BILL ANALYSIS Ó AB 2396 Page 1 Date of Hearing: April 29, 2014 ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER PROTECTION Susan A. Bonilla, Chair AB 2396 (Bonta) - As Amended: April 21, 2014 SUBJECT : Convictions: expungement: licenses. SUMMARY : Prohibits boards within the Department of Consumer Affairs (DCA) from denying a professional license based solely on a criminal conviction that has been withdrawn, set aside or dismissed by the court. EXISTING LAW 1)Allows a board to deny a license to an applicant if the applicant has done one of the following: a) Been convicted of a crime, as specified; b) Done any act involving dishonesty, fraud, or deceit with the intent to substantially benefit himself or herself or another, or substantially injure another; or, c) Done any act that if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license. (Business & Professions Code (BPC) Section 480(a)) 1)Authorizes a board to deny a license, as specified, only if a crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made. (BPC 480(a)(3)(B)) 2)Specifies that no person shall be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation, as specified, or that he or she has been convicted of a misdemeanor, if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license, as specified. (BPC 480(b)) 3)Requires each board to develop criteria to aid it when AB 2396 Page 2 considering the denial, suspension or revocation of a license, in order to determine whether a crime or act is substantially related to the qualifications, functions, or duties of the business or profession it regulates. (BPC 481) 4)Requires each board, as specified, to develop criteria to evaluate the rehabilitation of a person when considering the denial, or suspension of revocation, of a license by the board, as specified. (BPC 482) 5)Requires a board that has denied an application for a license to include a copy of the criteria relating to rehabilitation, as specified, and to inform the applicant of the earliest date on which the applicant may reapply for licensure and that all competent evidence of rehabilitation presented will be considered upon reapplication. (BPC 486). 6)Provides that in any case, except as specified, 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, 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. (Penal Code Section (PC) 1203.4) 7)Provides that if the court dismisses the accusations of information against the defendant, it does not relieve him or her of the obligation to disclose the conviction in an application for licensure for any state or local agency. (PC 1203.4) 8)Provides that in a case in which a defendant who was convicted of a misdemeanor and not granted probation, or convicted of an infraction, and who has fully complied with and performed the sentence of the court, is not serving a sentence for any offense and is not under charge of commission of any crime, and if one year has elapsed since the date of judgment, the court may withdraw or set aside the guilty plea and dismiss the accusatory pleading against the defendant, who shall AB 2396 Page 3 thereafter be released from all penalties and disabilities resulting from the offense of which he or she was convicted, except as specified. (PC 1203.4a(a)) 9)Provides that if a defendant does not satisfy all of the above conditions but has fully complied with and performed the sentence of the court, is not serving a sentence for any offense, and is not under charge of commission of any crime, and one year has lapsed since the judgment, the court may, in its discretion and in the interests of justice, withdraw or set aside and dismiss the conviction. (PC 1203.4a(b)) 10)Provides that if a defendant is sentenced to county jail pursuant to criminal justice realignment and is not under mandatory supervision and not serving a sentence for, on probation for, or charged with the commission of, any offense, and at least one year has elapsed since the judgment, the court, in its discretion and in the interests of justice, 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, except as specified. (PC 1203.41) FISCAL EFFECT : Unknown COMMENTS : 1)Purpose of this bill . This bill would prohibit boards and bureaus within DCA from denying a professional license based solely on a prior conviction that was dismissed by a court which determined that the individual completed all the terms of his or her sentence without committing any additional offenses, or which determined a dismissal would serve the interests of justice. In doing so, the author aims to alleviate barriers to employment after incarceration. This bill is sponsored by the Alameda County Board of Supervisors. 2)Author's statement . According to the author, "[This bill] is designed to reduce employment barriers for people with criminal records who have been rehabilitated. [This bill] allows them the opportunity to pursue meaningful employment and work towards entering the middle class, instead of AB 2396 Page 4 struggling in low-wage jobs or returning to crime. "In many cases, individuals seeking a professional license struggle to achieve self-sufficiency because of consideration of a dismissed record that is irrelevant to their ability to perform the job. Under current law, even applicants who are presumed to be rehabilitated by the court system may still have their license denied. "According to a 2007 report prepared by the Board of Barbering and Cosmetology, of the 501 applicants denied by the Board over the preceding five hears, all 501 applicants possessed criminal records. Only 33 applicants were determined to have produced evidence of rehabilitation. [This bill] will eliminate this fundamental unfairness within the law. In addition, [this bill] will help address the shortage of qualified labor in many fields, increase employment in those fields, and spur economic growth." 3)Barriers to employment for individuals with criminal convictions . According to the National Institute of Justice Journal, nearly one-third of American adults have been arrested by age 23. A criminal record keeps many people from obtaining employment, even if they have completed their sentences, are qualified for the job and are unlikely to reoffend. In addition, research shows that employment is the single most effective factor in reducing offending rates. In California, nearly one in five California adults has a criminal record, and the state is home to millions of people with arrest, prosecution, and conviction records. While most have successfully completed their sentences, they still continue to experience barriers to employment as a result of their criminal records. A person's criminal record may range from a one-time arrest that was never prosecuted, to lengthy and serious criminal histories. Criminal background checks are common among employers, and 26 boards under DCA require criminal background checks. As a result, many individuals may be affected by old convictions and arrests, even though research indicates that a person, after a limited period of time, is at no greater risk of being arrested than a counterpart in the general population. In addition to facing bias from potential employers, an individual may also be denied a professional license based on a past conviction, even if that conviction AB 2396 Page 5 was dismissed by the court. Licensing boards under DCA are authorized by statute to deny a license based on dismissed convictions. 