BILL NUMBER: SB 1136 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Huff and Mitchell
FEBRUARY 20, 2014
An act to amend Sections 1522 and 1522.08 of the Health and Safety
Code, to amend Section 11105 of the Penal Code, and to amend Section
16504.5 of the Welfare and Institutions Code, relating to foster
care.
LEGISLATIVE COUNSEL'S DIGEST
SB 1136, as introduced, Huff. Foster care providers: criminal
records.
Existing law requires the State Department of Social Services to
license and regulate community care facilities, including foster
family homes, certified family homes of licensed foster family
agencies, and group homes. Existing law requires that persons
providing care or services at these homes or facilities obtain either
a criminal record clearance or an exemption from disqualification
from the department, as prescribed.
Existing law authorizes a child welfare agency to secure from an
appropriate governmental criminal justice agency the state summary
criminal history information for specified purposes, including an
assessment of the appropriateness of placing a child subject to the
jurisdiction of the juvenile court with a relative or nonrelative
extended family member.
This bill would authorize the State Department of Social Services
to share all information related to a criminal record clearance or
exemption granted by the department with a county child welfare
agency with responsibility to monitor the health and safety of
persons receiving care, treatment, or services from state licensed
foster homes, certified homes of licensed foster family agencies and
employees of those agencies, and licensed group homes. The bill would
further authorize a county child welfare agency to receive
state-summary criminal history information for purposes of assessing
the appropriateness and safety of placing a child who has been
detained or is a dependent of the court in a licensed foster family
home, group home, or state-licensed foster home, and monitoring the
health and safety of persons in those placements.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522 of the Health and Safety Code is amended
to read:
1522. 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 of a
licensed foster family agency. The Legislature also recognizes
the need for sharing of information between the State Department of
Social Services and county child welfare agencies in order to protect
the health and safety of persons receiving care, treatment, or
services from individuals or facilities licensed or certified by the
state. 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.
(a) (1) Before 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,
for violating Section 245 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 cannot grant an exemption if the person was
convicted and the person has not been exonerated.
(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 2003-04 to the 2014-15 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 director 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
application 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 director 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
Investigation's 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, the department determines that the licensee or any
other person specified in subdivision (b) has a criminal record, the
license may be revoked pursuant to Section 1550. The department may
also suspend the license pending an administrative hearing pursuant
to Section 1550.5.
(F) The State Department of Social Services shall develop
procedures to provide the individual's 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 agency's procedures. The
procedure shall protect the confidentiality and privacy of the
individual's record, and the criminal history information shall not
be made available to the employer.
(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 individual'
s written request and the response and date provided.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(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. 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 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
person's 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 person's
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 person's 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 person's
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 and are in the facility at the
request of that client or resident's 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 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 premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster 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 licensed or certified 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 licensee are not left alone with
the foster children. However, the licensee, 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 child's friend when the foster child is
visiting the friend's home and the friend, licensed or certified
foster parent, or both are also present. However, the licensee,
acting as a reasonable and prudent parent, may allow the parent of
the foster child's friend to act as an appropriate short-term
babysitter for the child without the friend being present.
(C) Individuals who are engaged by any licensed or certified
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 client's 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 client's 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) Nothing in this subdivision 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.
(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 licensee's 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 individual's 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, 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 person'
s 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 person's
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 licensee's failure to
comply with the department's prohibition of employment, contact with
clients, or presence in the facility as required by this paragraph
shall result in a citation of deficiency and an immediate assessment
of civil penalties 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 person's criminal
history indicates that the person is of good character based on the
age, seriousness, and frequency of the conviction or convictions. The
department, in consultation with interested parties, shall develop
regulations to establish the criteria to grant an exemption 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 person's
employment or removes the person from the facility after receiving
notice from the department pursuant to paragraph (3).
(d) (1) Before issuing a license or certificate of approval to any
person or persons to operate a foster family home or certified
family home as described in Section 1506, 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 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
cannot grant an exemption if the person was convicted and the person
has not been exonerated. The State Department of Social Services or
other approving authority shall not issue a license or certificate of
approval to any foster family home or certified family home
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 applicant's home unfit as a foster family home or a
certified family home, the license, special permit, or certificate of
approval 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 application 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 agency.
