AB 1914: Underground installations: excavations.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-09-23
Existing law requires an excavator planning to conduct any excavation to contact the appropriate regional notification center before beginning that excavation, as specified. Existing law, if an excavation is within the tolerance zone of a subsurface installation, requires the excavator to determine the exact location of the subsurface installations in conflict with the excavation using specified tools, except as otherwise provided.
This bill, beginning July 1, 2020, would authorize an excavator to use certain equipment prior to determining the exact location of the subsurface installations, and would require the California Underground Facilities Safe Excavation Board, on or before July 1, 2020, to adopt regulations to implement this provision.
Existing law requires an excavator planning to conduct any excavation to contact the appropriate regional notification center before beginning that excavation, as specified. Existing law, if an excavation is within the tolerance zone of a subsurface installation, requires the excavator to determine the exact location of the subsurface installations in conflict with the excavation using specified tools, except as otherwise provided.
This bill, beginning July 1, 2020, would authorize an excavator to use certain equipment prior to determining the exact location of the subsurface installations, and would require the California Underground Facilities Safe Excavation Board, on or before July 1, 2020, to adopt regulations to implement this provision.
Existing law requires any person who plans an excavator planning to conduct any excavation to contact the appropriate regional notification center before commencing beginning that excavation, as specified. Existing law requires an operator of a subsurface installation who receives notification of proposed excavation work, within 2 working days of that notification excluding weekends and holidays, to mark the approximate location and number of subsurface installations that may be affected by the excavation or to advise that no subsurface installations operated by him or her would be affected. law, if an excavation is within the tolerance zone of a subsurface installation, requires the excavator to determine the exact location of the subsurface installations in conflict with the excavation using specified tools, except as otherwise provided.
This bill bill, beginning July 1, 2020, would authorize an excavator to use certain equipment prior to determining the exact location of the subsurface installations, and would require the California Underground Facilities Safe Excavation Board, by on or before July 1, 2020, to adopt regulations to allow the excavation to be done with certain equipment prior to determining the exact location of the facilities affected by the excavation. The bill would also require the board to adopt and post on its Internet Web site guidelines that would be in effect until the regulations are adopted to permit an excavator and the operator of subsurface installations to agree to the use of specified hand-held equipment to excavate prior to determining the exact location of the facilities affected by the excavation. implement this provision.
Existing law requires any person who plans to conduct any excavation to contact the appropriate regional notification center before commencing that excavation, as specified. Existing law requires an operator of a subsurface installation who receives notification of proposed excavation work, within 2 working days of that notification excluding weekends and holidays, to mark the approximate location and number of subsurface installations that may be affected by the excavation or to advise that no subsurface installations operated by him or her would be affected.
This bill would authorize an excavator and the operator of affected subsurface facilities to agree to require the California Underground Facilities Safe Excavation Board, by July 1, 2020, to adopt regulations to allow the excavation to be done with certain equipment prior to determining the exact location of the facilities affected by the excavation. The bill would also require the board to adopt and post on its Internet Web site guidelines that would be in effect until the regulations are adopted to permit an excavator and the operator of subsurface installations to agree to the use of specified hand-held equipment to excavate prior to determining the exact location of the facilities affected by the excavation.
Existing law requires any person who plans to conduct any excavation to contact the appropriate regional notification center before commencing that excavation, as specified. Existing law requires an operator of a subsurface installation who receives notification of proposed excavation work, within 2 working days of that notification excluding weekends and holidays, to mark the approximate location and number of subsurface installations that may be affected by the excavation or to advise that no subsurface installations operated by him or her would be affected.
This bill would authorize an excavator and the operator of affected subsurface facilities to agree to allow the excavation to be done with certain equipment prior to determining the exact location of the facilities affected by the excavation.
Existing law prohibits the State Department of Social Services from authorizing individuals who have been convicted of certain crimes from working or otherwise being present at a community care facility, a residential care facility for persons with a chronic, life-threatening illness, a residential care facility for the elderly, or a child day care facility. The act requires the department to perform criminal background investigations of individuals as part of its licensing and regulatory oversight of these facilities.This bill would enumerate additional crimes that prohibit the department from authorizing an individual from working or otherwise being present at these facilities, including, among other crimes, the willful and unlawful use of personal identifying information.Existing law prohibits the State Department of Social Services from authorizing individuals who have been convicted of certain crimes from working or otherwise being present at a community care facility, a residential care facility for persons with a chronic, life-threatening illness, a residential care facility for the elderly, or a child day care facility. The act requires the department to perform criminal background investigations of individuals as part of its licensing and regulatory oversight of these facilities.
This bill would enumerate additional crimes that prohibit the department from authorizing an individual from working or otherwise being present at these facilities, including, among other crimes, the willful and unlawful use of personal identifying information.
The California Community Care Facilities Act, among other things, Existing law prohibits the State Department of Social Services from authorizing individuals who have been convicted of certain crimes from working or otherwise being present at a community care facility, as defined. facility, a residential care facility for persons with a chronic, life-threatening illness, a residential care facility for the elderly, or a child day care facility. The act requires the department to perform criminal background investigations of individuals as part of its licensing and regulatory oversight of these facilities.
This bill would enumerate additional crimes that prohibit the department from authorizing an individual from working or otherwise being present at a community care facility, these facilities, including, among other crimes, the willful and unlawful use of personal identifying information, as specified. information.
The California Community Care Facilities Act, among other things, prohibits the State Department of Social Services from authorizing individuals who have been convicted of certain crimes from working or otherwise being present at a community care facility, as defined. The act requires the department to perform criminal background investigations of individuals as part of its licensing and regulatory oversight of these facilities.
This bill would enumerate additional crimes that prohibit the department from authorizing an individual from working or otherwise being present at a community care facility, including, among other crimes, the willful and unlawful use of personal identifying information, as specified.
(a)(1)Except as provided in paragraph (2), if an excavation is within the tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment within the tolerance zone of the subsurface installations. In all cases the excavator shall use reasonable care to prevent damaging subsurface installations.
(2)(A)An excavator may use a vacuum excavation device to expose subsurface installations within the tolerance zone if the operator has marked the subsurface installation, the excavator has contacted any operator whose subsurface installations may be in conflict with the excavation, and the operator has agreed to the use of a vacuum excavation device. An excavator shall inform the regional notification center of his or her intent to use a vacuum excavation device when obtaining a ticket.
(B)An excavator may use power-operated or boring equipment for the removal of any existing pavement only if there is no known subsurface installation contained in the pavement.
(C)Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the board, prior to determining the exact location of subsurface installations. The board shall adopt regulations to implement this paragraph on or before July 1, 2020.
(3)An excavator shall presume all subsurface installations to be active, and shall use the same care around subsurface installations that may be inactive as the excavator would use around active subsurface installations.
(b)If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator, to the extent that information is available to the operator, to enable the excavator to determine the exact location of the installation. If the excavator has questions about the markings that an operator has placed, the excavator may contact the notification center to send a request to have the operator contact the excavator directly. The regional notification center shall provide the excavator with the contact telephone number of the subsurface installation operator.
(c)(1)An excavator discovering or causing damage to a subsurface installation, including all breaks, leaks, nicks, dents, gouges, grooves, or other damage to subsurface installation lines, conduits, coatings, or cathodic protection, shall immediately notify the subsurface installation operator. The excavator may contact the regional notification center to obtain the contact information of the subsurface installation operator. If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow the instructions provided by the regional notification center through its Internet Web site or the telephone line recorded message.
(2)An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:
(A)A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.
(B)A high priority subsurface installation of any kind.
(d)Each excavator, operator, or locator shall communicate with each other and respect the appropriate safety requirements and ongoing activities of the other parties, if known, at an excavation site.
(a)(1)Except as provided in paragraph (2), if an excavation is within the tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment within the tolerance zone of the subsurface installations. In all cases the excavator shall use reasonable care to prevent damaging subsurface installations.
(2)(A)An excavator may use a vacuum excavation device to expose subsurface installations within the tolerance zone if the operator has marked the subsurface installation, the excavator has contacted any operator whose subsurface installations may be in conflict with the excavation, and the operator has agreed to the use of a vacuum excavation device. An excavator shall inform the regional notification center of his or her intent to use a vacuum excavation device when obtaining a ticket.
(B)An excavator may use power-operated or boring equipment for the removal of any existing pavement only if there is no known subsurface installation contained in the pavement.
(C)Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the board, prior to determining the exact location of subsurface installations. The board shall adopt regulations to implement this paragraph on or before July 1, 2020.
(3)An excavator shall presume all subsurface installations to be active, and shall use the same care around subsurface installations that may be inactive as the excavator would use around active subsurface installations.
(b)If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator, to the extent that information is available to the operator, to enable the excavator to determine the exact location of the installation. If the excavator has questions about the markings that an operator has placed, the excavator may contact the notification center to send a request to have the operator contact the excavator directly. The regional notification center shall provide the excavator with the contact telephone number of the subsurface installation operator.
(c)(1)An excavator discovering or causing damage to a subsurface installation, including all breaks, leaks, nicks, dents, gouges, grooves, or other damage to subsurface installation lines, conduits, coatings, or cathodic protection, shall immediately notify the subsurface installation operator. The excavator may contact the regional notification center to obtain the contact information of the subsurface installation operator. If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow the instructions provided by the regional notification center through its Internet Web site or the telephone line recorded message.
(2)An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:
(A)A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.
(B)A high priority subsurface installation of any kind.
(d)Each excavator, operator, or locator shall communicate with each other and respect the appropriate safety requirements and ongoing activities of the other parties, if known, at an excavation site.
(a)(1)Except as provided in paragraph (2), if an excavation is within the tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment within the tolerance zone of the subsurface installations. In all cases the excavator shall use reasonable care to prevent damaging subsurface installations.
(2)(A)An excavator may use a vacuum excavation device to expose subsurface installations within the tolerance zone if the operator has marked the subsurface installation, the excavator has contacted any operator whose subsurface installations may be in conflict with the excavation, and the operator has agreed to the use of a vacuum excavation device. An excavator shall inform the regional notification center of his or her intent to use a vacuum excavation device when obtaining a ticket.
(B)An excavator may use power-operated or boring equipment for the removal of any existing pavement only if there is no known subsurface installation contained in the pavement.
(C)Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the board, prior to determining the exact location of subsurface installations. The board shall adopt regulations to implement this paragraph on or before July 1, 2020.
(D)Until July 1, 2020, or the adoption of regulations pursuant to subparagraph (C), an excavator may operate hand-held pneumatic or hand-held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations. The board shall adopt guidelines on the use of hand-held pneumatic or hand-held motorized power-operated equipment and these guidelines shall be posted on the boards Internet Web site.(3)An excavator shall presume all subsurface installations to be active, and shall use the same care around subsurface installations that may be inactive as the excavator would use around active subsurface installations.
(b)If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator, to the extent that information is available to the operator, to enable the excavator to determine the exact location of the installation. If the excavator has questions about the markings that an operator has placed, the excavator may contact the notification center to send a request to have the operator contact the excavator directly. The regional notification center shall provide the excavator with the contact telephone number of the subsurface installation operator.
(c)(1)An excavator discovering or causing damage to a subsurface installation, including all breaks, leaks, nicks, dents, gouges, grooves, or other damage to subsurface installation lines, conduits, coatings, or cathodic protection, shall immediately notify the subsurface installation operator. The excavator may contact the regional notification center to obtain the contact information of the subsurface installation operator. If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow the instructions provided by the regional notification center through its Internet Web site or the telephone line recorded message.
(2)An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:
(A)A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.
(B)A high priority subsurface installation of any kind.
(d)Each excavator, operator, or locator shall communicate with each other and respect the appropriate safety requirements and ongoing activities of the other parties, if known, at an excavation site.
(a)(1)Except as provided in paragraph (2), if an excavation is within the tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment within the tolerance zone of the subsurface installations. In all cases the excavator shall use reasonable care to prevent damaging subsurface installations.
(2)(A)An excavator may use a vacuum excavation device to expose subsurface installations within the tolerance zone if the operator has marked the subsurface installation, the excavator has contacted any operator whose subsurface installations may be in conflict with the excavation, and the operator has agreed to the use of a vacuum excavation device. An excavator shall inform the regional notification center of his or her intent to use a vacuum excavation device when obtaining a ticket.
(B)An excavator may use power-operated or boring equipment for the removal of any existing pavement only if there is no known subsurface installation contained in the pavement.
(C)An excavator may use power-operated or boring equipment prior to determining the exact location of subsurface facilities if agreed upon by the excavator and the operator with facilities in conflict with the excavation.(C)Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the board, prior to determining the exact location of subsurface installations. The board shall adopt regulations to implement this paragraph on or before July 1, 2020.
(D)Until July 1, 2020, or the adoption of regulations pursuant to subparagraph (C), an excavator may operate hand-held pneumatic or hand-held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations. The board shall adopt guidelines on the use of hand-held pneumatic or hand-held motorized power-operated equipment and these guidelines shall be posted on the boards Internet Web site.
(3)An excavator shall presume all subsurface installations to be active, and shall use the same care around subsurface installations that may be inactive as the excavator would use around active subsurface installations.
(b)If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator, to the extent that information is available to the operator, to enable the excavator to determine the exact location of the installation. If the excavator has questions about the markings that an operator has placed, the excavator may contact the notification center to send a request to have the operator contact the excavator directly. The regional notification center shall provide the excavator with the contact telephone number of the subsurface installation operator.
(c)(1)An excavator discovering or causing damage to a subsurface installation, including all breaks, leaks, nicks, dents, gouges, grooves, or other damage to subsurface installation lines, conduits, coatings, or cathodic protection, shall immediately notify the subsurface installation operator. The excavator may contact the regional notification center to obtain the contact information of the subsurface installation operator. If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow the instructions provided by the regional notification center through its Internet Web site or the telephone line recorded message.
(2)An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:
(A)A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.
(B)A high priority subsurface installation of any kind.
(d)Each excavator, operator, or locator shall communicate with each other and respect the appropriate safety requirements and ongoing activities of the other parties, if known, at an excavation site.
(a)(1)Except as provided in paragraph (2), if an excavation is within the tolerance zone of a subsurface installation, the excavator shall determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment within the tolerance zone of the subsurface installations. In all cases the excavator shall use reasonable care to prevent damaging subsurface installations.
(2)(A)An excavator may use a vacuum excavation device to expose subsurface installations within the tolerance zone if the operator has marked the subsurface installation, the excavator has contacted any operator whose subsurface installations may be in conflict with the excavation, and the operator has agreed to the use of a vacuum excavation device. An excavator shall inform the regional notification center of his or her intent to use a vacuum excavation device when obtaining a ticket.
(B)An excavator may use power-operated or boring equipment for the removal of any existing pavement only if there is no known subsurface installation contained in the pavement.
(C)An excavator may use power-operated or boring equipment prior to determining the exact location of subsurface facilities if agreed upon by the excavator and the operator with facilities in conflict with the excavation.
(3)An excavator shall presume all subsurface installations to be active, and shall use the same care around subsurface installations that may be inactive as the excavator would use around active subsurface installations.
(b)If the exact location of the subsurface installation cannot be determined by hand excavating in accordance with subdivision (a), the excavator shall request the operator to provide additional information to the excavator, to the extent that information is available to the operator, to enable the excavator to determine the exact location of the installation. If the excavator has questions about the markings that an operator has placed, the excavator may contact the notification center to send a request to have the operator contact the excavator directly. The regional notification center shall provide the excavator with the contact telephone number of the subsurface installation operator.
(c)(1)An excavator discovering or causing damage to a subsurface installation, including all breaks, leaks, nicks, dents, gouges, grooves, or other damage to subsurface installation lines, conduits, coatings, or cathodic protection, shall immediately notify the subsurface installation operator. The excavator may contact the regional notification center to obtain the contact information of the subsurface installation operator. If the operator is unknown and the damage or discovery of damage occurs outside the working hours of the regional notification center, the excavator may follow the instructions provided by the regional notification center through its Internet Web site or the telephone line recorded message.
(2)An excavator shall call 911 emergency services upon discovering or causing damage to either of the following:
(A)A natural gas or hazardous liquid pipeline subsurface installation in which the damage results in the escape of any flammable, toxic, or corrosive gas or liquid.
(B)A high priority subsurface installation of any kind.
(d)Each excavator, operator, or locator shall communicate with each other and respect the appropriate safety requirements and ongoing activities of the other parties, if known, at an excavation site.
All matter omitted in this version of the bill appears in the bill as amended in the Senate, June 14, 2018. (JR11)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 community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified 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 community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)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)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less children or for obtaining a criminal record of the 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), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the department grants an exemption pursuant to subdivision (g).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in 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 prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individuals state and federal criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)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 persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional as defined in department regulations who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home and are in the facility, certified family home, or resource family home at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)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 from disqualification pursuant to subdivision (g) 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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission 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, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(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 subdivision (a). 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. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images 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, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also 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 history recorded. 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments 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 in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons 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 from disqualification pursuant to this paragraph.
(5)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 from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting fingerprinting, is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of 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 criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting 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 (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties 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 1550. A violation of the regulation 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 foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds after licensure or the granting of the certificate of approval that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, rescind, or terminate any application, license, certificate of approval, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(f)(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 that the State Department of Social Services 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, 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 the conviction, notwithstanding any other 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 as if the criminal offense was committed in this state.
(g)(1)Except as otherwise provided in this subdivision with respect to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has substantial and 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 as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted pursuant to this subdivision if the conviction was for any of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the department may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelative extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, or subdivision (a) of Section 266i, or Section 530.5 266i of the Penal Code.
(D)Multiple violations of an offense specified in Section 530.5 of the Penal Code, or a single violation of an offense specified in Section 530.5 of the Penal Code, if that violation occurred within the preceding 10 years.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)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) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes, has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity may grant an exemption from disqualification to a foster care provider, resource family applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption and the conviction is for one of the following offenses:
(i)Any misdemeanor conviction within the last five years that is not otherwise prohibited by subparagraph (A). Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)Any felony conviction within the last seven years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(D)(i) The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or any person subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, who has been convicted of an offense not listed in subparagraph (A) or (B), if the individuals state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to the effective date of the act that added this subparagraph.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(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 State Department of Social Services, and shall include a copy of the persons drivers 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 envelope for this purpose, the State Department of Social Services 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.
(3)A criminal record clearance or exemption processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, 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 to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain 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 countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption 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)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the state department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
SEC. 2.Section 1568.09 of the Health and Safety Code is amended to read:1568.09.It is the intent of the Legislature in enacting this section to require the electronic fingerprint images of those individuals whose contact with residents of residential care facilities for persons with a chronic, life-threatening illness may pose a risk to the residents health and safety.
It is the intent of the Legislature, in enacting this section, to require the electronic fingerprint images of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for persons with a chronic, life-threatening illness.
(a)(1)Before and, as applicable, subsequent to issuing a license to a person or persons to operate or manage a residential care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)The following shall apply to the criminal record information:
(A)If the State Department of Social Services finds that the applicant or another person specified in subdivision (b), has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)If the State Department of Social Services finds that the applicant, or another person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(1)Adults responsible for administration or direct supervision of staff of the facility.
(2)A person, other than a resident, residing in the facility.
(3)A person who provides resident assistance in dressing, grooming, bathing, or personal hygiene. A nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for persons with a chronic, life-threatening illness. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for persons with a chronic, life-threatening illness pursuant to Section 1568.092.
(4)(A)A staff person, volunteer, or employee who has contact with the residents.
(B)A volunteer shall be exempt from the requirements of this subdivision if he or she is a relative, significant other, or close friend of a client receiving care in the facility and the volunteer does not provide direct care and supervision of residents. A volunteer who provides direct care and supervision shall be exempt if the volunteer is a residents spouse, significant other, close friend, or family member and provides direct care and supervision to that resident only at the request of the resident. The department may define in regulations persons similar to those described in this subparagraph who may be exempt from the requirements of this subdivision.
(5)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in that capacity.
(6)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 persons capability to exercise substantial influence over the operation of the facility.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the department shall notify the licensee to act immediately to terminate the persons employment, remove the person from the residential care facility, or bar the person from entering the residential care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, the licensee shall, upon notification by the department, act immediately to either (A) terminate the persons employment, remove the person from the residential care facility, or bar the person from entering the residential care facility; or (B) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments 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 persons 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.
(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 persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(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. 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, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting that person to withdraw his or her plea of guilty and to enter a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. 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 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 the 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services is authorized to obtain 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)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of 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 substantial and 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 266i of the Penal Code.
(D)Multiple violations of an offense specified in Section 530.5 of the Penal Code, or a single violation of an offense specified in Section 530.5 of the Penal Code, if that violation occurred within the preceding 10 years.
(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 or arrest information 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 persons drivers 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 two 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 any employee based on written notification from the state department that the employee has a prior criminal conviction 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
SEC. 3.Section 1569.17 of the Health and Safety Code is amended to read:1569.17.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 residential care facility for the elderly. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with clients of residential care facilities for the elderly may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for the elderly.
(a)(1)Before and, as applicable, subsequent to issuing a license to any person or persons to operate or manage a residential care facility for the elderly, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)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) has been convicted of a crime, other than a minor traffic violation, the application or presence shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)In addition to the applicant, the provisions of this section shall apply to criminal record clearances and exemptions for the following persons:
(1)(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility. Residents of unlicensed independent senior housing facilities that are located in contiguous buildings on the same property as a residential care facility for the elderly shall be exempt from these requirements.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for the elderly. The facility shall maintain the copy of the certification on file as long as the care is being provided by the certified nurse assistant or certified home health aide at the facility. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for the elderly pursuant to Section 1569.58.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in a similar capacity.
(F)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 persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from requirements applicable under paragraph (1):
(A)A spouse, relative, significant other, or close friend of a client shall be exempt if this person is visiting the client or provides direct care and supervision to that client only.
(B)A volunteer to whom all of the following apply:
(i)The volunteer is at the facility during normal waking hours.
(ii)The volunteer is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(iii)The volunteer spends no more than 16 hours per week at the facility.
(iv)The volunteer does not provide clients with assistance in dressing, grooming, bathing, or personal hygiene.
(v)The volunteer is not left alone with clients in care.
(C)A third-party contractor retained by the facility if the contractor is not left alone with clients in care.
(D)A third-party contractor or other business professional retained by a client and at the facility at the request or by permission of that client. These individuals shall not be left alone with other clients.
(E)Licensed or certified medical professionals are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(F)Employees of licensed home health agencies and members of licensed hospice interdisciplinary teams who have contact with a resident of a residential care facility at the request of the resident or residents legal decisionmaker are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(G)Clergy and other spiritual caregivers who are performing services in common areas of the residential care facility, or who are advising an individual resident at the request of, or with permission of, the resident, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(H)Any person similar to those described in this subdivision, as defined by the department in regulations.
(I)Nothing in this paragraph shall prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a 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 terminate the persons employment, remove the person from the residential care facility for the elderly, or bar the person from entering the residential care facility for the elderly. The State Department of Social Services may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the residential care facility for the elderly, or bar the person from entering the residential care facility for the elderly or (2) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered by the department. A licensees failure to comply with the departments 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 persons 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.
(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 persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(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 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, notwithstanding a subsequent order pursuant to the provisions of Sections 1203.4 and 1203.4a of the Penal Code permitting a 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 the conviction, notwithstanding any other 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(f)(1)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of 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 substantial and 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 266i of the Penal Code.
(D)Multiple violations of an offense specified in Section 530.5 of the Penal Code, or a single violation of an offense specified in Section 530.5 of the Penal Code, if that violation occurred within the preceding 10 years.
(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 or arrest information 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 persons drivers 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 two 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 any employee based on written notification from the department that the employee has a prior criminal conviction 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
SEC. 4.Section 1596.871 of the Health and Safety Code is amended to read: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 care center or family child care home. 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 childrens health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a child day care facility.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person to operate or manage a day care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)Except during the 200304 to the 201819 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)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for 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.
(i)A volunteer providing time-limited specialized services shall be exempt from the requirements of this subdivision if this person is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the volunteer spends no more than 16 hours per week at the facility, and the volunteer is not left alone with children in care.
(ii)A student enrolled or participating at an accredited educational institution shall be exempt from the requirements of this subdivision if the student is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the facility has an agreement with the educational institution concerning the placement of the student, the student spends no more than 16 hours per week at the facility, and the student is not left alone with children in care.
(iii)A volunteer who is a relative, legal guardian, or foster parent of a client in the facility shall be exempt from the requirements of this subdivision.
(iv)A contracted repair person retained by the facility, if not left alone with children in care, shall be exempt from the requirements of this subdivision.
(v)Any person similar to those described in this subdivision, as defined by the department in regulations.
(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 facility, 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 persons capability to exercise substantial influence over the operation of the facility.
(H)This section does not apply to employees of child care and development programs under contract with the State Department of Education who have completed a criminal record 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.
(I)This section does not apply to 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 employees criminal record clearance has changed shall submit that information to the department.
(2)Nothing in this subdivision shall prevent a licensee from requiring a criminal record clearance of any individuals exempt from the requirements under this subdivision.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the child day care facility, or bar the person from entering the child day care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the child day care facility, or bar the person from entering the child day care facility; or (2) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments 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 persons 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 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 persons employment or removes the person from the facility 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 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, 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 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(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 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 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 266i of the Penal Code.
(D)Multiple violations of an offense specified in Section 530.5 of the Penal Code, or a single violation of an offense specified in Section 530.5 of the Penal Code, if that violation occurred within the preceding 10 years.
(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 or arrest information unless the department complies with the requirements of Section 1596.8897.
(g)Upon request of the licensee, who shall enclose a self-addressed stamped postcard 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 persons drivers 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 two 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 may accept a clearance or exemption from the department.
(B)The department may accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority may 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 shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain 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 countys 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
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 community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified 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 community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)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)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less children or for obtaining a criminal record of the 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), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the department grants an exemption pursuant to subdivision (g).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in 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 prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individuals state and federal criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)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 persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional as defined in department regulations who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home and are in the facility, certified family home, or resource family home at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)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 from disqualification pursuant to subdivision (g) 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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission 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, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(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 subdivision (a). 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. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images 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, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also 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 history recorded. 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments 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 in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons 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 from disqualification pursuant to this paragraph.
(5)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 from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of 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 criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting 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 (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties 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 1550. A violation of the regulation 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 foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds after licensure or the granting of the certificate of approval that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, rescind, or terminate any application, license, certificate of approval, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(f)(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 that the State Department of Social Services 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, 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 the conviction, notwithstanding any other 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 as if the criminal offense was committed in this state.
(g)(1)Except as otherwise provided in this subdivision with respect to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has substantial and 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 as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted pursuant to this subdivision if the conviction was for any of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the department may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelative extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (5) or (7) of subdivision (a) of Section 261, paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)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) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes, has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity may grant an exemption from disqualification to a foster care provider, resource family applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption and the conviction is for one of the following offenses:
(i)Any misdemeanor conviction within the last five years that is not otherwise prohibited by subparagraph (A). Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)Any felony conviction within the last seven years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(D)(i) The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or any person subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, who has been convicted of an offense not listed in subparagraph (A) or (B), if the individuals state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to the effective date of the act that added this subparagraph.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(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 State Department of Social Services, and shall include a copy of the persons drivers 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 envelope for this purpose, the State Department of Social Services 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.
(3)A criminal record clearance or exemption processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, 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 to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain 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 countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption 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)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the state department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
SEC. 2.Section 1568.09 of the Health and Safety Code is amended to read:1568.09.It is the intent of the Legislature in enacting this section to require the electronic fingerprint images of those individuals whose contact with residents of residential care facilities for persons with a chronic, life-threatening illness may pose a risk to the residents health and safety.
It is the intent of the Legislature, in enacting this section, to require the electronic fingerprint images of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for persons with a chronic, life-threatening illness.
(a)(1)Before and, as applicable, subsequent to issuing a license to a person or persons to operate or manage a residential care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)The following shall apply to the criminal record information:
(A)If the State Department of Social Services finds that the applicant or another person specified in subdivision (b), has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)If the State Department of Social Services finds that the applicant, or another person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(1)Adults responsible for administration or direct supervision of staff of the facility.
(2)A person, other than a resident, residing in the facility.
(3)A person who provides resident assistance in dressing, grooming, bathing, or personal hygiene. A nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for persons with a chronic, life-threatening illness. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for persons with a chronic, life-threatening illness pursuant to Section 1568.092.
(4)(A)A staff person, volunteer, or employee who has contact with the residents.
(B)A volunteer shall be exempt from the requirements of this subdivision if he or she is a relative, significant other, or close friend of a client receiving care in the facility and the volunteer does not provide direct care and supervision of residents. A volunteer who provides direct care and supervision shall be exempt if the volunteer is a residents spouse, significant other, close friend, or family member and provides direct care and supervision to that resident only at the request of the resident. The department may define in regulations persons similar to those described in this subparagraph who may be exempt from the requirements of this subdivision.
(5)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in that capacity.
(6)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 persons capability to exercise substantial influence over the operation of the facility.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the department shall notify the licensee to act immediately to terminate the persons employment, remove the person from the residential care facility, or bar the person from entering the residential care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, the licensee shall, upon notification by the department, act immediately to either (A) terminate the persons employment, remove the person from the residential care facility, or bar the person from entering the residential care facility; or (B) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments 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 persons 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.
(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 persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(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. 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, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting that person to withdraw his or her plea of guilty and to enter a plea of not guilty, setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. 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 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 the 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services is authorized to obtain 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)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of 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 substantial and 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
(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 or arrest information 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 persons drivers 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 two 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 any employee based on written notification from the state department that the employee has a prior criminal conviction 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
SEC. 3.Section 1569.17 of the Health and Safety Code is amended to read:1569.17.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 residential care facility for the elderly. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with clients of residential care facilities for the elderly may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a residential care facility for the elderly.
(a)(1)Before and, as applicable, subsequent to issuing a license to any person or persons to operate or manage a residential care facility for the elderly, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)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) has been convicted of a crime, other than a minor traffic violation, the application or presence shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)In addition to the applicant, the provisions of this section shall apply to criminal record clearances and exemptions for the following persons:
(1)(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility. Residents of unlicensed independent senior housing facilities that are located in contiguous buildings on the same property as a residential care facility for the elderly shall be exempt from these requirements.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the residential care facility for the elderly. The facility shall maintain the copy of the certification on file as long as the care is being provided by the certified nurse assistant or certified home health aide at the facility. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed residential care facility for the elderly pursuant to Section 1569.58.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in a similar capacity.
(F)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 persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from requirements applicable under paragraph (1):
(A)A spouse, relative, significant other, or close friend of a client shall be exempt if this person is visiting the client or provides direct care and supervision to that client only.
(B)A volunteer to whom all of the following apply:
(i)The volunteer is at the facility during normal waking hours.
(ii)The volunteer is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(iii)The volunteer spends no more than 16 hours per week at the facility.
(iv)The volunteer does not provide clients with assistance in dressing, grooming, bathing, or personal hygiene.
(v)The volunteer is not left alone with clients in care.
(C)A third-party contractor retained by the facility if the contractor is not left alone with clients in care.
(D)A third-party contractor or other business professional retained by a client and at the facility at the request or by permission of that client. These individuals shall not be left alone with other clients.
(E)Licensed or certified medical professionals are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(F)Employees of licensed home health agencies and members of licensed hospice interdisciplinary teams who have contact with a resident of a residential care facility at the request of the resident or residents legal decisionmaker are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(G)Clergy and other spiritual caregivers who are performing services in common areas of the residential care facility, or who are advising an individual resident at the request of, or with permission of, the resident, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(H)Any person similar to those described in this subdivision, as defined by the department in regulations.
(I)Nothing in this paragraph shall prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a 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 terminate the persons employment, remove the person from the residential care facility for the elderly, or bar the person from entering the residential care facility for the elderly. The State Department of Social Services may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the residential care facility for the elderly, or bar the person from entering the residential care facility for the elderly or (2) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered by the department. A licensees failure to comply with the departments 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 persons 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.
(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 persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (4).
(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 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, notwithstanding a subsequent order pursuant to the provisions of Sections 1203.4 and 1203.4a of the Penal Code permitting a 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 the conviction, notwithstanding any other 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(f)(1)After review of the record, the director may grant an exemption from disqualification for a license as specified in paragraphs (1) and (4) of 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 substantial and 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
(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 or arrest information 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 persons drivers 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 two 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 any employee based on written notification from the department that the employee has a prior criminal conviction 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
SEC. 4.Section 1596.871 of the Health and Safety Code is amended to read: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 care center or family child care home. 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 childrens health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a child day care facility.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person to operate or manage a day care facility, the department shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f).
(2)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)Except during the 200304 to the 201819 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)If the State Department of Social Services finds that the applicant or any other person specified in subdivision (b) has been convicted of a crime, other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (f).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (2) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (f).
(E)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 Investigations 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 a criminal record, 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.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for 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.
(i)A volunteer providing time-limited specialized services shall be exempt from the requirements of this subdivision if this person is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the volunteer spends no more than 16 hours per week at the facility, and the volunteer is not left alone with children in care.
(ii)A student enrolled or participating at an accredited educational institution shall be exempt from the requirements of this subdivision if the student is directly supervised by the licensee or a facility employee with a criminal record clearance or exemption, the facility has an agreement with the educational institution concerning the placement of the student, the student spends no more than 16 hours per week at the facility, and the student is not left alone with children in care.
(iii)A volunteer who is a relative, legal guardian, or foster parent of a client in the facility shall be exempt from the requirements of this subdivision.
(iv)A contracted repair person retained by the facility, if not left alone with children in care, shall be exempt from the requirements of this subdivision.
(v)Any person similar to those described in this subdivision, as defined by the department in regulations.
(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 facility, 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 persons capability to exercise substantial influence over the operation of the facility.
(H)This section does not apply to employees of child care and development programs under contract with the State Department of Education who have completed a criminal record 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.
(I)This section does not apply to 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 employees criminal record clearance has changed shall submit that information to the department.
(2)Nothing in this subdivision shall prevent a licensee from requiring a criminal record clearance of any individuals exempt from the requirements under this subdivision.
(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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 persons 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 licensees 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 individuals 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 sex offense against a minor, an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the child day care facility, or bar the person from entering the child day care facility. The department may subsequently grant an exemption pursuant to subdivision (f). If the conviction was for another crime except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (1) terminate the persons employment, remove the person from the child day care facility, or bar the person from entering the child day care facility; or (2) seek an exemption pursuant to subdivision (f). The department shall determine if the person shall be allowed to remain in the facility until a decision on the exemption is rendered. A licensees failure to comply with the departments 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 persons 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 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 persons employment or removes the person from the facility 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 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, 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 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 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 to deny, revoke, or terminate any application, license, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (f), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(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 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 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). However, an exemption shall not 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, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(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.
(C)An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
(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 or arrest information unless the department complies with the requirements of Section 1596.8897.
(g)Upon request of the licensee, who shall enclose a self-addressed stamped postcard 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 persons drivers 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 two 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 may accept a clearance or exemption from the department.
(B)The department may accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority may 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 shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain 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 countys 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)Notwithstanding any other law, the department may 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
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 community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified 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 community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)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)Except during the 200304 to the 201819 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less children or for obtaining a criminal record of the 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), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the department grants an exemption pursuant to subdivision (g).
(B)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 other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record 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 finds after licensure that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in 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 prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individuals state and federal criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to 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 if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. 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. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)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 persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional as defined in department regulations who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home and are in the facility, certified family home, or resource family home at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)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 from disqualification pursuant to subdivision (g) 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 and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. 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 comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission 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, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(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 subdivision (a). 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. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images 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, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also 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 history recorded. 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 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments 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 in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons 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 from disqualification pursuant to this paragraph.
(5)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 from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of 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 criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting 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 (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties 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 1550. A violation of the regulation 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 foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds after licensure or the granting of the certificate of approval that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, rescind, or terminate any application, license, certificate of approval, 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.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or 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 any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services 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 care facilities and individuals associated with a community care facility.
(f)(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 that the State Department of Social Services 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, 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 the conviction, notwithstanding any other 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 as if the criminal offense was committed in this state.
(g)(1)Except as otherwise provided in this subdivision with respect to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has substantial and 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 as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted pursuant to this subdivision if the conviction was for either any of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the department may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelative extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(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) of Section 451 of the Penal Code.
(C)An offense specified in paragraph (5) or (7) of subdivision (a) of Section 261, paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)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) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes, has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity may grant an exemption from disqualification to a foster care provider, resource family applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption and the conviction is for one of the following offenses:
(i)Any misdemeanor conviction within the last five years that is not otherwise prohibited by subparagraph (A). Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)Any felony conviction within the last seven years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(D)(i) The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or any person subject to the background check requirements of this section pursuant to foster care provider applicant and resource family approval standards, who has been convicted of an offense not listed in subparagraph (A) or (B), if the individuals state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to the effective date of the act that added this subparagraph.
(3)The department shall not prohibit a person from being employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(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 State Department of Social Services, and shall include a copy of the persons drivers 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 envelope for this purpose, the State Department of Social Services 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.
(3)A criminal record clearance or exemption processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, 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 to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain 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 countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption 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)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the state department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
|
Date
|
Status
|
|---|---|
| Sep 23, 2018 | Chaptered by Secretary of State - Chapter 708, Statutes of 2018. |
| Sep 23, 2018 | Approved by the Governor. |
| Sep 11, 2018 | Enrolled and presented to the Governor at 4:30 p.m. |
| Aug 31, 2018 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Aug 30, 2018 | From committee: That the Senate amendments be concurred in. (Ayes 11. Noes 0.) (August 30). |
| Aug 29, 2018 | Re-referred to Com. on U. & E. pursuant to Assembly Rule 77.2. |
| Aug 28, 2018 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 30 pursuant to Assembly Rule 77. |
| Aug 28, 2018 | Read third time. Passed. Ordered to the Assembly. |
| Aug 27, 2018 | Read second time. Ordered to third reading. |
| Aug 24, 2018 | Read third time and amended. Ordered to second reading. |
| Aug 14, 2018 | Read second time. Ordered to third reading. |
| Aug 13, 2018 | From committee: Do pass. (Ayes 6. Noes 0.) (August 13). |
| Aug 6, 2018 | Ordered to third reading. |
| Aug 1, 2018 | Ordered to special consent calendar. |
| Jul 5, 2018 | Read second time and amended. Ordered to third reading. |
| Jul 3, 2018 | From committee: Amend, and do pass as amended. (Ayes 8. Noes 0.) (July 2). |
| Jun 27, 2018 | Re-referred to Com. on B., P. & E.D. |
| Jun 26, 2018 | In committee: Hearing postponed by committee. |
| Jun 25, 2018 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on PUB. S. |
| Jun 14, 2018 | Read second time and amended. Re-referred to Com. on PUB. S. |
| Jun 13, 2018 | From committee: Amend, and do pass as amended and re-refer to Com. on PUB. S. (Ayes 6. Noes 0.) (June 12). |
| May 3, 2018 | Referred to Coms. on HUMAN S. and PUB. S. |
| Apr 19, 2018 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Apr 19, 2018 | Read third time. Passed. Ordered to the Senate. (Ayes 71. Noes 0.) |
| Apr 12, 2018 | Read second time. Ordered to Consent Calendar. |
| Apr 11, 2018 | From committee: Do pass. To Consent Calendar. (Ayes 15. Noes 0.) (April 11). |
| Apr 3, 2018 | Re-referred to Com. on APPR. |
| Apr 2, 2018 | Read second time and amended. |
| Mar 23, 2018 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (March 20). |
| Mar 6, 2018 | In committee: Hearing postponed by committee. |
| Feb 5, 2018 | Referred to Com. on HUM. S. |
| Jan 24, 2018 | From printer. May be heard in committee February 23. |
| Jan 23, 2018 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 31, 2018 | AB 1914 FLORA Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 30, 2018 | With recommendation: That Senate amendments be concurred in. | Assembly Standing Committee on Utilities and Energy |
Passed |
|
| Aug 28, 2018 | Assembly 3rd Reading AB1914 Flora By Hill | Senate Floor |
Passed |
|
| Aug 13, 2018 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Jul 2, 2018 | Do pass as amended | Senate Standing Committee on Business, Professions and Economic Development |
Passed |
|
| Jun 12, 2018 | Do pass as amended, but first amend, and re-refer to the Committee on [Public Safety] | Senate Standing Committee on Human Services |
Passed |
|
| Apr 19, 2018 | AB 1914 FLORA Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Apr 11, 2018 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Mar 20, 2018 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Human Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| American Civil Liberties Union | ** Against | Jun 25, 2018 |
| Arc and United Cerebral Palsy California Coalition | * Support | Jun 12, 2018 |
| Assembly Floor Vote: 71 - 0 | ** Against | Jun 25, 2018 |
| California Long Term Care Ombudsman Association | ** Support | Jun 8, 2018 |
| California Police Chiefs Association Inc. | ** Support | Jun 8, 2018 |
| California State Auditor's Office | * Support | Mar 20, 2018 |
| Coalition of California Utility Employees | ** Support | Aug 27, 2018 |
| Congress of California Seniors | ** Support | Jun 8, 2018 |
| International Brotherhood Of Electrical Workers Local 1245 | ** Support | Aug 27, 2018 |
| National Electric Contractors Association | ** Support | Aug 29, 2018 |
| National Electrical Contractors Association | ** Support | Aug 27, 2018 |
| Pacific Gas And Electric Company | ** Support | Aug 29, 2018 |
| San Diego Gas and Electric | ** Support | Aug 27, 2018 |
| Southern California Gas Company | ** Support | Aug 27, 2018 |
| The Association of Regional Center Agencies | ** Support | Jun 8, 2018 |
| United Contractors | ** Support | Aug 29, 2018 |
| western line constructors | ** Support | Aug 29, 2018 |
CONCURRENCE IN SENATE AMENDMENTS
CSA2 Bill Id:AB 1914
Author:(Flora)
As Amended Ver:August 24, 2018
Majority vote
ASSEMBLY: |
| (April 19, 2018) | SENATE: | 38-0 | (August 28, 2018) |
(vote not relevant)
COMMITTEE VOTE: | 11-0 | (August 30, 2018) | RECOMMENDATION: | concur |
(U. & E.)
Original Committee Reference: HUM. S.
SUMMARY: This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified
The Senate amendments strike the content of this bill in its entirety and address the use of power equipment during excavation near underground utility lines.
EXISTING LAW:
- Requires a person planning to conduct an excavation to contact the appropriate regional notification center prior to commencing the excavation regardless of whether it will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. (Government Code Section 4216.2)
- Requires an excavator to delineate the area to be excavated before notifying the regional notification center. Specifies the amount of time required for notification prior to an excavation. (Government Code Section 4216.2)
- Establishes the Board, within the Office of the State Fire Marshall (OSFM), to investigate violations of the state's excavation and subsurface installation laws, coordinate education and outreach, and develop standards. (Government Code Section 4216.12)
FISCAL EFFECT:
According to the Senate Appropriations Committee, "According to CalFIRE, which houses the Underground Facilities Safe Excavation ("Dig Safe") Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles."
COMMENTS:
Every nine minutes a buried utility line is damaged because someone did not take proper safety measures before excavation. Dig-ins can affect myriad types of underground lines but natural gas pipelines are the greatest safety hazard.
The Dig Safe Act of 2016 (SB 661 (Hill), Chapter 809, Statutes of 2016) made several changes to the state's "call before you dig" law, including the creation of the Board and the elimination of a provision that allowed an excavator to use power tools with the permission of the subsurface installation owner. Therefore, many effective soil excavation tools are not allowed in the presence of a subsurface installation, reducing efficiency, and perhaps having unintended consequences to worker safety. Relatedly, the Dig Safe Act of 2016 required the Board to develop a standard as to what constitutes reasonable care in using hand tools around subsurface installations in the tolerance zone.
This bill requires the Board to adopt regulations to permit an excavator to use power-operated or boring equipment prior to determining the exact location of subsurface installations. The stated need for the bill is to address the use of hand tools under certain conditions in which the alternative is to use imprecise hand tools such as a pick shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.
Analysis Prepared by: Edmond Cheung / U. & E. / (916) 319-2083 FN: 0005195
Date of Hearing: August 30, 2018
ASSEMBLY COMMITTEE ON UTILITIES AND ENERGY
Chris Holden, Chair
ABPCA Bill Id:AB 1914 (
Author:Flora) – As Amended Ver:August 24, 2018
SUBJECT: Underground installations: excavations
SUMMARY: This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified.
EXISTING LAW:
- Requires a person planning to conduct an excavation to contact the appropriate regional notification center prior to commencing the excavation regardless of whether it will be conducted in an area that is known, or reasonably should be known, to contain subsurface installations. (Government Code § 4216.2)
- Requires an excavator to delineate the area to be excavated before notifying the regional notification center. Specifies the amount of time required for notification prior to an excavation. (Government Code § 4216.2)
- Establishes the Board, within the Office of the State Fire Marshall (OSFM), to investigate violations of the state’s excavation and subsurface installation laws, coordinate education and outreach, and develop standards. (Government Code § 4216.12)
FISCAL EFFECT:
According to the Senate Appropriations Committee, “According to CalFIRE, which houses the Underground Facilities Safe Excavation (“Dig Safe”) Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles.”
