BILL ANALYSIS �
AB 2396
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
AB 2396 (Bonta) - As Amended: April 21, 2014
SUBJECT : Convictions: expungement: licenses.
SUMMARY : Prohibits boards within the Department of Consumer
Affairs (DCA) from denying a professional license based solely
on a criminal conviction that has been withdrawn, set aside or
dismissed by the court.
EXISTING LAW
1)Allows a board to deny a license to an applicant if the
applicant has done one of the following:
a) Been convicted of a crime, as specified;
b) Done any act involving dishonesty, fraud, or deceit with
the intent to substantially benefit himself or herself or
another, or substantially injure another; or,
c) Done any act that if done by a licentiate of the
business or profession in question, would be grounds for
suspension or revocation of license. (Business &
Professions Code (BPC) Section 480(a))
1)Authorizes a board to deny a license, as specified, only if a
crime or act is substantially related to the qualifications,
functions, or duties of the business or profession for which
application is made. (BPC 480(a)(3)(B))
2)Specifies that no person shall be denied a license solely on
the basis that he or she has been convicted of a felony if he
or she has obtained a certificate of rehabilitation, as
specified, or that he or she has been convicted of a
misdemeanor, if he or she has met all applicable requirements
of the criteria of rehabilitation developed by the board to
evaluate the rehabilitation of a person when considering the
denial of a license, as specified. (BPC 480(b))
3)Requires each board to develop criteria to aid it when
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considering the denial, suspension or revocation of a license,
in order to determine whether a crime or act is substantially
related to the qualifications, functions, or duties of the
business or profession it regulates. (BPC 481)
4)Requires each board, as specified, to develop criteria to
evaluate the rehabilitation of a person when considering the
denial, or suspension of revocation, of a license by the
board, as specified. (BPC 482)
5)Requires a board that has denied an application for a license
to include a copy of the criteria relating to rehabilitation,
as specified, and to inform the applicant of the earliest date
on which the applicant may reapply for licensure and that all
competent evidence of rehabilitation presented will be
considered upon reapplication. (BPC 486).
6)Provides that in any case, except as specified, in which
a defendant has fulfilled the condition of probation, or
has been discharged prior to termination of probation, or
in any case in which a court determines a person should
be granted relief in the interest of justice, the court
may withdraw or set aside a guilty plea and shall dismiss
the accusations or information against the defendant and
release the defendant from all penalties and disabilities
resulting from the offense of which he or she has been
convicted and inform them of their right to petition for
a certificate of rehabilitation and pardon. (Penal Code
Section (PC) 1203.4)
7)Provides that if the court dismisses the accusations of
information against the defendant, it does not relieve
him or her of the obligation to disclose the conviction
in an application for licensure for any state or local
agency. (PC 1203.4)
8)Provides that in a case in which a defendant who was
convicted of a misdemeanor and not granted probation, or
convicted of an infraction, and who has fully complied
with and performed the sentence of the court, is not
serving a sentence for any offense and is not under
charge of commission of any crime, and if one year has
elapsed since the date of judgment, the court may
withdraw or set aside the guilty plea and dismiss the
accusatory pleading against the defendant, who shall
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thereafter be released from all penalties and
disabilities resulting from the offense of which he or
she was convicted, except as specified. (PC 1203.4a(a))
9)Provides that if a defendant does not satisfy all of the
above conditions but has fully complied with and
performed the sentence of the court, is not serving a
sentence for any offense, and is not under charge of
commission of any crime, and one year has lapsed since
the judgment, the court may, in its discretion and in the
interests of justice, withdraw or set aside and dismiss
the conviction. (PC 1203.4a(b))
10)Provides that if a defendant is sentenced to county jail
pursuant to criminal justice realignment and is not under
mandatory supervision and not serving a sentence for, on
probation for, or charged with the commission of, any
offense, and at least one year has elapsed since the
judgment, the court, in its discretion and in the
interests of justice, may withdraw or set aside the
guilty plea and dismiss the accusatory pleading against
the defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense of
which he or she was convicted, except as specified. (PC
1203.41)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill would prohibit boards and
bureaus within DCA from denying a professional license based
solely on a prior conviction that was dismissed by a court
which determined that the individual completed all the terms
of his or her sentence without committing any additional
offenses, or which determined a dismissal would serve the
interests of justice. In doing so, the author aims to
alleviate barriers to employment after incarceration. This
bill is sponsored by the Alameda County Board of Supervisors.
