Analysis of AB-2138: CA Professional license criminal record changes, effective July 1, 2020
AB-2138 (Chiu, Chapter 995, Statutes of 2018) Licensing boards: denial of application: revocation or suspension of licensure: criminal conviction.
Written by Tsion Chudnovsky
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California is making it easier for people with a criminal record to obtain occupational and professional licenses effective July 1, 2020. State legislators passed Assembly Bill 2138 in 2018 with the goal of reducing barriers to obtaining professional licenses, expanding opportunities for those with conviction records, reducing recidivism rates and increasing the transparency and predictability of licensure behavior.
AB-2138 restricts the discretion and licensure criteria of 37 licensing boards within the Department of Consumer Affairs for denying, suspending or revoking licensure due to criminal convictions or alleged misconduct. Only 3 occupational boards are excluded from the reforms.
- An estimated 7,995,500 people in California have an arrest or conviction record – or around 1 in 3 adults in the state.
- Almost 30 percent of the jobs in California (in approximately 1,773 occupations) require certification, licensure, or clearance from a DCA oversight agency or board.
- California has one of the highest recidivism rates in the United States. Convicted criminals re-offend around 50 percent of the time after release (on average from 2002 to 2013).
- California is ranked as the most burdensome state in the United States for licensing requirements by the Institute of Justice.
Frequently asked questions:
- Why is California making the licensing changes in AB-2138?
- What are your thoughts about AB-2138?
- What are the new restrictions on licensing boards and how are they different?
- Which convictions are exempt from the 7 year look back limit in AB-2138?
- What is a ‘substantially related’ criminal conviction?
- Which 37 licensing boards are affected by AB-2138?
- Which 3 licensing boards are excluded from AB-2138 reforms?
- AB-2138 legislation – ca.gov
- 50-State comparison: Criminal record in employment and licensing
- License to Work: National study of burdens from occupational licensing
- Turning Shackles Into Bootstraps: Why occupational license reform is the missing piece of criminal justice reform
- Collateral Consequences: The crossroads of punishment, redemption and the effects on communities
Frequently asked questions
Q & A with attorney Tsion Chudnovsky
Common questions about AB-2138 answered by Tsion Chudnovsky, the founder of Chudnovsky Law. Chudnovsky Law is a legal authority in criminal defense and professional licensing laws and their complex intersection. You can read about the firm’s licensure practice at:
- California professional license defense attorney
- California medical license defense attorney
- California nursing license defense attorney
- California dental license defense attorney
- California pharmacist license defense attorney
- California chiropractic license defense attorney
1. Why is California making the licensing changes in AB-2138?
Chudnovsky: “The three years following release from prison is the period in which ex-prisoners are most vulnerable to re-offending. Being able to earn an honest living is one of the most successful ways to keep people with a criminal record from re-offending.
In recent decades, the right to earn an honest living has increasingly been hindered by occupational licensing laws and a growing licensure bureaucracy. Government imposed barriers have been a major challenge for ex-prisoners trying to re-enter the workforce. Qualified people can have licenses denied, suspended or revoked due to prior arrests or convictions which are old, unrelated to the profession, or have been judicially dismissed.
The United States incarcerates its citizens more than any other country in the world. Data from the Equal Justice Initiative highlights the scale of the challenge we are facing as a nation:
- The U.S. has 5% of the world’s population, but ~25% of its incarcerated population.
- We spent $87 billion in 2015 on jails and prisons.
- 2.2 million people are incarcerated today vs. only 200,000 in 1972.
- The number of women in jails and prisons has grown 750% from 1980 to 2017
Momentum from criminal justice reform efforts across the U.S. has focused legislators and researchers on finding solutions to reducing recidivism and the burden incarceration places on society and government budgets. Successfully reintegrating ex-prisoners back into the workforce is a crucial component to criminal justice reform.
A landmark study by Steven Slivinski, Senior Research Fellow, Center for the Study of Economic Liberty, found a direct correlation between occupational licensing burdens and recidivism rates:
‘…between 1997 and 2007 the states with the heaviest occupational licensing burdens saw an average increase in the three-year, new-crime recidivism rate of over 9%. Conversely, the states that had the lowest burdens and no such character provisions saw an average decline in that recidivism rate of nearly 2.5%’.
An urgent need to solve California’s criminal justice challenges, chronic jail overcrowding, new research and constituency lobbying motivated California legislators to pass these reforms in 2018. Implementation was delayed until July 1, 2020 to allow licensing agencies time to develop procedures to comply with the new laws”.
2. What are your thoughts about AB-2138?
Chudnovsky: “AB-2138 is a substantial step forward for the state of California. In the past, many licensure applicants have been barred or denied due to old and/or irrelevant criminal records. Board licensure decisions have often been made in an opaque, inconsistent process that can be very frustrating for those trying to decide whether to make the substantial time, education and financial investments required to be eligible to apply for licensure.
Studies have shown that states with more fair, consistent and transparent occupation licensure systems have significantly lower recidivism rates. Given that around 30 percent of all jobs in California are subject to an oversight agency or board, these reforms should help many more Californians integrate back into society and obtain stable, high quality jobs.
Having more qualified workers can help boost the economy, increase competition and lower the costs of services and many types of workers. Lowering crime rates also reduces the burden on society from costs caused by incarceration, criminal activity and broken families.”