(D) To the same extent required for federal funding, an applicant
for a foster family home license or for certification as a family
home, and any other 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 or certification, 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 or certified 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 licensee's or
a foster family agency's 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 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 shall be denied,
unless the director grants an exemption from disqualification
pursuant to subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, certified foster parent, 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 by the department
or the foster family agency, whichever is applicable, unless the
director grants an exemption from disqualification pursuant to
subdivision (g). A licensee's failure to comply with the department's
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) 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. 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) After review of the record, the director 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 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 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 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 director 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 employee's 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,
nonrelated 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) 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 subparagraph (B).
(ii) A felony conviction, within the last five years, for physical
assault, battery, or a drug- or alcohol-related offense.
(iii) This subparagraph shall not apply to licenses or approvals
wherein a caregiver was granted an exemption to a criminal conviction
described in clause (i) or (ii) prior to the enactment of this
subparagraph.
(iv) This subparagraph 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.).
(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 1558.
(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 person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed 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) 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 county's 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.
(5) (A) A county child welfare agency with authority to secure
clearances pursuant to Section 16504.5 of the Welfare and
Institutions Code and to grant exemptions pursuant to Section 361.4
of the Welfare and Institutions Code may accept a clearance or
exemption from another county with criminal record and exemption
authority pursuant to these sections.
(B) 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 a county child welfare agency with criminal record clearance and
exemption authority, the Department of Justice shall process a
request from a county child welfare agency with criminal record and
exemption 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 State
Department of Social Services and the Department of Justice.
(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) The State Department of Social Services may share all
information related to a criminal record clearance or exemption from
the department with a county child welfare agency with responsibility
to monitor the health and safety of persons receiving care,
treatment, or services from state licensed foster homes, certified
homes of licensed foster family agencies, licensed group homes, and
foster family agencies and their employees.
(j)
(k) 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)
( l ) The State Department of
Social Services may charge a fee for the costs of processing
electronic fingerprint images and related information.
( l )
(m) Amendments to this section made in the 1999 portion
of the 1999-2000 Regular Session shall be implemented commencing 60
days after the effective date of the act amending this section in the
1999 portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 1522.08 of the Health and Safety Code, as amended
by Section 15 of Chapter 22 of the Statutes of 2013, is amended to
read:
1522.08. (a) In order to protect the health and safety of persons
receiving care or services from individuals or facilities licensed
or certified by the state, the following information may be
shared:
(1) The California Department of
Aging, State Department of Public Health, State Department of Health
Care Services, State Department of Social Services, and the Emergency
Medical Services Authority may share information with respect to
applicants, licensees, certificates, or individuals who have been the
subject of any administrative action resulting in the denial,
suspension, probation, or revocation of a license, permit, or
certificate, or in the exclusion of any person from a facility who is
subject to a background check, as otherwise provided by law.
(2) The State Department of Social Services and county child
welfare agencies may share information, including state summary
criminal history information, with respect to applicants, licensees,
certificates, or individuals who have been the subject of any
administrative action resulting in the denial, suspension, probation,
or revocation of a license, permit, or certificate, or in the
exclusion of any person from a facility who is subject to a
background check, as otherwise provided by law.
(b) The State Department of Social Services shall maintain a
centralized system for the monitoring and tracking of final
administrative actions, to be used by the California Department of
Aging, State Department of Public Health, State Department of Health
Care Services, State Department of Social Services, and
the Emergency Medical Services Authority , and county
child welfare agencies as a part of the background check
process. The State Department of Social Services may charge a fee to
departments under the jurisdiction of the California Health and Human
Services Agency and to county child welfare agencies
sufficient to cover the cost of providing those departments with the
final administrative action specified in subdivision (a). To the
extent that additional funds are needed for this purpose,
implementation of this subdivision shall be contingent upon a
specific appropriation provided for this purpose in the annual Budget
Act.
(c) The State Department of Social Services, in consultation with
the other departments under the jurisdiction of the California Health
and Human Services Agency, may adopt regulations to implement this
section.
