1596.871.

 The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a child day care center or family child care home. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as defined in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with child day care facility clients may pose a risk to the children’s health and safety.

(a) (1) Before issuing a license or special permit to any person to operate or manage a child day care facility or family day care home licensed pursuant to this chapter, the department shall secure from an appropriate law enforcement agency a criminal record history information to determine whether the applicant or any other person specified in subdivision (b) who is not exempted from fingerprinting has ever been convicted any of the following:

(A) A conviction of a crime other than a minor traffic violation or arrested.

(B) An arrest for any crime specified in Section 290 of the Penal Code, for violating Section 245 or 273.5 of the Penal Code, for violating subdivision (b) of Section 273a of the Penal Code or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for.

(C) A conviction of any crime for which the person has not been exonerated and for which the department cannot may not grant an exemption if the person was convicted and the person has not been exonerated.

(2) (A) The criminal history information shall include the full criminal record, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.

(3) No fee shall be charged by the Department of Justice or the department for the fingerprinting of an applicant who will serve six or fewer children or any family day care home applicant for a license or special permit, or for obtaining a criminal record of an applicant pursuant to this section.

(4) The following shall apply to the criminal record information:

(A) If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) who is not exempted from fingerprinting has been convicted of a crime, other than a minor traffic violation, or arrested for a crime specified in subparagraph (B) of paragraph (1), subject to subdivision (e), the application shall be denied, unless the director grants an exemption pursuant to subdivision (f).

(B) If the State Department of Social Services department finds that the applicant, or any other person specified in subdivision (b) who is not exempted from fingerprinting, is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services department may cease processing the application until the conclusion of the trial or other disposition of the case.

(C) If no criminal record history information has been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.

(D) If the State Department of Social Services department finds after licensure or the issuance of a special permit that the licensee, special permit holder, or any other person specified in paragraph (2) of subdivision (b) who is not exempted from fingerprinting, has been convicted of a crime other than a minor traffic violation, or arrested for a crime specified in subparagraph (B) of paragraph (1), subject to subdivision (e), the license or special permit may be revoked, unless the director grants an exemption pursuant to subdivision (f).

(E) An applicant and any other person specified in subdivision (b) who is not exempted from fingerprinting shall submit a second set of fingerprints to the Department of Justice, for the purpose of searching the records of the Federal Bureau of Investigation, in addition to the search required by subdivision (a). If an applicant meets all other conditions for licensure or for a special permit, except for the State Department of Social Services’ receipt of the Federal Bureau of Investigation’s criminal history information for the applicant and persons listed in subdivision (b) who are not exempted from fingerprinting, the department may issue a license or a special permit if the applicant and each person described by subdivision (b) who is not exempted from fingerprinting has signed and submitted a statement declaration, under penalty of perjury, that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in punishable pursuant to paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code, or arrested for a crime specified in subparagraph (B) of paragraph (1). If, after licensure or the issuance of a special permit, the department determines that the licensee, special permit holder, or person specified in subdivision (b) who is not exempted from fingerprinting has a criminal record conviction of an offense other than a minor traffic violation or a record of arrest for any crime specified in subparagraph (B) of paragraph (1), subject to subdivision (e), the license or special permit may be revoked pursuant to Section 1596.885. The department may also suspend the license pending an administrative hearing pursuant to Section 1596.886.

(b) (1) In addition to the applicant, this section shall be applicable apply to criminal convictions and arrests of the following persons:

(A) Adults responsible for administration or direct supervision of staff.

(B) Any person, other than a child, residing in the facility.

(C) Any person who provides care and supervision to the children.

(D) Any staff person, volunteer, or employee who has contact with the children.

(E) If the applicant is a firm, partnership, association, or corporation, the chief executive officer, other person serving in like capacity, or a person designated by the chief executive officer as responsible for the operation of the child day care facility or family day care home, as designated by the applicant agency.

(F) If the applicant is a local educational agency, the president of the governing board, the school district superintendent, or a person designated to administer the operation of the facility, as designated by the local educational agency.

(G) Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the person’s capability to exercise substantial influence over the operation of the facility.

(B) Employees of child care and development programs under contract with the State Department of Education who have completed a criminal records clearance as part of an application to the Commission on Teacher Credentialing, and who possess a current credential or permit issued by the commission, including employees of child care and development programs that serve both children subsidized under, and children not subsidized under, a State Department of Education contract. The Commission on Teacher Credentialing shall notify the department upon revocation of a current credential or permit issued to an employee of a child care and development program under contract with the State Department of Education.

(C) Employees of a child care and development program operated by a school district, county office of education, or community college district under contract with the State Department of Education who have completed a criminal record clearance as a condition of employment. The school district, county office of education, or community college district upon receiving information that the status of an employee’s criminal record clearance has changed shall submit that information to the department.

(3) Nothing in this subdivision shall prevent a licensee or special permit holder from requiring a criminal record clearance of any individuals person exempt from the requirements under this subdivision.