COMMENTS:
Every nine minutes a buried utility line is damaged because someone did not take proper safety measures before excavation. Dig-ins can affect myriad types of underground lines but natural gas pipelines are the greatest safety hazard.
The Dig Safe Act of 2016 (Hill, Chapter 809) made several changes to the state’s “call before you dig” law, including the creation of the Board and the elimination of a provision that allowed an excavator to use power tools with the permission of the subsurface installation owner. Therefore, many effective soil excavation tools are not allowed in the presence of a subsurface installation, reducing efficiency, and perhaps having unintended consequences to worker safety. Relatedly, the Dig Safe Act of 2016 required the Board to develop a standard as to what constitutes reasonable care in using hand tools around subsurface installations in the tolerance zone.
This bill requires the Board to adopt regulations to permit an excavator to use power-operated or boring equipment prior to determining the exact location of subsurface installations. The stated need for the bill is to address the use of hand tools under certain conditions in which the alternative is to use imprecise hand tools such as a pick shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.
REGISTERED SUPPORT / OPPOSITION:
Support
California Legislative Conference of Plumbing, Heating & Piping Industry
National Electric Contractors Association
Pacific Gas and Electric Company
United Contractors (UCON)
Western Line Constructors
Opposition
None on file.
Analysis Prepared by: Kellie Smith / U. & E. /
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 1914
Author:(Flora)
As Amended Ver:August 24, 2018
Majority vote
ASSEMBLY: | 71-0 | (April 19, 2018) | SENATE: | 38-0 | (August 28, 2018) |
Original Committee Reference: HUM. S.
SUMMARY: This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified
The Senate amendments strike the content of the bill in its entirety and address the use of power equipment during excavation near underground utility lines.
FISCAL EFFECT: According to the Senate Appropriations Committee, "According to CalFIRE, which houses the Underground Facilities Safe Excavation ("Dig Safe") Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles."
COMMENTS: Every nine minutes a buried utility line is damaged because someone didn't take proper safety measures before excavation. Dig-ins can affect myriad types of underground lines but natural gas pipelines are the greatest safety hazard.
The Dig Safe Act of 2016 (SB 661 (Hill), Chapter 809) made several changes to the state's "call before you dig" law, including the creation of the regulatory California Underground Facilities Safe Excavation Board and the elimination of a provision that allowed an excavator to use power tools with the permission of the subsurface installation owner. Therefore, many effective soil excavation tools are not allowed in the presence of a subsurface installation, reducing efficiency, and perhaps having unintended consequences to worker safety. Relatedly, the Dig Safe Act of 2016 required the Board to develop a standard as to what constitutes reasonable care in using hand tools around subsurface installations in the tolerance zone.
This bill requires the Board to adopt regulations to permit an excavator to use power-operated or boring equipment prior to determining the exact location of subsurface installations. The stated need for the bill is to address the use of hand tools under certain conditions in which the alternative is to use imprecise hand tools such as a pick shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.
Analysis Prepared by: Kellie Smith / U. & E. / (916) 319-2083 FN: 0005113
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 1914
:
SENATE HUMAN SERVICES COMMITTEE: 6-0, 6/12/18
AYES: Wiener, Glazer, Leyva, McGuire, Nguyen, Portantino
NO VOTE RECORDED: Berryhill
SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 7/2/18
AYES: Hill, Allen, Dodd, Galgiani, Glazer, Hernandez, Pan, Wilk
NO VOTE RECORDED: Fuller
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/13/18
AYES: Portantino, Bates, Beall, Bradford, Hill, Wiener
NO VOTE RECORDED: Nielsen
ASSEMBLY FLOOR: 71-0, 4/19/18 (Consent) - See last page for vote
DIGEST:
This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified.
Senate Floor Amendments of 8/24/18 strike out the provision which authorizes the use of specified hand-held power operated equipment, under certain conditions, prior to the Board determining the appropriate equipment to be used and the adoption of regulations.
Existing law:
- Establishes the Board to investigate violations, develops excavation safety standards, and coordinates education and outreach programs. (Government Code (GC) § 4216.12)
- Defines “subsurface installation” to mean any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines. (GC § 4612(s))
- Defines “active subsurface installation” to mean a subsurface installation currently in use or currently carrying service. (GC 4216(a))
- Defines a “tolerance zone” to mean 24 inches on each side of the filed marking placed by the operator, as specified. (GC § 4216(h))
- Defines a “hand tool” to mean a piece of equipment used for excavating using human power and is not powered by any motor, engine, hydraulic, or pneumatic device. (GC § 4216(i))
- Defines an “operator” to mean any person, corporation, partnership, business trust, public agency, or other entity that owns, operates or maintains a subsurface installation, as specified. (GC § 4216(o))
- Specifies that if an excavation is within the tolerance zone of a subsurface installation, the excavator is required to determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment, as specified.
(GC § 4216.4(a)(1)) - Requires the Board to develop standards relevant to safety practices in excavating around subsurface installations, as specified. (GC § 4216.18)
This bill authorizes an excavator to use power-operated or boring equipment, as determined by the Board, prior to determining the exact location of subsurface installations beginning July 1, 2020, and requires the Board to adopt regulations on or before July 1, 2020.
Background
California Underground Facilities Safe Excavation Board and SB 661. SB 661 (Hill, Chapter 809, Statutes of 2016) established the “Dig Safe Act”. The purpose of that bill was to update California’s excavation safety laws and practices and establish the centralized authority to enforce those laws. The Board is charged with investigating accidents, developing excavation safety standards, and coordinating education and outreach programs.
The Board is required to develop standards relevant to safety practices in excavating around subsurface installations and procedures and guidance in encouraging those practices. As part of those standards, the Board is required to determine what the reasonable care would be in using hand tools around subsurface installations within the tolerance zone, considering the balance of both worker safety in the trenches and the protection of subsurface installations. This bill allows an excavator to use power-operated or boring equipment as determined by the Board beginning July 1, 2020.
“Call Before you Dig.” Current law requires an individual or entity wishing to perform an excavation and dig, drill, or bore below the ground to inform the regional notification center of a planned excavation, so owners of underground facilities in the area can mark their facilities and prevent excavators from damaging their property. Once an excavator contacts a regional notification (“one-call” or “811”) center, and one or more utility operators mark the location of their facilities with paint, flags, or by other means, it is the excavator’s responsibility to determine the exact location of the facilities that may be damaged in the course of digging (GOV 4216.4(a)). The excavator must determine the exact location using only hand tools, though an excavator may use a vacuum excavation device with the agreement of the operator. Specifically, power-operated or boring equipment may not be used within two feet of either side of an operator’s location mark—what is termed the “tolerance zone”—to account for the imperfect precision of locating tools.
Hand Tools and Current Issues. Under current law, and as a result of SB 661, for any excavation within the tolerance zone of a subsurface installation (meaning 24 inches on either side), the excavator is only authorized to use a hand tool to determine the exact location of the subsurface installation. The aim is to avoid accidental pipeline damage from a power tool. According to the author, the issue that this bill is attempting to address surrounds the use of hand tools under certain conditions in which “the alternative is to use imprecise hand tools such as a pick, shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.”
The United States Department of Transportation’s Pipeline & Hazardous Materials Safety Administration notes that excavation damage continues to be a leading cause of pipeline incidents.
Hand Tool Data. Currently, there is limited data on the determination of hand tool and power tool use in the tolerance zone. The national nonprofit organization Common Ground Alliance collects voluntarily-submitted data from subsurface installation operators, locators, and excavators across the country. Data collected and reported for 2016 found that there were over 10,000 instances of damage voluntarily reported in California. While not all are attributed to the use of hand tools, the data collected noted that incidents continue to occur as a result of hand tools not being properly used.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, “According to CalFIRE, which houses the Underground Facilities Safe Excavation (“Dig Safe”) Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles.”
California Legislative Conference of the Plumbing, Heating and Piping Industry
Coalition of California Utility Employees
International Brotherhood of Electrical Workers Local 1245
National Electrical Contractors Association
Pacific Gas and Electric Company
San Diego Gas and Electric
Southern California Gas Company
United Contractors
Western Line Constructors
OPPOSITION: (Verified 8/24/18)
None received
ARGUMENTS IN SUPPORT: Southern California Gas Company and San Diego Gas and Electric (SDG&E) write in support, “AB 1914 continues the policy of operators and excavators working together, but this slight change to the current program also enables the two groups to find a workable solution under narrow circumstances. In some instances, hand tools cannot always be used, and they are not always the most appropriate tool. On occasion, the ground soil is too hard for a shovel and it is necessary to use a clay spade. Additionally, hands tools are not always the safest option. A pick axe can, in some cases, do significantly more damage than a pneumatic tool lacking sharp edges. Lastly, and most importantly, this bill still provides operators sufficient discretion to ensure safe excavation practices around underground facilities.”
The United Contractors, the National Electrical Contractors Association, the California Legislative Conference of the Plumbing, Heating and Piping Industry and the Western Line Constructors write in support, “AB 1914 (Flora) would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface facilities.”
Pacific Gas and Electric Company, writes in support, “AB 1914 is consistent with industry best practices, the spirit and intent of the Safe Dig Act and PG&E’s top priority to ensure a safe gas and electric system for our customers, the public and employees.
The International Brotherhood of Electrical Workers Local 1245 and the Coalition of California Utility Employees write in support, “[This bill] would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface installations.”
ASSEMBLY FLOOR: 71-0, 4/19/18
AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon
NO VOTE RECORDED: Calderon, Cristina Garcia, Eduardo Garcia, Melendez, Mullin, Quirk, Rodriguez
8/27/18 12:37:49
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 1914
:
PRIOR VOTES NOT RELEVANT
SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 7/2/18
AYES: Hill, Allen, Dodd, Galgiani, Glazer, Hernandez, Pan, Wilk
NO VOTE RECORDED: Fuller
SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/13/18
AYES: Portantino, Bates, Beall, Bradford, Hill, Wiener
NO VOTE RECORDED: Nielsen
DIGEST:
This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified; and, permits an excavator to use hand-held pneumatic or hand-held motorized power-operated equipment as specified until July 1, 2020 or the Board has determined the power-operated or boring equipment to be used, and requires the Board to post guidelines on its Web site regarding the hand-held pneumatic or hand-held motorized equipment to use.
Existing law:
- Establishes the Board to investigate violations, develops excavation safety standards, and coordinates education and outreach programs. (Government Code (GC) § 4216.12)
- Defines “subsurface installation” to mean any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines. (GC § 4612(s))
- Defines “active subsurface installation” to mean a subsurface installation currently in use or currently carrying service. (GC 4216(a))
- Defines a “tolerance zone” to mean 24 inches on each side of the filed marking placed by the operator, as specified. (GC § 4216(h))
- Defines a “hand tool” to mean a piece of equipment used for excavating using human power and is not powered by any motor, engine, hydraulic, or pneumatic device. (GC § 4216(i))
- Defines an “operator” to mean any person, corporation, partnership, business trust, public agency, or other entity that owns, operates or maintains a subsurface installation, as specified. (GC § 4216(o))
- Specifies that if an excavation is within the tolerance zone of a subsurface installation, the excavator is required to determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment, as specified.
(GC § 4216.4(a)(1)) - Requires the Board to develop standards relevant to safety practices in excavating around subsurface installations, as specified. (GC § 4216.18)
This bill:
- Authorizes an excavator to use power-operated or boring equipment, as determined by the Board, prior to determining the exact location of subsurface installations beginning July 1, 2020, and requires the Board to adopt regulations on or before July 1, 2020.
- Authorizes an excavator, until July 1, 2020 or until the adoption of regulations as specified in 1) above, to operate hand-held pneumatic or hand-held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations.
- Requires the Board to adopt guidelines on the use of hand-held pneumatic or hand-held motorized power-operated equipment and post the guidelines on the Board’s Web site.
Background
California Underground Facilities Safe Excavation Board and SB 661. SB 661 (Hill, Chapter 809, Statutes of 2016) established the “Dig Safe Act”. The purpose of that bill was to update California’s excavation safety laws and practices and establish the centralized authority to enforce those laws. The Board is charged with investigating accidents, developing excavation safety standards, and coordinating education and outreach programs. According to information from the Board’s Web site, “the Board improves public and worker safety by facilitating communication and learning among excavators and the operators of subsurface installations and by investigating accidents to determine their causes.”
The Board is required to develop standards relevant to safety practices in excavating around subsurface installations and procedures and guidance in encouraging those practices. As part of those standards, the Board is required to determine what the reasonable care would be in using hand tools around subsurface installations within the tolerance zone, considering the balance of both worker safety in the trenches and the protection of subsurface installations. As a result any updates to current law which authorizes a specified class of tools to be utilized in the safe excavation, should be subject to Board input. This bill allows an excavator to use power-operated or boring equipment as determined by the Board beginning July 1, 2020. Until the Board determines the appropriate equipment to be used, but no later than July 1, 2020, this bill allows an excavator to operate hand-held pneumatic or hand-held motorized equipment if agreed upon by the excavator and the operator with the subsurface installations. This bill also requires the Board to adopt and post on its Web site, guidelines that would be in effect until the Board makes a final determination on the use of power operated or boring equipment.
“Call Before you Dig.” Current law requires an individual or entity wishing to perform an excavation and dig, drill, or bore below the ground to inform the regional notification center of a planned excavation, so owners of underground facilities in the area can mark their facilities and prevent excavators from damaging their property. Once an excavator contacts a regional notification (“one-call” or “811”) center, and one or more utility operators mark the location of their facilities with paint, flags, or by other means, it is the excavator’s responsibility to determine the exact location of the facilities that may be damaged in the course of digging (GOV 4216.4(a)). The excavator must determine the exact location using only hand tools, though an excavator may use a vacuum excavation device with the agreement of the operator. Specifically, power-operated or boring equipment may not be used within two feet of either side of an operator’s location mark—what is termed the “tolerance zone”—to account for the imperfect precision of locating tools.
Hand Tools and Current Issues. Under current law, and as a result of SB 661, for any excavation within the tolerance zone of a subsurface installation (meaning 24 inches on either side), the excavator is only authorized to use a hand tool to determine the exact location of the subsurface installation. The aim is to avoid accidental pipeline damage from a power tool. According to the author, the issue that this bill is attempting to address surrounds the use of hand tools under certain conditions in which “the alternative is to use imprecise hand tools such as a pick, shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.”
This bill revises the current prohibition by authorizing an excavator to use power-operated or boring equipment prior to determining the exact location. The recent amendments require the Board to determine which power-operated or boring equipment an excavator may be allowed to use by no later than July 1, 2020. However, until the Board has made that determination, this bill allows the use of hand-held pneumatic or hand-held motorized power operated equipment.
The United States Department of Transportation’s Pipeline & Hazardous Materials Safety Administration notes that excavation damage continues to be a leading cause of pipeline incidents. As a result, any updates to current law which authorize a specified class of tools to be utilized in the safe excavation should be subject to Board review and discussion.