(d) For the purposes of this section and Section 1499,
"administrative action" means any proceeding initiated by the
California Department of Aging, State Department of Public Health,
State Department of Health Care Services, State Department of Social
Services, and the Emergency Medical Services Authority to determine
the rights and duties of an applicant, licensee, or other individual
or entity over which the department has jurisdiction. "Administrative
action" may include, but is not limited to, action involving the
denial of an application for, or the suspension or revocation of, any
license, special permit, administrator certificate, criminal record
clearance, or exemption.
SEC. 3. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, dates
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivisions (a) and (b) of Section 830.5, and subdivision
(a) of Section 830.31.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or
postrelease community supervision revocation or revocation extension
proceeding, and if authorized access by statutory or decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code or Section 1522 of the
Health and Safety Code . Information from criminal history
records provided pursuant to this subdivision shall not be used for
any purposes other than those specified in this section and
, Section 16504.5 of the Welfare and
Institutions Code , and Section 1522 of the Health and Safety
Code . When an agency obtains records obtained both on the
basis of name checks and fingerprint checks, final placement
decisions shall be based only on the records obtained pursuant to the
fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint
checks, final placement
decisions shall be based only on the records obtained pursuant to the
fingerprint check. Article 6 (commencing with Section 11140) shall
apply to child welfare agency personnel receiving criminal record
offender information pursuant to this section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.
(25) A public agency described in subdivision (b) of Section 15975
of the Government Code, for the purpose of oversight and enforcement
policies with respect to its contracted providers.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal history
information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more
than 30 days after employment or promotion or transfer is denied or
granted, except for those cases where a current or prospective
employee is out on bail or on his or her own recognizance pending
trial, in which case the state summary criminal history information
and all copies shall be destroyed not more than 30 days after the
case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the violations.
Any public utility's or cable corporation's request for state summary
criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private
residences or adjacent grounds in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(v) Nothing in this section shall be construed as imposing any
duty upon public utilities or cable corporations to request state
summary criminal history information on any current or prospective
employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who
is the subject of the record requested, if needed in conjunction
with the individual's application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant to
this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 26190, and former
Section 13588 of the Education Code shall be deposited in a special
account in the General Fund to be available for expenditure by the
department to offset costs incurred pursuant to those sections and
for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided, however, that where the
records of the Department of Justice do not contain a disposition for
the arrest, the Department of Justice first makes a genuine effort
to determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101, and the
information is to be used for criminal justice employment, licensing,
or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (9) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other provision of law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 379 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other provisions of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2. This subdivision shall not supersede sections that mandate
an agency, organization, or individual to contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2.
(r) Nothing in this section shall be construed to mean that the
Department of Justice shall cease compliance with any other statutory
notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
(t) Whenever state or federal summary criminal history information
is furnished by the Department of Justice as the result of an
application by an authorized agency, organization, or individual
defined in subdivisions (k) to (p), inclusive, and the information is
to be used for employment, licensing, or certification purposes, the
authorized agency, organization, or individual shall expeditiously
furnish a copy of the information to the person to whom the
information relates if the information is a basis for an adverse
employment, licensing, or certification decision. When furnished
other than in person, the copy shall be delivered to the last contact
information provided by the applicant.
SEC. 4. Section 16504.5 of the Welfare and Institutions Code is
amended to read:
16504.5. (a) (1) Notwithstanding any other provision of law,
pursuant to subdivision (b) of Section 11105 of the Penal Code, a
child welfare agency may secure from an appropriate governmental
criminal justice agency the state summary criminal history
information, as defined in subdivision (a) of Section 11105 of the
Penal Code, through the California Law Enforcement Telecommunications
System pursuant to subdivision (d) of Section 309, and subdivision
(a) of Section 1522 of the Health and Safety Code , and may
secure state-summary criminal history information from the State
Department of Social Services pursuant to Section 1522.08 of the
Health and Safety Code, for the following purposes:
(A) To conduct an investigation pursuant to Section 11166.3 of the
Penal Code or an investigation involving a child in which the child
is alleged to come within the jurisdiction of the juvenile court
under Section 300.
(B) (i) To assess the appropriateness and safety of placing a
child who has been detained or is a dependent of the court, in the
home of a relative assessed pursuant to Section 309 or 361.4, or in
the home of a nonrelative extended family member assessed as
described in Section 362.7 during an emergency situation.
