upon
receipt of a petition from the applicant or licensee.
12)Provides that the BBC may revoke, suspend, or deny at
any time a license on any grounds for disciplinary
action, as specified, and permits the BBC to deny a
license to an applicant on any of grounds specified under
current law.
13)Specifies that, in addition to the requirements provided
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in current law dictating the procedure to be followed and
contents of a decision or notice sent by the
boards/bureaus upon denial of a license, the BBC shall
provide a statement of reasons for the denial that does
the following:
a) Evaluates evidence of rehabilitation submitted by
the applicant, if any.
b) Provides the boards'/bureaus' criteria relating to
rehabilitation that takes into account the age and
severity of the offense, and the evidence relating to
the participation in treatment or other rehabilitation
programs.
14)Requires the BBC to conduct a hearing of a license
denial within 90 days of receiving an applicant's request
for a hearing and that for all hearing requests, for the
boards/bureaus to determine when the hearing shall be
conducted.
15)Permits an administrative law judge (ALJ) to, in any
case in which the ALJ recommends that the BBC revoke,
suspend, or deny a license, order the licensee to pay the
boards'/bureaus' reasonable costs of the investigation
and adjudication of the case, including any charges to
the boards/bureaus for investigating the case, any
charges incurred by the office of the Attorney General
and any charges incurred by the Office of Administrative
Hearings.
16)Specifies that all costs recovered by the BBC shall be
deposited in the BBC fund as a scheduled reimbursement in
the fiscal year in which the costs are actually
recovered.
17)Requires the Board of Barbering and Cosmetology (BBC) to
study the effects of current law, regulations, and policy
related to the licensing functions of the BBC that may
create unnecessary barriers to employing people with
criminal records and required the BBC to report all of
its findings to the Legislature on or before September 1,
2007. Specifies for each of the calendar years beginning
in 2002 and ending in 2006, what information the study
shall include regarding those denied a license for
particular offenses or for having a criminal record or
having committed particular offenses, and the criteria
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used by the boards/bureaus for purposes of determining
whether there was a substantial relationship or to
determine rehabilitation, and what were the time frames
for appeal, hearing and final decision regarding the
denial of licensure.
Existing law, the Penal Code:
1)Provides that in any case in which a defendant has
fulfilled the condition of probation, or has been
discharged prior to termination of probation, or in any
case in which a court determines a person should be
granted relief in the interest of justice, that the court
may withdraw or set aside a guilty plea and shall dismiss
the accusations or information against the defendant and
release the defendant from all penalties and disabilities
resulting from the offense of which he or she has been
convicted and inform them of their right to petition for
a certificate of rehabilitation and pardon. (Section
1203.4 of the Penal Code.)
2)Provides if a defendant is convicted of a misdemeanor and
not granted probation and has lived an honest and upright
life and has conformed to and obeyed the laws of the
land, that the court may withdraw or set aside the guilty
plea and dismiss the accusatory pleading against the
defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense of
which he or she was convicted. (Section 1203.4a of the
Penal Code.)
This bill:
1)Requires the Board of Vocational Nursing and Psychiatric
Technicians, the Veterinary Medical Board, the Structural
Pest Control Board and the Director of the DCA (as to the
Bureau of Security and Investigative Services and the
Bureau of Automotive Repair), (collectively
"boards/bureaus") to study the effect of current law,
regulations, and policy related to the licensing
functions of these particular boards/bureaus that may
create unnecessary barriers to employing people with
criminal records as licensed vocational nurses, licensed
psychiatric technicians, registered veterinary
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technicians, licensed structural pest control operators,
licensed private investigators, and registered automotive
repair dealers, and to report all of its findings to the
Legislature on or before September 1, 2010.
2)Specifies for each of the calendar years beginning in
2003 and ending in 2007, what information the study shall
include regarding those denied a license for particular
offenses or for having a criminal record or having
committed particular offenses, and the criteria used by
the boards/bureaus for purposes of determining whether
there was a substantial relationship or to determine
rehabilitation, and what were the timeframes for appeal,
hearing and final decision regarding the denial of
licensure.
3)As it pertains to the Board of Vocational Nursing and
Psychiatric Technicians, specifies additional terms and
conditions under which an initial license on probation
may be issued including the following:
a) Continuing medical, psychiatric, or psychological
treatment.
b) Ongoing participation in a specified rehabilitation
program.
c) Abstention from the use of alcohol or drugs.
d) Compliance with all provisions of the law, as
specified.
