BILL NUMBER: AB 1240 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 17, 2004
AMENDED IN SENATE APRIL 22, 2004
AMENDED IN ASSEMBLY JANUARY 22, 2004
AMENDED IN ASSEMBLY MAY 7, 2003
AMENDED IN ASSEMBLY APRIL 28, 2003
INTRODUCED BY Assembly Member Mullin
FEBRUARY 21, 2003
An act to amend Sections 1522, 1568.09, 1569.17, and 1596.871 of
the Health and Safety Code, and to amend Section 11105 of the
Penal Code, relating to care facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 1240, as amended, Mullin. Care facilities: criminal record
clearances.
Existing law requires, as a condition of the State Department of
Social Services or other licensing agency issuing a license, permit,
or certificate of approval, as appropriate, for a person to operate
or to provide direct care services in a community care facility,
residential care facility for persons with a chronic life-threatening
illness, residential care facility for the elderly, or day care
facility, the fingerprinting of, and criminal record clearance for,
applicants and persons to be employed by, reside at, or be present in
any of these facilities, except as specified.
This bill would authorize the Department of Justice to substitute
or add either the State Department of Social Services or a county,
acting as an agent of the State Department of Social Services, as an
authorized recipient of an applicant's criminal history information.
Under existing law, an individual is required to obtain either a
criminal record clearance from the Department of Justice or a
criminal record exemption from the State Department of Social
Services before his or her initial presence in a community care
facility. Under existing law, a violation of that requirement
results in the citation of deficiency and the immediate assessment of
civil penalties in the amount of $100 per violation. The department
is authorized to assess additional civil penalties for continued
violations.
Existing law specifies that a licensee's failure to submit
fingerprints to the Department of Justice or to transfer a current
criminal record clearance, when required, results in the citation of
deficiency and the immediate assessment of civil penalties in the
amount of $100 per violation. The State Department of Social
Services is authorized to assess additional civil penalties for
continued violations.
Existing law specifies that a licensee's failure to comply with
the department's prohibition of employment, contact with clients, or
presence in the facility shall be grounds for denying an application
for, or suspending or revoking, a license.
This bill would enhance the penalties for violating any of the
above provisions by providing that a violation results in a citation
of deficiency and the immediate assessment of civil penalties in the
amount of $100 per violation, per day, for a maximum of 5 days,
or for a maximum of 30 days in the case of a 2nd or
subsequent violation , and by providing that a
violation be grounds for denying an application for, or suspending or
revoking, a license or administrator certificate.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522 of the Health and Safety Code is amended
to read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency. Therefore, the Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999,
otherwise known as the California Crime Information Intelligence
System (CAL-CII), to be used for applicant fingerprints. It is the
intent of the Legislature in enacting this section to require the
fingerprints of those individuals whose contact with community care
clients may pose a risk to the clients' health and safety.
(a) (1) Before issuing a license or special permit to any person
or persons to operate or manage a community care facility, the State
Department of Social Services shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in Section 290 of the Penal Code,
for violating Section 245 or 273.5 of the Penal Code, subdivision (b)
of Section 273a of the Penal Code, or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or for any crime for
which the department cannot grant an exemption if the person was
convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04 fiscal year, neither the Department
of Justice nor the State Department of Social Services may charge a
fee for the fingerprinting of an applicant for a license or special
permit to operate a facility providing nonmedical board, room, and
care for six or less children or for obtaining a criminal record of
the applicant pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (g).
(E) An applicant and any other person specified in subdivision (b)
shall submit a second set of fingerprints to the Department of
Justice for the purpose of searching the criminal records of the
Federal Bureau of Investigation, in addition to the criminal records
search required by this subdivision. If an applicant and all other
persons described in subdivision (b) meet all of the conditions for
licensure, except receipt of the Federal Bureau of Investigation's
criminal history information for the applicant or any of the persons
described in subdivision (b), the department may issue a license if
the applicant and each person described in subdivision (b) has signed
and submitted a statement that he or she has never been convicted of
a crime in the United States, other than a traffic infraction, as
defined in paragraph (1) of subdivision (a) of Section 42001 of the
Vehicle Code. If, after licensure, the department determines that
the licensee or any other person specified in subdivision (b) has a
criminal record, the license may be revoked pursuant to Section 1550.
The department may also suspend the license pending an
administrative hearing pursuant to Section 1550.5.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility. Nothing in this paragraph restricts the right of the
department to exclude a certified nurse assistant or certified home
health aide from a licensed community care facility pursuant to
Section 1558.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee if all of the
following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) When clients are present in the room in which the
repairperson or contractor is working, a staff person who has a
criminal record clearance or exemption is also present.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption does not apply to a person who is a community care facility
licensee or an employee of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care licensee or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensee who come into the
home to visit for a length of time no longer than defined by the
department in regulations, provided that the adult friends and family
of the licensee are not left alone with the foster children.
(B) Parents of a foster child's friends when the foster child is
visiting the friend's home and the friend, foster parent, or both are
also present.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or a facility
employee with a criminal record clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(c) (1) Subsequent to initial licensure, any person specified in
subdivision (b) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a community care
facility, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions. The licensee shall
submit these fingerprints to the Department of Justice, along with a
second set of fingerprints for the purpose of searching the records
of the Federal Bureau of Investigation, or to comply with paragraph
(1) of subdivision (h), prior to the person's employment, residence,
or initial presence in the community care facility. These
fingerprints shall be on a card provided by the State Department of
Social Services or sent by electronic transmission in a manner
approved by the State Department of Social Services and the
Department of Justice for the purpose of obtaining a permanent set of
fingerprints, and shall be submitted to the Department of Justice by
the licensee. A licensee's failure to submit fingerprints to the
Department of Justice or to comply with paragraph (1) of subdivision
(h), as required in this section, shall result in the citation of a
deficiency and the immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation, per day
, for a maximum of five days, unless the violation is
a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and
shall be grounds for disciplining the licensee pursuant to Section
1550. The department may assess civil penalties for continued
violations as permitted by Section 1548. The fingerprints shall then
be submitted to the State Department of Social Services for
processing. Upon request of the licensee, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in
subdivision (a). If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprints.
