BILL ANALYSIS �
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2396|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 2396
Author: Bonta (D), et al.
Amended: 8/19/14 in Senate
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 5-3, 6/23/14
AYES: Lieu, Corbett, Hernandez, Hill, Torres
NOES: Wyland, Berryhill, Galgiani
NO VOTE RECORDED: Block
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 55-17, 5/23/14 - See last page for vote
SUBJECT : Convictions: expungement: licenses
SOURCE : Alameda County Board of Supervisors
DIGEST : This bill 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solely on a criminal conviction that has been withdrawn, set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.
Senate Floor Amendments of 8/19/14 clarify that the burden be on
the applicant, rather than the board, to provide a proof of
conviction dismissal.
ANALYSIS :
CONTINUED
AB 2396
Page
2
Existing law:
1. Allows a board to deny a license to an applicant if the
applicant has (a) been convicted of a crime, as specified;
(b) committed any act involving dishonesty, fraud, or deceit
with the intent to substantially benefit himself/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.
2. 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.
3. Specifies that no person shall be denied a license solely on
the basis that he/she has been convicted of a felony if
he/she has obtained a certificate of rehabilitation, as
specified, or that he/she has been convicted of a
misdemeanor, if he/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.
4. 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.
5. 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.
6. 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.
CONTINUED
AB 2396
Page
3
This bill:
1. Prohibits boards within the DCA from denying a professional
license based solely on a criminal conviction that has been
withdrawn, set aside, or dismissed by the court.
2. Requires an applicant who has a conviction that has been
dismissed pursuant to specified provisions to provide proof
of the dismissal.
Background
Criminal convictions: barriers . 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 was dismissed by the court. Licensing boards
under DCA are authorized by statute to deny a license based on
dismissed convictions.
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
CONTINUED
AB 2396
Page
4
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.
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/her application
for a certificate or license should not be denied.
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,
CONTINUED
AB 2396
Page
5
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 will 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 will 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 reason for denying a license.
CONTINUED
AB 2396
Page
6
Comments
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 years, 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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, ongoing costs
of $390,000 per year to conduct investigations on license
applicants with expunged convictions by various licensing boards
(Special Fund). DCA indicates that the majority of boards and
bureaus under its jurisdiction will have minor and absorbable
costs. However, the following boards indicate costs will be
incurred as a result of increased workload to conduct
investigations on license applicants with expunged convictions:
The Board of Behavioral Sciences estimates annual costs of
$227,195. (Behavioral Science Examiners Fund)
The Board of Psychology estimates annual costs of $86,266.
CONTINUED
AB 2396
Page
7
(Psychology Fund)
The Board of Pharmacy estimates costs in 2015-16 of $56,000
and ongoing costs of $48,000. (Pharmacy Board Contingent
Fund)
The Dental Board estimates annual costs of $26,640. (State
Dentistry Fund)
As noted above, the boards that have reported increased costs as
a result of this bill are primarily those involved in certain
health-related professions. Notably absent from this list is
the Medical Board, whose staff indicates that license denials
based on a prior conviction, even those that were dismissed, are
already thoroughly investigated.
SUPPORT : (Verified 8/20/14)
Alameda County Board of Supervisors (source)
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
SEIU Local 1000
Women's Foundation
OPPOSITION : (Verified 8/20/14)
Board for Professional Engineers, Land Surveyors, and Geologists
Board of Behavioral Sciences
Board of Optometry
Board of Psychology
Contractors State License Board
Respiratory Care Board of California
ARGUMENTS IN SUPPORT : According to the bill's sponsor,
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
CONTINUED
AB 2396
Page
8
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 writes, "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/her family, and otherwise successfully reintegrate into the
community."
The Women's Foundation of California 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 us all."
ARGUMENTS IN OPPOSITION : 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 public protection, the
Board must examine each case individually to determine whether
these convictions remain relevant to the safe practice of
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
CONTINUED
AB 2396
Page
9
convictions that have been dismissed."
ASSEMBLY FLOOR : 55-17, 5/23/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bloom, Bocanegra,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Ch�vez, Chesbro, Cooley, Dababneh, Daly, Dickinson, Eggman,
Fong, Fox, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray,
Hagman, Hall, Holden, Jones-Sawyer, Levine, Lowenthal,
Maienschein, Medina, Melendez, Mullin, Nazarian, Olsen, Pan,
Perea, John A. P�rez, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Skinner, Stone, Ting, Weber, Wieckowski, Williams, Yamada,
Atkins
NOES: Bigelow, Conway, Dahle, Donnelly, Beth Gaines, Grove,
Jones, Linder, Logue, Mansoor, Muratsuchi, Patterson,
Quirk-Silva, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Bonilla, Frazier, Gorell, Harkey, Roger
Hern�ndez, Nestande, V. Manuel P�rez, Vacancy
MW:d 8/20/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED