Cal. Code Regs. Tit. 22, § 80019.1 - Criminal Record Exemption
(a) The Department will notify a licensee to
act immediately to remove from the facility or bar from entering the facility
any person described in Sections 80019.1(a)(1) through (5) below while the
Department considers granting or denying an exemption. Upon notification, the
licensee shall comply with the notice.
(1)
Any person who has been convicted of, or is awaiting trial for, a sex offense
against a minor;
(2) Any person who
has been convicted of a felony;
(3)
Any person who has been convicted of an offense specified in Sections
243.4,
273a,
273d,
273g,
or
368
of the Penal Code or any other crime specified in Health and Safety Code
Section
1522(c)(3);
(4) Any person who has been convicted of any
crime specified below:
(A) Battery
(B) Shooting at Inhabited Dwelling
(C) Corporal Injury on
Spouse/Cohabitant
(D) Discharging
Firearm with Gross Negligence
(E)
Exhibiting Weapon/Firearm
(F)
Threat to Commit a Crime Resulting in Gross Bodily Injury or Death
(G) Criminal Threat to Harm or Injure Another
Person
(H) Cruelty to
Animals
(I) Willful Harm or Injury
to Child; or
(5) Any
other person ordered to be removed by the Department.
(b) In addition to the requirements of
Section 80019.1(a), the licensee must return the confirmation of removal form
that is sent by the Department, within five (5) days of the date of the form,
that confirms under penalty of perjury that the individual has been removed
from the facility.
(1) Confirmation must be
made on either a Removal Confirmation - Exemption Needed, LIC 300A (Rev. 9/03),
Removal Confirmation - Denial, LIC 300B (Rev. 9/03), Removal Confirmation -
Rescinded, LIC 300C (Rev. 9/03), or Removal Confirmation - Nonexemptible, LIC
300D (Rev. 9/03).
(c)
After a review of the criminal record transcript, the Department may grant an
exemption if:
(1) The applicant/licensee
requests an exemption in writing for himself or herself, or
(2) The applicant/licensee requests an
exemption in writing for an individual associated with the facility,
or
(3) The applicant/licensee
chooses not to seek an exemption on the affected individual's behalf, the
affected individual requests an individual exemption in writing, and
(4) The affected individual presents
substantial and convincing evidence satisfactory to the Department that he/she
has been rehabilitated and presently is of such good character as to justify
being issued or maintaining a license, employment, presence, or residence in a
licensed facility.
(d)
To request a criminal record exemption, a licensee or license applicant must
submit information that indicates that the individual meets the requirements of
Section 80019.1(c)(4). The Department will notify the licensee or license
applicant and the affected individual, in concurrent, separate notices, that
the affected individual has a criminal conviction and needs to obtain a
criminal record exemption.
(1) The notice to
the affected individual shall include a list of the conviction(s) that the
Department is aware of at the time the notice is sent that must be addressed in
an exemption request.
(2) The
notice will list the information that must be submitted to request a criminal
record exemption.
(3) The
information must be submitted within forty five (45) calendar days of the date
of the Department's notice.
(A) Individuals
who submit a criminal record exemption request shall cooperate with the
Department by providing any information requested by the Department, including,
but not limited to, certified court documents to process the exemption request,
pursuant to Section 80019.1(e).
(B)
If the individual for whom the criminal record exemption is requested is an
employee or resident other than a spouse or a dependent family member and the
licensee/license applicant does not submit the information listed in the
Department's written notice within 45 calendar days of the date of the notice,
the Department may cease processing the exemption request and close the
case.
(C) If the individual for
whom the criminal record exemption is requested is an applicant, licensee,
spouse or dependent family member and the licensee/license applicant does not
submit the information listed in the Department's written notice within 45
calendar days of the date of the notice, the Department may deny the exemption
request.
(D) Individuals may
request a criminal record exemption on their own behalf if the licensee or
license applicant:
1. Chooses not to request
the exemption and
2. Chooses not to
employ or terminates the individual's employment after receiving notice of the
individual's criminal history, or
3. Removes the individual who resides in the
facility after receiving notice of the individual's criminal history.
