BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2423|
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THIRD READING
Bill No: AB 2423
Author: Bass (D)
Amended: 8/12/08 in Senate
Vote: 21
SEN. BUS., PROF. & ECON. DEV. COMMITTEE : 9-0, 6/23/08
AYES: Ridley-Thomas, Aanestad, Calderon, Corbett, Denham,
Florez, Harman, Simitian, Yee
SENATE APPROPRIATIONS COMMITTEE : 9-0, 8/4/08
AYES: Torlakson, Cox, Aanestad, Cedillo, Corbett, Dutton,
Oropeza, Simitian, Wyland
NO VOTE RECORDED: Ashburn, Florez, Kuehl, Ridley-Thomas,
Runner, Yee
ASSEMBLY FLOOR : 78-0, 5/27/08 - See last page for vote
SUBJECT : Professions and vocations: licensure
SOURCE : Author
DIGEST : This bill authorizes specified boards and
bureaus under the Department of Consumer Affairs when
considering the issuance of a probationary license or
registration to request an applicant with a prior criminal
history to provide proof of dismissal. The bill requires
boards to develop standard terms of probation, authorizes
these boards to revoke, suspend, or deny at any time any
required license or registration, and requires these boards
to provide a specified statement of reasons for the denial
CONTINUED
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and, if applicable, a copy of the applicant's criminal
history record.
ANALYSIS :
Existing law, the Business and Professions Code:
1.Provides for the licensure, registration, and regulation
of various professions and vocations by the 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 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.
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 applicant's 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
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licensure to either file and service a statement of
issues to 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 than 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 the 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.
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 make 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
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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 of
licensure within four years of the date of issuance of
the initial license.
10.Provides that the Board of Barbering and Cosmetology
(BBC) may, in its sole discretion, 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 grounds specified under
current law.
13.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 BBC shall
provide a statement of reasons for the denial that does
the following:
A. Evaluates evidence of rehabilitation submitted by
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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 to, in any case in
which the administrative law judge 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 changes 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 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, 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 time frames for appear, hearing and
final decision regarding the denial of licensure.
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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.
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 pleasing against
the defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense of
which he or she was convicted.
This bill:
1.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.
2.Grants authority to the Veterinary Medical Board, the
Structural Pest Control Board and the Director of DCA
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(as 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.
3.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 12203.4a of the
Penal Code.
4.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 serve as evidence of rehabilitation
as deemed appropriate by the boards/bureaus.
5.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.
6.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
regulation.
B. A process to obtain standard registration for
applicants who were issued a probationary license.
C. Supervision requirements.
D. Compliance with quarterly reporting requirements.
7.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.
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8.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 program.
C. Justifies the boards'/bureaus' denial of a
registration and conveys the reasons why the prior
criminal conviction is substantially related to the
qualifications, functions, or duties of a licensed
specified practitioner.
9.Provides that if the denial of a registration is due at
least in part to the applicant's state or federal
criminal history record, the boards/bureaus shall, in
addition to other information as required, provide the
applicant a copy of his or her criminal history record
if the applicant makes a written request for a copy,
specifying an address to which it is to be sent.
Requires that the criminal history records not be
modified or altered from the form or content as received
from the Department of Justice (DOJ) and 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. Requires 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.
10.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
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when the hearing shall be conducted.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2008-09 2009-10 2010-11
Fund
Licensing and study workload
Veterinary Medical Board $77 $95 $95
Special*
Structural Pest Control Boardminor, absorbable costs
ongoing Special*
for these boards and bureaus
Bureau of Security and
Special*
Investigative Services
Bureau of Automotive
Special*
Repair
Board of Vocational Nursing
Special*
and Psychiatric Technicians
Board of Barbering and
Special*
Cosmetology
* Veterinary Medical Board Contingent Fund, Structural Pest
Control Fund, Private Investigator Fund, Vehicle Repair and
Inspection Fund, Vocational Nurses Account/Psychiatric
Technician Examiners Account of the Vocational Nursing and
Psychiatric Technicians Fund, Barbering and Cosmetology
Contingent Fund
SUPPORT : (Verified 6/23/08)(unable to reverify at time
of writing)
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American Civil Liberties Union
American Federation of State, County and Municipal
Employees
ARGUMENTS IN SUPPORT : According to the author's office,
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 based 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 bill 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
bill leaves discretion solely in the hands of the licensing
entity, the board shall be accountable for conveying the
basis for the denial to the applicant in its statement of
issues required by current law.
The author's office states that this bill protects workers
whose criminal records 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 offenses.
ASSEMBLY FLOOR :
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AYES: Adams, Aghazarian, Anderson, Arambula, Beall,
Benoit, Berg, Berryhill, Blakeslee, Brownley, Caballero,
Charles Calderon, Carter, Cook, Coto, Davis, De La Torre,
De Leon, DeSaulnier, DeVore, Duvall, Dymally, Emmerson,
Eng, Evans, Feuer, Fuentes, Fuller, Furutani, Gaines,
Galgiani, Garcia, Garrick, Hancock, Hayashi, Hernandez,
Horton, Huff, Huffman, Jeffries, Jones, Karnette, Keene,
Krekorian, La Malfa, Laird, Leno, Levine, Lieber, Lieu,
Ma, Maze, Mendoza, Mullin, Nakanishi, Nava, Niello,
Nunez, Parra, Plescia, Portantino, Price, Sharon Runner,
Ruskin, Salas, Saldana, Silva, Smyth, Solorio, Spitzer,
Strickland, Swanson, Torrico, Tran, Villines, Walters,
Wolk, Bass
NO VOTE RECORDED: Houston, Soto
JJA:cm 8/12/08 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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