Documentation of the individual's clearance or exemption shall be
maintained by the licensee and be available for inspection. If new
fingerprints are required for processing, the Department of Justice
shall, within 14 calendar days from the date of receipt of the
fingerprints, notify the licensee that the fingerprints were
illegible. When live-scan technology is operational, as defined in
Section 1522.04, the Department of Justice shall notify the State
Department of Social Services, as required by that section, and shall
also notify the licensee by mail, within 14 days of electronic
transmission of the fingerprints to the Department of Justice, if the
person has no criminal history recorded. A violation of the
regulations adopted pursuant to Section 1522.04 shall result in the
citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation,
per day , for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant to
Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1548.
(3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprints submitted to the
Department of Justice, that the person has been convicted of, or is
awaiting trial for, a sex offense against a minor, or has been
convicted for an offense specified in Section 243.4, 273a, 273d,
273g, or 368 of the Penal Code, or a felony, the State Department of
Social Services shall notify the licensee to act immediately to
terminate the person's employment, remove the person from the
community care facility, or bar the person from entering the
community care facility. The State Department of Social Services may
subsequently grant an exemption pursuant to subdivision (g). If the
conviction or arrest was for another crime, except a minor traffic
violation, the licensee shall, upon notification by the State
Department of Social Services, act immediately to either (1)
terminate the person's employment, remove the person from the
community care facility, or bar the person from entering the
community care facility; or (2) seek an exemption pursuant to
subdivision (g). The State Department of Social Services shall
determine if the person shall be allowed to remain in the facility
until a decision on the exemption is rendered. A licensee's failure
to comply with the department's prohibition of employment, contact
with clients, or presence in the facility as required by this
paragraph shall be grounds for disciplining the licensee pursuant to
Section 1550.
(4) The department may issue an exemption on its own motion
pursuant to subdivision (g) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (g). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
(d) (1) Before issuing a license, special permit, or certificate
of approval to any person or persons to operate or manage a foster
family home or certified family home as described in Section 1506,
the State Department of Social Services or other approving authority
shall secure from an appropriate law enforcement agency a criminal
record to determine whether the applicant or any person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons.
(3) Neither the Department of Justice nor the State Department of
Social Services may charge a fee for the fingerprinting of an
applicant for a license, special permit, or certificate of approval
described in this subdivision. The record, if any, shall be taken
into consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record information:
(A) If the applicant or other persons specified in subdivision (b)
have convictions that would make the applicant's home unfit as a
foster family home or a certified family home, the license, special
permit, or certificate of approval shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) is awaiting
trial for a crime other than a minor traffic violation, the State
Department of Social Services or other approving authority may cease
processing the application until the conclusion of the trial.
(C) For the purposes of this subdivision, a criminal record
clearance provided under Section 8712 of the Family Code may be used
by the department or other approving agency.
(D) An applicant for a foster family home license or for
certification as a family home, and any other person specified in
subdivision (b), shall submit a set of fingerprints to the Department
of Justice for the purpose of searching the criminal records of the
Federal Bureau of Investigation, in addition to the criminal records
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
all persons described in subdivision (b), the department may issue a
license, or the foster family agency may issue a certificate of
approval, if the applicant, and each person described in subdivision
(b), has signed and submitted a statement that he or she has never
been convicted of a crime in the United States, other than a traffic
infraction, as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure or certification,
the department determines that the licensee, certified foster parent,
or any person specified in subdivision (b) has a criminal record,
the license may be revoked pursuant to Section 1550 and the
certificate of approval revoked pursuant to subdivision (b) of
Section 1534. The department may also suspend the license pending an
administrative hearing pursuant to Section 1550.5.
(5) Any person specified in this subdivision shall, as a part of
the application, be fingerprinted and sign a declaration under
penalty of perjury regarding any prior criminal convictions or
arrests for any crime against a child, spousal or cohabitant abuse
or, any crime for which the department cannot grant an exemption if
the person was convicted and shall submit these fingerprints to the
licensing agency or other approving authority.
(6) (A) The foster family agency shall obtain fingerprints from
certified home applicants and from persons specified in subdivision
(b) and shall submit them directly to the Department of Justice or
send them by electronic transmission in a manner approved by the
State Department of Social Services. A foster family home licensee
or foster family agency shall submit these fingerprints to the
Department of Justice, along with a second set of fingerprints for
the purpose of searching the records of the Federal Bureau of
Investigation or to comply with paragraph (1) of subdivision (b)
prior to the person's employment, residence, or initial presence. A
foster family agency's failure to submit fingerprints to the
Department of Justice, or comply with paragraph (1) of subdivision
(h), as required in this section, shall result in a citation of a
deficiency, and the immediate civil penalties of one hundred dollars
($100) per violation, per day , for a maximum
of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining
the licensee pursuant to Section 1550. A violation of the
regulation adopted pursuant to Section 1522.04 shall result in the
citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation,
per day , for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the foster family agency
pursuant to Section 1550. A licensee's failure to submit
fingerprints to the Department of Justice, or comply with paragraph
(1) of subdivision (h), as required in this section, may result in
the citation of a deficiency and immediate civil penalties of one
hundred dollars ($100) per violation. A licensee's violation of
regulations adopted pursuant to Section 1522.04 may result in the
citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation.