(e) The
Department shall consider factors including, but not limited to, the following
as evidence of good character and rehabilitation:
(1) The nature of the crime including, but
not limited to, whether it involved violence or a threat of violence to
others.
(2) Period of time since
the crime was committed and number of offenses.
(3) Circumstances surrounding the commission
of the crime that would demonstrate the unlikelihood of repetition.
(4) Activities since conviction, including
employment or participation in therapy or education, that would indicate
changed behavior.
(5) Granting by
the Governor of a full and unconditional pardon.
(6) Character references.
(A) All character references shall be on a
Reference Request form (LIC 301E - Exemptions [Rev. 7/03]).
(7) A certificate of
rehabilitation from a superior court.
(8) Evidence of honesty and truthfulness as
revealed in exemption application documents.
(A) Documents include, but are not limited
to:
1. A Criminal Record Statement (LIC 508,
[Rev. 1/03]) or for Foster Family Homes, Small Family Homes and Certified
Family Homes an LIC 508D [Rev. 1/03]) and
2. The individual's written
statement/explanation of the conviction and the circumstances about the
arrest.
(9)
Evidence of honesty and truthfulness as revealed in exemption application
interviews and conversations with the Department.
(f) The Department shall also consider the
following factors in evaluating a request for an exemption:
(1) Facility and type of
association.
(2) The individual's
age at the time the crime was committed.
(g) The Department may deny an exemption
request if:
(1) The licensee and/or the
affected individual fails to provide documents requested by the Department,
or
(2) The licensee and/or the
affected individual fails to cooperate with the Department in the exemption
process.
(h) The reasons
for any exemption granted or denied shall be in writing and kept by the
Department.
(1) Exemption denial notices
shall specify the reason the exemption was denied.
(i) The Department has the authority to grant
a criminal record exemption that places conditions on the individual's
continued licensure, and employment or presence in a licensed
facility.
(j) It shall be
conclusive evidence that the individual is not of such good character as to
justify issuance of an exemption if the individual:
(1) Makes a knowingly false or misleading
statement regarding:
(A) Material relevant to
their application for a criminal record clearance or exemption,
(B) His or her criminal record clearance or
exemption status to obtain employment or permission to be present in a licensed
facility, after the Department has ordered that they be excluded from any or
all licensed facilities, or
(C) His
or her criminal record clearance or exemption status in order to obtain a
position with duties that are prohibited to him/her by a conditional exemption;
or
(2) Is on probation
or parole.
(A) If the individual is currently
on probation, and provides sufficient proof that the probationary period(s) is
informal, unsupervised and no probation officer is assigned, the Department
may, in its discretion, grant a criminal record exemption notwithstanding
Section 80019.1(j)(2).
(B) Section
80019.1(j)(2) does not apply to Certified Family Homes.
(k) The Department shall consider
granting a criminal record exemption if the individual's criminal history meets
all of the applicable criteria specified in Sections 80019.1(k)(1) through (6)
and the individual provides the Department with substantial and convincing
evidence of good character as specified in Section 80019.1(c)(4). For purposes
of this section, a violent crime is a crime that, upon evaluation of the code
section violated or the reports regarding the underlying offense, presents a
risk of harm or violence.
(1) The individual
has been convicted of one nonviolent misdemeanor, and one year has lapsed since
completing the most recent period of incarceration or probation.
(2) The individual has been convicted of two
or more nonviolent misdemeanors and four consecutive years have lapsed since
completing the most recent period of incarceration, probation or parole,
whichever is latest.
(3) The
individual has been convicted of one or more violent misdemeanors and 15
consecutive years have lapsed since completing the most recent period of
incarceration, probation or parole, whichever is latest.
(4) The individual has been convicted of one
nonviolent felony and four consecutive years have lapsed since completing the
most recent period of incarceration, probation or parole, whichever is
latest.
(5) The individual has been
convicted of two or more nonviolent felonies and ten consecutive years have
lapsed since completing the most recent period of incarceration, probation or
parole, whichever is latest.
(6)
The individual has not been convicted of a violent felony.
