BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 2396 (Bonta) - Professional licenses: expunged convictions. Amended: May 15, 2014 Policy Vote: BP&ED 5-3 Urgency: No Mandate: No Hearing Date: August 4, 2014 Consultant: Mark McKenzie This bill meets the criteria for referral to the Suspense File. Bill Summary: AB 2396 would prohibit professional licensing boards from denying a license solely on the basis of a conviction that has been withdrawn, set aside, or dismissed, as specified. Fiscal Impact: The Department of Consumer Affairs (DCA) indicates that the majority of boards and bureaus under its jurisdiction would have minor and absorbable costs. However, the following boards indicate costs would be incurred as a result of increased workload to conduct investigations on license applicants with expunged convictions: The Board of Behavioral Sciences (BBS) estimates annual costs of $227,195. (Behavioral Science Examiners Fund) ---see staff comments--- The Board of Psychology estimates annual costs of $86,266. (Psychology Fund) The Board of Pharmacy estimates costs in 2015-16 of $56,000 and ongoing costs of $48,000. (Pharmacy Board Contingent Fund) The Dental Board estimates annual costs of $26,640. (State Dentistry Fund) Background: Under current law, boards under the jurisdiction of DCA may deny, suspend, or revoke a license if the crime is substantially related to the qualifications, functions or duties of the business or profession for which the application is made, or for which the license was issued. In addition, boards are required to develop criteria to evaluate the rehabilitation of a person when considering whether to deny, suspend or revoke a license, taking into account all competent evidence of rehabilitation furnished by the applicant or licensee. Generally, the criteria consider the nature and severity of the AB 2396 (Bonta) Page 1 crime, the time that has elapsed since the crime, the extent the applicant has complied with the terms of probation, parole restitution and any other evidence of rehabilitation. Boards cannot deny a license if the individual has met all the rehabilitation criteria. Existing law (Penal Code 1203.4) authorizes a court to withdraw or set aside a guilty plea and dismiss the accusatory pleading in cases in which the defendant has fulfilled the condition of probation, or if relief is granted in the interest of justice, as specified. Existing law (Penal Code 1203.4a) authorizes a court to withdraw or set aside a guilty plea and dismiss the accusatory pleading in cases in which the defendant convicted of a misdemeanor or infraction and who has fully complied with and performed the sentence of the court, if one year has elapsed since the date of judgment, as specified. Existing law (Penal Code 1203.41) authorizes a court to withdraw or set aside a guilty plea and dismiss the accusatory pleading in cases in which a defendant is sentenced to county jail pursuant to realignment and not under mandatory supervision or 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. Proposed Law: AB 2396 would specify that a person shall not be denied a license solely on the basis of a conviction that has been withdrawn, set aside, or dismissed pursuant to the Penal Code provisions noted above. Staff Comments: Over half of the boards under DCA require criminal history information, and other boards require applicants to self-report any criminal history. 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 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. AB 2396 (Bonta) Page 2 Under current law, when a board denies, revokes, or suspends a license, the burden is on the applicant to prove the board acted in error. Under this bill, the board would have to provide substantial evidence when denying, revoking, or suspending a license, shifting the burden to the board. The cost to each board within DCA preliminarily has varied widely, based it appears, on the potential new workload to investigate license applicants that have expunged convictions and collect evidence to prove the underlying cause of the conviction to form basis for the denial. The Board of Behavioral Sciences estimates it would incur increased costs of approximately $227,000 annually as a result of the bill. In 2012-13, BBS denied 47 licenses due to convictions. Although BBS currently investigates all cases in which a license is denied due to a conviction, obtaining certified copies of arrest and conviction documents is sufficient evidence to substantiate a cause for denial. This bill would require BBS to incur 25 hours of additional investigatory staff time for each case in order to prove that the underlying cause of the conviction is a basis for denial. In addition, BBS expects to incur additional AG expenses and costs related to hearings. Staff notes those licensees where their felony, misdemeanor, or criminal conviction was dismissed pursuant to Penal Code Sections 1203.4, 1203.4a, or 1203.41 as being the sole reason their license was denied, revoked, or suspended may be a very small number of licensees. It is unclear whether the number of cases the BBS expects to warrant further investigation would all be cases in which the license was denied as a result of a conviction dismissed pursuant to these Penal Code provisions. As noted above, the boards that have reported increased costs as a result of this bill are primarily those involved in certain health-related professions. Notably absent from this list is the Medical Board, whose staff indicates that license denials based on a prior conviction, even those that were dismissed, are already thoroughly investigated.