(c) (1) (A) Subsequent to initial licensure, any person specified in subdivision (b) and who is not exempted from fingerprinting shall, as a condition to employment, residence, or presence in a child day care facility or family day care home be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal conviction, or any arrest for any crime specified in subparagraph (B) of paragraph (1) of subdivision (a). The licensee or special permit holder shall submit these fingerprints to the Department of Justice, along with a second set of fingerprints for the purpose of searching the records of the Federal Bureau of Investigation, or to shall 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 fingerprints shall be on a card provided in a form required by the State Department of Social Services for the purpose of obtaining a permanent set of fingerprints and submitted to the Department of Justice by the licensee or sent by electronic transmission in a manner approved by the State Department of Social Services. A licensee’s or special permit holder’s failure to submit fingerprints 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 by the State Department of Social Services and against the licensee or special permit holder, and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation. The State Department of Social Services may assess civil penalties for continued violations permitted by Sections 1596.99 and 1597.62. The fingerprints shall then be submitted to the State Department of Social Services Justice for processing. Within 14 calendar days of the receipt of the fingerprints, the Department of Justice shall notify the State Department of Social Services of the criminal record history information, as provided in this subdivision. If no criminal record history information has been recorded, the Department of Justice shall provide the licensee or special permit holder and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprints. If new fingerprints are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible are required.

(C) Documentation of the individual’s clearance or exemption from disqualification pursuant to subdivision (f) shall be maintained by the licensee or special permit holder, 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 Section 1522.04, and notify the licensee or special permit holder by mail within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal record history. 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, by the State Department of Social Services and against the licensee or special permit holder, in the amount of one hundred dollars ($100) per violation. The department may assess civil penalties for continued violations, as permitted by Sections 1596.99 and 1597.62.

(2) (A) Except for persons specified in paragraph (2) of subdivision (b) who are not exempt from fingerprinting, the licensee or special permit holder shall endeavor to ascertain the previous employment history of persons required to be fingerprinted under this subdivision (b). 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273d, 273g, or 368 of the Penal Code, or a felony, or has been arrested for any crime specified in subparagraph (B) of paragraph (1) of subdivision (a), subject to subdivision (e), the State Department of Social Services shall notify the licensee or special permit holder to act immediately to terminate the person’s employment, remove the person from the child day care facility or family day care home, or bar the person from entering the child day care facility or family day care home, as appropriate. The department may subsequently grant an exemption from disqualification pursuant to subdivision (f). If the conviction was for another crime except a minor traffic violation, the licensee or special permit holder shall, upon notification by the State Department of Social Services department, act immediately to either (1) (i) terminate the person’s employment, remove the person from the child day care facility or family day care home, or bar the person from entering the child day care facility or family day care home, as appropriate; or (2) (ii) seek an exemption from disqualification pursuant to subdivision (f). The

(B) The department shall determine if the person shall be allowed to remain in the child day care facility or family day care home until a decision on the exemption from disqualification pursuant to subdivision (f) is rendered. A licensee’s or special permit holder’s failure to comply with the department’s prohibition of employment, contact with clients, or presence in the child day care facility or family day care home as required by this paragraph 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. 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 or special permit holder pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption from disqualification pursuant to subdivision (f). The individual may seek an exemption from disqualification only if the licensee terminates the person’s employment or removes the person from the facility, or both, after receiving notice from the department pursuant to paragraph (3).

(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. Any action which that the department is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this section or any other provision 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 section or any other provision of this chapter, the arrest disposition 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 provision of law prohibiting the admission of these documents in a civil or administrative action.

(2) For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court, or arrests from another state or by any federal agency, as if the criminal offense was committed in this state.

(e) The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any application, license, special permit, employment, or residence unless the department investigates the incident and secures evidence, whether or not 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. The State Department of Social Services department is authorized to obtain any 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 child day care facilities or family day care homes and individuals associated with a community child day care facility or family day care home.

(f) (1) 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 or family day care home as specified in paragraphs (3), (4), and (5) of subdivision (c), if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the or other person convicted of the crime, if other than the applicant, are is of good character so as to justify issuance of the license or special permit or granting of an exemption for purposes of subdivision (c) pursuant to this subdivision. However, no exemption shall be granted pursuant to this subdivision if the conviction was for any of the following offenses:

(A) An offense specified in Section 220, 243.4, or 264.1 of the Penal Code, subdivision (a) of Section 273a of the Penal Code or, prior to January 1, 1994, paragraph (1) of Section 273a of the Penal Code, Section 273d, 288, or 289 of the Penal Code, subdivision (a) of any conviction for which the person is required to register as a sex offender pursuant to Section 290 of the Penal Code, or Section 368 of the Penal Code, or was a conviction of another crime against an individual an offense specified in subdivision (c) of Section 667.5 of the Penal Code if it is against an individual.

(B) A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) or (b) of Section 451 of, the Penal Code.

(2) The department shall not prohibit a person from being employed or having contact with clients in a child day care facility or family day care home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1596.8897.

(g) Upon request of the licensee or special permit holder, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.

(h) (1) For the purposes of compliance with this section, the department State Department of Social Services may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one child day care facility or family day care home to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another child day care facility or family day care home 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 or special permit holder, 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) (A) The State Department of Social Services department shall hold criminal record clearances in its active files for a minimum of two years after an employee a person is no longer employed at by, residing at, or present in a licensed child day care facility or family day care home in order for the criminal record clearances to be transferred.

(i) Amendments to this section made in the 1998 calendar year shall be implemented commencing 60 days after the effective date of the act amending this section in the 1998 calendar year, except those provisions for the submission of fingerprints for searching the records of the Federal Bureau of Investigation, which shall be implemented commencing January 1, 1999.