BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  AB 2423
          Author:   Bass (D)
          Amended:  8/19/08 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.

          Senate Floor Amendments  of 8/19/08 (1) delay, until July 1,  
          2009, the requirement for the specified boards and bureaus  
          to provide an applicant a copy of the criminal history  
          record if requested by the applicant, and (2) revise and  
          recast information that must be recorded and maintained  
          relating to providing the applicant with the criminal  
          history record to instead require retention of a copy of  
          the applicant's written request and a copy of the response  
          sent to the applicant.

           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.

           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 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.







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           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  
             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  







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             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.

          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.

          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  







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             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.

           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  







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             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  
             (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  







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             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.

           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, beginning July 1, 2009, 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  







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             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 retain a copy of applicants request  
             and a copy of the response sent, which shall include the  
             date and address to which the response was sent, 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  
             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







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           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  8/18/08)

          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,  







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          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  : 
          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  8/20/08   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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