Hand Tool Data. Currently, there is limited data on the determination of hand tool and power tool use in the tolerance zone. The national nonprofit organization Common Ground Alliance collects voluntarily-submitted data from subsurface installation operators, locators, and excavators across the country. Data collected and reported for 2016 found that there were over 10,000 instances of damage voluntarily reported in California. While not all are attributed to the use of hand tools, the data collected noted that incidents continue to occur as a result of hand tools not being properly used.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, “According to CalFIRE, which houses the Underground Facilities Safe Excavation (“Dig Safe”) Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles.”
California Legislative Conference of the Plumbing, Heating and Piping Industry
Coalition of California Utility Employees
International Brotherhood of Electrical Workers Local 1245
National Electrical Contractors Association
Pacific Gas and Electric Company
San Diego Gas and Electric
Southern California Gas Company
United Contractors
Western Line Constructors
OPPOSITION: (Verified 7/31/18)
None received
ARGUMENTS IN SUPPORT: Southern California Gas Company and San Diego Gas and Electric (SDG&E) write in support, “AB 1914 continues the policy of operators and excavators working together, but this slight change to the current program also enables the two groups to find a workable solution under narrow circumstances. In some instances, hand tools cannot always be used, and they are not always the most appropriate tool. On occasion, the ground soil is too hard for a shovel and it is necessary to use a clay spade. Additionally, hands tools are not always the safest option. A pick axe can, in some cases, do significantly more damage than a pneumatic tool lacking sharp edges. Lastly, and most importantly, this bill still provides operators sufficient discretion to ensure safe excavation practices around underground facilities.”
The United Contractors, the National Electrical Contractors Association, the California Legislative Conference of the Plumbing, Heating and Piping Industry and the Western Line Constructors write in support, “AB 1914 (Flora) would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface facilities.”
Pacific Gas and Electric Company, writes in support, “AB 1914 is consistent with industry best practices, the spirit and intent of the Safe Dig Act and PG&E’s top priority to ensure a safe gas and electric system for our customers, the public and employees.
The International Brotherhood of Electrical Workers Local 1245 and the Coalition of California Utility Employees write in support, “[This bill] would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface installations.”
8/15/18 14:32:34
**** END ****
SENATE COMMITTEE ON
Senator Anthony Portantino, Chair
2017 - 2018 Regular Session
AB 1914 (Flora) - Underground installations: excavations
Version: | Policy Vote: |
Urgency: | Mandate: |
Hearing Date: | Consultant: |
This bill does not meet the criteria for referral to the Suspense File.
Bill Summary:
Authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified; and, authorizes an excavator to use hand-held pneumatic or hand-held motorized power-operated equipment as specified until July 1, 2020, or the Board has determined the power-operated or boring equipment to be used.
Fiscal Impact:
According to CalFIRE, which houses the Underground Facilities Safe Excavation (“Dig Safe”) Board, one-time $138,935 (Safe Energy Infrastructure and Excavation Fund), specifically:
- $121,714 (Safe Energy Infrastructure and Excavation Fund) for 1.0 associate governmental program analyst to promulgate regulations (staff one public hearing, two stakeholder conferences, and up to three Board meetings).
- $17,221 (Safe Energy Infrastructure and Excavation Fund) for facility and travel costs for five staff and nine Board members for meetings in Sacramento and Los Angeles.
Background:
Existing law requires excavators to wait until all subsurface installation operators have marked their lines before beginning work. Subsurface installations include any underground pipes, conduits, duct, or wires. Power-driven or boring equipment are prohibited within 24 inches of a utility field mark (the “tolerance zone”) until the excavator has determined the exact location of the subsurface installation using hand tools. SB 661 (Hill, Chapter 809, Statutes of 2016) established the “Dig Safe Act”. The purpose of that bill was to update California’s excavation safety laws and practices and establish the centralized authority to enforce those laws. The Board is charged with investigating accidents, developing excavation safety standards, and coordinating education and outreach programs. The Dig Safe Board must develop standards related to safety practices in excavating around subsurface installations and procedures. As part of those standards, the Board must determine what constitutes reasonable care in using hand tools around subsurface installations in the tolerance zone.
Proposed Law:
Assembly Bill 1914 adds to the list of specified exemptions that would allow for use of any power-driving excavation or boring equipment without determining the exact location of conflict subsurface installations. Specifically:
- Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the board, prior to determining the exact location of subsurface installations. The board shall adopt regulations to implement this paragraph on or before July 1, 2020.
- Until July 1, 2020, or the adoption of regulations, specified above, an excavator may operate hand-held pneumatic or hand-held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations.
- Requires the Dig Safe board to adopt guidelines on the use of hand-held pneumatic or hand-held motorized power-operated equipment and these guidelines shall be posted on the board’s Internet Web site.
-- END --
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 1914
:
PRIOR VOTES NOT RELEVANT
SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-0, 7/2/18
AYES: Hill, Allen, Dodd, Galgiani, Glazer, Hernandez, Pan, Wilk
NO VOTE RECORDED: Fuller
DIGEST:
This bill authorizes an excavator to use power-operated or boring equipment, as determined by the California Underground Facilities Safe Excavation Board (Board) beginning July 1, 2020, prior to determining the exact location of a subsurface facility, as specified; and, permits an excavator to use hand-held pneumatic or hand-held motorized power-operated equipment as specified until July 1, 2020 or the Board has determined the power-operated or boring equipment to be used, and requires the Board to post guidelines on its Web site regarding the hand-held pneumatic or hand-held motorized equipment to use.
Existing law:
- Establishes the Board to investigate violations, develops excavation safety standards, and coordinates education and outreach programs. (Government Code (GC) § 4216.12)
- Defines “subsurface installation” to mean any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines. (GC § 4612(s))
- Defines “active subsurface installation” to mean a subsurface installation currently in use or currently carrying service. (GC 4216(a))
- Defines a “tolerance zone” to mean 24 inches on each side of the filed marking placed by the operator, as specified. (GC § 4216(h))
- Defines a “hand tool” to mean a piece of equipment used for excavating using human power and is not powered by any motor, engine, hydraulic, or pneumatic device. (GC § 4216(i))
- Defines an “operator” to mean any person, corporation, partnership, business trust, public agency, or other entity that owns, operates or maintains a subsurface installation, as specified. (GC § 4216(o))
- Specifies that if an excavation is within the tolerance zone of a subsurface installation, the excavator is required to determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment, as specified.
(GC § 4216.4(a)(1)) - Requires the Board to develop standards relevant to safety practices in excavating around subsurface installations, as specified. (GC § 4216.18)
This bill:
- Authorizes an excavator to use power-operated or boring equipment, as determined by the Board, prior to determining the exact location of subsurface installations beginning July 1, 2020, and requires the Board to adopt regulations on or before July 1, 2020.
- Authorizes an excavator, until July 1, 2020 or until the adoption of regulations as specified in 1) above, to operate hand-held pneumatic or hand-held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations.
- Requires the Board to adopt guidelines on the use of hand-held pneumatic or hand-held motorized power-operated equipment and post the guidelines on the Board’s Web site.
Background
California Underground Facilities Safe Excavation Board and SB 661. SB 661 (Hill, Chapter 809, Statutes of 2016) established the “Dig Safe Act”. The purpose of that bill was to update California’s excavation safety laws and practices and establish the centralized authority to enforce those laws. The Board is charged with investigating accidents, developing excavation safety standards, and coordinating education and outreach programs. According to information from the Board’s Web site, “the Board improves public and worker safety by facilitating communication and learning among excavators and the operators of subsurface installations and by investigating accidents to determine their causes.”
The Board is required to develop standards relevant to safety practices in excavating around subsurface installations and procedures and guidance in encouraging those practices. As part of those standards, the Board is required to determine what the reasonable care would be in using hand tools around subsurface installations within the tolerance zone, considering the balance of both worker safety in the trenches and the protection of subsurface installations. As a result any updates to current law which authorizes a specified class of tools to be utilized in the safe excavation, should be subject to Board input. This bill allows an excavator to use power-operated or boring equipment as determined by the Board beginning July 1, 2020. Until the Board determines the appropriate equipment to be used, but no later than July 1, 2020, this bill allows an excavator to operate hand-held pneumatic or hand-held motorized equipment if agreed upon by the excavator and the operator with the subsurface installations. This bill also requires the Board to adopt and post on its Web site, guidelines that would be in effect until the Board makes a final determination on the use of power operated or boring equipment.
“Call Before you Dig.” Current law requires an individual or entity wishing to perform an excavation and dig, drill, or bore below the ground to inform the regional notification center of a planned excavation, so owners of underground facilities in the area can mark their facilities and prevent excavators from damaging their property. Once an excavator contacts a regional notification (“one-call” or “811”) center, and one or more utility operators mark the location of their facilities with paint, flags, or by other means, it is the excavator’s responsibility to determine the exact location of the facilities that may be damaged in the course of digging (GOV 4216.4(a)). The excavator must determine the exact location using only hand tools, though an excavator may use a vacuum excavation device with the agreement of the operator. Specifically, power-operated or boring equipment may not be used within two feet of either side of an operator’s location mark—what is termed the “tolerance zone”—to account for the imperfect precision of locating tools.
Hand Tools and Current Issues. Under current law, and as a result of SB 661, for any excavation within the tolerance zone of a subsurface installation (meaning 24 inches on either side), the excavator is only authorized to use a hand tool to determine the exact location of the subsurface installation. The aim is to avoid accidental pipeline damage from a power tool. According to the author, the issue that this bill is attempting to address surrounds the use of hand tools under certain conditions in which “the alternative is to use imprecise hand tools such as a pick, shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.”
This bill revises the current prohibition by authorizing an excavator to use power-operated or boring equipment prior to determining the exact location. The recent amendments require the Board to determine which power-operated or boring equipment an excavator may be allowed to use by no later than July 1, 2020. However, until the Board has made that determination, this bill allows the use of hand-held pneumatic or hand-held motorized power operated equipment.
The United States Department of Transportation’s Pipeline & Hazardous Materials Safety Administration notes that excavation damage continues to be a leading cause of pipeline incidents. As a result, any updates to current law which authorize a specified class of tools to be utilized in the safe excavation should be subject to Board review and discussion.
Hand Tool Data. Currently, there is limited data on the determination of hand tool and power tool use in the tolerance zone. The national nonprofit organization Common Ground Alliance collects voluntarily-submitted data from subsurface installation operators, locators, and excavators across the country. Data collected and reported for 2016 found that there were over 10,000 instances of damage voluntarily reported in California. While not all are attributed to the use of hand tools, the data collected noted that incidents continue to occur as a result of hand tools not being properly used.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
California Legislative Conference of the Plumbing, Heating and Piping Industry
Coalition of California Utility Employees
International Brotherhood of Electrical Workers Local 1245
National Electrical Contractors Association
Pacific Gas and Electric Company
San Diego Gas and Electric
Southern California Gas Company
United Contractors
Western Line Constructors
OPPOSITION: (Verified 7/31/18)
None received
ARGUMENTS IN SUPPORT: Southern California Gas Company and San Diego Gas and Electric (SDG&E) write in support, “AB 1914 continues the policy of operators and excavators working together, but this slight change to the current program also enables the two groups to find a workable solution under narrow circumstances. In some instances, hand tools cannot always be used, and they are not always the most appropriate tool. On occasion, the ground soil is too hard for a shovel and it is necessary to use a clay spade. Additionally, hands tools are not always the safest option. A pick axe can, in some cases, do significantly more damage than a pneumatic tool lacking sharp edges. Lastly, and most importantly, this bill still provides operators sufficient discretion to ensure safe excavation practices around underground facilities.”
The United Contractors, the National Electrical Contractors Association, the California Legislative Conference of the Plumbing, Heating and Piping Industry and the Western Line Constructors write in support, “AB 1914 (Flora) would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface facilities.”
Pacific Gas and Electric Company, writes in support, “AB 1914 is consistent with industry best practices, the spirit and intent of the Safe Dig Act and PG&E’s top priority to ensure a safe gas and electric system for our customers, the public and employees.
The International Brotherhood of Electrical Workers Local 1245 and the Coalition of California Utility Employees write in support, “[This bill] would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface installations.”
8/1/18 12:12:01
**** END ****
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2017 - 2018 Regular
Bill No: Hearing Date: July 2, 2018
Author: | |||
Version: | June 14, 2018 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Elissa Silva | ||
Subject: Excavations.
SUMMARY:
Authorizes an excavator to use power-operated or boring equipment prior to determining the exact location of a subsurface facility, as specified.
NOTE: This bill was substantially amended from an unrelated topic and referred to this Committee on June 27, 2018.
Existing law:
- Establishes the California Underground Facilities Safe Excavation Board (Board) to investigate violations, develop excavation safety standards, and coordinate education and outreach programs. (Government Code (GC) § 4216.12)
- Defines “subsurface installation” to mean any underground pipeline, conduit, duct, wire, or other structure, except non-pressurized sewer lines, non-pressurized storm drains, or other non-pressurized drain lines. (GC § 4612(s))
- Defines “active subsurface installation” to mean a subsurface installation currently in use or currently caring service. (GC 4216(a))
- Defines a “tolerance zone” to mean 24 inches on each side of the filed marking placed by the operator in one of the following ways:
- Twenty-four inches from each side of a single marking, assumed to be the centerline of the subsurface installation;
- Twenty-four inches plus one-half the specified size on each side of a single marking with the size of the installation period; or,
- Twenty-four inches from outside the marking that graphically shows the width of the outside surface of the subsurface installation on a horizontal plane. (GC 4216(u))
- Defines an “excavator” to mean any person, firm, contractor, or subcontractor, owner, operator, utility, association, corporation, partnership, business trust, public agency, or other entity that, with their, or his or her, own employees or equipment performs excavations. (GC § 4216(h))
- Defines a “hand tool” to mean a piece of equipment used for excavating using human power and is not powered by any motor, engine, hydraulic, or pneumatic device. (GC § 4216(i))
- Defines an “operator” to mean any person, corporation, partnership, business trust, public agency, or other entity that owns, operates or maintains a subsurface installation, as specified. (GC § 4216(o))
- Requires every operator of a subsurface installation, except the Department of Transportation, to become a member of, participate in, and share the costs of a regional notification center, and requires an excavator planning to conduct an excavation to notify a regional notification center, as specified. (GC §§ 4216.1, 4216.2)
- Specifies that if an excavation is within the tolerance zone of a subsurface installation, the excavator is required to determine the exact location of the subsurface installations in conflict with the excavation using hand tools before using any power-driven excavation or boring equipment, as specified.
(GC § 4216.4(a)(1)) - Authorizes an excavator to use a vacuum excavation device under specified conditions, and further authorizes an excavator to use power-operated or boring equipment for the removal of any existing pavement only if there are no, known subsurface installations contained in the pavement. (GC § 4216.4(a)(2)(A)(B))
- States that if the exact location of the subsurface installation cannot be determined by hand excavating, as specified, the excavator must request the operator to provide additional information to excavator, as required. (GC § 4216.4(b))
- Requires the Board to develop standards relevant to safety practices in excavating around subsurface installations, as specified. (GC § 4216.18)
This bill authorizes an excavator to use power-operated or boring equipment prior to determining the exact location of subsurface facilities if agreed upon by the excavator and the operator with facilities in conflict with the excavation.