The State Department of Social Services may assess penalties for
continued violations, as permitted by Section 1548. The fingerprints
shall then be submitted to the State Department of Social Services
for processing.
(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days
of the receipt of the criminal record or information regarding
criminal convictions from the Department of Justice, the department
shall notify the applicant of any criminal arrests or convictions.
If no arrests or convictions are recorded, the Department of Justice
shall provide the foster family home licensee or the foster family
agency with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, certified foster parent, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license or certificate of
approval may be revoked by the department or the foster family
agency, whichever is applicable, unless the director grants an
exemption pursuant to subdivision (g). A licensee's failure to
comply with the department's prohibition of employment, contact with
clients, or presence in the facility as required by paragraph (3) of
subdivision (c) shall be grounds for disciplining the licensee
pursuant to Section 1550.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social
Services is authorized to obtain any arrest or conviction records or
reports from any law enforcement agency as necessary to the
performance of its duties to inspect, license, and investigate
community care facilities and individuals associated with a community
care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Social Services is permitted to take following
the establishment of a conviction may be taken when the time for
appeal has elapsed, when the judgment of conviction has been affirmed
on appeal, or when an order granting probation is made suspending
the imposition of sentence, notwithstanding a subsequent order
pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting
the person to withdraw his or her plea of guilty and to enter a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusation, information, or indictment. For purposes of this
section or any other provision of this chapter, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for a
license, special permit, or certificate of approval as specified in
paragraphs (4) and (5) of subdivision (d), or for employment,
residence, or presence in a community care facility as specified in
paragraphs (3), (4), and (5) of subdivision (c), if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). Except as otherwise provided in this
subdivision, an exemption may not be granted pursuant to this
subdivision if the conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has
maintained the conduct required in Section 4852.05 of the Penal Code
for at least 10 years, and has the recommendation of the district
attorney representing the employee's county of residence, or if the
employee or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of Social
Services, and shall include a copy of the person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the State Department of
Social Services shall verify whether the individual has a clearance
that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(i) The full criminal record obtained for purposes of this section
may be used by the department or by a licensed adoption agency as a
clearance required for adoption purposes.
(j) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1558, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(k) (1) The Department of Justice shall coordinate with the State
Department of Social Services to establish and implement an automated
live-scan processing system for fingerprints in the district offices
of the Community Care Licensing Division of the State Department of
Social Services by July 1, 1999. These live-scan processing units
shall be connected to the main system at the Department of Justice by
July 1, 1999, and shall become part of that department's pilot
project in accordance with its long-range plan. The State Department
of Social Services may charge a fee for the costs of processing a
set of live-scan fingerprints.
(2) The Department of Justice shall provide a report to the Senate
and Assembly fiscal committees, the Assembly Human Services
Committee, and to the Senate Health and Human Services Committee by
April 15, 1999, regarding the completion of backlogged criminal
record clearance requests for all facilities licensed by the State
Department of Social Services and the progress on implementing the
automated live-scan processing system in the two district offices
pursuant to paragraph (1).
(l) Amendments to this section made in the 1999 portion of the
1999-2000 Regular Session shall be implemented commencing 60 days
after the effective date of the act amending this section in the 1999
portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 1568.09 of the Health and Safety Code is amended
to read:
1568.09. It is the intent of the Legislature in enacting this
section to require the fingerprints of those individuals whose
contact with residents of residential care facilities for persons
with a chronic, life-threatening illness may pose a risk to the
residents' health and safety.
Therefore, the Legislature supports the use of the fingerprint
live-scan technology, as identified in the long-range plan of the
Department of Justice for fully automating the processing of
fingerprints and other data by the year 1999, otherwise known as the
California Crime Information Intelligence System (CAL-CII), to be
used for applicant fingerprints. It is the intent of the
Legislature, in enacting this section, to require the fingerprints of
those individuals whose contact with community care clients may pose
a risk to the clients' health and safety.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility, the department shall
secure from an appropriate law enforcement agency a criminal record
to determine whether the applicant or any other person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit to the Department of Justice a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation, in addition to the search required by this
subdivision. If an applicant meets all other conditions for
licensure, except receipt of the Federal Bureau of Investigation's
criminal history information for the applicant and persons listed in
subdivision (b), the department may issue a license if the applicant
and each person described by subdivision (b) has signed and submitted
a statement that he or she has never been convicted of a crime in
the United States, other than a traffic infraction as defined in
paragraph (1) of subdivision (a) of Section 42001 of the Vehicle
Code. If, after licensure, the department determines that the
licensee or person specified in subdivision (b) has a criminal
record, the license may be revoked pursuant to subdivision (a) of
Section 1568.082. The department may also suspend the license
pending an administrative hearing pursuant to subdivision (b) of
Section1568.082.
(b) In addition to the applicant, the provisions of this section
shall be applicable to criminal convictions of the following persons:
(1) Adults responsible for administration or direct supervision of
staff of the facility.
(2) Any person, other than a resident, residing in the facility.
(3) Any person who provides resident assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for persons with chronic, life-threatening
illness. The facility shall maintain the copy of the certification
on file as long as care is being provided by the certified nurse
assistant or certified home health aide at the facility. Nothing in
this paragraph restricts the right of the department to exclude a
certified nurse assistant or certified home health aide from a
licensed residential care facility for persons with chronic,
life-threatening illness pursuant to Section 1568.092.
(4) (A) Any staff person, volunteer, or employee who has contact
with the residents.
