Bill Text: CA AB2409 | 2017-2018 | Regular Session | Amended

California Assembly Bill 2409 (Prior Session Legislation)

Bill Title: Professions and vocations: occupational regulations.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-04-17 - In committee: Set, first hearing. Failed passage. Reconsideration granted. [AB2409 Detail]

Download: California-2017-AB2409-Amended.html

Amended IN Assembly April 16, 2018

Amended IN Assembly March 23, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 2409

Introduced by Assembly Member Kiley

February 14, 2018

An act to add Section 37 to the Business and Professions Code, relating to professions and vocations.

LEGISLATIVE COUNSEL'S DIGEST

AB 2409, as amended, Kiley. Professions and vocations: occupational regulations.

Existing law provides for the licensure and regulation of various professions and vocations by boards within the Department of Consumer Affairs and provides that those boards are established for the purpose of ensuring that those private businesses and professions deemed to engage in activities that have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California. Existing law authorizes a board to deny a license if an applicant has been convicted of a crime, done any act involving dishonesty, fraud, or deceit with intent to substantially benefit himself or herself or another or substantially injure another, or does any act that, if done by a licentiate of the business or profession, would be grounds for suspension or revocation.

This bill would establish that a person has a right to engage in a lawful profession or vocation without being subject to an occupational regulation, as defined, that imposes a substantial burden on that right, and would require each occupational regulation to be limited to what is demonstrably necessary and narrowly tailored to fulfill a legitimate public health, safety, or welfare objective. The bill would include within this the right of a person with a criminal record to ~~obtain a license and~~ not to have ~~a board use~~ the person’s criminal record used by a board as an automatic or mandatory permanent bar to engaging in a lawful profession or ~~vocation. The bill would also include~~ vocation, except as specified, and the right of a person who is behind on his or her taxes or student ~~loans to petition a board not to use these factors against that person, as prescribed.~~ loan payments to not have a board use that fact as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation.

The bill would authorize a person who is denied a license to file a petition and appeal to the board. The bill would prescribe procedures and legal standards by which a board may determine that a person’s criminal record disqualifies that person. The bill would also permit a person, following the response to an administrative petition, to file an appeal to a court for a declaratory judgment or injunctive or other equitable relief, in accordance with certain legal procedures and criteria. to petition a board to review an occupational regulation, as defined, within the board’s jurisdiction for compliance with the above rights, as specified. The bill would authorize a person with a criminal record to petition a board at any time for a determination of whether the person’s criminal record will automatically disqualify the person from obtaining a license from the board and would specify the criteria a board is allowed to use in making that determination. The bill would include related definitions and declare the intent of the Legislature in this regard.

Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NO

The people of the State of California do enact as follows:

SECTION 1.

This act may be known as the “Occupational Opportunity Act.”

SEC. 2.

The Legislature finds and declares all of the following:

(a) Each individual has the right to pursue a chosen profession and vocation, free from arbitrary or excessive government interference.

(b) The freedom to earn an honest living traditionally has provided the surest means for economic mobility.

(c) In recent years, many regulations of entry into professions and vocations have exceeded legitimate public purposes and have had the effect of arbitrarily limiting entry and reducing competition.

(d) The burden of excessive regulation is borne most heavily by individuals outside the economic mainstream, for whom opportunities for economic advancement are curtailed.

(e) It is in the public interest to do all of the following:

(1) Ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition.

(2) Provide the means for the vindication of this right.

(3) Ensure that regulations of entry into professions and vocations are demonstrably necessary and narrowly tailored to fulfill legitimate health, safety, and welfare objectives.

SEC. 3.

Section 37 is added to the Business and Professions Code, to read:

37.

(a) (1) Notwithstanding Section 480 or any other law, a person has a right to engage in a lawful profession or vocation without being subject to an occupational regulation that imposes a substantial burden on that right. To achieve this purpose, each occupational regulation shall be limited to what is demonstrably necessary and shall be narrowly tailored to fulfill a legitimate public health, safety, or welfare objective.

(2) Notwithstanding any other law, the right set forth in paragraph (1) includes the right of a person with a criminal record to obtain a license to engage in a profession or vocation, and the right to not have a board use the person’s criminal record as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation. to not have the person’s criminal record be used by a board as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation, unless for reasons specified in this section.

(3) Notwithstanding any other law, the right set forth in paragraph (1) also includes the right of a person who is behind on his or her taxes or student ~~loans~~ loan payments to obtain a license to engage in a profession or vocation, and the right to not have the board use the person’s status with respect to his or her taxes or student ~~loans~~ loan payments as an automatic or mandatory permanent bar to engaging in a lawful profession or vocation.

