BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2396
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          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          on a criminal conviction that has been withdrawn, set aside or  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  








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            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  








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            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  








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            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  








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            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  








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            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  








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            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  








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            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.








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          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  








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            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