(B) A volunteer shall be exempt from the requirements of this
subdivision if he or she is a relative, significant other, or close
friend of a client receiving care in the facility and the volunteer
does not provide direct care and supervision of residents. A
volunteer who provides direct care and supervision shall be exempt if
the volunteer is a resident's spouse, significant other, close
friend, or family member and provides direct care and supervision to
that resident only at the request of the resident. The department
may define in regulations persons similar to those described in this
subparagraph who may be exempt from the requirements of this
subdivision.
(5) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
that capacity.
(6) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(c) (1) (A) Subsequent to initial licensure, any person specified
in subdivision (b) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a residential care
facility, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions. The licensee shall
submit these fingerprints to the Department of Justice, along with a
second set of fingerprints, for the purpose of searching the records
of the Federal Bureau of Investigation, or to comply with paragraph
(1) of subdivision (g), prior to the person's employment, residence,
or initial presence in the residential care facility.
(B) These fingerprints shall be on a card provided by the State
Department of Social Services for the purpose of obtaining a
permanent set of fingerprints and submitted to the Department of
Justice by the licensee or sent by electronic transmission in a
manner approved by the State Department of Social Services. A
licensee's failure to submit fingerprints to the Department of
Justice, or to comply with paragraph (1) of subdivision (g), as
required in this section, shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation, per day
, for a maximum of five days, unless the violation is
a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and
shall be grounds for disciplining the licensee pursuant to Section
1550. The State Department of Social Services may assess civil
penalties for continued violations as allowed in Section 1568.0822.
The fingerprints shall then be submitted to the State Department of
Social Services for processing. The licensee shall maintain and make
available for inspection documentation of the individual's clearance
or exemption.
(2) A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day , for a maximum
of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining
the licensee pursuant to Section 1550. The department may assess
civil penalties for continued violations as permitted by Section
1568.0822.
(3) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in this
subdivision. If no criminal record information has been recorded,
the Department of Justice shall provide the licensee and the State
Department of Social Services with a statement of that fact within 14
calendar days of receipt of the fingerprints. If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints, notify
the licensee that the fingerprints were illegible. When live-scan
technology is operational, as defined in Section 1522.04, the
Department of Justice shall notify the department, as required by
that section, and shall notify the licensee by mail within 14 days of
electronic transmission of the fingerprints to the Department of
Justice, if the person has no criminal history record.
(4) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of Social
Services, on the basis of the fingerprints submitted to the
Department of Justice, that the person has been convicted of a sex
offense against a minor, an offense specified in Section 243.4, 273a,
273d, 273g, or 368 of the Penal Code, or a felony, the department
shall notify the licensee to act immediately to terminate the person'
s employment, remove the person from the residential care facility,
or bar the person from entering the residential care facility. The
department may subsequently grant an exemption pursuant to
subdivision (f). If the conviction was for another crime, except a
minor traffic violation, the licensee shall, upon notification by the
department, act immediately to either (1) terminate the person's
employment, remove the person from the residential care facility, or
bar the person from entering the residential care facility; or (2)
seek an exemption pursuant to subdivision (f). The department shall
determine if the person shall be allowed to remain in the facility
until a decision on the exemption is rendered. A licensee's failure
to comply with the department's prohibition of employment, contact
with clients, or presence in the facility as required by this
paragraph shall result in a citation of deficiency and an immediate
assessment of civil penalties by the department against the licensee,
in the amount of one hundred dollars ($100) per violation, per day
, for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant to
Section 1568.082.
(5) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(6) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting that person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
setting aside the verdict of guilty, or dismissing the accusation,
information, or indictment. For purposes of this chapter, the record
of a conviction, or a copy thereof certified by the clerk of the
court or by a judge of the court in which the conviction occurred,
shall be conclusive evidence of the conviction. For purposes of this
section or any other provision of this chapter, the arrest
disposition report certified by the Department of Justice, or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code, shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility as specified in
paragraphs (4), (5), and (6) of subdivision (c) if the director has
substantial and convincing evidence to support a reasonable belief
that the applicant and the person convicted of the crime, if other
than the applicant, are of such good character as to justify issuance
of the license or special permit or granting an exemption for
purposes of subdivision (c). However, an exemption may not be
granted pursuant to this subdivision if the conviction was for any of
the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professional Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1568.092.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearance to be transferred.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1568.092, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a
result of that denial or termination.
(i) (1) The Department
of Justice shall charge a fee sufficient to cover its cost in
providing services to comply with the 14-day requirement contained in
subdivision (c) for provision to the department of criminal record
information.
(2) Paragraph (1) shall cease to be implemented when the
department adopts emergency regulations pursuant to Section 1522.04,
and shall become inoperative when permanent regulations are adopted
under that section.
(j) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing January 1, 1999.
SEC. 3. Section 1569.17 of the Health and Safety Code is amended
to read:
1569.17. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a
residential care facility for the elderly. The Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999. It
is the intent of the Legislature in enacting this section to require
the fingerprints of those individuals whose contact with clients of
residential care facilities for the elderly may pose a risk to the
clients' health and safety.
(a) (1) Before issuing a license to any person or persons to
operate or manage a residential care facility for the elderly, the
department shall secure from an appropriate law enforcement agency a
criminal record to determine whether the applicant or any other
person specified in subdivision (b) has ever been convicted of a
crime other than a minor traffic violation or arrested for any crime
specified in Section 290 of the Penal Code, for violating Section 245
or 273.5, subdivision (b) of Section 273a or, prior to January 1,
1994, paragraph (2) of Section 273a of the Penal Code, or for any
crime for which the department cannot grant an exemption if the
person was convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit a second set of fingerprints to the Department of
Justice, for the purpose of searching the records of the Federal
Bureau of Investigation, in addition to the search required by
subdivision (a). If an applicant meets all other conditions for
licensure, except receipt of the Federal Bureau of Investigation's
criminal history information for the applicant and persons listed in
subdivision (b), the department may issue a license if the applicant
and each person described by subdivision (b) has signed and submitted
a statement that he or she has never been convicted of a crime in
the United States, other than a traffic infraction as defined in
paragraph (1) of subdivision (a) of Section 42001 of the Vehicle
Code. If, after licensure, the department determines that the
licensee or person specified in subdivision (b) has a criminal
record, the license may be revoked pursuant to Section 1569.50. The
department may also suspend the license pending an administrative
hearing pursuant to Sections 1569.50 and 1569.51.