(7) If the individual is currently on
probation, and provides sufficient proof that the probationary period(s) is
informal, unsupervised and no probation officer is assigned, the period of
lapsed time required in Sections 80019.1(k)(1) through (5) above shall begin
from the last date of conviction(s).
(l) It shall be a rebuttable presumption that
an individual is not of such good character as to justify the issuance of an
exemption if the individual fails to meet the requirements specified in
Sections 80019.1(k)(1) through (6).
(m) The Department shall not grant an
exemption if the individual has a conviction for any offense specified in
Section
1522(g)(1)
of the Health and Safety Code.
(n)
The Department shall consider granting a simplified criminal record exemption
only if the individual has the criminal history profile outlined in Sections
80019.1(n)(1) through (4) below:
(1) The
individual does not have a demonstrated pattern of criminal activity;
(2) The individual has one or more
convictions arising from a single incident of criminal conduct;
(3) Each conviction is a misdemeanor and is
for a crime that is nonviolent and does not pose a risk of harm to an
individual; and
(4) It has been at
least five consecutive years since the date of conviction.
(o) At the Department's discretion, an
individual who is otherwise eligible for a simplified exemption may be required
to go through the standard exemption process if the Department determines such
action will help to protect the health and safety of clients.
(p) If the Department denies or cannot grant
a criminal record exemption the Department shall:
(1) For initial applicants, deny the
application.
(2) For current
licensees, the Department may institute an administrative action, including,
but not limited to, revocation of the license.
(3) For current employees, exclude the
affected individual pursuant to Health and Safety Code Section
1558,
deny the application or revoke the license, if the individual continues to
provide services and/or reside at the facility.
(4) For individuals residing in the facility
or the licensee, exclude the affected individual pursuant to Health and Safety
Code Section
1558,
deny the application or revoke the license, if the individual continues to
provide services and/or reside at the facility.
(q) If a request for an exemption has been
denied, the individual shall be excluded for a period of two years unless the
individual has been convicted of a crime for which no exemption may be granted
pursuant to Section 80019.1(m). If a request for an exemption has been denied
based on a conviction of a crime for which no exemption may be granted, the
individual shall be excluded for the remainder of the individual's life.
(1) If the Department determines during the
review of an exemption request, that the individual was denied an exemption for
a conviction of a crime for which an exemption may be granted within the
preceding two years, the Department shall cease any further review of the
request until two years have elapsed from the date of the denial. In cases
where the individual requested a hearing on an exemption denial, the Department
shall cease review of the request for an exemption until two years from the
effective date of the decision and order of the Department upholding the
denial. In cases where the individual submitted a petition for reinstatement or
reduction in penalty pursuant to Government Code Section
11522
that was denied, the Department shall cease review of the request for an
exemption until two years from the effective date of the decision and order of
the Department denying the petition.
(2) An exclusion order based solely upon a
denied exemption shall remain in effect and the individual shall not be
employed in or present in a licensed facility or certified home, unless either
a petition or an exemption is granted.
(3) If an individual who has previously been
denied an exemption re-applies after the relevant time period described in
Section 80019.1(q)(1) above, the Department may, according to the provisions in
Section 80019.1 et seq., grant or deny the subsequent request for an
exemption.
(4) If an individual
submits a petition pursuant to Government Code Section
11522
for reinstatement or reduction of penalty for an exclusion, an individual must
submit his/her fingerprints through an electronic fingerprinting system
approved by the Department and submit to the Department a statement of the
reason why the individual should be permitted to work or be present in a
facility, along with all information required of an individual requesting a
criminal record exemption as provided in Section 80019.1. If it is determined,
based upon information provided by the Department of Justice, that the
individual has been convicted of a crime for which no exemption may be granted,
the petition shall be denied. An individual's failure to submit fingerprints or
other information as requested by the Department, shall be grounds for denial
of the petition. The burden shall be on the petitioner to prove sufficient
rehabilitation and good character to justify the granting of the
petition.
(r) A licensee
or applicant for a license may request a transfer of a criminal record
exemption from one state licensed facility to another by providing the
following documents to the Department:
(1) A
signed Criminal Record Exemption Transfer Request, LIC 9188 (Rev.