4)Obtaining a dismissal of a conviction . Penal Code Sections 1203.4, 1203.4a, and 1203.41 provide expungement relief to an individual who has committed certain types of crimes. This relief is not available to persons who were sentenced to prison, or who have committed certain sex or other offenses, as specified. While most major felonies result in a prison sentence, not all felonies require a defendant to serve a prison sentence. As a result, only persons who were convicted of misdemeanors or felonies who were sentenced to probation, which may include jail time, or who were convicted of misdemeanors or infractions and were not sentenced to probation, may have their conviction dismissed. In order to obtain a dismissal, a person must successfully serve and complete all the terms of their sentence, including paying any restitution and fines, and not be charged with any other offenses. In addition, a person must file a petition with the court, which may include information about the offense, letters of recommendation, proof of compliance with the terms of probation, and any other materials that may assist the court in making a decision. The petition must also be served to the applicable District or City Attorney, who may object to the petition and provide evidence to the court that the dismissal should not be granted. The court will decide on the petition, and if the petition is denied, an individual may file for reconsideration or refile the petition at a later date. As a result, this "set aside and dismissal" remedy is limited both in terms of scope and application. 5)License denials . Over half of the boards under DCA require criminal history information, and other boards require applicants to self-report any criminal history. While criminal background checks are supposed to show whether a conviction has been dismissed, this does not always occur. BPC Section 480 generally grants boards great latitude to deny a license based on a past conviction or bad act. If a board denies a license, it is required to notify the applicant by letter, which provides the applicant with the specific reasons why the application was denied. An applicant has the right to appeal the denial of the application by requesting a statement AB 2396 Page 6 of issues hearing, and must submit a request for that hearing within 60 days of the date of the letter. Once a written request for a hearing is made, it is forwarded to the Attorney General's office. At the hearing, an applicant may present evidence and witnesses to prove that his or her application for a certificate or license should not be denied. 6)Professional boards have great discretion when determining whether to deny a license . Existing law authorizes each board to deny a professional license based on an applicant's past conviction, "act involving dishonest, fraud, or deceit," or other act that could subject a licensee to license suspension or revocation, if that conviction or act is "substantially related" to the qualifications, functions, or duties of the business or profession for which application is made. This discretion does not distinguish between types of convictions or types of dishonest acts, and these terms are so broad that many convictions or acts could be determined by a board to be cause for denial of a license. In addition, there are no other qualifications, such as how long ago a person was convicted or had committed a bad act, or whether a board has to take that length of time into consideration. It is up to each board to determine what they consider as criteria for license denial or rehabilitation. Some boards, like the Contractor's State License Board, might consider an applicant convicted of a substantially related felony to be rehabilitated if seven years elapsed since his or her sentence was served without any additional criminal activity or other bad acts, and if three years have elapsed for misdemeanor convictions, and looks to other criteria, such as the passage of time since a substantially related crime or act occurred and whether there is evidence of expungement. Conversely, the Board of Barbering and Cosmetology generally requires the board to look at the time that has elapsed since the commission of an act or crime that is substantially related and whether the applicant has completed with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the applicant. As a result, while many boards may take expungement into account, there is no guarantee that they all will, or that the weight given to expungement is consistent. For example, in Brandt v. Fox (1979) 90 Cal.App.3d 737, the Real Estate Commissioner used this broad discretion to deny AB 2396 Page 7 plaintiff's real estate license based on a prior conviction for distribution of cocaine. Prior to the arrest, plaintiff led an "exemplary life," and after he was sentenced, he was in full compliance with his terms of probation, including making regular payments towards his criminal fine. However, plaintiff was still denied a license based on his one and only past criminal conviction. In overturning that license denial, the court determined that, "Given the isolated nature of the incident, the fact that it occurred over four years ago, the lack of any evidence that plaintiff's subsequent conduct has been other than exemplary, or that such conduct bore a substantial relationship to the qualifications, functions or duties of, or otherwise rendered him unfit to engage in, the activity for which he sought a license, we must conclude that the Commissioner's decision to deny plaintiff's application was not supported by substantial evidence." There is no data that tracks how many people are denied professional licenses based on a past conviction, how many of those denials were based on convictions that were dismissed, or how many denials based on dismissed convictions were successfully appealed. However, according to the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, one