(b) In addition to the applicant, the provisions of this section
shall apply to criminal convictions of the following persons:
(1) (A) Adults responsible for administration or direct
supervision of staff.
(B) Any person, other than a client, residing in the facility.
Residents of unlicensed independent senior housing facilities that
are located in contiguous buildings on the same property as a
residential care facility for the elderly shall be exempt from these
requirements.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the
residential care facility for the elderly. The facility shall
maintain the copy of the certification on file as long as the care is
being provided by the certified nurse assistant or certified home
health aide at the facility. Nothing in this paragraph restricts the
right of the department to exclude a certified nurse assistant or
certified home health aide from a licensed residential care facility
for the elderly pursuant to Section 1569.58.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in a
similar capacity.
(F) Additional officers of the governing body of the applicant or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from requirements applicable
under paragraph (1):
(A) A spouse, relative, significant other, or close friend of a
client shall be exempt if this person is visiting the client or
provides direct care and supervision to that client only.
(B) A volunteer to whom all of the following apply:
(i) The volunteer is at the facility during normal waking hours.
(ii) The volunteer is directly supervised by the licensee or a
facility employee with a criminal record clearance or exemption.
(iii) The volunteer spends no more than 16 hours per week at the
facility.
(iv) The volunteer does not provide clients with assistance in
dressing, grooming, bathing, or personal hygiene.
(v) The volunteer is not left alone with clients in care.
(C) A third-party contractor retained by the facility if the
contractor is not left alone with clients in care.
(D) A third-party contractor or other business professional
retained by a client and at the facility at the request or by
permission of that client. These individuals may not be left alone
with other clients.
(E) Licensed or certified medical professionals are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care facility licensee or an employee of the
facility.
(F) Employees of licensed home health agencies and members of
licensed hospice interdisciplinary teams who have contact with a
resident of a residential care facility at the request of the
resident or resident's legal decisionmaker are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care facility licensee or an employee of the
facility.
(G) Clergy and other spiritual caregivers who are performing
services in common areas of the residential care facility, or who are
advising an individual resident at the request of, or with
permission of, the resident, are exempt from fingerprint and criminal
background check requirements imposed by community care licensing.
This exemption does not apply to a person who is a community care
facility licensee or an employee of the facility.
(H) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(I) Nothing in this paragraph shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(c) (1) (A) Subsequent to initial licensure, any person required
to be fingerprinted pursuant to subdivision (b) shall, as a condition
to employment, residence, or presence in a residential facility for
the elderly, be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal convictions. The licensee
shall submit these fingerprints, along with a second set of
fingerprints for the purpose of searching the records of the Federal
Bureau of Investigation, to the Department of Justice, or to comply
with paragraph (1) of subdivision (g) prior to the person's
employment, residence, or initial presence in the residential care
facility for the elderly.
(B) These fingerprints shall be on a fingerprint card provided by
the State Department of Social Services, or sent by electronic
transmission in a manner approved by the State Department of Social
Services and the Department of Justice and submitted to the
Department of Justice by the licensee. A licensee's failure to
submit fingerprints to the Department of Justice, or to comply with
paragraph (1) of subdivision (g), as required in this section, shall
result in the citation of a deficiency and an immediate assessment of
civil penalties in the amount of one hundred dollars ($100) per
violation, per day , for a maximum of five
days, unless the violation is a second or subsequent violation within
a 12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a
maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. The State Department of Social
Services may assess civil penalties for continued violations as
permitted by Section 1569.49. The licensee shall then submit these
fingerprints to the State Department of Social Services for
processing. Documentation of the individual's clearance or exemption
shall be maintained by the licensee and be available for inspection.
When live-scan technology is operational, as defined in Section
1522.04, the Department of Justice shall notify the department, as
required by that section, and notify the licensee by mail within 14
days of electronic transmission of the fingerprints to the Department
of Justice, if the person has no criminal record. A violation of
the regulations adopted pursuant to Section 1522.04 shall result in
the citation of a deficiency and an immediate assessment of civil
penalties in the amount of one hundred dollars ($100) per violation,
per day , for a maximum of five days, unless
the violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30
days, and shall be grounds for disciplining the licensee pursuant to
Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1569.49.
(2) Within 14 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided for in this
subdivision. If no criminal record information has been recorded,
the Department of Justice shall provide the licensee and the State
Department of Social Services with a statement of that fact within 14
calendar days of receipt of the fingerprints. If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints, notify
the licensee that the fingerprints were illegible.
(3) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If the State Department of Social Services determines,
on the basis of the fingerprints submitted to the Department of
Justice, that the person has been convicted of a sex offense against
a minor, an offense specified in Section 243.4, 273a, 273d, 273g, or
368 of the Penal Code, or a felony, the State Department of Social
Services shall notify the licensee in writing within 15 calendar days
of the receipt of the notification from the Department of Justice to
act immediately to terminate the person's employment, remove the
person from the residential care facility for the elderly, or bar the
person from entering the residential care facility for the elderly.