2)Author's statement . According to the author, "[This bill] is
designed to reduce employment barriers for people with
criminal records who have been rehabilitated. [This bill]
allows them the opportunity to pursue meaningful employment
and work towards entering the middle class, instead of
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struggling in low-wage jobs or returning to crime.
"In many cases, individuals seeking a professional license
struggle to achieve self-sufficiency because of consideration
of a dismissed record that is irrelevant to their ability to
perform the job. Under current law, even applicants who are
presumed to be rehabilitated by the court system may still
have their license denied.
"According to a 2007 report prepared by the Board of Barbering
and Cosmetology, of the 501 applicants denied by the Board
over the preceding five hears, all 501 applicants possessed
criminal records. Only 33 applicants were determined to have
produced evidence of rehabilitation. [This bill] will
eliminate this fundamental unfairness within the law. In
addition, [this bill] will help address the shortage of
qualified labor in many fields, increase employment in those
fields, and spur economic growth."
3)Barriers to employment for individuals with criminal
convictions . According to the National Institute of Justice
Journal, nearly one-third of American adults have been
arrested by age 23. A criminal record keeps many people from
obtaining employment, even if they have completed their
sentences, are qualified for the job and are unlikely to
reoffend. In addition, research shows that employment is the
single most effective factor in reducing offending rates. In
California, nearly one in five California adults has a
criminal record, and the state is home to millions of people
with arrest, prosecution, and conviction records. While most
have successfully completed their sentences, they still
continue to experience barriers to employment as a result of
their criminal records.
A person's criminal record may range from a one-time arrest that
was never prosecuted, to lengthy and serious criminal
histories. Criminal background checks are common among
employers, and 26 boards under DCA require criminal background
checks. As a result, many individuals may be affected by old
convictions and arrests, even though research indicates that a
person, after a limited period of time, is at no greater risk
of being arrested than a counterpart in the general
population. In addition to facing bias from potential
employers, an individual may also be denied a professional
license based on a past conviction, even if that conviction
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was dismissed by the court. Licensing boards under DCA are
authorized by statute to deny a license based on dismissed
convictions.
4)Obtaining a dismissal of a conviction . Penal Code Sections
1203.4, 1203.4a, and 1203.41 provide expungement relief to an
individual who has committed certain types of crimes. This
relief is not available to persons who were sentenced to
prison, or who have committed certain sex or other offenses,
as specified. While most major felonies result in a prison
sentence, not all felonies require a defendant to serve a
prison sentence. As a result, only persons who were convicted
of misdemeanors or felonies who were sentenced to probation,
which may include jail time, or who were convicted of
misdemeanors or infractions and were not sentenced to
probation, may have their conviction dismissed.
In order to obtain a dismissal, a person must successfully serve
and complete all the terms of their sentence, including paying
any restitution and fines, and not be charged with any other
offenses. In addition, a person must file a petition with the
court, which may include information about the offense,
letters of recommendation, proof of compliance with the terms
of probation, and any other materials that may assist the
court in making a decision. The petition must also be served
to the applicable District or City Attorney, who may object to
the petition and provide evidence to the court that the
dismissal should not be granted. The court will decide on the
petition, and if the petition is denied, an individual may
file for reconsideration or refile the petition at a later
date. As a result, this "set aside and dismissal" remedy is
limited both in terms of scope and application.
5)License denials . Over half of the boards under DCA require
criminal history information, and other boards require
applicants to self-report any criminal history. While
criminal background checks are supposed to show whether a
conviction has been dismissed, this does not always occur.
BPC Section 480 generally grants boards great latitude to deny a
license based on a past conviction or bad act. If a board
denies a license, it is required to notify the applicant by
letter, which provides the applicant with the specific reasons
why the application was denied. An applicant has the right to
appeal the denial of the application by requesting a statement
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of issues hearing, and must submit a request for that hearing
within 60 days of the date of the letter. Once a written
request for a hearing is made, it is forwarded to the Attorney
General's office. At the hearing, an applicant may present
evidence and witnesses to prove that his or her application
for a certificate or license should not be denied.