~~(b)(1)(A)A person denied a license may file a petition and appeal to the board.~~
(B)If the person has a criminal record, the person shall include in the petition a copy of his or her criminal record or shall authorize the board to obtain a copy that record. The person may additionally include information about his or her current circumstances, including, but not limited to, the time passed since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.
(C)Notwithstanding any other law, the board may find that the person’s criminal record disqualifies that person from obtaining a license only if the person’s criminal record includes a conviction for a felony or a violent misdemeanor and the board concludes that the state has an important interest in protecting public safety that is superior to the person’s individual right. The board may make this conclusion only if it determines, by clear and convincing evidence at the time of the petition, all of the following:
~~(i)The specific offense for which the person was convicted is substantially related to the qualifications, functions, or duties of the profession or vocation for which application was denied.~~
(ii)The person, based on the nature of the specific offense for which he or she was convicted and his or her current circumstances, would be put in a position in which that person is more likely to reoffend by having the license than if the person did not obtain that license.
~~(iii)A reoffense by the person would cause greater harm than it would if the person did not have a license and was not put in a position in which the person is more likely to reoffend.~~
~~(2)Within 90 days of a petition filed pursuant to paragraph (1), the board shall make a determination on the appeal, based on the standards set forth in subdivision (a).~~
(c)(1)Following the response to an administrative petition pursuant to paragraph (2) of subdivision (b), a person may file an appeal to a court of general jurisdiction for a declaratory judgment or injunctive relief or other equitable relief for a violation of subdivision (a).
(2)In such an action, the board bears the burden of proving by preponderance of the evidence that the challenged occupational regulation meets the criteria set forth in paragraph (1) of subdivision (a).
(3)If the board fails to meet the burden of proof and the court finds by a preponderance of evidence that the challenged occupational regulation fails to meet the criteria set forth in paragraph (1) of subdivision (a), the court shall enjoin further enforcement of the occupational regulation and shall award reasonable attorney’s fees and costs to the plaintiff.
~~(4)A court shall liberally construe this section to protect the rights established in paragraph (1) of subdivision (a).~~
(b) (1) A person may petition a board to review an occupational regulation within the board’s jurisdiction for compliance with subdivision (a). The board shall respond within 90 days after the petition is submitted, and shall, in writing, inform the petitioner of the board’s decision to do one of the following depending on the circumstances:
(A) Subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), repeal the occupational regulation.
(B) Subject to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), amend the occupational regulation to bring it into compliance with subdivision (a).
(C) Recommend the enactment of legislation by the Legislature.
(D) State the basis on which the board concludes the occupational regulation complies with subdivision (a).
(2) A person may appeal the board’s determination in paragraph (1) by filing an action in a court of general jurisdiction for declaratory judgment, injunctive relief, or other equitable relief.
(A) In such an action, the board bears the burden of proving by a preponderance of the evidence that the challenged occupational regulation is in compliance with subdivision (a).
(B) If the board fails to meet the burden of proof and the court finds by a preponderance of the evidence that the challenged occupational regulation does not comply with subdivision (a), the court shall enjoin further enforcement of the occupational regulation and shall award reasonable attorney’s fees and costs to the petitioner.
(c) (1) Notwithstanding any other law, a person with a criminal record may petition a board at any time for a determination of whether the person’s criminal record will automatically disqualify the person from obtaining a license from the board.
(2) The person shall include in the petition the person’s criminal record or authorize the board to obtain the person’s criminal record.
(3) Notwithstanding any other statute or rule, the board may find the individual’s criminal record disqualifies the individual from obtaining a license only if both of the following are met:
(A) The person’s criminal record includes a conviction for a felony or violent misdemeanor.
(B) The board concludes the state has an important interest in protecting public safety that is superior to the person’s right in subdivision (a). The board may make this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that all of the following are met:
(i) The specific offense for which the person was convicted is substantially related to the state’s interest in protecting public safety.
(ii) The person, based on the nature of the specific offense for which he or she was convicted and the person’s current circumstances, will be put in a position where the person is more likely to reoffend by having the license than if the individual did not have the license.
(iii) A reoffense will cause greater harm than if the individual did not have a license and was not put in the position where the individual is more likely to reoffend.
(4) The board shall issue its determination within 90 days after the board receives the petition. The determination shall be in writing and include, but not be limited to, the person’s criminal record, findings of fact, and the board’s legal conclusions.

(d) For purposes of this section, the following terms apply:

(1) “Board” has the same meaning as set forth in Section 22.

(2) “License” has the same meaning as set forth in Section 23.7.

(3) “Occupational regulation” means a regulation, rule, policy, condition, test, permit, administrative practice, or other state government-prescribed requirement for a person to engage in a lawful profession or vocation.