The State Department of Social Services may subsequently grant an
exemption pursuant to subdivision (f). If the conviction was for
another crime, except a minor traffic violation, the licensee shall,
upon notification by the State Department of Social Services, act
immediately to either (1) terminate the person's employment, remove
the person from the residential care facility for the elderly, or bar
the person from entering the residential care facility for the
elderly or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered by the
department. A licensee's failure to comply with the department's
prohibition of employment, contact with clients, or presence in the
facility as required by this paragraph shall result in a citation of
deficiency and an immediate assessment of civil penalties by the
department against the licensee, in the amount of one hundred dollars
($100) per violation, per day , for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining
the licensee pursuant to Section 1569.50.
(4) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(4), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (4).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal or when an
order granting probation is made suspending the imposition of the
sentence, notwithstanding a subsequent order pursuant to the
provisions of Sections 1203.4 and 1203.4a of the Penal Code
permitting a person to withdraw his or her plea of guilty and to
enter a plea of not guilty, or setting aside the verdict of guilty,
or dismissing the accusation, information, or indictment. For
purposes of this section or any other provision of this chapter, the
record of a conviction, or a copy thereof certified by the clerk of
the court or by a judge of the court in which the conviction
occurred, shall be conclusive evidence of the conviction. For
purposes of this section or any other provision of this chapter, the
arrest disposition report certified by the Department of Justice or
documents admissible in a criminal action pursuant to Section 969b of
the Penal Code shall be prima facie evidence of the conviction,
notwithstanding any other provision of law prohibiting the admission
of these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license as specified in
paragraphs (1) and (4) of subdivision (a), or for employment,
residence, or presence in a residential care facility for the elderly
as specified in paragraphs (4), (5), and (6) of subdivision (c) if
the director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of such good character as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption may
not be granted pursuant to this subdivision if the conviction was
for any of the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(2) The director shall notify in writing the licensee or the
applicant of his or her decision within 60 days of receipt of all
information from the applicant and other sources determined necessary
by the director for the rendering of a decision pursuant to this
subdivision.
(3) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1569.58.
(g) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be submitted in writing to the department, and
shall include a copy of the person's driver's license or valid
identification card issued by the Department of Motor Vehicles, or a
valid photo identification issued by another state or the United
States government if the person is not a California resident. Upon
request of the licensee, who shall enclose a self-addressed stamped
envelope for this purpose, the department shall verify whether the
individual has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred under this
section.
(h) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the department that the employee has a
prior criminal conviction or is determined unsuitable for employment
under Section 1569.58, the licensee or facility shall not incur civil
liability or unemployment insurance liability as a result of that
denial or termination.
(i) Amendments to the provisions of this section made in the 1998
calendar year shall be implemented commencing 60 days after the
effective date of the act amending this section in the 1998 calendar
year, except those provisions for the submission of fingerprints for
searching the records of the Federal Bureau of Investigation, which
shall be implemented commencing on January 1, 1999.
SEC. 4. Section 1596.871 of the Health and Safety Code is amended
to read:
1596.871. The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a child
care center or family child care home. Therefore, the Legislature
supports the use of the fingerprint live-scan technology, as defined
in the long-range plan of the Department of Justice for fully
automating the processing of fingerprints and other data by the year
1999, otherwise known as the California Crime Information
Intelligence System (CAL-CII), to be used for applicant fingerprints.
It is the intent of the Legislature in enacting this section to
require the fingerprints of those individuals whose contact with
child day care facility clients may pose a risk to the children's
health and safety.
(a) (1) Before issuing a license or special permit to any person
to operate or manage a day care facility, the department shall secure
from an appropriate law enforcement agency a criminal record to
determine whether the applicant or any other person specified in
subdivision (b) has ever been convicted of a crime other than a minor
traffic violation or arrested for any crime specified in Section 290
of the Penal Code, for violating Section 245 or 273.5, subdivision
(b) of Section 273a or, prior to January 1, 1994, paragraph (2) of
Section 273a of the Penal Code, or for any crime for which the
department cannot grant an exemption if the person was convicted and
the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04 fiscal year, neither the Department
of Justice nor the department may charge a fee for the fingerprinting
of an applicant who will serve six or fewer children or any family
day care applicant for a license, or for obtaining a criminal record
of an applicant pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
(E) An applicant and any other person specified in subdivision (b)
shall submit a second set of fingerprints to the Department of
Justice, for the purpose of searching the records of the Federal
Bureau of Investigation, in addition to the search required by
subdivision (a). If an applicant meets all other conditions for
licensure, except receipt of the Federal Bureau of Investigation's
criminal history information for the applicant and persons listed in
subdivision (b), the department may issue a license if the applicant
and each person described by subdivision (b) has signed and submitted
a statement that he or she has never been convicted of a crime in
the United States, other than a traffic
infraction as defined in paragraph (1) of
subdivision (a) of Section 42001 of the Vehicle Code. If, after
licensure, the department determines that the licensee or person
specified in subdivision (b) has a criminal record, the license may
be revoked pursuant to Section 1596.885. The department may also
suspend the license pending an administrative hearing pursuant to
Section 1596.886.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a child, residing in the facility.
(C) Any person who provides care and supervision to the children.
(D) Any staff person, volunteer, or employee who has contact with
the children.
(i) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person is
directly supervised by the licensee or a facility employee with a
criminal record clearance or exemption, the volunteer spends no more
than 16 hours per week at the facility, and the volunteer is not left
alone with children in care.
(ii) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of this
subdivision if the student is directly supervised by the licensee or
a facility employee with a criminal record clearance or exemption,
the facility has an agreement with the educational institution
concerning the placement of the student, the student spends no more
than 16 hours per week at the facility, and the student is not left
alone with children in care.
(iii) A volunteer who is a relative, legal guardian, or foster
parent of a client in the facility shall be exempt from the
requirements of this subdivision.