6)Professional boards have great discretion when determining
whether to deny a license . Existing law authorizes each board
to deny a professional license based on an applicant's past
conviction, "act involving dishonest, fraud, or deceit," or
other act that could subject a licensee to license suspension
or revocation, if that conviction or act is "substantially
related" to the qualifications, functions, or duties of the
business or profession for which application is made. This
discretion does not distinguish between types of convictions
or types of dishonest acts, and these terms are so broad that
many convictions or acts could be determined by a board to be
cause for denial of a license. In addition, there are no
other qualifications, such as how long ago a person was
convicted or had committed a bad act, or whether a board has
to take that length of time into consideration. It is up to
each board to determine what they consider as criteria for
license denial or rehabilitation.
Some boards, like the Contractor's State License Board, might
consider an applicant convicted of a substantially related
felony to be rehabilitated if seven years elapsed since his or
her sentence was served without any additional criminal
activity or other bad acts, and if three years have elapsed
for misdemeanor convictions, and looks to other criteria, such
as the passage of time since a substantially related crime or
act occurred and whether there is evidence of expungement.
Conversely, the Board of Barbering and Cosmetology generally
requires the board to look at the time that has elapsed since
the commission of an act or crime that is substantially
related and whether the applicant has completed with any terms
of parole, probation, restitution, or any other sanctions
lawfully imposed against the applicant. As a result, while
many boards may take expungement into account, there is no
guarantee that they all will, or that the weight given to
expungement is consistent.
For example, in Brandt v. Fox (1979) 90 Cal.App.3d 737, the Real
Estate Commissioner used this broad discretion to deny
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plaintiff's real estate license based on a prior conviction
for distribution of cocaine. Prior to the arrest, plaintiff
led an "exemplary life," and after he was sentenced, he was in
full compliance with his terms of probation, including making
regular payments towards his criminal fine. However,
plaintiff was still denied a license based on his one and only
past criminal conviction. In overturning that license denial,
the court determined that, "Given the isolated nature of the
incident, the fact that it occurred over four years ago, the
lack of any evidence that plaintiff's subsequent conduct has
been other than exemplary, or that such conduct bore a
substantial relationship to the qualifications, functions or
duties of, or otherwise rendered him unfit to engage in, the
activity for which he sought a license, we must conclude that
the Commissioner's decision to deny plaintiff's application
was not supported by substantial evidence."
There is no data that tracks how many people are denied
professional licenses based on a past conviction, how many of
those denials were based on convictions that were dismissed,
or how many denials based on dismissed convictions were
successfully appealed. However, according to the Lawyers'
Committee for Civil Rights of the San Francisco Bay Area, one
nonprofit organization that hosts expungement clinics and
assist individuals with prior convictions to obtain a license
or appeal a license denial, it has seen at least 20-30 cases
where licenses were denied by a professional board based on a
conviction that was dismissed. According to the Lawyer's
Committee, once they got involved in an appeal, they
experienced an extremely high level of success, which makes
one question why the license was denied in the first place and
whether these decisions are arbitrary or fraught with too much
discretion.
License denials are generally not subject to review unless there
is alleged misconduct or the denial is being appealed. In
addition, while some may argue that the appeals process allows
the system to correct itself, many applicants may lack the
knowledge or have access to limited legal resources to help
them pursue an appeal of a denial.
It should be noted that this bill would not affect a board's
ability to deny a license based on other convictions or
arrests that are part of a person's criminal record, or other
acts that a person has committed. This bill would only
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prevent boards from presuming that an applicant has not been
rehabilitated based only on a conviction that has been
dismissed by a court, and using that as the sole reason for
denying a license.
7)Arguments in support . According to the sponsors, Alameda
County Board of Supervisors, "In private industries,
applicants are not required to disclose an expunged record as
part of the hiring process. [This bill] similarly creates the
presumption of rehabilitation (only for an expunged
conviction) in determining licensing for professions such as
cosmetologists, pharmacists, and optometrists under [DCA].
