Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) The Department will notify a licensee to
act immediately to terminate the employment of, remove from the facility or bar
from entering the facility any person described in Sections
101170.1(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 1596.871(c)(2);
(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 101170.1(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Rescinded, LIC 300C (Rev. 9/03), or Removal Confirmation -- Nonexemptible, LIC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 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 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 101170.1(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
101170.1(e).
(B) If the individual for whom the criminal
record exemption is requested is an employee or resident other than a 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 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) A full and
unconditional pardon granted by the Governor.
(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,
Criminal Record Statement [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 the individual's
exemption request if:
(1) The individual fails
to provide documents requested by the Department, or
(2) The 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 shall be 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 101170.1(j)(2).
(k) The Department shall consider granting a
criminal record exemption for an individual when the individual's criminal
record history meets all of the applicable criteria specified in Sections
101170.1(k)(1) through
(6) and the individual provides the
Department with substantial and convincing evidence of good character as
specified in Section
101170.1(c)(4).
For purposes of this section, a violent crime is a crime that, upon evaluation
of the code section violated and/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 Section
101170.1(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
101170.1(k)(1) through
(6).
(m) The Department shall not grant an
exemption if the individual has a conviction for any offense specified in
Section 1596.871(f) of the Health and Safety Code.
(n) The Department shall consider granting a
simplified criminal record exemption if the individual has the criminal history
profile outlined in Sections
101170.1(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 1596.8897, 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,
including spouses of the applicant or the licensee, exclude the affected
individual pursuant to Health and Safety Code Section 1596.8897, 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
101170.1(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 101170.1(q)(1)
above, the Department may, according to the provisions in Section
101170.1 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 101170.1. 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., LIC 508, Criminal
Record Statement [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 the transfer of an exemption from one facility to another:
(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 which 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 has been convicted of a crime after obtaining a criminal record
clearance or exemption, the Department, at its sole discretion, may initiate an
administrative action to protect the health and safety of clients.
1. New
section filed 5-18-2000 as an emergency; operative 5-18-2000 (Register 2000,
No. 20). Pursuant to Section 73 of Senate Bill 933, Chapter 311, Statutes of
1998 a Certificate of Compliance must be transmitted to OAL by 11-14-2000 or
emergency language will be repealed by operation of law on the following
day.
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. 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.
6. 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.
7. 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).
8. Amendment of section and NOTE filed 7-11-2006; operative
8-10-2006 (Register 2006, No. 28).
9. Amendment of subsections
(d)(3)-(d)(3)(C) and (n)(2)-(4) filed 6-25-2020; operative 10-1-2020 (Register
2020, No. 26). Filing deadline specified in Government Code section
11349.3(a)
extended 60 calendar days pursuant to Executive Order N-40-20 and an additional
60 calendar days pursuant to Executive Order N-66-20.
10. Editorial
correction of HISTORY 9 (Register 2020, No. 43).
Note: Authority cited: Section
1596.81,
Health and Safety Code. Reference: Sections
1596.81(b),
1596.871,
1596.885
and
1596.8897,
Health and Safety Code; and Gresher v. Anderson (2005) 127 Cal. App. 4th
88.