(iv) A contracted repair person retained by the facility, if not
left alone with children in care, shall be exempt from the
requirements of this subdivision.
(v) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer, other person serving in
like capacity, or a person designated by the chief executive officer
as responsible for the operation of the facility, as designated by
the applicant agency.
(F) If the applicant is a local educational agency, the president
of the governing board, the school district superintendent, or a
person designated to administer the operation of the facility, as
designated by the local educational agency.
(G) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(H) This section does not apply to employees of child care and
development programs under contract with the State Department of
Education who have completed a criminal records clearance as part of
an application to the Commission on Teacher Credentialing, and who
possess a current credential or permit issued by the commission,
including employees of child care and development programs that serve
both children subsidized under, and children not subsidized under, a
State Department of Education contract. The Commission on Teacher
Credentialing shall notify the department upon revocation of a
current credential or permit issued to an employee of a child care
and development program under contract with the State Department of
Education.
(I) This section does not apply to employees of a child care and
development program operated by a school district, county office of
education, or community college district under contract with the
State Department of Education who have completed a criminal record
clearance as a condition of employment. The school district, county
office of education, or community college district upon receiving
information that the status of an employee's criminal record
clearance has changed shall submit that information to the
department.
(2) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individuals exempt from
the requirements under this subdivision.
(c) (1) (A) Subsequent to initial licensure, any person specified
in subdivision (b) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a child day care
facility be fingerprinted and sign a declaration under penalty of
perjury regarding any prior criminal conviction. The licensee shall
submit these fingerprints to the Department of Justice, along with a
second set of fingerprints for the purpose of searching the records
of the Federal Bureau of Investigation, or to comply with paragraph
(1) of subdivision (h), prior to the person's employment, residence,
or initial presence in the child day care facility.
(B) These fingerprints shall be on a card provided by the State
Department of Social Services for the purpose of obtaining a
permanent set of fingerprints and submitted to the Department of
Justice by the licensee or sent by electronic transmission in a
manner approved by the State Department of Social Services. A
licensee's failure to submit fingerprints to the Department of
Justice, or to comply with paragraph (1) of subdivision (h), as
required in this section, shall result in the citation of a
deficiency, and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation, per day
, for a maximum of five days, unless the violation is
a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and
shall be grounds for disciplining the licensee pursuant to Section
1596.885 or Section 1596.886. The State Department of Social Services
may assess civil penalties for continued violations permitted by
Sections 1596.99 and 1597.62. The fingerprints shall then be
submitted to the State Department of Social Services for processing.
Within 14 calendar days of the receipt of the fingerprints, the
Department of Justice shall notify the State Department of Social
Services of the criminal record information, as provided in this
subdivision. If no criminal record information has been recorded,
the Department of Justice shall provide the licensee and the State
Department of Social Services with a statement of that fact within 14
calendar days of receipt of the fingerprints. If new fingerprints
are required for processing, the Department of Justice shall, within
14 calendar days from the date of receipt of the fingerprints, notify
the licensee that the fingerprints were illegible.
(C) Documentation of the individual's clearance or exemption shall
be maintained by the licensee, and shall be available for
inspection. When live-scan technology is operational, as defined in
Section 1522.04, the Department of Justice shall notify the
department, as required by that section, and notify the licensee by
mail within 14 days of electronic transmission of the fingerprints to
the Department of Justice, if the person has no criminal record.
Any violation of the regulations adopted pursuant to Section 1522.04
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation. The department may assess civil penalties for
continued violations, as permitted by Sections 1596.99 and 1597.62.
(2) Except for persons specified in paragraph (2) of subdivision
(b), the licensee shall endeavor to ascertain the previous employment
history of persons required to be fingerprinted under this
subdivision. If it is determined by the department, on the basis of
fingerprints submitted to the Department of Justice, that the person
has been convicted of a sex offense against a minor, an offense
specified in Section 243.4, 273a, 273d, 273g, or 368 of the Penal
Code, or a felony, the State Department of Social Services shall
notify the licensee to act immediately to terminate the person's
employment, remove the person from the child day care facility, or
bar the person from entering the child day care facility. The
department may subsequently grant an exemption pursuant to
subdivision (f). If the conviction was for another crime except a
minor traffic violation, the licensee shall, upon notification by the
State Department of Social Services, act immediately to either (1)
terminate the person's employment, remove the person from the child
day care facility, or bar the person from entering the child day care
facility; or (2) seek an exemption pursuant to subdivision (f). The
department shall determine if the person shall be allowed to remain
in the facility until a decision on the exemption is rendered. A
licensee's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the facility as
required by this paragraph shall result in a citation of deficiency
and an immediate assessment of civil penalties by the department
against the licensee, in the amount of one hundred dollars ($100) per
violation, per day , for a maximum of five
days, unless the violation is a second or subsequent violation within
a 12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a
maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1596.885 or 1596.886.
(3) The department may issue an exemption on its own motion
pursuant to subdivision (f) if the person's criminal history
indicates that the person is of good character based on the age,
seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption pursuant
to this paragraph.
(4) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption pursuant to subdivision (f). The
individual may seek an exemption only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
(d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting the person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this section
or any other provision of this chapter, the record of a conviction,
or a copy thereof certified by the clerk of the court or by a judge
of the court in which the conviction occurred, shall be conclusive
evidence of the conviction. For purposes of this section or any
other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(e) The State Department of Social Services may not use a record
of arrest to deny, revoke, or terminate any application, license,
employment, or residence unless the department investigates the
incident and secures evidence, whether or not related to the incident
of arrest, that is admissible in an administrative hearing to
establish conduct by the person that may pose a risk to the health
and safety of any person who is or may become a client. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
(f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a child day care facility as
specified in paragraphs (3), (4), and (5) of subdivision (c) if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of good character so as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption may
not be granted pursuant to this subdivision if the conviction was
for any of the following offenses:
(A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(a) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) or (b) of
Section 451 of the Penal Code.
