Cal. Code Regs. Tit. 22, § 87355 - Criminal Record Clearance
(a) The Department shall conduct a criminal
record review of all individuals specified in Health and Safety Code Section
1569.17 and shall have the authority to approve or deny a facility license, or
employment, residence, or presence in the facility, based upon the results of
such review.
(b) Prior to the
Department issuing a license, the applicant, administrator and any adults other
than a client, residing in the facility shall have a criminal record clearance
or exemption.
(c) A licensee or
applicant for a license may request a transfer of a criminal record clearance
from one state licensed facility to another, or from TrustLine to a state
licensed facility by providing the following documents to the Department:
(1) A signed Criminal Background Clearance
Transfer Request, LIC 9182 (Rev. 4/02).
(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).
(d) All individuals subject to a criminal
record review shall be fingerprinted and sign a Criminal Record Statement (LIC
508 [Rev. 1/03]) under penalty of perjury.
(1) A person signing the LIC 508 must:
(A) Declare whether he/she has been convicted
of a crime, other than a minor traffic violation as specified in Section
87355(h)
regardless of whether the individual was granted a pardon for the conviction,
received an expungement pursuant to Penal Code 1203.4 or the individual's
record was sealed as a result of a court order.
(B) If convicted of a crime other than a
minor traffic violation as specified in Section
87355(h), provide
information regarding the conviction.
(2) If the signed statement indicates a
conviction for any crime other than a minor traffic violation for which the
fine was $300 or less, the licensee shall immediately notify the Department and
the Department shall take appropriate action as specified in 87355(h). The
Department shall take the same actions as would be taken in Health and Safety
Code section 1569.17(c) if a criminal record transcript had been
received.
(3) The licensee shall
submit these fingerprints to the California Department of Justice, along with a
second set of fingerprints for the purpose of searching the records of the
Federal Bureau of Investigation, or comply with Section
87355(c), prior
to the individual's employment, residence, or initial presence in the
facility.
(e) All
individuals subject to a criminal record review pursuant to Health and Safety
Code Section 1569.17(b) shall prior to working, residing or volunteering in a
licensed facility:
(1) Submit a valid mailing
address at which the individual shall receive communications from the
Department.
(A) An individual who holds a
criminal record clearance or exemption shall maintain a current and valid
mailing address with the Department and shall notify the Department within ten
(10) days of any change in mailing address.
(2) Obtain a California clearance or a
criminal record exemption as required by the Department or
(3) Request a transfer of a criminal record
clearance as specified in Section
87355(c)
or
(4) Request and be approved for
a transfer of a criminal record exemption, as specified in Section
87356(r), unless,
upon request for a transfer, the Department permits the individual to be
employed, reside or be present at the facility.
(f) Violation of Section
87355(e) shall
result in a citation of a deficiency and an immediate assessment of civil
penalties of one hundred dollars ($100) per violation per day for a maximum of
five (5) days by the Department.
(1)
Subsequent violations within a twelve (12) month period will result in a civil
penalty of one hundred dollars ($100) per violation per day for a maximum of
thirty (30) days.
(2) The
Department may assess civil penalties for continued violations as permitted by
Health and Safety Code Section 1569.49.
(g) Violation of Section
87355(e) may
result in a denial of the license application or suspension and/or revocation
of the license.
(h) If the criminal
record transcript of any individuals specified in Health and Safety Code
section 1569.17(b) discloses a plea or verdict of guilty or a conviction
following a plea of nolo contendere for any crime other than a minor traffic
violation for which the fine was less than $300 and an exemption pursuant to
Section 87356(a) has not
been granted, the Department shall take the following actions specified in
Health and Safety Code section 1569.17(c).
(1) For an initial applicant, the Department
may 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 1569.58 and 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, licensee, or employee, exclusion of the
affected individual pursuant to Health and Safety Code Section 1569.58 and
denial of the application or revocation of the license, if the individual
continues to provide services and/or reside in the
facility.
(i) The
Department shall notify the licensee and the affected individual associated
with the facility, in concurrent, separate letters, that the affected
individual has a criminal conviction and needs to obtain a criminal record
clearance.
(j) The licensee shall
maintain documentation of criminal record clearances or criminal record
exemptions of employees in the individual's personnel file as required in
Section 87412, Personnel
Records.
(k) The licensee shall
maintain documentation of criminal record clearances or criminal record
exemptions of volunteers that require fingerprinting and non-client adults
residing in the facility.
(1) Documentation
shall be available at the facility for inspection by the
Department.
(l) The
Department may seek verification from a law enforcement agency or court of an
individual's criminal record as reported to the Department from any member of
the public or affected individual.
(1) Upon
obtaining confirmation from a law enforcement agency or court of the offense,
the Department shall proceed as if this criminal record information was
provided by the California Department of Justice.
(m) An individual with arrest history
described in Health and Safety Code section 1569.17(e), shall be notified of
the following:
(1) The fact of the
investigation into conduct associated with arrest information regarding the
subject.
(2) The specific arrest(s)
upon which the investigation is based.
(3) The date of the arrest(s).
(4) The arresting agency.
(5) The disposition of the arrest(s), if
available, as indicated on criminal history information received from
DOJ.
(6) The subject shall not work
or reside in a licensed facility until the subject has received a criminal
record clearance or exemption.
(7)
If the Department obtains evidence through the investigation that the subject
may pose a risk to the health and safety of any person who is or may become a
client, the Department may deny a criminal record clearance and/or exclude the
subject.
(8) The subject may
provide written information the subject believes is relevant to the
investigation and/or shows the subject is qualified to work in a licensed
facility.
(9) The subject will be
notified of the Department's decision regarding whether or not to grant a
clearance and of the right to appeal any such decision at that
time.
(n) The Department
shall, in cases where the subject does not have a conviction, within 5 business
days of a decision to deny a criminal record clearance based on an
investigation described in subdivision (m) notify the subject of the following:
(1) The Department has completed its
investigation into arrest information.
(2) The Department will not grant that
individual a criminal record clearance.
(3) The decision, if not appealed, will bar
the subject from presence in a licensed facility.
(4) The arrest which triggered the
investigation, including the date of arrest, charges, and arresting
agency.
(5) The CDSS has determined
that the subject may pose a risk to the health and safety of a person who is or
may become a client.
(6) The
specific conduct upon which the decision is based.
(7) The subject has a right to contest the
decision and will receive an Accusation from the Legal Division as well as
information about how to request an administrative hearing.
(o) For initial applications, where the
subject does not have a conviction, the Accusation described in paragraph (7)
of subdivision (n) shall be filed within 40 days of a decision to deny a
criminal record clearance.
Notes
2. New subsections (e)(1)-(e)(1)(A), subsection renumbering, new subsections (m)-(o) and amendment of NOTE filed 12-15-2021; operative 4-1-2022 (Register 2021, No. 51). 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-71-20.
3. Editorial correction of HISTORY 2 (Register 2022, No. 11).
Note: Authority cited: Sections 1569.30 and 1569.49(d), Health and Safety Code. Reference: Section 11505, Government Code; and Sections 1569.17 and 1569.49, Health and Safety Code.
2. New subsections (e)(1)-(e)(1)(A), subsection renumbering and new subsections (m)-(m)(6) filed 12-15-2021; operative
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