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AB-1662 Licensing boards: disqualification from licensure: criminal conviction.(2021-2022)

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Date Published: 04/27/2022 09:00 PM
AB1662:v98#DOCUMENT

Amended  IN  Assembly  April 27, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1662

Introduced by Assembly Member Gipson

January 18, 2022

An act to amend Section 480 of add Section 480.7 to the Business and Professions Code, relating to professions and vocations.


LEGISLATIVE COUNSEL'S DIGEST


AB 1662, as amended, Gipson. Licensing boards: disqualification from licensure: criminal conviction.
Existing law provides for the licensure and regulation of various professions and vocations by boards within the Department of Consumer Affairs. Existing law authorizes a board to deny, suspend, or revoke a license on the grounds that the applicant or licensee has been subject to formal discipline, as specified, or convicted of a crime substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, as specified.
This bill would authorize a prospective applicant that has been convicted of a crime to submit to a board a request for a preapplication determination that includes information provided by the prospective applicant regarding their criminal conviction. The bill would require a board that receives that request to determine if the prospective applicant would be disqualified from licensure by the board based on the information submitted with the request, and deliver that determination to the prospective applicant. require a board to establish a process by which prospective applicants may request a preapplication determination as to whether their criminal history could be cause for denial of a completed application for licensure by the board. The bill would provide that the preapplication determination, among other things, may be requested by the prospective applicant at any time prior to the submission of an application and would require the board to include specified written information regarding the criteria used to evaluate criminal history and how the prospective applicant may challenge a denial by the board. The bill would provide that a preapplication determination does not constitute a denial or disqualification of an application and would prohibit requiring a preapplication determination for licensure or for participation in any education or training program. The bill would require a board to publish information regarding its process for requesting a preapplication determination on its internet website and authorize a board to charge a fee, as specified, to be deposited by the board into the appropriate fund and available only upon appropriation by the Legislature.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 480.7 is added to the Business and Professions Code, to read:

480.7.
 (a) A board shall establish a process by which prospective applicants may request a preapplication determination as to whether their criminal history could be cause for denial of a completed application for licensure by the board pursuant to Section 480.
(b) The process required by subdivision (a) shall allow for prospective applicants to request a preapplication determination at any time prior to the submission of a completed application through any method through which the board allows for the submission of completed applications.
(c) (1) If a prospective applicant requests a preapplication determination, a board designated in subdivision (b) of Section 144 may require a prospective applicant to furnish a full set of fingerprints for purposes of conducting a criminal history record check as part of a preapplication determination.
(2) Prospective applicants seeking a preapplication determination shall be considered applicants for purposes of Section 144.
(3) A board that receives criminal history information as part of a preapplication determination is not required to request subsequent arrest notification service from the Department of Justice pursuant to Section 11105.2 of the Penal Code.
(d) If a prospective applicant requests a preapplication determination, a board issuing a license pursuant to Chapter 3 (commencing with Section 5500), Chapter 3.5 (commencing with Section 5615), Chapter 10 (commencing with Section 7301), Chapter 20 (commencing with Section 9800), or Chapter 20.3 (commencing with Section 9880), of Division 3, or Chapter 3 (commencing with Section 19000) or Chapter 3.1 (commencing with Section 19225) of Division 8 may require prospective applicants for licensure under those chapters to disclose criminal conviction history as part of a preapplication determination.
(e) A preapplication determination shall not constitute the denial or disqualification of an application for purposes of Section 489 or any other law.
(f) Upon making a preapplication determination finding that a prospective applicant’s criminal history could be cause for denial of a completed application, a board shall provide the prospective applicant with all of the following in writing:
(1) A summary of the criteria used by the board to consider whether a crime is considered to be substantially related to the qualifications, functions, or duties of the business or profession it regulates consistent with Section 481.
(2) The processes for the applicant to request a copy of the applicant’s complete conviction history and question the accuracy or completeness of the record pursuant to Sections 11122 to 11127, inclusive, of the Penal Code.
(3) That the applicant would have the right to appeal the board’s decision.
(4) Any existing procedure the board has for the prospective applicant would have to challenge the decision or to request reconsideration following the denial of a completed application, including a copy of the criteria relating to rehabilitation formulated under Section 482.
(g) A board shall publish information regarding its process for requesting a preapplication determination on its internet website.
(h) A preapplication determination shall not be a requirement for licensure or for participation in any education or training program.
(i) Pursuant to this section, a board may charge a fee to a prospective applicant in an amount not to exceed the lesser of fifty dollars ($50) or the reasonable cost of administering this section. The fee shall be deposited by the board into the appropriate fund and shall be available only upon appropriation by the Legislature.
(j) For purposes of this section, “board” includes each licensing entity listed in Section 101, excluding the Bureau for Private Postsecondary Education and the State Athletic Commission, and the Department of Real Estate.

SECTION 1.Section 480 of the Business and Professions Code is amended to read:
480.

(a)Notwithstanding any provision of this code, a board may deny a license regulated by this code on the grounds that the applicant has been convicted of a crime or has been subject to formal discipline only if either of the following conditions are met:

(1)The applicant has been convicted of a crime within the preceding seven years from the date of application that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made, regardless of whether the applicant was incarcerated for that crime, or the applicant has been convicted of a crime that is substantially related to the qualifications, functions, or duties of the business or profession for which the application is made and for which the applicant is presently incarcerated or for which the applicant was released from incarceration within the preceding seven years from the date of application. However, the preceding seven-year limitation shall not apply in either of the following situations:

(A)The applicant was convicted of a serious felony, as defined in Section 1192.7 of the Penal Code or a crime for which registration is required pursuant to paragraph (2) or (3) of subdivision (d) of Section 290 of the Penal Code.