4)Grants authority to the Veterinary Medical Board, the
Structural Pest Control Board and the Director of the DCA
(as to the Bureau of Security and Investigative Services
and the Bureau of Automotive Repair) to issue an initial
license on probation as specified in item # 3) above.
5)Provides for all boards/bureaus, notwithstanding any
other provision of law, when deciding to issue a
probationary license, the boards/bureaus shall request an
applicant with a dismissed conviction to provide proof of
that dismissal and to give special consideration to
applicants whose convictions have been dismissed pursuant
to Section 1203.4 or 1203.4a of the Penal Code.
6)Requires the boards/bureaus to also take into account and
consider any other reasonable documents or individual
character references provided by the applicant that may
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serve as evidence of rehabilitation as deemed appropriate
by the boards/bureaus
7)Provides that the boards/bureaus may modify or terminate
the terms and conditions imposed on the probationary
license upon receipt of a petition from the applicant or
licensee.
8)Requires the boards/bureaus for purposes of issuing a
probationary license to qualified new applicants to
develop terms of probation that shall include, but not be
limited to the following:
a) A three-year limit on individual probationary
licenses.
b) A process to obtain a standard license for
applicants who were issued a probationary license.
c) Supervision requirements.
d) Compliance and quarterly reporting requirements.
9)Provides that the boards/bureaus may revoke, suspend, or
deny at any time a license on any grounds for
disciplinary action, as specified, and permits the
boards/bureaus to deny a license to an applicant on any
of the grounds specified under current law.
10)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
boards/bureaus upon denial of a license, the
boards/bureaus shall provide a statement of reasons for
the denial that does the following:
a) Evaluates evidence of rehabilitation submitted by
the applicant, if any.
b) Provides the boards'/bureaus' criteria relating to
rehabilitation that takes into account the age and
severity of the offense, and the evidence relating to
the participation in treatment or other rehabilitation
programs.
c) Justifies the boards'/bureaus' 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 the
specified practitioner.
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11)Provides that if the denial of a license is due at least
in part to the applicant's state or federal criminal
history record, the boards/bureaus shall include, with
other information as required, a copy of the applicant's
criminal history record and also requires that the
criminal history record not be modified or altered from
the form or content as received from the Department of
Justice (DOJ), that it be provided in such a way to
protect the confidentiality and privacy of the applicant
and not be made available to any employer, and for the
boards/bureaus to maintain the name, address and date in
which it was sent to the applicant, and to make this
information available to the DOJ and the FBI.
12)Requires the boards/bureaus to conduct a hearing of a
license denial within 90 days of receiving an applicant's
request for a hearing and that for all hearing requests,
for the boards/bureaus to determine when the hearing
shall be conducted.
13)Permits an administrative law judge (ALJ) to, in any
case in which the ALJ recommends that the boards/bureaus
revoke, suspend, or deny a license, order the licensee to
pay the boards'/bureaus' reasonable costs of the
investigation and adjudication of the case, including any
charges to the boards/bureaus for investigating the case,
any charges incurred by the office of the Attorney
General and any charges incurred by the Office of
Administrative Hearings.
14)Specifies that all costs recovered by the boards/bureaus
shall be deposited in the boards/bureaus funds,
respectively, as scheduled reimbursement in the fiscal
year in which the costs are actually recovered.
FISCAL EFFECT: According to the analysis of the Assembly
Appropriations Committee dated May 7, 2008, the Bureau of
Automotive repair indicates minimum costs of $150,000 for
two positions to complete the review and the data gathering
requirements for the reports. The Board of Vocational
Nursing and Psychiatric Technicians would incur costs of
around $200,000. The other three entities (Veterinary
Board, Structural Pest Control Board and Bureau of Security
and Investigative Services) incur costs of at least
$100,000 each. Each of the five entities will incur costs
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of around $100,000 annually associated with providing
additional information to applicants denied licensure,
conducting hearings and issuing probationary licenses.
COMMENTS:
1.Purpose. The Author is the sponsor of this measure.
According to the Author, while criminal background checks
for employment have expanded significantly under
California laws, insufficient attention has been paid to
the fairness of the process and to the detrimental impact
that these state laws have on employers and the tax base
when the state goes too far in denying people with
irrelevant criminal records employment in state-regulated
industries. Growing industries suffering from labor
shortages are especially hard hit. This measure helps
restore accountability to the process of criminal
background checks, while ensuring that qualified workers
are not unfairly denied employment due to an irrelevant
or inaccurate criminal record. Although the measure
leaves discretion solely in the hands of the licensing
entity, the board will be accountable for conveying the
basis for the denial to the applicant in its statement of
issues required by current law.
