Amended
IN
Assembly
April 16, 2018 |
Amended
IN
Assembly
April 03, 2018 |
Introduced by Assembly Member Holden |
February 16, 2018 |
(a)(1)
(C)An applicant
(D)
(E)If the State Department of Social Services makes a final decision to deny an application solely or partly because of the applicant’s conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision pursuant to procedures set forth in the Government Code.
(F)
(G)
(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(I)
(J)
(K)The State Department of Social Services shall develop procedures to provide the individual’s state and federal summary criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record.
The summary criminal history information shall be provided to the individual, as set forth in the agency’s procedures. The procedure shall protect the confidentiality and privacy of the individual’s record, and the criminal history information shall not be made available to the employer.
(L)Notwithstanding any other law, the department
shall provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice
at any time. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request.
(3)
(4)
(5)
(6)
(d)(1)
(C)
It
(a)(1) Before
(2)The criminal history information shall include arrests for which the person is
awaiting trial, convictions for a directly and adversely related crime within the preceding five years, and convictions for a violent felony, 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)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services
shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information
submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(F)If the State Department of Social Services finds that the applicant or another person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).
(G)If the State Department of Social Services finds that the applicant, or another person specified in subdivision (b), is awaiting trial for a crime, the State Department of
Social Services may cease processing the criminal record information until the conclusion of the trial.
(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(I)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 directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, 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 been convicted of a directly and adversely related crime within the preceding five years or a violent felony, 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 Section 1568.082.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) and not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be
fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, 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 fingerprint images and related information shall be electronically submitted to the Department of Justice 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. A licensee’s failure to submit fingerprint images and related information 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 1568.082. The State Department of Social Services may assess civil penalties for continued violations as allowed in Section 1568.0822. The fingerprint images and related information shall then be submitted to the Department of Justice 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 1568.082. 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 fingerprint images, 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 fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images were illegible. The Department of Justice shall notify the department, as required by Section 1522.04, and shall notify the licensee by mail within 14 days of electronic transmission of the fingerprint images 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 fingerprint images submitted to the Department of Justice, that the person has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the licensee shall, upon notification by the department, act immediately to remove the person from the residential care facility or bar the person from entering the residential care facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving notice of the application for an exemption, 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, or evidence of rehabilitation. 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).
(7)Notwithstanding any other provisions of this code, a person shall not be denied an exemption
on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(d)(1)For purposes of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program,
successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An 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. For purposes of this chapter, the state summary criminal history 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 law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this
chapter, the department shall consider convictions from another state or federal court of a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending or not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence,
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.
(2)The State Department of Social Services may obtain relevant arrest or conviction records or reports from a 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)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in 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 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). An exemption
may be denied pursuant to this subdivision if the conviction was for a directly and adversely related crime within the preceding five years or a violent felony.
(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An
applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)The department shall 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 unless the department complies with 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 three
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 an employee based on written notification from the department that the employee has a prior conviction for a directly and adversely related crime within the preceding five years or a violent felony, 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)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(k)For purposes of this section, the following definitions apply:
(1)“Directly and adversely related crime” means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)“Violent felony” has the same meaning as in Section 667.5 of the Penal Code.
(a)(1)Before
(2)The criminal history information shall include the arrests for which the person is awaiting trial, convictions of directly and
adversely related crimes, and convictions of a violent felony, if any, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)The following shall apply to the criminal record information:
(A)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a
final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime within the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The
procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption pursuant to subdivision (f).
(G)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, the State Department of Social Services may cease processing the criminal record information
until the conclusion of the trial.
(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(I)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 directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department
of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, 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 been convicted of a directly and adversely related crime within
the preceding five years or a violent felony, 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.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from
fingerprinting shall obtain either a criminal record clearance or an exemption, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in a facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be
fingerprinted. The licensee shall submit these fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, 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 fingerprint images and related information shall be electronically transmitted in a manner approved by the State Department of Social Services and the Department of Justice. A licensee’s failure to submit fingerprint images and related information 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 1569.50. 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 fingerprint images 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. The Department of Justice shall notify the department, as required by Section 1522.04, 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 1569.50. 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 fingerprint images,
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 fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, notify the licensee that the fingerprint images 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 fingerprint images submitted to the Department of Justice, that the person has been convicted of a directly and adversely related crime within the preceding five years or a violent 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 remove the person from the residential care facility for the elderly or bar the person from entering the residential care facility for the elderly and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving the notice of application for exemption, 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, or evidence of rehabilitation. 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).
