BILL ANALYSIS �
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|Hearing Date:June 23, 2014 |Bill No:AB |
| |2396 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 2396Author:Bonta
As Amended:May 15, 2014 Fiscal: Yes
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conviction that has been withdrawn, set aside, or dismissed by the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: (Business & Professions Code (BPC) �
Section 480(a))
a) Been convicted of a crime, as specified;
b) Committed any act involving dishonesty, fraud, or deceit with
the intent to substantially benefit himself or herself or
another, or substantially injure another; or,
c) Committed any act that if done by a licentiate of the business
or profession in question, would be grounds for suspension or
revocation of license.
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 an 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
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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 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 at 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. (Id.)
8)Provides that in a case in which a defendant who was convicted
of a misdemeanor and not granted probation, or convicted of an
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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 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)
This bill: Prohibits boards and bureaus within DCA from denying a
professional license based solely on a prior conviction that was
dismissed by a court.
FISCAL EFFECT: This measure is keyed "fiscal" by Legislative Counsel.
According to the Assembly Appropriations Committee, this bill would
impose minor and absorbable costs to each of the affected boards.
COMMENTS:
1. Purpose. This bill is sponsored by the Alameda County Board of
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Supervisors . According to the Author, "[This bill] is designed to
reduce employment barriers for people with criminal records who
have been rehabilitated. [This bill] allows them the opportunity
to pursue meaningful employment and work towards entering the
middle class, instead of struggling in low-wage jobs or returning
to crime.
"In many cases, individuals seeking a professional license struggle to
achieve self-sufficiency because of consideration of a dismissed
record that is irrelevant to their ability to perform the job.
Under current law, even applicants who are presumed to be
rehabilitated by the court system may still have their license
denied.
"According to a 2007 report prepared by the Board of Barbering and
Cosmetology, of the 501 applicants denied by the Board over the
preceding five 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."
2. Criminal Convictions: What Barriers Do They Create? 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
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conviction was dismissed by the court. Licensing boards under DCA
are authorized by statute to deny a license based on dismissed
convictions.
3. Expungement and Dismissal of Prior Convictions. 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 crimes 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.
4. License Denials: Appeal Process. Over half of the boards under DCA
require criminal history information, and other boards require
applicants to self-report any criminal history. While criminal
background checks are supposed to show whether a conviction has
been dismissed, this does not always occur. If a board denies a
license, it is required to notify the applicant by letter, which
provides the applicant with the specific reasons why the
application was denied. An applicant has the right to appeal the
denial of the application by requesting a statement of issues
hearing, and must submit a request for that hearing within 60 days
of the date of the letter. Once a written request for a hearing is
made, it is forwarded to the Attorney General's office. At the
hearing, an applicant may present evidence and witnesses to prove
that his or her application for a certificate or license should not
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be denied.
5. Professional Boards Discretion When Denying 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.
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 non-profit 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 to 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 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
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reason for denying a license.
6. Related Legislation This Year. AB 1702 (Maienschein) 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. The
bill exempts the Board of Chiropractic Examiners (BCE) from these
requirements. ( Status : This bill is pending in the Senate Committee
on Business, Professions, and Economic Development.)
SB 1384 (Mitchell) 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. ( Status : This bill is awaiting referral at
the Assembly Desk.)
7. Previous Legislation. AB 218 (Dickinson, Chapter 699, Statutes of
2013) prohibits 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) authorizes 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) requires 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
requires 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) provides clarification
on the issuance of mortgage loan originator licenses with the
existence of expunged or pardoned felony convictions.
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AB 2423 (Bass, Chapter 675, Statutes of 2008) requires 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 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. ( Status: 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."
8. 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
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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."
9. Arguments in Opposition. Several boards, including the Board of
Psychology, underscores, "this bill would have a fiscal impact on
the Board through increased utilization of investigators, the
Attorney General's Office, and staff resources. This Board also
has concerns that this bill would impede the Board's ability to
protect consumers of psychological services in the State of
California."
According to the Board of Behavioral Sciences , "The Board has seen
cases of applications having multiple DUI, theft, and assault
charges which occurred over the past 5-10 years, all of which have
been expunged. To ensure the public protection, the Board must
examine each case individually to determine whether these
convictions remain relevant to the safe practice to psychotherapy."
The Respiratory Care Board of California writes, "dismissal of a
conviction is not indicative of rehabilitation, although AB 2396
creates a presumption of such and could result in a risk to
consumers by prohibiting the denial of a license based on
conviction that have been dismissed."
SUPPORT AND OPPOSITION:
Support:
Alameda County (Sponsor)
California Catholic Conference, Inc.
Lawyers' Committee for Civil Rights of the San Francisco Bay Area
Legal Services for Prisoners with Children
National Employment Law Project
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Women's Foundation
Opposition:
Board of Psychology
Board of Behavioral Sciences
Contractors State License Board
Respiratory Care Board of California
Consultant:Mark Mendoza