(ii) When a relative or nonrelative family member who has been
assessed pursuant to clause (i) and approved as a caregiver moves to
a different county and continued placement of the child with that
person is intended, the move shall be considered an emergency
situation for purposes of this subparagraph.
(C) To attempt to locate a parent or guardian pursuant to Section
311 of a child who is the subject of dependency court proceedings.
(D) To obtain information about the background of a nonminor who
has petitioned to reenter foster care under subdivision (e) of
Section 388, in order to assess the appropriateness and safety of
placing the nonminor in a foster care or other placement setting with
minor dependent children.
(E) To assess the appropriateness and safety of placing a child
who has been detained or is a dependent of the court in a licensed
foster family home, group home, or state licensed foster home.
(F) To monitor the health and safety of persons under the
supervision of the county child welfare agency who are residing in a
licensed foster family home, group home, or state-licensed foster
home.
(2) Any time that a child welfare agency initiates a criminal
background check through the California Law Enforcement
Telecommunications System for the purpose described in subparagraph
(B) of paragraph (1), the agency shall ensure that a state-level
fingerprint check is initiated within 10 calendar days of the check,
unless the whereabouts of the subject of the check are unknown or the
subject of the check refuses to submit to the fingerprint check. The
Department of Justice shall provide the requesting agency a copy of
all criminal history information regarding an individual that it
maintains pursuant to subdivision (b) of Section 11105 of the Penal
Code.
(b) Criminal justice personnel shall cooperate with requests for
criminal history information authorized pursuant to this section and
shall provide the information to the requesting entity in a timely
manner.
(c) Any law enforcement officer or person authorized by this
section to receive the information who obtains the information in the
record and knowingly provides the information to a person not
authorized by law to receive the information is guilty of a
misdemeanor as specified in Section 11142 of the Penal Code.
(d) Information obtained pursuant to this section shall not be
used for any purposes other than those described in subdivision (a).
(e) Nothing in this section shall preclude a nonminor petitioning
to reenter foster care or a relative or other person living in a
relative's home from refuting any of the information obtained by law
enforcement if the individual believes the state- or federal-level
criminal records check revealed erroneous information.
(f) (1) A state or county welfare agency may submit to the
Department of Justice fingerprint images and related information
required by the Department of Justice of parents or legal guardians
when determining their suitability for reunification with a dependent
child subject to the jurisdiction of the juvenile court, for the
purposes of obtaining information as to the existence and content of
a record of state or federal convictions and state or federal
arrests, as well as information as to the existence and content of a
record of state or federal arrests for which the Department of
Justice establishes that the person is free on bail or on his or her
own recognizance pending trial or appeal. Of the information received
by the Department of Justice pursuant to this subdivision, only the
parent's or legal guardian's criminal history for the time period
following the removal of the child from the parent or legal guardian
shall be considered.
(2) A county welfare agency or county probation office may submit
to the Department of Justice fingerprint images and related
information required by the Department of Justice of nonminors
petitioning to reenter foster care under Section 388, in order to
assess the appropriateness and safety of placing the nonminor in a
foster care or other placement setting with minor dependent children.
(3) When received, the Department of Justice shall forward to the
Federal Bureau of Investigation requests for federal summary criminal
history information received pursuant to this subdivision. The
Department of Justice shall
review the information returned from the Federal Bureau of
Investigation and respond to the state or county welfare agency.
(4) The Department of Justice shall provide a response to the
state or county welfare agency pursuant to subdivision (p) of Section
11105 of the Penal Code.
(5) The state or county welfare agency shall not request from the
Department of Justice subsequent arrest notification service, as
provided pursuant to Section 11105.2 of the Penal Code, for
individuals described in this subdivision.
(6) The Department of Justice shall charge a fee sufficient to
cover the costs of processing the request described in this
subdivision.
(7) This subdivision shall become operative on July 1, 2007.
(g) A fee, determined by the Federal Bureau of Investigation and
collected by the Department of Justice, shall be charged for each
federal-level criminal offender record information request submitted
pursuant to this section and Section 361.4.