(6)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant
to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected on the report furnished by the Department of Justice.
(d)(1)For purposes of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of
judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. 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. 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 chapter, the state summary criminal history 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 law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this
chapter, the department shall consider criminal convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending and is not job related to revoke or terminate an
application, license, employment, or residence unless the department investigates the incident and secures evidence, 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.
(2)The State Department of Social Services
may obtain relevant 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)(A)After review of the record, the director may grant an exemption from disqualification for a license as specified in 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 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). An exemption may be granted pursuant to this subdivision if the conviction was for a directly and adversely related crime within the preceding five years or a violent felony.
(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who
has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(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 shall 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 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 three 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 an employee based on written notification from the department that the employee has a prior conviction for a directly and adversely related crime within the preceding five years or a violent felony, 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)(1)The department shall retain application forms and other documents submitted by applicants, notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or
potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(j)For purposes of this
section, the following definitions apply:
(1)“Directly and adversely related crime” means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)“Violent felony” has the same meaning as in Section 667.5 of the Penal Code.
(a)(1)Before
(2)The criminal history information shall include arrests for which the person is awaiting trial, convictions of directly and adversely related crimes within the preceding five years, and convictions for a
violent felony, if any, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 2003–04 to the 2018–19 fiscal years, inclusive, 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)The State Department of Social Services may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of clearance, exemption, or
licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the State Department of Social Services shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information to respond to the State Department of Social Services before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the State Department of Social Services in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating
to the information, then the applicant shall have 10 additional business days to submit that information to the State Department of Social Services.
(D)The State Department of Social Services shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant, or any other person specified in subdivision (b), has been convicted of a directly and adversely related crime with the preceding five years or a violent felony. The department may deny clearance or an exemption for a person who has been convicted of a directly and adversely related crime within the preceding five years or a violent felony.
(E)If the State Department of Social Services makes a final decision to deny an
application solely or in part because of the applicant’s conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.
(F)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a directly and adversely related crime within the preceding five years or a violent felony, the department may grant an exemption
pursuant to subdivision (f).
(G)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, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(H)If a criminal conviction has not been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(I)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
directly and adversely related crime within the preceding five years or a violent felony, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(J)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, 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 been convicted of a directly and adversely related crime within the preceding five years or a violent felony, 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.
(c)(1)(A)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification, pursuant to subdivision (f), from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be
fingerprinted. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, or 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 fingerprint images and related information shall be electronically submitted to the Department of Justice 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. A licensee’s failure to submit fingerprint images and related information 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 1596.886. The State Department of Social Services may assess civil penalties for repeated or continued violations permitted by Sections 1596.99 and 1597.58. The fingerprint images and related information shall then be submitted to the department for processing. Within 14 calendar days of the receipt of the fingerprint images, 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 fingerprint images. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprint images, 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 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. The department may assess civil penalties for repeated or continued violations, as permitted by Sections 1596.99 and 1597.58.
(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 directly and adversely related crime within the preceding five years or a violent felony, the State Department of Social Services shall notify the licensee to act immediately to remove the person from the child day care facility or bar the person from entering the child day care facility, pending an appeal, and to seek an exemption pursuant to subdivision (f). The department shall determine, within five business days of receiving notice of the application for exemption, 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, or evidence of rehabilitation. 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).
(5)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant
who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(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. A conviction does not include successful completion of a post- or pre-plea diversion program, successful completion of a post- or pre-plea deferred entry of judgment program, dismissal of a conviction pursuant to Sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1210.1 of the Penal Code, or a conviction for which rehabilitative relief has been granted, including, but
not limited to, a certificate of rehabilitation or a pardon by the Governor. 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. 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 chapter, the state summary criminal history 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 law prohibiting the
admission of these documents in a civil or administrative action.
(2)For purposes of this chapter, the department shall consider convictions from another state or federal court for a directly and adversely related crime or a crime that would, if committed in this state, be a violent felony, as if the criminal offense was committed in this state.
(e)(1)The State Department of Social Services shall not use a record of arrest that is not pending and not job related to revoke or terminate an application, license, employment, or residence unless the department investigates the incident and secures evidence, 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.
(2)The State Department of Social Services may obtain relevant 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)(A)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 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). An exemption may be granted pursuant to this subdivision if the conviction was for a directly and adversely related crime that occurred within the preceding five years or a violent felony.