nonprofit organization that hosts expungement clinics and assist individuals with prior convictions to obtain a license or appeal a license denial, it has seen at least 20-30 cases where licenses were denied by a professional board based on a conviction that was dismissed. According to the Lawyer's Committee, once they got involved in an appeal, they experienced an extremely high level of success, which makes one question why the license was denied in the first place and whether these decisions are arbitrary or fraught with too much discretion. License denials are generally not subject to review unless there is alleged misconduct or the denial is being appealed. In addition, while some may argue that the appeals process allows the system to correct itself, many applicants may lack the knowledge or have access to limited legal resources to help them pursue an appeal of a denial. It should be noted that this bill would not affect a board's ability to deny a license based on other convictions or arrests that are part of a person's criminal record, or other acts that a person has committed. This bill would only AB 2396 Page 8 prevent boards from presuming that an applicant has not been rehabilitated based only on a conviction that has been dismissed by a court, and using that as the sole reason for denying a license. 7)Arguments in support . According to the sponsors, Alameda County Board of Supervisors, "In private industries, applicants are not required to disclose an expunged record as part of the hiring process. [This bill] similarly creates the presumption of rehabilitation (only for an expunged conviction) in determining licensing for professions such as cosmetologists, pharmacists, and optometrists under [DCA]. [This bill] would increase the number of people who are able to obtain livable wage employment, allowing them to more successfully raise their families and contribute to their communities. It would also expand the pool of qualified candidates for jobs in the County." The Lawyers' Committee for Civil Rights of the San Francisco Bay Area also writes in support, "By disregarding the 'set aside and dismissal' remedy, Section 480 in its current form undermines the state's efforts to encourage individuals to demonstrate rehabilitation. Indeed, the majority of our clients seeking licensure with [DCA] have been denied despite having attained dismissals of their convictions. Denying a license to an applicant on the sole basis of a dismissed conviction unnecessarily limits the applicant's ability to find gainful employment, provide for his or her family, and otherwise successfully reintegrate into the community." The Women's Foundation of California also writes, "By receiving a dismissal of a conviction, a process that includes proof of rehabilitation, a qualified applicant will be able to receive a license and will be more able to achieve economic security without resorting to criminal behavior. Providing a level playing field where all qualified Californians can have the ability to get a job is in the interest of all of us." 8)Related legislation . AB 1702 (Maienschein) of 2014 specifies that an individual who has satisfied the requirements for licensure while incarcerated and who applies for licensure after being released from incarceration shall not have his or her application delayed or denied solely based on the prior incarceration. This bill is in the Assembly Appropriations Committee. AB 2396 Page 9 SB 1384 (Mitchell) of 2014 would presume, for purposes of determining whether to deny, or suspend or revoke, a license for a certified nurse assistant, an individual to be successfully rehabilitated if he or she has completed any probation, mandatory supervision, or parole, if applicable, and at least three years have elapsed within a subsequent conviction after final discharge or release from any term of imprisonment. This bill is in the Senate Health Committee. 9)Previous legislation . AB 218 (Dickinson), Chapter 699, Statutes of 2013, prohibited a state or local agency from asking an applicant to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position. AB 651 (Bradford), Chapter 787, Statutes of 2013, authorized a court, in its discretion and in the interests of justice, to grant expungement relief for a conviction of a petitioner sentenced to county jail pursuant to criminal justice realignment if specified conditions are satisfied. SB 1077 (Price), Chapter 291, Statutes of 2011, required the Director of DCA when considering the granting of a probationary license, registration, certificate, or permit, to request that an applicant with a dismissed conviction provide proof of that dismissal, and required that special consideration be given to applicants with dismissed, and that the Director take into account any other reasonable documents or individual character references provided by the applicant. SB 2017 (Vargas), Chapter 444, Statutes of 2011, provided clarification on the issuance of mortgage loan originator licenses with the existence of expunged or pardoned felony convictions. AB 2423 (Bass), Chapter 675, Statutes of 2008, required the Veterinary Medical Board, Structural Pest Control Board, Board of Vocational Nursing and Psychiatric Technicians of the State of California, State Board of Barbering and Cosmetology, and the Director of DCA, when considering the issuance or granting of a probationary license or registration, to request that an applicant with a dismissed conviction provide proof of that dismissal and would require that special consideration be AB 2396 Page 10 given to applicants whose convictions have been dismissed, as specified. AB 1025 (Bass) of 2007 would have provided that an applicant for a license with a board under DCA may not be denied licensure or have his or her license suspended or revoked solely on the basis that he or she has been convicted of a felony or misdemeanor if that conviction was dismissed, unless the board provides substantial evidence, as specified, justifying the denial, suspension, or revocation. This bill was vetoed by the Governor. In his veto message, Governor Schwarzenegger wrote, "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 state licensing bodies to show than an individual is not rehabilitated, which would result in increased litigation and extensive investigations." REGISTERED SUPPORT / OPPOSITION : Support Alameda County Board of Supervisors (sponsor) Lawyers' Committee for Civil Rights of the San Francisco Bay Area Legal Services for Prisoners with Children National Employment law Project The Women's Foundation of California Opposition None on file. Analysis Prepared by : Eunie Linden / B.,P. & C.P. / (916) 319-3301