[This bill] would increase the number of people who are able
to obtain livable wage employment, allowing them to more
successfully raise their families and contribute to their
communities. It would also expand the pool of qualified
candidates for jobs in the County."
The Lawyers' Committee for Civil Rights of the San Francisco Bay
Area also writes in support, "By disregarding the 'set aside
and dismissal' remedy, Section 480 in its current form
undermines the state's efforts to encourage individuals to
demonstrate rehabilitation. Indeed, the majority of our
clients seeking licensure with [DCA] have been denied despite
having attained dismissals of their convictions. Denying a
license to an applicant on the sole basis of a dismissed
conviction unnecessarily limits the applicant's ability to
find gainful employment, provide for his or her family, and
otherwise successfully reintegrate into the community."
The Women's Foundation of California also writes, "By receiving
a dismissal of a conviction, a process that includes proof of
rehabilitation, a qualified applicant will be able to receive
a license and will be more able to achieve economic security
without resorting to criminal behavior. Providing a level
playing field where all qualified Californians can have the
ability to get a job is in the interest of all of us."
8)Related legislation . AB 1702 (Maienschein) of 2014 specifies
that an individual who has satisfied the requirements for
licensure while incarcerated and who applies for licensure
after being released from incarceration shall not have his or
her application delayed or denied solely based on the prior
incarceration. This bill is in the Assembly Appropriations
Committee.
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SB 1384 (Mitchell) of 2014 would presume, for purposes of
determining whether to deny, or suspend or revoke, a license
for a certified nurse assistant, an individual to be
successfully rehabilitated if he or she has completed any
probation, mandatory supervision, or parole, if applicable,
and at least three years have elapsed within a subsequent
conviction after final discharge or release from any term of
imprisonment. This bill is in the Senate Health Committee.
9)Previous legislation . AB 218 (Dickinson), Chapter 699,
Statutes of 2013, prohibited a state or local agency from
asking an applicant to disclose information regarding a
criminal conviction, except as specified, until the agency has
determined the applicant meets the minimum employment
qualifications for the position.
AB 651 (Bradford), Chapter 787, Statutes of 2013, authorized a
court, in its discretion and in the interests of justice, to
grant expungement relief for a conviction of a petitioner
sentenced to county jail pursuant to criminal justice
realignment if specified conditions are satisfied.
SB 1077 (Price), Chapter 291, Statutes of 2011, required the
Director of DCA when considering the granting of a
probationary license, registration, certificate, or permit, to
request that an applicant with a dismissed conviction provide
proof of that dismissal, and required that special
consideration be given to applicants with dismissed, and that
the Director take into account any other reasonable documents
or individual character references provided by the applicant.
SB 2017 (Vargas), Chapter 444, Statutes of 2011, provided
clarification on the issuance of mortgage loan originator
licenses with the existence of expunged or pardoned felony
convictions.
AB 2423 (Bass), Chapter 675, Statutes of 2008, required the
Veterinary Medical Board, Structural Pest Control Board, Board
of Vocational Nursing and Psychiatric Technicians of the State
of California, State Board of Barbering and Cosmetology, and
the Director of DCA, when considering the issuance or granting
of a probationary license or registration, to request that an
applicant with a dismissed conviction provide proof of that
dismissal and would require that special consideration be
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given to applicants whose convictions have been dismissed, as
specified.
AB 1025 (Bass) of 2007 would have provided that an applicant for
a license with a board under DCA may not be denied licensure
or have his or her license suspended or revoked solely on the
basis that he or she has been convicted of a felony or
misdemeanor if that conviction was dismissed, unless the board
provides substantial evidence, as specified, justifying the
denial, suspension, or revocation. This bill was vetoed by
the Governor.
In his veto message, Governor Schwarzenegger wrote, "AB 1025
creates a presumption of rehabilitation based on an
expungement of a conviction. This is problematic for two
reasons. First, expungement is not intended to be indicative
of rehabilitation. Second, this provision places the burden of
proof on state licensing bodies to show than an individual is
not rehabilitated, which would result in increased litigation
and extensive investigations."
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County Board of Supervisors (sponsor)
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
National Employment law Project
The Women's Foundation of California
Opposition
None on file.
Analysis Prepared by : Eunie Linden / B.,P. & C.P. / (916)
319-3301