The Author states that 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 are
"released from all penalties and disabilities." This
bill authorizes the [specified] 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.
2.Background.
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a) Legislative Hearings. The Assembly Business and
Professions Committee (Assembly B&P 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. The Assembly B&P
Committee indicates that this measure is in response
to those hearings.
According to the Assembly B&P Committee, 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
sevenfold, from 24,000 to nearly 160,000. The number
of parolees released has increased tenfold, 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 paroles. In other
words, California's two-thirds recidivism rate is
almost double the rate seen across the country.
The Assembly B&P Committee asserts that the most proven
method to 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 persons convicted of
non-violent drug related offenses. However, due to
arbitrary criteria, these persons are unable to obtain
licenses in these vocational professions.
The Assembly B&P Committee indicates that 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
expunging 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
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convictions to private employers. The Author's office
argues that the DCA practice should be brought into
line with these policies, and the DCA boards should
acknowledge the judgment of the criminal justice
system that this person has been rehabilitated. Thus,
this measure 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.
b) BBC Study on Unnecessary Barriers to Employment.
In September 2007, the BBC provided the information
required pursuant to Section 7308 of the Business and
Professions Code on the effects of laws, regulations
and policy that may create unnecessary barriers to
employing people with criminal records.
The BBC indicated that it takes into consideration all
rehabilitation that has been completed, or is in the
process of being completed, by an applicant, and in
determining the criteria of rehabilitation, the BBC
refers to both statutory and regulatory requirements,
as specified.
According to the BBC, they have a low denial rate
considering the high population of applicants and
licenses. Only applicants who may pose a significant
threat to consumer safety are prevented from obtaining
a license. The information provided showed that the
number of applicants denied who disclosed criminal
records was minimal to the number of overall
applications received. For example, from 2005-2006
over 102,000 applications were received, and there
were over 1,700 applicants who disclosed criminal
records. Out of 1,700 who disclosed criminal records,
about 130 were actually denied a license.
It was noted by the BBC, that in 2006 the BBC returned
to conducting licensing examinations within state
correctional facilities. In a partnership with the
Department of Corrections and Rehabilitation (CDCR),
the BBC conducted two examinations at correctional
facilities. A total of 14 applicants had taken the
examination and 7 applicants successfully passed the
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examination. The objective of the program is to allow
the individual applicant to have a license in their
hand as they are paroled so the individual has the
ability to seek immediate employment in the field of
cosmetology.
The BBC believes the current laws, regulations and
policies do not create a barrier to licensure and that
it is being pro-active in its effort to streamline
processes for applicants who have had a criminal
conviction in the past.
3.Related Legislation. 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.
SB 1025 (Bass, 2007) provided that an applicant for a
license with a board of the DCA may not be denied
licensure, or may not have their license suspended or
revoked, solely on the basis that he or she has been
convicted of a felony or misdemeanor if they have
obtained a certificate of rehabilitation, as specified,
and if the felony or misdemeanor conviction has been
dismissed, it shall be presumed that the applicant or
licensee has been rehabilitated unless the board proves
otherwise. Also required the board to provide to an
applicant or licensee a copy of their criminal history
record if the board relied on this information to deny,
suspend or revoke a license. Required the DCA to
annually report cases in which a board denied, suspended
or revoked a license based on a crime that has been
dismissed. This bill was vetoed by the Governor.
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 consumer. AB 1025 creates a presumption of
rehabilitation based on an expungement of a 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 the
state licensing bodies to show that an individual is not
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rehabilitated, which would result in increased litigation
and extensive investigations."
4.Arguments in Support. The American Federation of State,
County and Municipal Employees (AFSCME) supports this
measure and believes it is necessary in order to ensure
that qualified individuals can become licensed
professionals despite certain, unrelated criminal
convictions. In addition, this bill would provide
invaluable information regarding licensing functions that
may create barriers to employing people with criminal
records.
5.Suggested Amendment. The Author may want to consider
conforming BBC requirements for issuing probationary
licenses and revocation, suspension or denial of a
license with the new provision of this measure.
SUPPORT AND OPPOSITION:
Support:
American Civil Liberties Union
American Federation of State, County and Municipal
Employees
Opposition:
None on file as of June 18, 2003.
Consultant: Bill Gage