Section 86519.1 - Criminal Record Exemption(a) While considering allowing or denying an exemption, the Department shall notify a licensee to act immediately to remove from the crisis nursery or bar from entering the crisis nursery any of the following persons: (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 Penal Code Sections 243.4, 273a, 273d, 273g, or 368;(4) In addition to Health and Safety Code Section 1522(c)(3), any person who has been convicted of any of the following crimes: (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;(I) Willful Harm or Injury to Child; or(5) Any other person ordered to be removed by the Department.(b) In addition to the removing an individual from the crisis nursery, the licensee must return the confirmation of removal form that is sent by the Department, confirming under penalty of perjury that the individual has been removed from the crisis nursery. This form must be returned to the Department within five days of the date on the form. (1) Confirmation must be made on either a Removal Confirmation -- Exemption Needed, LIC 300A, Removal Confirmation -- Denial, LIC 300B, Removal Confirmation -- Rescinded, LIC 300C, or Removal Confirmation -- Nonexemptible, LIC 300D.(c) After a review of the criminal record transcript, the Department may grant an exemption if: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 crisis nursery, 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 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 presence, in a licensed crisis nursery.(d) To request a criminal record exemption, a licensee or license applicant shall submit information that indicates that the individual meets the requirements of Section 86519.1(c)(4). The Department shall 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 shall 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.(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 and2. Chooses not to employ or terminates the individual's employment after receiving notice of the individual's criminal history, or3. Removes the individual who resides in the crisis nursery 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).(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) and2. 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) Position held in the crisis nursery.(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, pursuant to Health and Safety Code Section 1522(g), to grant a criminal record exemption that places conditions on the individual's continued licensure, and employment or presence in a licensed crisis nursery.(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 crisis nursery, 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.(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 86519.1(k)(1) through (6) and the individual provides the Department with substantial and convincing evidence of good character as specified in Section 86519.1(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 86519.1(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 86519.1(k)(1) through (6).(m) Except as specified in Health and Safety Code Section 1522(g)(1)(A)(ii), the Department shall not grant an exemption if the individual has a conviction for any offense specified in Health and Safety Code Section 1522(g)(1). The Department shall notify the licensee or license applicant and the affected individual, in concurrent, separate notices, that the affected individual has a non-exemptible criminal conviction and may not work, reside or have contact with clients of any community care facility. (1) The notice to the affected individual shall list the nature and date of the non-exemptible conviction(s) that the Department is aware of at the time the notice is sent.(n) The Department shall consider granting a simplified criminal record exemption only if the individual has the following criminal history profile outlined in Sections 86519.1(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 children.(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 at the crisis nursery.(4) For individuals residing in the crisis nursery, 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 at the crisis nursery.(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 86519.1(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 crisis nursery, unless either a petition or an exemption is granted.(3) If an individual who has previously been denied an exemption reapplies after the relevant time period described in Section 86519.1(q)(1), the Department may, according to the provisions in Section 86519.1, 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 crisis nursery, along with all information required of an individual requesting a criminal record exemption as provided in Section 86519.1. 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 crisis nursery 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.(2) A copy of the individual's: (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, such as a job duty statement, job description for the prospective position, resume or a document that justifies the transfer.(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 contact with children 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 notice 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 a child;(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 children in a crisis nursery.Cal. Code Regs. Tit. 22, § 86519.1
1. New section filed 10-26-2006 as an emergency; operative 10-26-2006 (Register 2006, No. 43). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, exempt from review by OAL. A Certificate of Compliance must be transmitted to OAL by 2-23-2007 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 2-23-2007 as an emergency; operative 2-23-2007 (Register 2007, No. 8). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, exempt from review by OAL. A Certificate of Compliance must be transmitted to OAL by 6-25-2007 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 2-23-2007 order transmitted to OAL 6-25-2007 and disapproved 8-7-2007; Notice of Disapproval of Certificate of Compliance and Order of Deletion filed 8-7-2007 (Register 2007, No. 32).
4. New section refiled 8-7-2007 as an emergency; operative 8-7-2007 (Register 2007, No. 32). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, and is exempt from OAL review and approval. A Certificate of Compliance must be transmitted to OAL by 12-5-2007 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 8-7-2007 order, including amendment of section and NOTE, transmitted to OAL 11-21-2007 and filed 12-31-2007 (Register 2008, No. 1).
6. Amendment of subsections (d)(3)-(d)(3)(C), (n) 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.
7. Editorial correction of HISTORY 6 (Register 2020, No. 43) Note: Authority cited: Sections 1522 and 1530, Health and Safety Code. Reference: Sections 1516, 1522 and 1531, Health and Safety Code; Gresher v. Anderson (2005) 127 Cal. App. 4th 88; and Glesmann v. Saenz (2006) 140 Cal. App. 4th 960.
1. New section filed 10-26-2006 as an emergency; operative 10-26-2006 (Register 2006, No. 43). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, exempt from review by OAL. A Certificate of Compliance must be transmitted to OAL by 2-23-2007 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 2-23-2007 as an emergency; operative 2-23-2007 (Register 2007, No. 8). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, exempt from review by OAL. A Certificate of Compliance must be transmitted to OAL by 6-25-2007 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 2-23-2007 order transmitted to OAL 6-25-2007 and disapproved 8-7-2007; Notice of Disapproval of Certificate of Compliance and Order of Deletion filed 8-7-2007 (Register 2007, No. 32).
4. New section refiled 8-7-2007 as an emergency; operative 8-7-2007 (Register 2007, No. 32). Pursuant to Statutes 2004, chapter 664, section 11 (SB 855) this regulatory action is deemed to be an emergency and necessary for the immediate preservation of the public peace, health, safety, or general welfare, and is exempt from OAL review and approval. A Certificate of Compliance must be transmitted to OAL by 12-5-2007 or emergency language will be repealed by operation of law on the following day.
5. Certificate of Compliance as to 8-7-2007 order, including amendment of section and Note, transmitted to OAL 11-21-2007 and filed 12-31-2007 (Register 2008, No. 1).
6. Amendment of subsections (d)(3)-(d)(3)(C), (n) and (n)(2)-(4) filed 6-25-2020; operative 10/1/2020 (Register 2020, No. 26).