9/03).
(2) A copy of the
individual's:
(A) Driver's license,
or
(B) Valid identification card
issued by the Department of Motor Vehicles, or
(C) Valid photo identification issued by
another state or the United States Government if the individual is not a
California resident.
(3)
Any other documentation required by the Department (e.g., Criminal Record
Statement - LIC 508, [Rev.1/03] or for Foster Family Homes, Small Family Homes
and Certified Family Homes an LIC 508D [Rev. 1/03] and job
description).
(s) The
Department may consider factors including, but not limited to, the following in
determining whether or not to approve an exemption transfer:
(1) The basis on which the Department granted
the exemption;
(2) The nature and
frequency of client contact in the new position;
(3) The category of facility where the
individual wishes to transfer;
(4)
The type of clients in the facility where the individual wishes to
transfer;
(5) Whether the exemption
was appropriately evaluated and granted in accordance with existing exemption
laws or regulations; or
(6) Whether
the exemption meets current exemption laws or regulations.
(t) If the Department denies the individual's
request to transfer a criminal record exemption, the Department shall provide
the individual and the licensee with written notification that states the
Department's decision and informs the affected individual of their right to an
administrative hearing to contest the Department's decision.
(u) At the Department's discretion, an
exemption may be rescinded if it is determined that:
(1) The exemption was granted in error,
or
(2) The exemption does not meet
current exemption laws or regulations, or
(3) The conviction for which an exemption was
granted subsequently becomes non-exemptible by law.
(v) The Department may rescind an
individual's criminal record exemption if the Department obtains evidence
showing that the individual engaged in conduct that is inconsistent with the
good character requirement of a criminal record exemption, as evidenced by
factors including, but not limited to, the following:
(1) Violations of licensing laws or
regulations;
(2) Any conduct by the
individual that indicates that the individual may pose a risk to the health and
safety of any individual who is or may be a client;
(3) Nondisclosure of a conviction or evidence
of lack of rehabilitation that the individual failed to disclose to the
Department, even if it occurred before the exemption was issued; or
(4) The individual is convicted of a
subsequent crime.
(w) If
the Department rescinds an exemption the Department shall:
(1) Notify the licensee and the affected
individual in writing; and
(2)
Initiate an administrative action.
(x) If the Department learns that an
individual with a criminal record clearance or exemption has been convicted of
a subsequent crime, the Department, at its sole discretion, may immediately
initiate an administrative action to protect the health and safety of
clients.
Notes
Note: Authority cited: Section 1530, Health and Safety Code. Reference: Sections 1522 and 1531, Health and Safety Code; and Gresher v. Anderson (2005) 127 Cal. App. 4th 88.
2. Editorial correction of History 1 (Register 2000, No. 38).
3. Certificate of Compliance as to 5-18-2000 order transmitted to OAL 11-14-2000 and filed 12-19-2000 (Register 2000, No. 51).
4. Amendment of section and Note filed 7-14-2003 as an emergency; operative 7-16-2003 (Register 2003, No. 29). A Certificate of Compliance must be transmitted to OAL by 11-13-2003 or emergency language will be repealed by operation of law on the following day.
5. Editorial correction removing duplicate subsections (c)-(e) (Register 2003, No. 36).
6. Amendment of section and Note refiled 11-12-2003 as an emergency; operative 11-12-2003 (Register 2003, No. 46). A Certificate of Compliance must be transmitted to OAL by 3-11-2004 or emergency language will be repealed by operation of law on the following day.
7. Amendment of section and Note refiled 3-11-2004 as an emergency; operative 3-11-2004 (Register 2004, No. 11). A Certificate of Compliance must be transmitted to OAL by 7-9-2004 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 3-11-2004 order, including further amendment of section, transmitted to OAL 7-9-2004 and filed 8-20-2004 (Register 2004, No. 34).
9. Amendment of section and Note filed 7-11-2006; operative 8-10-2006 (Register 2006, No. 28).
10. Amendment of subsections (d)(3)-(d)(3)(C) and (n)(2)-(4) filed 6-25-2020; operative
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