(B)The applicant was convicted of a financial crime currently classified as a felony that is directly and adversely related to the fiduciary qualifications, functions, or duties of the business or profession for which the application is made, pursuant to regulations adopted by the board, and for which the applicant is seeking licensure under any of the following:

(i)Chapter 6 (commencing with Section 6500) of Division 3.

(ii)Chapter 9 (commencing with Section 7000) of Division 3.

(iii)Chapter 11.3 (commencing with Section 7512) of Division 3.

(iv)Licensure as a funeral director or cemetery manager under Chapter 12 (commencing with Section 7600) of Division 3.

(v)Division 4 (commencing with Section 10000).

(2)The applicant has been subjected to formal discipline by a licensing board in or outside California within the preceding seven years from the date of application based on professional misconduct that would have been cause for discipline before the board for which the present application is made and that is substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made. However, prior disciplinary action by a licensing board within the preceding seven years shall not be the basis for denial of a license if the basis for that disciplinary action was a conviction that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425 of the Penal Code or a comparable dismissal or expungement.

(b)Notwithstanding any provision of this code, a person shall not be denied a license on the basis that the person has been convicted of a crime, or on the basis of acts underlying a conviction for a crime, if that person has obtained a certificate of rehabilitation under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code, has been granted clemency or a pardon by a state or federal executive, or has made a showing of rehabilitation pursuant to Section 482.

(c)Notwithstanding any provision of this code, a person shall not be denied a license on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to Section 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425 of the Penal Code, or a comparable dismissal or expungement. 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 shall provide proof of the dismissal if it is not reflected on the report furnished by the Department of Justice.

(d)Notwithstanding any provision of this code, a board shall not deny a license on the basis of an arrest that resulted in a disposition other than a conviction, including an arrest that resulted in an infraction, citation, or a juvenile adjudication.

(e)A board may deny a license regulated by this code on the ground that the applicant knowingly made a false statement of fact that is required to be revealed in the application for the license. A board shall not deny a license based solely on an applicant’s failure to disclose a fact that would not have been cause for denial of the license had it been disclosed.

(f)A board shall follow the following procedures in requesting or acting on an applicant’s criminal history information:

(1)A board issuing a license pursuant to Chapter 3 (commencing with Section 5500), Chapter 3.5 (commencing with Section 5615), Chapter 10 (commencing with Section 7301), Chapter 20 (commencing with Section 9800), or Chapter 20.3 (commencing with Section 9880), of Division 3, or Chapter 3 (commencing with Section 19000) or Chapter 3.1 (commencing with Section 19225) of Division 8 may require applicants for licensure under those chapters to disclose criminal conviction history on an application for licensure.

(2)Except as provided in paragraph (1), a board shall not require an applicant for licensure to disclose any information or documentation regarding the applicant’s criminal history. However, a board may request mitigating information from an applicant regarding the applicant’s criminal history for purposes of determining substantial relation or demonstrating evidence of rehabilitation, provided that the applicant is informed that disclosure is voluntary and that the applicant’s decision not to disclose any information shall not be a factor in a board’s decision to grant or deny an application for licensure.

(3)If a board decides to deny an application for licensure based solely or in part on the applicant’s conviction history, the board shall notify the applicant in writing of all of the following:

(A)The denial or disqualification of licensure.

(B)Any existing procedure the board has for the applicant to challenge the decision or to request reconsideration.

(C)That the applicant has the right to appeal the board’s decision.

(D)The processes for the applicant to request a copy of the applicant’s complete conviction history and question the accuracy or completeness of the record pursuant to Sections 11122 to 11127 of the Penal Code.

(g)(1)A prospective applicant that has been convicted of a crime may submit to a board, by mail or email, and at any time, including before obtaining any training or education required for licensure by that board or before paying any application fee, a request for a preapplication determination that includes information provided by the prospective applicant regarding their criminal conviction.

(2)Upon receiving a request submitted pursuant to paragraph (1), a board shall determine if the prospective applicant may be disqualified from licensure by the board based on the information submitted with the request, and deliver the determination by mail or email to the prospective applicant within a reasonable time.

(h)(1)For a minimum of three years, each board under this code shall retain application forms and other documents submitted by an applicant, any notice provided to an applicant, all other communications received from and provided to an applicant, and criminal history reports of an applicant.

(2)Each board under this code shall retain the number of applications received for each license and the number of applications requiring inquiries regarding criminal history. In addition, each licensing authority shall retain all of the following information:

(A)The number of applicants with a criminal record who received notice of denial or disqualification of licensure.

(B)The number of applicants with a criminal record who provided evidence of mitigation or rehabilitation.

(C)The number of applicants with a criminal record who appealed any denial or disqualification of licensure.

(D)The final disposition and demographic information, consisting of voluntarily provided information on race or gender, of any applicant described in subparagraph (A), (B), or (C).

(3)(A)Each board under this code shall annually make available to the public through the board’s internet website and through a report submitted to the appropriate policy committees of the Legislature deidentified information collected pursuant to this subdivision. Each board shall ensure confidentiality of the individual applicants.

(B)A report pursuant to subparagraph (A) shall be submitted in compliance with Section 9795 of the Government Code.

(i)“Conviction” as used in this section shall have the same meaning as defined in Section 7.5.

(j)This section does not in any way modify or otherwise affect the existing authority of the following entities in regard to licensure:

(1)The State Athletic Commission.

(2)The Bureau for Private Postsecondary Education.

(3)The California Horse Racing Board.