FISCAL EFFECT:
None. This bill is not keyed fiscal by Legislative Counsel.
COMMENTS:
- Purpose. This bill is sponsored by the Author. According to the Author, “The implementation of the Dig Safe Act has rendered previously used best practices unlawful, inadvertently increasing the risk to personnel or underground facilities. Some of these best practices include using power tools such as a pneumatic spade for more precise excavation, especially in hard soil conditions. In this manner, soft-tissue injuries to personnel are minimized, as mechanized equipment did the bulk of the lifting and relocation of soil. The alternative is to use imprecise hand tools such as a pick, shovel or digging bar. The mechanical advantage of power equipment eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.
AB 1914 would allow an excavator and operator(s) to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation around subsurface facilities.”
- Background.
California Underground Facilities Safe Excavation Board and SB 661. SB 661 (Hill, Chapter 809, Statutes of 2016) established the “safe dig act”. The purpose of that bill was to update California’s excavation safety laws and practices and establish the centralized authority to enforce those laws. The enactment of SB 661 followed other legislation and trends aimed at reducing incidents at digs whereby injuries or death were the result of workers not realizing they were digging into lines.
The Board is charged with investigating accidents, developing excavation safety standards, and coordinating education and outreach programs. According to information from the Board’s website, “the Board improves public and worker safety by facilitating communication and learning among excavators and the operators of subsurface installations and by investigating accidents to determine their causes.” The Board is currently comprised of 9 members and GC § 4216.13 specifies the membership of the Board which includes contractors and individuals with specialized knowledge in subsurface installations and excavations. Additionally, the Board is authorized to invite individuals from regional notification centers to participate as nonvoting members, but likely provide expertise. The Board is required to meet annually to address education and outreach issues related to safe excavation practices (GC § 4216.17). In addition, the Board is required to develop standards relevant to safety practices in excavating around subsurface installations and procedures and guidance in encouraging those practices. As part of those standards, the Board is required to determine what the reasonable care would be in using hand tools around subsurface installations within the tolerance zone, considering the balance of both worker safety in the trenches and the protection of subsurface installations. As a result any updates to current law which authorizes a specified class of tools to be utilized in the safe excavation, should most likely be subject to Board input.
“Call Before you Dig.” Current law requires an individual or entity wishing to perform an excavation and dig, drill, or bore below the ground to inform the regional notification center of a planned excavation, so owners of underground facilities in the area can mark their facilities and prevent excavators from damaging their property. Once an excavator contacts a regional notification (“one-call” or “811”) center, and one or more utility operators mark the location of their facilities with paint, flags, or by other means, it is the excavator’s responsibility to determine the exact location of the facilities that may be damaged in the course of digging (GOV 4216.4(a)). The excavator must determine the exact location using only hand tools, though an excavator may use a vacuum excavation device with the agreement of the operator. Specifically, power-operated or boring equipment may not be used within two feet of either side of an operator’s location mark—what is termed the “tolerance zone”—to account for the imperfect precision of locating tools.
Hand Tools and Current Issues. Under current law and as a result of SB 661, for any excavation within the tolerance zone of a subsurface installation (meaning 24 inches on either side), the excavator is only authorized to use a hand tool to determine the exact location of the subsurface installation. The aim is to avoid accidental pipeline damage from a power tool. According to the Author, the issue that this bill is attempting to address surrounds the use of hand tools under certain conditions in which “the alternative is to use imprecise hand tools such as a pick, shovel or digging bar. The mechanical advantage of power equipment is that it eliminates a significant amount of human bending, lifting, twisting and thrusting of tools into soil, all of which are drivers of injury and fatigue.”
This bill would revise the current prohibition by authorizing an excavator to use power-operated or boring equipment prior to determining the exact location. As currently drafted, this bill would presumably authorize the use of power equipment without the Board’s review or input at this time. The United States Department of Transportation’s Pipeline & Hazardous Materials Safety Administration notes that excavation damage continues to be a leading cause of pipeline incidents. As a result, any updates to current law which authorize a specified class of tools to be utilized in the safe excavation should be subject to Board review and discussion.
Hand Tool Data. Currently, there is limited data on the determination of hand tool and power tool use in the tolerance zone. The national nonprofit organization Common Ground Alliance collects voluntarily-submitted data from subsurface installation operators, locators, and excavators across the country. Data collected and reported for 2016 found that there were over 10,000 instances of damage voluntarily reported in California. While not all are attributed to the use of hand tools, the data collected noted that incidents continue to occur as a result of hand tools not being properly used.
- Prior Related Legislation. SB 92 (Committee on Budget and Fiscal Review, Chapter 26, Statutes of 2017) among other changes to the budget act of 2017, clarifies the intent and requirements for an “area of continual excavation,” extends the dates by which the Board is required to complete their regulations and begin enforcement, from November 2017 to July 2020, and makes other technical changes.
SB 661 (Hill, Chapter 809, Statutes of 2016) enacted the Dig Safe Act of 2016 to modify laws governing excavations near subsurface installations.
SB 119 (Hill of 2015) would have modified “call before you dig” laws governing excavations near underground pipelines, conduit, duct, wire, or other structures (collectively known as subsurface installations). Among other things, this bill would have enhanced the existing enforcement powers of specified state entities, revised liability provisions that apply to the pre-excavation notification and subsurface installation marking requirements for operators and excavators, and would have established the California Underground Facilities Safe Excavation Advisory Committee to coordinate education and outreach, develop standards, and investigate violations of laws pertaining to excavation. (Status: This bill was vetoed by Governor Brown.)
AB 811 (Lowenthal, Chapter 250, Statutes of 2013) requires the regional notification centers (or “one-call” centers) to annually report on subsurface facility damages voluntarily reported to those centers from excavators and utilities.
AB 1514 (Lowenthal of 2012) would have increased the maximum fine for a violation of the “one-call” law from $10,000 to $100,000 and would have placed the CPUC in charge of investigating excavation damages and referring the investigations to the Attorney General or a district attorney for action. (Status: This bill was held in Assembly Committee on Appropriations.)
- Arguments in Support. Southern California Gas Company and San Diego Gas and Electric (SDG&E) write in support, “AB 1914 continues the policy of operators and excavators working together, but this slight change to the current program also enables the two groups to find a workable solution under narrow circumstances. In some instances, hand tools cannot always be used, and they are not always the most appropriate tool. On occasion, the ground soil is too hard for a shovel and it is necessary to use a clay spade. Additionally, hands tools are not always the safest option. A pick axe can, in some cases, do significantly more damage than a pneumatic tool lacking sharp edges. Lastly, and most importantly, this bill still provides operators sufficient discretion to ensure safe excavation practices around underground facilities.”
The United Contractors, the National Electrical Contractors Association, the California Legislative Conference of the Plumbing, Heating and Piping Industry and the Western Line Constructors write in support, “AB 1914 (Flora) would allow for best practices to resume under the DSA and enable excavators and operators to agree on a method of excavation that would enable safe and prudent use of pneumatic devices and other power tools to facilitate excavation down to and around subsurface facilities.”
Pacific Gas and Electric Company, writes in support, “AB 1914 is consistent with industry best practices, the spirit and intent of the Safe Dig Act and PG&E’s top priority to ensure a safe gas and electric system for our customers, the public and employees.
- Policy Considerations, Implementation Issues and Suggested Amendments. As currently drafted, this bill would allow an excavator to use “power-operated” or “boring equipment” prior to determining the exact location of a subsurface facility if agreed upon by the excavator and the operator. However, the bill is silent on what the Board’s role is in reviewing and assessing or determining the safety standards and the conditions under which those tools should be used. Additionally, this bill does not define or specify what types of tools might be, or under what conditions they should be, used. The Author should continue to work with stakeholders, including the Board, to specify the Board’s role in evaluating and determining the appropriate “power operated” hand tools that can be used and under what specified conditions.
The Author notes that this issue is currently impacting the excavation process and excavation personnel safety. As a result of the need to address an immediate concern while ensuring the Board’s role in establishing the appropriate safety standards and determining the appropriate “power operated” hand tools, the Author should continue to work with stakeholders and the Board to allow an interim use of certain “power operated” hand tools, while the Board conducts a more appropriate review.
The Author should amend the bill in order to allow the Board to evaluate and determine the appropriate power operated hand tools that should be used and under what conditions, as follows:
On page 2, delete lines 22 and 23, and on page 3, delete lines 1 and 2, and insert:
(C) Beginning July 1, 2020, an excavator may use power-operated or boring equipment, as determined by the Board, prior to determining the exact location of subsurface installations. The Board shall adopt regulations to implement this paragraph on or before July 1, 2020.
(D) Until July 1, 2020 or the adoption of regulations pursuant to (C), an excavator may operate hand held pneumatic or hand held motorized power-operated equipment if agreed upon by the excavator and the operator with subsurface installations. The board shall adopt guidelines on the use of hand held pneumatic or handheld motorized power-operated equipment and these guidelines shall be posted on the board’s Internet Web site.
SUPPORT AND OPPOSITION:
Support:
California Legislative Conference of the Plumbing, Heating and Piping Industry
National Electrical Contractors Association
Pacific Gas and Electric Company
San Diego Gas and Electric
Southern California Gas Company
United Contractors
Western Line Constructors
Opposition:
None on file as of June 28, 2018.
-- END --
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Nancy Skinner, Chair
2017 - 2018 Regular
Bill No: AB 1914 Hearing Date: June 26, 2018
Author: | Flora | ||
Version: | June 14, 2018 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | MK | ||
Subject: Presence at Health Care Facilities: Conviction of Crimes
HISTORY
Source: California State Auditor’s Office
Prior Legislation: None
Support: The Arc; Association of Regional Center Agencies; California Commission on Aging; California District Attorneys Association; California Long-Term Care Ombudsman Association; California Police Chiefs Association; United Cerebral Palsy California Collaboration
Opposition: American Civil Liberties Union
Assembly Floor Vote: 71 - 0
PURPOSE
The purpose of this bill is to add a number of offenses to the list of crimes for which a person may not get an exemption to work at a community care facility.
Existing law establishes the Community Care Facilities Act, which provides for licensure and regulation of community care facilities. The Act defines community care facility to mean any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children and includes residential facilities, adult day programs, foster family agencies, group homes, and children’s crisis residential programs, among others. (Health and Safety Code §1500 et seq.)
Existing law establishes a regulatory structure for licensed Residential Care Facilities for Persons With Chronic Life-Threatening Illness serving people who are 18 years of age or older or are emancipated minors and requires license holders to provide basic services for each resident, as specified. (Health and Safety Code §1568 et seq.)
Existing law establishes the California Residential Care Facility for the Elderly (RCFE) Act, which requires facilities that provide personal care and supervision, protective supervision, or health related services for persons 60 years of age or older who voluntarily choose to reside in those facilities to be licensed. (Health and Safety Code §1569 et seq.)
Existing law establishes the California Child Day Care Facilities Act to provide a comprehensive, quality system for licensing child day care facilities to ensure that working families have access to healthy and safe child care providers and that child care programs contribute positively to a child's emotional, cognitive, and educational development, and are able to respond to, and provide for, the unique characteristics and needs of children. (Health and Safety Code § 1596.70 et seq.)
Existing law requires an applicant and other specified persons to submit fingerprint images to the Department of Justice (DOJ) and the Federal Bureau of Investigation for a criminal offender record information search prior to employment, residence, or initial presence in certain facilities, including: RCFEs, residential care facilities for the chronically ill, child day care facilities, and community care facilities. It also requires the results of the criminal record search to be submitted to CDSS. It further requires CDSS to deny an application or specified person from being present at a facility if that person has been convicted of a crime, other than a minor traffic violation, unless the CDSS grants an exemption, as specified. Permits CDSS to issue an exemption 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. Existing law prohibits a criminal records exemption from being granted for persons with a conviction for specified offenses. (Health and Safety Code §§ 1522 (g)(1)(A); 1569.17 (f); 1568.09 (f);1596.871)
Existing law defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under certain circumstances, including, but not limited to, when it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (Penal Code § 261)
Existing law provides that rape of a person who is the spouse of the perpetrator is an act of sexual intercourse that is accomplished under certain specified circumstances including:
- Where a person is prevented from resisting by an intoxicating or anesthetic substance. (Penal Code § 262(a)(2))
- Where a person is at the time unconscious of the act, and this is known to the accused. (Penal Code § 262(a)(3))
- Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another. (Penal Code § 262 (a)(5))
Existing law provides that any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punished as specified. (Penal Code § 266h(a))
Existing law declares that a person who procures another person for the purpose of prostitution; promises or threatens violence, or causes another person to become a prostitute, among other specified actions, is guilty of pandering, which is a felony and punishable by imprisonment as specified. (Penal Code § 266i(a))
Existing law declares that every person who willfully obtains personal identifying information of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction, shall be punished, as specified. (Penal Code § 530.5)
This bill adds the following offenses to the list offenses for which a person may not be granted an exemption from working or being present in a community care facility, a residential care facility for persons with a chronic, life-threatening illness, a residential care facility for the elderly, or a child day care facility:
- Spousal rape when the person is intoxicated, unconscious of the act or the act is committed under threat of deportation or deportation of another.
- Pimping.
- Pandering.
- Multiple violations of identity theft or a single violation that occurred within the last 10 years.
COMMENTS
1. Need for This Bill
According to the author:
The Caregiver Background Check Bureau (CBCB) categorizes 60 crimes as non-exempt crimes for individuals applying for a background check to work in Community Care Facilities. The California State Auditor released a 2017 audit of DSS, specifically relating to background checks performed by the CBCB. The report identified eight crimes that were exempt despite substantial similarities to existing convictions on the list of prohibited crimes. AB1914 would add six crimes including three categorizations of rape, pimping, pandering, and identity theft to the list of 60 non-exemptible crimes. This bill will prevent certain dangerous individuals from passing through DSS’s CBCB and working in licensed care facilities.
2. Community Care Licensing
The Community Care Licensing Division (CCLD) within CDSS is responsible for regulating the facilities it licenses and protecting the health and safety of children, adults, and seniors who are cared for within those facilities. CCLD licenses and oversees more than 70,000 community care facilities—including child care facilities, foster family homes, and care facilities for the elderly—throughout California. These facilities typically provide non-medical care and supervision for children and adults in need, which includes persons with disabilities, seniors in need of residential care, children in foster care and at-risk children needing shelter services, families in need of child and adult care services. In addition to licensing community care facilities, CDSS is also responsible for investigating all complaints against those facilities.
State law requires all applicants, licensees, adult residents, volunteers under certain conditions, and employees of CCLD-licensed facilities who have contact with clients to be subject to a background check. These background checks are used to determine whether individuals should be allowed to be present in a licensed facility.
Background checks result in a criminal record clearance, denial or exemption. If an individual has no history of arrests and convictions, a clearance notice is sent to CDSS’s Caregiver Background Check Bureau (CBCB). If an individual has a criminal history, a record of arrests and prosecutions sent to CBCB.