(2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1596.8897.
(g) Upon request of the licensee, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprints.
(h) (1) For the purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two years
after an employee is no longer employed at a licensed facility in
order for the criminal record clearances to be transferred.
(i) Amendments to this section made in the 1998 calendar year
shall be implemented commencing 60 days after the effective date of
the act amending this section in the 1998 calendar year, except those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation, which shall be
implemented commencing January 1, 1999.
SEC. 5. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, date
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) Probation officers of the state.
(6) Parole officers of the state.
(7) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(8) A public defender or attorney of record when representing a
person in a criminal case and if authorized access by statutory or
decisional law.
(9) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
(10) Any city or county, or city and county, or district, or any
officer, or official thereof if access is needed in order to assist
that agency, officer, or official in fulfilling employment,
certification, or licensing duties, and if the access is specifically
authorized by the city council, board of supervisors, or governing
board of the city, county, or district if the criminal history
information is required to implement a statute, ordinance, or
regulation that expressly refers to specific criminal conduct
applicable to the subject person of the state summary criminal
history information, and contains requirements or exclusions, or
both, expressly based upon that specified criminal conduct.
(11) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120) of Chapter 1 of Title 1 of Part 4.
(12) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(13) Health officers of a city, county, or city and county, or
district, when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(14) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(15) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of level 1 humane
officers.
(16) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(17) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(c) The Attorney General may furnish state summary criminal
history information upon a showing of a compelling need to any of the
following, provided that when information is furnished to assist an
agency, officer, or official of state or local government, a public
utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) Any public utility as defined in Section 216 of the Public
Utilities Code that operates a nuclear energy facility when access is
needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To a peace officer of another country.
(4) To public officers (other than peace officers) of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(5) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(6) The courts of the United States, other states, or territories
or possessions of the United States.
(7) Peace officers of the United States, other states, or
territories or possessions of the United States.
(8) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(9) Any public utility as defined in Section 216 of the Public
Utilities Code, if access is needed in order to assist in employing
current or prospective employees who in the course of their
employment may be seeking entrance to private residences. The
information provided shall be limited to the record of convictions
and any arrest for which the person is released on bail or on his or
her own recognizance pending trial.
If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
Any information obtained from the state summary criminal history
is confidential and the receiving public utility shall not disclose
its contents, other than for the purpose for which it was acquired.
The state summary criminal history information in the possession of
the public utility and all copies made from it shall be destroyed not
more than 30 days after employment or promotion or transfer is
denied or granted, except for those cases where a current or
prospective employee is out on bail or on his or her own recognizance
pending trial, in which case the state summary criminal history
information and all copies shall be destroyed not more than 30 days
after the case is resolved.
A violation of this paragraph is a misdemeanor, and shall give the
current or prospective employee who is injured by the violation a
cause of action against the public utility to recover damages
proximately caused by the violations. Any public utility's request
for state summary criminal history information for purposes of
employing current or prospective employees who may be seeking
entrance to private residences in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
Nothing in this section shall be construed as imposing any duty
upon public utilities to request state summary criminal history
information on any current or prospective employees.
(10) To any campus of the California State University or the
University of California, or any four-year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may
require the convicted felon to be fingerprinted, and any inquiry to
the department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(d)
Whenever an authorized request for state summary criminal history
information pertains to a person whose fingerprints are on file with
the Department of Justice and the department has no criminal history
of that person, and the information is to be used for employment,
licensing, or certification purposes, the fingerprint card
accompanying the request for information, if any, may be stamped "no
criminal record" and returned to the person or entity making the
request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 12054 of the Penal
Code, and Section 13588 of the Education Code shall be deposited in a
special account in the General Fund to be available for expenditure
by the department to offset costs incurred pursuant to those sections
and for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and is to be used for peace officer employment or
certification purposes. As used in this subdivision, a peace officer
is defined in Chapter 4.5 (commencing with Section 830) of Title 3
of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition, provided that the
Department of Justice first makes a genuine effort to determine the
disposition of the arrest.
(D) Every detention or successful diversion.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101 of the Penal Code,
and the criminal history information is to be used for criminal
justice employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition, provided that the
Department of Justice first makes a genuine effort to determine the
disposition of the arrest.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and it is to be used for employment, licensing, or
certification purposes pursuant to any of the following sections, or
pursuant to any statute that incorporates the criteria of any of
these sections by reference:
Section 1522, 1568.09, 1569.17, or 1596.871 of the Health and
Safety Code.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(4) Notwithstanding any other provision of law, upon request from
the State Department of Social Services or a county acting as an
agent of the State Department of Social Services, the Department of
Justice shall substitute or add either the State Department of Social
Services or the county as an authorized agency to receive federal
and state summary criminal history information for an applicant,
including subsequent arrest and conviction notifications.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an agency,
organization, or individual pursuant to Section 11105.3 or 11105.4 of
this code, or Section 15660 of the Welfare and Institutions Code and
is to be used for employment, licensing, or certification purposes.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is furnished pursuant to paragraph (1),
the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the application or the conviction is over 10 years old but
the subject of the request was incarcerated within 10 years of the
application.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an agency or
organization pursuant to Section 777.5 of the Financial Code and is
to be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
777.5 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 777.5 of the Financial Code for which
the applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, and is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2. This subdivision shall not supersede sections that
mandate an agency, organization, or individual to contract with the
Department of Justice for subsequent arrest notification pursuant to
Section 11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.