BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2396
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2396 (Bonta)
          As Amended  August 19, 2014
          Majority vote
           
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          |ASSEMBLY:  |55-17|(May 23, 2014)  |SENATE: |24-10|(August 21,    |
          |           |     |                |        |     |2014)          |
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           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          on a criminal conviction that has been withdrawn, set aside or  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  








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            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. 









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          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  








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            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 


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