State law prohibits anyone with a criminal conviction for any crime—other than a minor traffic violation—from caring for or living with clients in a licensed facility. However, state law gives CDSS the authority to grant an individual an exemption to this prohibition if it determines that the individual is of good character and therefore not a health and safety risk to vulnerable populations. CDSS cannot exempt individuals who have been convicted of specified crimes. The crimes for which and exemption cannot be granted are: assault with intent to commit a sex offense; sexual battery; rape in concert; child abuse; lewd act on a child; rape with a foreign object; any violent felony; specified felonies committed by a doctor, psychotherapist, counselor; torture; carjacking; poisoning a food or drug; brandishing a firearm; and, arson with injury.
In cases where there is a criminal history, CBCB reviews the criminal history information and other information in order to determine whether that individual should be permitted to be present in a licensed facility. The CBCB’s procedures state that an exemption may be granted if the individual has presented substantial and convincing evidence that he or she is of good character and is not a threat to the well-being of clients. However, if the CBCB determines that the individual has not presented sufficient evidence that demonstrates he or she poses no threat to clients’ safety, the CBCB can deny an exemption or impose conditions on that individual’s presence or role at the licensed facility.
3. Addition of Non-Exemptible Crimes
This bill would add: spousal rape when the person is intoxicated, unconscious of the act or the act is committed under threat of deportation or deportation of another; pimping; pandering; and, multiple violations of identity theft or a single violation that occurred within the last 10 years to the offense for which an exemption may not be granted by CBCB for a person to work in a community care facility, residential care facility, or daycare.
Should additional crimes be added to what is a lifetime ban from working in one of the facilities in any capacity? Is there no chance a person who has been convicted of one of these offenses, or any of these existing offenses, be rehabilitated?
4. Argument in Support
According to the California Long-Term Care Ombudsman Association:
As a membership organization comprised of Local Long-Term Care Ombudsman Programs, their staff, volunteers and supporters, CLTCOA leadership all too often hear concerns from families wanting the assurance that the staff of the residential care facilities, they have entrusted to provide care for their loved ones are people of high moral character.
Care givers in assisted living facilities are often unsupervised while providing care to the older or dependent adults living in the facility. No matter the projected workforce shortage, the state of California must not grant exemptions for care giver applicants who have criminal convictions that prove they cannot be trusted to not take advantage of individuals.
5. Argument in Opposition
The ACLU opposes stating:
AB 1914 seeks to expand the list of non-exemptible crimes, needlessly denying people the opportunity to work, volunteer or live in community care facilities. The process for receiving and exemption with a conviction is rigorous and thorough: Not only is the CBCB informed of the individual’s entire criminal history, including arrests, but the individual must also submit a signed statement describing the events surrounding each conviction, copies of all law enforcement reports related to the individual’s convictions, documentation of successfully completed probation, verification of training, classes courses treatment, or counseling, three signed character references, and a written request for an exemption. The CBCB is directed to consider the pattern of criminal behavior, vulnerability of the victim, and the honesty of the individual’s description of the crimes. After carefully evaluating all of the information, the CBCB makes the determination of whether the person is of good character and is not a threat to clients, it is only then that the individual may be granted and exemption.
The Equal Employment Opportunity Commission advises employers to make individualized assessments instead of using blanket exclusions when it comes to conviction and arrest histories. They recommend employers consider time passed since the offense and its relevance to the job-both of which CBCB evaluate in their assessments of people with convictions.
AB 1914 goes directly against these recommendations by erecting an unnecessary barrier to working, volunteering or living in community care facilities. This bill will result in significant harms for those who would otherwise have been able to demonstrate that they pose no threat as well as to their families and communities.
-- END –
SENATE COMMITTEE ON HUMAN SERVICES
Senator Wiener, Chair
2017 - 2018 Regular
Bill No: AB 1914
Author: | Flora | ||
Version: | April 2, 2018 | Hearing Date: | June 12, 2018 |
Urgency: | No | Fiscal: | Yes |
Consultant: | Taryn Smith | ||
Subject: Presence at health care facilities: conviction of crimes
SUMMARY
This bill adds four additional crimes to the list of specified crimes for which a criminal record exemption may not be granted for purposes of licensure, permitting, certification, employment, volunteering, or residence in certain community care facilities, as specified.
ABSTRACT
Existing law:
- Establishes the Community Care Facilities Act, which provides for licensure and regulation of community care facilities. The Act defines community care facility to mean any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children and includes residential facilities, adult day programs, foster family agencies, group homes, and children’s crisis residential programs, among others. (HSC 1500 et seq.)
- Establishes a regulatory structure for licensed Residential Care Facilities for Persons With Chronic Life-Threatening Illness serving people who are 18 years of age or older or are emancipated minors and requires license holders to provide basic services for each resident, as specified. (HSC 1568 et seq.)
- Establishes the California Residential Care Facility for the Elderly (RCFE) Act, which requires facilities that provide personal care and supervision, protective supervision, or health related services for persons 60 years of age or older who voluntarily choose to reside in those facilities to be licensed. (HSC 1569 et seq.)
- Establishes the California Child Day Care Facilities Act to provide a comprehensive, quality system for licensing child day care facilities to ensure that working families have access to healthy and safe child care providers and that child care programs contribute positively to a child's emotional, cognitive, and educational development, and are able to respond to, and provide for, the unique characteristics and needs of children. (HSC 1596.70 et seq.)
- Requires an applicant and other specified persons to submit fingerprint images to the Department of Justice (DOJ) and the Federal Bureau of Investigation for a criminal offender record information search prior to employment, residence, or initial presence in certain facilities, including: RCFEs, residential care facilities for the chronically ill, child day care facilities, and community care facilities. Requires the results of the criminal record search to be submitted to CDSS. Requires CDSS to deny an application or specified person from being present at a facility if that person has been convicted of a crime, other than a minor traffic violation, unless the CDSS grants an exemption, as specified. Permits CDSS to issue an exemption 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. Prohibits a criminal records exemption from being granted for persons with a conviction for specified offenses. (HSC 1522 (g)(1)(A), HSC 1569.17 (f), HSC 1568.09 (f), HSC 1596.871)
- Defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under certain circumstances, including, but not limited to, when it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (PEN 261)
- Provides that rape of a person who is the spouse of the perpetrator is an act of sexual intercourse that is accomplished under certain specified circumstances and provides terms of probation upon conviction thereof. (PEN 262)
- Provides that any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punished as specified. (PEN 266h)
- Declares that a person who procures another person for the purpose of prostitution; promises or threatens violence, or causes another person to become a prostitute, among other specified actions, is guilty of pandering, which is a felony and punishable by imprisonment as specified. (PEN 266i)
- Provides that any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates law proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as specified. (PEN 368)
- Declares that every person who willfully obtains personal identifying information of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction, shall be punished, as specified. (PEN 530.5)
This bill:
- Prohibits CDSS from granting a criminal record exemption from disqualification for a license, special permit, or certificate of approval, or for individuals seeking employment, residence, or presence in certain community care facilities for a conviction if that person has been convicted of any of the following offenses, as specified:
- Rape where the person submits under the belief the person committing the act is someone known to the victim other than the accused.
- Rape where the act is accomplished by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another and the victim as a reasonable belief that the perpetrator is a public official.
- Rape of a spouse where the person is prevented from resisting by any intoxicating or anesthetic substance;
- Rape of a spouse where the person is at the time unconscious of the nature of the act, including if the victim is asleep;
- Rape of a spouse where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or any other person;
- Pimping (not of a minor);
- Pandering (not of a minor); and
- Identity theft, as specified.
- Makes technical changes.
FISCAL IMPACT
According to an analysis prepared by the Assembly Committee on Appropriations, this bill will have negligible state costs to CDSS.
BACKGROUND AND DISCUSSION
Purpose of the bill:
Under current law, conviction of certain defined non-exemptible crimes prohibits a person from being present in a community care facility. AB 1914 would add eight crimes, including five categories of rape, pimpimg, pandering, and identity theft, to the current list of non-exemptible crimes. According to the author, this bill will “close this dangerous loophole to ensure the safety and health of the most vulnerable individuals in our society.” Without this change in law, “child care facilities, foster homes and elderly facilities will not be protected from potentially dangerous individuals,” the author states.
Community Care Licensing Division (CCLD)
The Community Care Licensing Division (CCLD) within CDSS is responsible for regulating the facilities it licenses and protecting the health and safety of children, adults, and seniors who are cared for within those facilities. CCLD licenses and oversees more than 70,000 community care facilities—including child care facilities, foster family homes, and care facilities for the elderly—throughout California. These facilities typically provide non-medical care and supervision for children and adults in need, which includes persons with disabilities, seniors in need of residential care, children in foster care and at-risk children needing shelter services, families in need of child and adult care services. In addition to licensing community care facilities, CDSS is also responsible for investigating all complaints against those facilities.
Criminal Background Checks
To protect the vulnerable populations served by CCLD-licensed facilities, state law requires all applicants, licensees, adult residents, volunteers under certain conditions, and employees of licensed facilities who have contact with clients to be subject to a background check. These background checks are used to determine whether individuals should be allowed to be present in a licensed facility.
Background checks result in a criminal record clearance, denial or exemption. If an individual has no history of arrests and convictions, a clearance notice is sent to CDSS’s Caregiver Background Check Bureau (CBCB). If an individual has a criminal history, a record of arrests and prosecutions (RAP sheet) is sent to CBCB.
To safeguard the health and safety of clients, state law prohibits anyone with a criminal conviction for any crime—other than a minor traffic violation—from caring for or living with clients in a licensed facility. However, state law gives CDSS the authority to grant an individual an exemption to this prohibition if it determines that the individual is of good character and therefore not a health and safety risk to vulnerable populations. CDSS cannot exempt individuals who have been convicted of certain crimes, such as kidnapping or murder.
In cases where there is a criminal history, CBCB reviews the RAP sheet and other information in order to determine whether that individual should be permitted to be present in a licensed facility. The CBCB’s procedures state that an exemption may be granted if the individual has presented substantial and convincing evidence that he or she is of good character and is not a threat to the well-being of clients. However, if the CBCB determines that the individual has not presented sufficient evidence that demonstrates he or she poses no threat to clients’ safety, the CBCB can deny an exemption or impose conditions on that individual’s presence or role at the licensed facility.
In Fiscal Year 2015–16, CBCB received more than 366,000 responses to its criminal history inquiries. More than 23,000 of these inquiries—approximately 6 percent— resulted in criminal histories that required the CBCB to evaluate.
Audit of Caregiver Background Checks
In March of 2017, the California State Auditor released a report entitled, “California Department of Social Services: Its Caregiver Background Check Bureau lacks criminal history information it needs to protect vulnerable populations in licensed care facilities.” The audit report concerned the timeliness and quality of CDSS background check process for individuals who have contact with clients of facilities it licenses. The Auditor recommended that the list of crimes that are non-exemptible be expanded in order to reduce the risk to the safety of clients in facilities.
Under current law, the conviction of the following crimes are among a larger list of crimes that may not be granted an exemption: rape for a variety of circumstances, including rape accomplished by means of violence, when the person is unconscious, or when the person is prevented from resisting by an intoxicating substance, rape of a spouse by means of force or by threatening retaliation, pimping of a minor, pandering a minor, and elder abuse, including identity theft of an elder or dependent adult, as specified in California Penal Code.
However, statute permits an exemption for conviction of the similar crimes, including rape under specified circumstances and identity theft. This bill would amend Health and Safety Code to no longer permit CDSS to exempt people with convictions of specified crimes (rape under certain defined conditions and identity theft) and allow those people to be present in a licensed facility. The table below shows the currently non-exemptible crimes and similar crimes that are proposed to be made non-exemptible.
Under Current Law | |
An individual cannot be present in a licensed facility if they are convicted of the following non-exemptible crimes | An individual can be permitted to be present in a licensed facility, with permission from CDSS, if they are convicted of the following exemptible crimes |
Penal Code sections 261(a)(1)(2)(3)(4) or (6): Rape under a variety of circumstances, including: accomplished by means of violence, when the person is unconscious, or when the person is prevented from resisting by an intoxicating substance. | Penal Code section 261(a)(5): Rape where the person submits under the belief the person committing the act is someone known to the victim other than the accused. |
Penal Code section 261(a)(7): Rape where the act is accomplished by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another and the victim has a reasonable belief that the perpetrator is a public official. | |
Penal Code sections 262(a)(1) or (4): Rape of a spouse by means of force or by threatening retaliation. | Penal Code section 262(a)(2): Rape of a spouse where the person is prevented from resisting by any intoxicating or anesthetic substance. |
Penal Code section 262(a)(3): Rape of a spouse where the person is at the time unconscious of the nature of the act, including if the victim is asleep. | |
Penal Code section 262(a)(5): Rape of a spouse where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another. | |
Penal Code section 266h(b): Pimping a minor. | Penal Code section 266h(a): Pimping (not of a minor). |
Penal Code section 266i(b): Pandering a minor. | Penal Code section 266i(a): Pandering (not of a minor). |
Penal Code section 368: Elder abuse, including identity theft of an elder or dependent adult. | Penal Code section 530.5: Identity theft. |
According to the audit report, during Fiscal Years 2013-14 through 2015-16, CDSS received more than 600 records of arrests and prosecutions (RAP) sheets that mentioned at least one of the eight crimes and CBCB allowed more than 40 of those individuals to be present in licensed facilities. Of those RAP sheets, more than 97 percent contained an arrest or conviction for identity theft, though the audit does not specify if those convictions were for identity theft of an elderly person.
Related legislation:
AB 2397 (Obernolte, 2018) implements certain audit recommendations by changing from permissive to requisite the sharing of information by specified state and county departments regarding individuals subject to certain administrative actions. This bill is scheduled to be heard in this committee on June 12, 2018.
AB 3039 (Holden) would have made numerous changes to the criminal background check process for community care facilities and applied those changes to certain components of licensure, operation, and employment in: community care facilities, Residential Care Facilities for Persons with Chronic Life-Threatening Illness (RCFPCLTI), RCFEs, child care facilities, as well as home care aide registry applicants and home care organizations. This bill did not pass out of Assembly Appropriations Committee.
COMMENTS
The committee recommends amending the bill to make multiple convictions for identity theft or a single conviction of identity theft within the past ten years a nonexemptible crime for all CCLD-licensed facilities.
On page 16, line 27:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, multiple offenses of Section 530.5 or a single offense of section 530.5 of the Penal Code if the single conviction has occurred within the past ten years.
On page 28, line 18:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, multiple offenses of Section 530.5 or a single offense of section 530.5 of the Penal Code if the single conviction has occurred within the past ten years.
On page 38, line 3:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, multiple offenses of Section 530.5 or a single offense of section 530.5 of the Penal Code if the single conviction has occurred within the past ten years.
On page 47, line 20:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, multiple offenses of Section 530.5 or a single offense of section 530.5 of the Penal Code if the single conviction has occurred within the past ten years.
.
PRIOR VOTES
Assembly Floor: | 71 - 0 |
Assembly Appropriations Committee: | 15 - 0 |
Assembly Human Services Committee: | 7 - 0 |
POSITIONS
Support:
California Long Term Care Ombudsman Association
California Police Chiefs Association Inc.
