BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 465
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          Date of Hearing:  April 23, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

            AB 465 (Bonilla and Maienschein) - As Amended:  April 18, 2013
           
           
           SUMMARY  :  Authorizes a community youth athletic program to  
          request state- and federal-level background checks for a  
          volunteer coach or hired coach candidate.  Specifically,  this  
          bill  :

          1)Defines a "community youth athletic program" as an employer  
            having as its primary purpose the promotion or provision of  
            athletic activities for youth under 18 years of age.

          2)Specifies that a community youth athletics program may request  
            state- and federal-level criminal history information for a  
            volunteer coach or hired coach candidate.  

          3)States that the director of the community youth athletic  
            program shall be the custodian of records.

          4)States that the community youth athletic program may request  
            from the Department of Justice (DOJ) subsequent arrest  
            notification service for a volunteer coach or a hired coach  
            candidate.

          5)States that compliance with this provision does not remove or  
            limit the liability of a mandated reporter.

           EXISTING LAW  :

          1)Provides that DOJ shall maintain state summary criminal  
            history information and authorizes DOJ to furnish state  
            summary criminal history information to statutorily authorized  
            entities.  (Penal Code Section 11105.6.)

          2)States that, notwithstanding any other law, a human resource  
            agency or an employer may request from DOJ records of all  
            convictions or any arrest pending adjudication involving the  
            offenses specified of a person who applies for a license,  








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            employment, or volunteer position, in which he or she would  
            have supervisory or disciplinary power over a minor or any  
            person under his or her care.  DOJ shall furnish the  
            information to the requesting employer and shall also send a  
            copy of the information to the applicant.  [Penal Code Section  
            11105.3(a).]

             a)   Provides that a request for these records shall include  
               the applicant's fingerprints, which may be taken by the  
               requester, and any other data specified by DOJ.  The  
               request shall be on a form approved by DOJ, and DOJ may  
               charge a fee to be paid by the employer, human resource  
               agency, or applicant for the actual cost of processing the  
               request.  However, no fee shall be charged to a nonprofit  
               organization.  Requests received by DOJ for federal level  
               criminal offender record information shall be forwarded to  
               the Federal Bureau of Investigation (FBI) by DOJ to be  
               searched for any record of arrests or convictions.  [Penal  
               Code Section 11105.3(b).]

             b)   Requires the agency or employer to notify the parents or  
               guardians of any minor who will be supervised or  
               disciplined by the employee or volunteer where a request  
               pursuant to this section reveals that a prospective  
               employee or volunteer has been convicted of specified  
               offenses, and the agency or employer hires the prospective  
               employee or volunteer.  The notice shall be given to the  
               parents or guardians with whom the child resides, and shall  
               be given at least 10 days prior to the day that the  
               employee or volunteer begins his or her duties or tasks.   
               [Penal Code Section 11105.3(c)(1).]

             c)   States that the above notification requirement shall not  
               apply to a misdemeanor conviction for unlawful sexual  
               intercourse with a minor, or to a conviction for spousal  
               rape or domestic violence.  [Penal Code Section  
               11105.3(c)(2).]

             d)   Defines a "human resource agency" as a public or private  
               entity, excluding any agency responsible for licensing of  
               specified facilities, responsible for determining the  
               character and fitness of a person who is [Penal Code  
               Section 11105.3(g)]:

               i)     Applying for a license, employment, or as a  








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                 volunteer within the human services field that involves  
                 the care and security of children, the elderly, the  
                 handicapped, or the mentally impaired.

               ii)    Applying to be a volunteer who transports  
                 individuals impaired by drugs or alcohol.

               iii)   Applying to adopt a child or be a foster parent.

             e)   States that any criminal history information obtained  
               pursuant to this section is confidential and no recipient  
               shall disclose its contents other than for the purpose for  
               which it was acquired, except as specified.  [Penal Code  
               Section 11105.3(h).] 

          3)Authorizes DOJ to provide subsequent state or federal arrest  
            or disposition notification to any entity authorized by state  
            or federal law to receive state or federal summary criminal  
            history information to assist in fulfilling employment,  
            licensing, certification duties, or the duties of approving  
            relative caregivers and nonrelative extended family members,  
            upon the arrest or disposition of any person whose  
            fingerprints are maintained on file at DOJ or the FBI as the  
            result of an application for licensing, employment,  
            certification, or approval.  Nothing in this section shall  
            authorize the notification of a subsequent disposition  
            pertaining to a disposition that does not result in a  
            conviction, unless DOJ has previously received notification of  
            the arrest and has previously lawfully notified a receiving  
            entity of the pending status of that arrest.  When DOJ  
            supplies subsequent arrest or disposition notification to a  
            receiving entity, the entity shall, at the same time,  
            expeditiously furnish a copy of the information to the person  
            to whom it relates if the information is a basis for an  
            adverse employment, licensing, or certification decision. When  
            furnished other than in person, the copy shall be delivered to  
            the last contact information provided by the applicant.   
            [Penal Code Section 11105.2(a).]