(B)The department shall not bar an applicant based solely on the type of conviction without considering evidence of rehabilitation.
(C)Notwithstanding any other provisions of this code, a person shall not be denied an exemption on the basis of a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or
1203.42 of the Penal Code or a conviction for which rehabilitative relief has been granted, including, but not limited to, a certificate of rehabilitation or a pardon by the Governor. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42 of the Penal Code or who has been granted rehabilitative relief shall provide proof of the dismissal or relief if it is not reflected in the report furnished by the Department of Justice.
(2)The department shall 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 unless the department complies with the requirements of Section 1596.8897.
(g)Upon request of the licensee, who shall enclose a self-addressed
stamped envelope for this purpose, the Department of Justice shall verify receipt of the fingerprint images.
(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 three years after an employee is no longer employed at a licensed facility in order for the criminal record clearances to be transferred.
(3)The following shall apply to a criminal record clearance or exemption from the department or a county office with department-delegated licensing authority:
(A)A county office with department-delegated licensing authority shall accept a clearance or exemption from the department.
(B)The department shall accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority shall accept a clearance or exemption from any other county office with department-delegated licensing authority.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by the department or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall
process a request from the department or a county office with department-delegated licensing authority to receive the notice, only if all of the following conditions are met:
(i)The request is submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request is for the same applicant type as the type for which the original clearance was obtained.
(iii)The request contains all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department
of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a county’s delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department or a county office with department-delegated licensing authority a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(i)(1)The department shall retain application forms and other documents submitted by applicants,
notices provided to applicants, all other communications received from and provided to applicants, and criminal history reports of applicants for a minimum of three years.
(2)The department shall retain all of the following information:
(A)The number of applicants for each license type and the number of applications requiring criminal history inquiries.
(B)The number of applicants with a criminal record who received notice of disqualification or potential disqualification.
(C)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.
(D)The number of
applicants with a criminal record who appealed disqualification.
(E)The final disposition and demographic information, including, but not limited to, the race of the applicants described in subparagraphs (B) to (D), inclusive.
(3)The department shall make the information collected pursuant to paragraph (2) available to the public on an annual basis, while ensuring the confidentiality of the individual applicants.
(j)For purposes of this section, the following definitions apply:
(1)“Directly and adversely related crime” means a crime that is directly and adversely related to the qualifications, functions, or duties of the business or profession for which
application is made. Criteria for determining whether a crime is directly and adversely related shall include the nature and gravity of the offense, the age of the offense, and the nature and duties of the profession in which the applicant seeks licensure.
(2)“Violent felony” has the same meaning as in Section 667.5 of the Penal Code.
(2)
(3)
(2)If the department finds that the home care aide applicant
or registered home care aide has a job-related arrest, as described in subdivision (a) of Section 1522, within the preceding five years, the department may deny the registration application or registration renewal application, or revoke the registered home care aide’s registration, if the home care aide or registered home care aide may pose a risk to the health and safety of any person who is or may become a client and the department complies with subdivision (e) of Section 1522.
(5)The following shall apply to the state summary criminal history information:
(A)The department may not require an applicant to disclose any information or documentation regarding his or her criminal history as a condition of registration, exemption, or licensure.
(B)Within five business days of receiving state or federal summary criminal history information furnished by the Department of Justice pertaining to an applicant, the department shall provide an applicant with a complete copy of the information received.
(C)An applicant shall have at least 10 business days after receiving a copy of state or federal summary criminal history information
to respond to the department before adverse action is taken against the applicant. If, within the 10 business days, the applicant notifies the department in writing that the applicant disputes the accuracy of the state or federal summary criminal history information, or wishes to offer additional evidence relating to the information, then the applicant shall have 10 additional business days to submit that information to the department.
(D)The department shall consider information submitted by the applicant pursuant to subparagraph (C) before making a final decision. The department shall determine whether the applicant has been convicted of a directly and adversely related crime, as defined in subdivision (m) of Section 1522, or a violent felony, as defined in Section 667.5 of the Penal Code. The department may deny licensure, registration, or
an exemption for a person who has been convicted of a directly and adversely related crime that occurred within the preceding five years or of a violent felony.
(E)If the department makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the department shall notify the applicant, in writing, of all the following:
(i)The final denial or disqualification.
(ii)The procedure for the applicant to challenge the decision or request reconsideration.
(iii)The right to appeal the decision under procedures set forth in the Government Code.