Congress of California Seniors
The Arc and United Cerebral Palsy California Collaboration
The Association of Regional Center Agencies
Oppose:
The American Civil Liberties Union of California
-- END --
Date of Hearing: April 11, 2018
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 1914
Author:(Flora) – As Amended Ver:April 2, 2018
Policy Committee: | Human Services | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill expands the list of crimes for which the Department of Social Services (DSS) may not grant a criminal record exemption for licensure, permitting, certification, employment, volunteering, or residence in a community care facility, a residential care facility for persons with a chronic, life-threatening illness, a residential care facility for the elderly (RCFE), or a child day care facility. The new crimes include: 1) rape of a spouse under specified circumstances, 2) pimping of a non-minor, 3) pandering of a non-minor, and 4) personal identity theft, as specified.
FISCAL EFFECT:
Negligible state costs to DSS.
COMMENTS:
- Purpose. This bill seeks to reduce the safety risk to clients in DSS licensed facilities by implementing a recommendation of the California State Auditor (Report 2016-126, March 14, 2017) to expand the list of non-exemptible crimes for individuals who have contact with clients in these facilities. According to the author’s office:
[This bill] creates a small distinction in the categorization of prohibited crimes, yet produces a drastic change in the safety and health of clients in licensed care facilities. Without this change in law, child care facilities, foster homes, and elderly facilities are more at risk from potentially dangerous individuals passing through DSS background checks. DSS must close this dangerous loophole to ensure the safety and health of the most vulnerable individuals in our society.
- Background. Current law requires DSS to perform background checks on applicants, licensees, adult residents, employees, and certain volunteers in licensed facilities who come into contact with clients. DSS's Caregiver Background Check Bureau (CBCB) within the Community Care Licensing Division is responsible for evaluating the character of individuals with criminal records who apply to have access to a licensed facility, such as employees or volunteers.
Individuals who wish to have access to a licensed facility must obtain a background check by submitting fingerprints to the Department of Justice (DOJ). If the individual has no criminal history, DOJ sends a criminal record clearance notice to the applicant and the CBCB. If the individual has a criminal record, DOJ sends a criminal record transcript to CBCB to review the history and determine if the convictions are for crimes that may be exempted under current law. Current law prohibits DSS from offering exemptions for 60 serious crimes, often referred to as non-exemptible crimes, including convictions for murder, kidnapping, torture, certain categories of rape, pimping a minor, and pandering a minor.
- Auditor’s Report. In March 2017, the California State Auditor released a report regarding background checks for individuals who have contact with clients of facilities licensed by DSS. The report identified several key findings including the lack of receipt and sharing of key information necessary for conducting proper background checks, as well as the deficiencies in the criminal history review process itself.
The report also identified eight crimes for which DSS can issue exemptions that are similar to crimes on the non-exemptible crimes lists. From FY 2013-14 through FY 2015-16, DSS received 600 background checks mentioning one of the eight identified crimes. The audit recommended that the list of non-exemptible crimes be expanded. AB 484 (Cunningham), Chapter 526, Statutes of 2017, indirectly addressed two of the eight crimes identified by making convictions for any crime listed in Penal Code Section 261, which pertains to crimes related to rape, abduction, carnal abuse of children, and seduction, a requirement for registering on the sex offender registry. This bill addresses the remaining six crimes identified by the State Auditor.
- Arguments in Support. The Arc and the United Cerebral Palsy California Collaboration support the bill, indicating people with developmental disabilities are vulnerable victims of many crimes, including sexual offenses of all types and identity theft, often committed by caregivers. AB 1914 will assure those convicted of these crimes are not allowed in licensed facilities.
- Arguments in Opposition. The American Civil Liberties Union (ACLU) opposes the bill, explaining the process for receiving an exemption with a conviction is rigorous and thorough. They believe expanding the list of non-exemptible crimes needlessly denies people the opportunity to work, volunteer, or live in community care facilities.
- Related Legislation. AB 2397 (Obernolte), of the 2017-18 Legislative Session, implements another key finding in the State Auditor’s report pertaining to the sharing of information between state departments. That bill is also before this committee today.
Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081
Date of Hearing: March 6, 2018
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Blanca Rubio, Chair
ABPCA Bill Id:AB 1914 (
Author:Flora) – As Introduced Ver:January 23, 2018
SUBJECT: Presence at community care facility: conviction of crimes
SUMMARY: Includes particular crimes in the list of crimes for which a criminal record exemption may not be granted for purposes of licensure, permitting, certification, employment, volunteering, or residence in certain community care facilities, as specified.
Specifically, this bill:
- Prohibits the Department of Social Services (DSS) from granting a criminal record exemption from disqualification for a license, special permit, or certificate of approval, or for individuals seeking employment, residence, or presence in certain community care facilities for a conviction for any of the following offenses, as specified:
- rape where the person submits under the belief that the person committing the act is someone known to the victim other than the accused (which is already non-exemptible pursuant to current law);
- rape where the act is accomplished by threatening to use authority of a public official to incarcerate, arrest, or deport the victim or any other person and the victim has a reasonable belief that the perpetrator is a public official (which is already non-exemptible pursuant to current law);
- rape of a spouse where: the person is prevented from resisting by any intoxicating or anesthetic substance, the person is at the time unconscious of the nature of the act, including if the victim is asleep, the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or any other person;
- pimping (not of a minor);
- pandering (not of a minor); and
- identity theft, as specified.
- Makes technical changes.
EXISTING LAW:
- Establishes the Community Care Facilities Act, which allows for the licensure and oversight of out of home placements for abused and neglected children by DSS. (HSC 1500 et seq.)
- Establishes the Community Care Licensing Division (CCLD) within DSS and requires DSS to license group care facilities, private foster family agencies, and foster family homes in order to place children who are in the child welfare system. Further requires, prior to licensure, a foster home provider to undergo a criminal background check, as specified. (HSC 1502 and 1522)
- Defines a “community care facility” as any facility, place, or building that is maintained and operated to provide nonmedical residential care, day treatment, adult day care, or foster family agency services for children, adults, or children and adults, including, but not limited to, the physically handicapped, mentally impaired, incompetent persons, and abused or neglected children, and includes: residential facilities, adult day programs, foster family agencies, group homes, and children’s crisis residential programs, among others. (HSC 1502 et seq.)
- Defines rape as an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under certain circumstances, including when it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another, where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, or where the act is accomplished against the victim’s will by threatening to use authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable believe that the perpetrator is a public official, as specified, among others. (PEN 261 et seq.)
- Prohibits a criminal records exemption from being granted for an applicant to work, reside, or volunteer in certain facilities, including: residential care facilities for the elderly, residential care facilities for the chronically ill, child day care facilities, and community care facilities, has a conviction for certain offenses, as specified, including an offense specified in subdivision (c) of PEN 290, which pertains to crime for which registration as a sex offender is required. (HSC 1522 (g)(1)(A), HSC 1569.17 (f), HSC 1568.09 (f), HSC 1596.871 )
- Requires an individual who commits certain crimes, including any crime enumerated in PEN § 261, which pertains to instances of rape, to register with the chief of police of the city in which he or she is residing, or the sheriff of the county in which he or she is residing, as specified, or with the chief of police of a postsecondary educational institution if he or she is residing on the campus or in any of its facilities, within five working days of changing his or her residence, and further requires the individual to register as a sex offender. (PEN 290 (b) and (c))
- Specifies that rape of a person who is the spouse of the perpetrator is an act of sexual intercourse that is accomplished under certain circumstances, including where a person is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known by the perpetrator; where a person is at the time unconscious of the nature of the act, as specified, and this is known to the accused; and where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has reasonable belief to believe that the perpetrator is a public official. (PEN 262 (a)(2)(3) and (5))
- Declares that any person who, knowing another person is a prostitute, lives or is supported by the earnings of the person’s prostitution, or from money loaned to or charged against that person by any keeper or manager of a house where prostitution is practiced or allowed, or who solicits and receives compensation for soliciting for the person as guilty of a felony punishable by imprisonment in the state prison for three, four, or six years. (PEN 266h (a))
- Declares that a person who procures another person for the purpose of prostitution; promises or threatens violence, or causes another person to become a prostitute; procures a person a place in a house of prostitution or as an inmate of any place where prostitution is encouraged or allowed, promises or threatens violence in order to cause an inmate of a house of prostitution in order to remain an inmate; uses fraud or abuse of position of confidence or authority to procure another person for the purpose of prostitution or to enter any place in which prostitution is encouraged or allowed or to come into this state or leave this state for the purpose of prostitution; or receives or gives, or agrees to receive or give any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to enter or leave the state for the purpose of prostitution, as specified, is guilty of pandering, which is a felony and punishable by imprisonment in the state prison for three, four, or six years. (PEN 266i (a))
- Declares certain instances of false personation and cheats, as specified, illegal and punishable under the law, either by a fine or imprisonment in a county jail, or a combination thereof. (PEN 530.5)
FISCAL EFFECT: Unknown.
COMMENTS:
DSS Community Care Licensing Division (CCLD): CCLD is tasked with the responsibility of licensing and investigating complaints against facilities within its jurisdiction, which includes: Residential Care Facilities for the Elderly (RCFEs) and child care facilities, among others. These facilities typically provide non-medical care and supervision for children and adults in need, which includes adult care services, families in need of early childhood education (child care), children in foster care and at-risk youth needing shelter services, seniors in need of residential care, and individuals with disabilities. Within CCLD is the Child Care Licensing Program which seeks to protect the health and safety of children in care by ensuring licensed facilities meet certain health and safety standards. Oversight is conducted through monitoring facilities, providing technical assistance, and establishing partnerships with providers, parents, and the child care community.
Criminal background checks: Current law requires DSS to perform background checks on applicants, licensees, adult residents, employees, and certain volunteers in community care facilities who come into contact with clients. In January 1992, DSS created the Caregiver Background Check Bureau (CBCB) within the Community Care Licensing Division (CCLD) in order to help protect children and vulnerable individuals receiving care. Individuals seeking clearance submit fingerprints that allow the Department of Justice (DOJ) to conduct a criminal history check. If the individual has no criminal history, a clearance notice is sent to the applicant and the CBCB. If, however, the individual has a criminal record, DOJ sends a criminal record transcript to CBCB, which allows CBCB to review the history and determine if the convictions are for crimes that may be exempted under current law. Current law prohibits DSS from offering exemptions for certain serious crimes, including convictions for murder, kidnapping, and incest such that the CBCB cannot allow individuals convicted of committing these crimes to be in a licensed facility.
California State Auditor report: In March 2017, the California State Auditor released a report concerning background checks for individuals who have contact with clients of facilities licensed by DSS. The audit recommended that the list of crimes that are non-exemptible be expanded in order to reduce the risk to the safety of clients in facilities.
Non-exemptible crimes: As defined in California Health and Safety Code Section 1522(g)(1), the following crimes are among a larger list of crimes that may not be granted an exemption: rape for a variety of circumstances, including rape accomplished by means of violence, when the person is unconscious, or when the person is prevented from resisting by an intoxicating substance, rape of a spouse by means of force or by threatening retaliation, pimping of a minor, pandering a minor, and elder abuse, including identity theft of an elder or dependent adult, as specified in California Penal Code
Exemptible crimes: In contrast, the CBCB can allow an individual to be present in a licensed facility if they have a criminal conviction for any the following crimes:
- Rape of a spouse where: the person is prevented from resisting by any intoxicating or anesthetic substance, the person is at the time unconscious of the nature of the act, including if the victim is asleep, the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another;
- Pimping (not of a minor);
- Pandering (not of a minor); and
- Identity theft.
According to the audit report, during fiscal years 2013-14 through 2015-16, DSS received records of arrests and prosecutions (RAP) sheets that mentioned at least one of these eight crimes for more than 600 individuals. Of those RAP sheets, more than 97% of them contained an arrest or conviction for identity theft, though the audit does not specify if those convictions were for identity theft of an elderly person. During that same time frame, the CBCB allowed more than 40 individuals with arrests or convictions for one or more of these crimes to be present in licensed facilities. This bill would amend Health and Safety Code to include the aforementioned exemptible crimes among the crimes for which an exemption may not be granted for individuals who wish to be present in a licensed facility.
Since the audit report was released, AB 484 (Cunningham), Chapter 526, Statutes of 2017, was signed into law by Governor Brown, and required a conviction for any crime listed in Penal Code § 261 as a requirement for registration on the sex offender registry. As such, as of January 1, 2018 the provisions of this bill that pertain to the inclusion of paragraphs (5) and (7) of subdivision (a) of Penal Code § 261 among the crimes for which an exemption may not be granted are redundant of current law. (These crimes include, respectively, rape where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, and rape where the act is accomplished against the victim’s will by threatening to use authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable believe that the perpetrator is a public official.)
Need for this bill: According to the author’s office, “[This bill] creates a small distinction in the categorization of prohibited crimes, yet produces a drastic change in the safety and health of clients in licensed care facilities. Without this change in law, child care facilities, foster homes, and elderly facilities are more at risk from potentially dangerous individuals passing through DSS background checks. DSS must close this dangerous loophole to ensure the safety and health of the most vulnerable individuals in our society.”
Recommended committee amendments: In order to remove language creating changes already adopted through the recent enactment of AB 484 (Cunningham), Chapter 526, Statutes of 2017, and to ensure parity among the variety of facilities licensed by CCLD with regards to the crimes for which an exemption for a criminal conviction may not be granted, committee staff recommends the following amendments:
- Beginning on line 21 on page 16 of the bill, make the following amendments:
21
(C) An offense specified in paragraph (5) or (7) of subdivision
22
(a) of Section 261, paragraph (2), (3), or (5) of subdivision (a) of
23
Section 262, subdivision (a) of Section 266h, subdivision (a) of
24
Section 266i, or Section 530.5 of the Penal Code.
- Insert the following language after subparagraph (B) of paragraph (1) of subdivision (f) in Health and Safety Code Section 1569.17, which relates to residential care facilities for the elderly:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
- Insert the following language after subparagraph (B) of paragraph (1) of subdivision (f) in Health and Safety Code Section 1568.09, which relates to residential care facilities for persons with a chronic, life-threatening illness:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
- Insert the following language after subparagraph (B) of paragraph (1) of subdivision (f) in Health and Safety Code Section 1596.871, which relates to child day care facilities:
(C) An offense specified in paragraph (2), (3), or (5) of subdivision (a) of Section 262, subdivision (a) of Section 266h, subdivision (a) of Section 266i, or Section 530.5 of the Penal Code.
PRIOR LEGISLATION:
AB 484 (Cunningham), Chapter 526, Statutes of 2017, made convictions for any crime listed in PEN 261, which pertains to crimes related to rape, abduction, carnal abuse of children, and seduction, a requirement for registering on the sex offender registry.
SB 384 (Wiener), Chapter 541, Statutes of 2017, created a tiered registry for sex offenses such that people are required to register for 10 years, 20 years, or lifetime depending on the offense for which the individual was convicted.
REGISTERED SUPPORT / OPPOSITION:
Support
Congress of California Seniors
The Arc
United Cerebral Palsy California Collaboration
Opposition
American Civil Liberties Union of California
Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089
Discussed in Hearing
1MIN
Assembly Floor
3MIN
Assembly Standing Committee on Utilities and Energy
3MIN
Senate Floor
3MIN
Senate Standing Committee on Appropriations
6MIN
Senate Standing Committee on Human Services
8MIN
Assembly Standing Committee on Human Services
Bill Author
Bill Co-Author(s):