          4)Provides that any entity that submits the fingerprints of an  
            applicant for employment, licensing, certification, or  
            approval to DOJ for the purpose of establishing a record at  
            DOJ or the FBI to receive notification of subsequent arrest or  
            disposition shall immediately notify the department if the  
            applicant is not subsequently employed, or if the applicant is  








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            denied licensing certification, or approval.  [Penal Code  
            Section 11105.2(f).]

          5)States that no person who is required to register as a sex  
            offender  because of a conviction for a crime where the victim  
            was a minor under 16 years of age shall be an employer,  
            employee, independent contractor, or act as a volunteer with  
            any person, group or organization in a capacity in which the  
            registrant would be working directly and in an unaccompanied  
            setting with minor children on more than an incidental and  
            occasional basis or have supervision or disciplinary power  
            over minor children.  [Penal Code Section 290.95(c).]

             a)   Includes, but does not limit, within the definition of  
               "working directly in an unaccompanied setting," providing  
               goods or services to minors.  [Penal Code Section  
               290.95(d).]

             b)   Provides that a violation of this section is a  
               misdemeanor punishable by imprisonment in a county jail for  
               a period not exceeding six months, by a fine not exceeding  
               $1,000, or by both that imprisonment and fine, and  
               specifies that a violation of this section shall not  
               constitute a continuing offense.  [Penal Code Section  
               290.95(e).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Currently in  
            California, sports coaches working in public schools are  
            required to go through a background check process - however,  
            this same safety requirement does not apply to youth sports  
            leagues outside of a school setting.  But as many of you with  
            children know, most of our kids also join private youth sports  
            leagues in the community such as soccer, or traveling club  
            teams when they get older. These coaches often spend more time  
            with kids by driving them to tournaments, taking them home  
            after practice, or waiting with them for their parents to pick  
            them up.  This access to children has the potential to draw  
            predators to seek jobs in coaching. 

          "Requiring all youth sports leagues to conduct background checks  
            on the coaches they hire is an important step in protecting  








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            our children. The US Department of Health and Human Services  
            reported that in 2011, there were 4,890 children in California  
            who were victims of sexual abuse.  However, according to the  
            group Darkness to Light, 73% of child victims do not tell  
            anyone about the abuse for at least a year, meaning that the  
            number of children in this state sexually abused in 2011 could  
            be upward of 18,000.  Finally, it is estimated that 90% of  
            children who are sexually abused know their perpetrator-often  
            times family members, family friends, or authority figures  
            such as teachers and coaches.  Any measure that would help  
            keep predators away from our children should and must be  
            taken.

          "As a coach myself, I know that most of us want to do all we can  
            to provide a positive, fun, and safe experience to the kids on  
            our team.  But more importantly, as a father, I know our  
            children are the most vulnerable members of our communities.  
            We worry about them every time they are away from us at a  
            friend's house, school, or practice, and we will do anything  
            it takes to make sure they are safe.  AB 465 would create a  
            consistent background check policy for all youth sports  
            leagues, while assuring parents that extensive steps are being  
            taken to protect their children." 


           2)Chilling Effect on Volunteers  :  Youth sports leagues rely  
            heavily on volunteers, many being parents of minors  
            participating in the league.  This bill authorizes a youth  
            sports league to require both hired coaches and volunteer  
            coaches to undergo a state- and federal-level background  
            check.  According to DOJ, the current cost of the state-level  
            background check is $32 for a for-profit organization, and may  
            be waived for a non-profit organization.  The federal-level  
            background check is $17 for employees, and $15 for volunteers.  
              
            [.)  In addition, there is a "rolling fee" that each  
            applicant must pay for having his or her fingerprints rolled  
            or scanned.  The rolling fee varies, generally from $10 to  
            $35, with some locations requiring fees of $45 or more.   
            [ (as  
            of Apr. 17, 2013).]  While these fees may not pose a huge  
            burden on families with middle to high incomes, it may be  
            difficult for many families to afford these fees, in addition  
            to all of the existing fees for participating in the league  








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            such as registration fees and the cost of uniforms.

          Criminal background checks for volunteers may also  
            disincentivize people who have any convictions in their  
            record, regardless of how remote or whether the nature of the  
            crime was related to violence or sexual abuse of minors.  The  
            fear that others in the community may learn of an old driving  
            under the influence or theft conviction may be enough to steer  
            people away from participating as volunteers in these leagues.  
             In addition, the subsequent arrest notification service may  
            also cause some organizations to remove a coach from one of  
            its leagues for an arrest without a conviction.

           3)Electronic Fingerprinting  :  While the law requires applicant  
            fingerprints to be captured and submitted electronically via  
            Live Scan, DOJ does have limited statutory authority to issue  
            an exemption to this mandate if an electronic transmission  
            site is regionally unavailable or internal processing  
            procedures dictate a need.  If an individual cannot submit his  
            or her fingerprints electronically, the individual (not the  
            employing or regulatory entity) must submit a separate form to  
            DOJ along with a fingerprint card.  [See DOJ's Web site  
             (as of April 4,  
            2013).]

           4)Arguments in Support  :  The  California State Sheriffs'  
            Association  states, "California already has established  
            standards to prevent individuals with a criminal background  
            from being employed by school districts, or from being  
            involved with any sports teams that are administered by  
            schools.  Unfortunately, this requirement does not extend to  
            all private youth sports organizations, and the lack of  
            consistency in performing and obtaining accurate background  
            checks jeopardizes the safety of our children."

           5)Arguments in Opposition  :  The  California Public Defenders  
            Association  writes, "This bill would expose a person's summary  
            criminal history to his or her friends and neighbors with no  
            stated limitation.  It would permit one neighbor to know that  
            another one had a prior drunk driving or petty theft  
            conviction that is maybe years old.  This seems guaranteed to  
            discourage local parents from participation, for fear that  
            their friends and neighbors will become aware with no  
            limitations, of their past criminal record, no matter how  
            remote or how minor.








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          "Youth sports are heavily dependent on parent coaches.  Parents  
            play a critical role as head coach, assistance coach, team  
            parent, referee, and linespersons.  Without such volunteers,  
            the volunteer based youth sports organizations would be  
            decimated.  Volunteer applicants are currently subjected to  
            scrutiny requiring volunteers to provide a great deal of  
            personal identifying information.  Volunteer parents, many of  
            whom are employed full-time, take scarce time out of their own  
            schedules to lead practices during the week and then sacrifice  
            their weekends in order to help their child's team have a  
            fulfilling athletic experience.  Implementation of this  
            measure will likely have the unintended chilling effect of  
            immediately decreasing parent participation."

           6)Related Legislation  :  AB 1027 (Bonilla) authorizes a community  
            youth athletics program to require volunteers or hired coach  
            candidates to submit to a state- and federal-level background  
            check prior to contact with youths.  AB 1027 is not scheduled  
            to be heard by this Committee.

           7)Prior Legislation  :  

             a)   AB 1435 (Dickinson), Chapter 520, Statutes of 2012,  
               makes athletic coaches, athletic administrators, and  
               athletic directors employed by any public or private school  
               that provides any combination of instruction for  
               kindergarten, or grades 1 to 12, inclusive, mandated  
               reporters for the purposes of the Child Abuse and Neglect  
               Reporting Act (CANRA). 

             b)   AB 1564 (Lara), of the 2011-12 Legislative Session,  
               would have made volunteers of public and private  
               organizations, including non-profits, mandated reporters  
               under CANRA, and would have revoked a non-profit's tax  
               exempt status if an employee or volunteer failed to report  
               an instance of known or suspected child abuse.  AB 1564 was  
               never heard by this Committee.

             c)   AB 1628 (Beall), of the 2011-12 Legislative Session,  
               among other provisions, would have required a private  
               entity doing business in the state that rents, leases, or  
               uses public property and has an employee, member, agent,  
               licensee, or representative who will access the property  
               and who has duties involving close interaction with  








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               children on a regular basis to perform an enhanced  
               background check, as specified, on the employee, member,  
               agent, licensee, or representative.  AB 1628 failed passage  
               in the Committee on Appropriations.

             d)   AB 1025 (Conway), Chapter 379, Statues of 2009, requires  
               a non-certificated candidate, commencing on July 1, 2010,  
               prior to assuming a paid or volunteer position to  
               supervise, direct, or coach a pupil activity program  
               sponsored by, or affiliated with, a school district, to  
               obtain from the Commission on Teacher Credentialing an  
               Activity Supervisor Clearance Certificate issued by the  
               commission upon verification of the candidate's personal  
               identification and verification that he or she meets  
               specified requirements.  AB 1025 requires the commission to  
               submit information relating to applicants to DOJ to obtain  
               state and federal criminal history information prior to the  
               issuance of a certificate.

             e)   AB 1593 (Blakeslee), of the 2008-09 Legislative Session,  
               would have required school districts that use nonteaching  
               volunteer aides to adopt a screening policy for those  
               volunteers and would have required, as a minimum criminal  
               background check, that districts utilize the DOJ's "Megan's  
               Law" Web site, which tracks registered sex offenders in  
               California.  AB 1593 was held in the Senate Committee on  
               Appropriations' Suspense File.

             f)   SB 2161 (Schiff), Chapter 421, Statutes of 2000,  
               requires DOJ and local criminal justice agencies to furnish  
               the state summary criminal history information to county  
               child welfare agency personnel who have been delegated the  
               authority of county probation officers pursuant to these  
               provisions.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Catholic Conference, Inc.
          California Police Chiefs Association
          California State Sheriffs' Association
          Child Abuse Prevention Center
          Crime Victims Action Alliance
          Crime Victims United








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           Opposition 
           
          California Public Defenders Association
          Taxpayers for Improving Public Safety  


          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744