BILL ANALYSIS Ó AB 2396 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2396 (Bonta) As Amended August 19, 2014 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |55-17|(May 23, 2014) |SENATE: |24-10|(August 21, | | | | | | |2014) | ----------------------------------------------------------------- Original Committee Reference: B., P. & C.P. 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of Consumer Affairs (DCA) from denying a professional license based solely on a criminal conviction that has been withdrawn, set aside or dismissed by the court. The Senate amendments require a license applicant who has a conviction that has been dismissed to provide proof of the dismissal. FISCAL EFFECT : According to the Senate Appropriations Committee, 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: 1)The Board of Behavioral Sciences (BBS) estimates annual costs of $227,195. (Behavioral Science Examiners Fund) 2)The Board of Psychology estimates annual costs of $86,266. (Psychology Fund) 3)The Board of Pharmacy estimates costs in 2015-16 of $56,000 and ongoing costs of $48,000. (Pharmacy Board Contingent Fund) 4)The Dental Board estimates annual costs of $26,640. (State Dentistry Fund) COMMENTS : 1)Purpose of this bill. This bill would prohibit boards and bureaus within DCA from denying a professional license to an AB 2396 Page 2 applicant based solely on a prior conviction that was dismissed by a court either because the individual completed the terms of his or her sentence without committing any additional offenses or because 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 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 hearings, 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)Obtaining a dismissal of a conviction. Penal Code Sections 1203.4, 1203.4(a) 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 and 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. AB 2396 Page 3 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. 4)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. 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. 5)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 AB 2396 Page 4 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. Analysis Prepared by : Eunie Linden / B., P. & C.P. / (916) 319-3301 FN: 0005290