3. What are the new restrictions on licensing boards and how are they different?
Chudnovsky: “California licensing agencies are responsible for issuing new licenses and enforcing the regulations governing licensees with the goal of protecting the health and safety of consumers.
Prior to AB 2138, licensing boards have had broad discretion to deny, suspend and revoke licensure based upon criminal convictions, or any ‘act involving dishonesty, fraud, or deceit’ for self-benefit or harm to others, whether it ended in conviction or not.
Beginning July 1, 2020, AB 2138 restricts the discretion and practices of licensing agencies within the Department of Consumer Affairs (DCA) in several important ways:
- Criminal convictions older than seven years may not be the basis for licensure denial, subject to some exceptions.
- DCA boards cannot use prior acts involving dishonesty, fraud, or deceit as a basis for denying licensure if the act did not end in a criminal conviction or a formal discipline on their record. Other case dispositions, such as arrests, infractions, juvenile adjudication and citations cannot be a basis for denial.
- A criminal conviction must be ‘substantially related’ to the qualifications or duties required by the license or profession in order to be a basis to deny, revoke, or suspend a license.
- Licensing boards must consider rehabilitation evidence when evaluating any conviction, not just misdemeanors. A licensure application may not be denied because of a conviction if the applicant was granted clemency or a pardon, made a showing of rehabilitation for a felony conviction, or if the conviction was dismissed, set aside or expunged per 1203.42 pc.
- In order to deny a license due to a formal professional discipline record, the misconduct must have been cause for discipline by the board making the licensure decision, and be ‘substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made….’
- Licensing boards may no longer require that applicants self-disclose prior convictions unless the license type does not require Livescan fingerprint background checks.
- Licensing boards must now track licensure denial data, publish the data on their websites and provide a report annually to the state Legislature. The data must include the number of applications received, who was denied a license, whether the application provided mitigating evidence, and whether the disqualification or denial was appealed.”
4. What types of convictions are exempt from 7 year look back limit in AB-2138?
Chudnovsky: “DCA licensing boards can still consider the following types of convictions as a basis for license application denial, even when they are more than 7 years old:
- ‘Serious felonies’ also known as ‘Strike offenses’ defined in 1192.7 pc.
- Convictions requiring sex offender registration per 290(d)(2) pc or 290(d)(3) pc.
- For certain licenses, financial crimes ‘directly and adversely’ related to certain occupations.
The new legislation does not impose any time limits for considering convictions for the purposes of suspending or revoking licenses.”
5. What is a ‘substantially related’ criminal conviction?
Chudnovsky: “AB-2138 requires that each board must develop criteria to aid it when deciding whether a crime is ‘substantially related’ to the functions, qualifications or duties of the business or profession it regulates. It is believed that each board will publish their criteria in some form to allow for more transparency and predictability of each board’s denial, suspension or revocation decisions.
The law requires that the criteria each board develops includes:
- The nature and gravity of the offense.
- The number of years elapsed since the date of the offense.
- The nature and duties of the profession in which the applicant seeks licensure or in which the licensee is licensed.
The law does not enforce a single standard of ‘substantially related’ across all DCA licensing agencies. Instead, licensing boards are directed to develop criteria relevant to their profession. Our hope is that the criteria are fair and transparent. The prior process was often opaque and unfair to those with a criminal record trying to make major life decisions about which careers to pursue, how to become productive members of society, and how to provide for their families.”
6. Which licensing boards are affected by AB-2138?
Chudnovsky: “The reforms enacted in AB-2138 apply to all Department of Consumer Affairs professional licensing boards, with only 3 exceptions. The full list of the 37 boards affected:
- Accountancy, Board of
- Acupuncture Board
- Arbitration Certification Program
- Architects Board, California
- Automotive Repair, Bureau of
- Barbering and Cosmetology, Board of
- Behavioral Sciences, Board of
- Cannabis Control, Bureau of
- Cemetery and Funeral Bureau
- Chiropractic Examiners, Board of
- Contractors State License Board
- Court Reporters Board
- Dental Board of California
- Dental Hygiene Board of California
- Engineers, Land Surveyors, and Geologists, Board for Professional
- Guide Dogs for the Blind, State Board of
- Household Goods and Services, Bureau of
- Landscape Architects Technical Committee
- Medical Board of California
- Naturopathic Medicine Committee
- Occupational Therapy, California Board of
- Optometry, Board of
- Osteopathic Medical Board of California
- Pharmacy, Board of
- Physical Therapy Board of California
- Physician Assistant Board
- Podiatric Medical Board of California
- Professional Fiduciaries Bureau
- Psychology, Board of
- Real Estate Appraisers, Bureau of
- Registered Nursing, Board of
- Respiratory Care Board
- Security and Investigative Services, Bureau of
- Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board
- Structural Pest Control Board
- Veterinary Medical Board
- Vocational Nursing and Psychiatric Technicians, Board of”
7. Which licensing boards are excluded from AB-2138 reforms?
Chudnovsky: “Only 3 boards are exempted from the reforms in AB-2138:
- The Bureau for Private Postsecondary Education.
- The California Horse Racing Board.
- The State Athletic Commission.”
About Chudnovsky Law
Chudnovsky Law is an award-winning California criminal defense and professional license defense law firm. The firm’s three senior defense attorneys Tsion Chudnovsky, Robert Weinberg and Suzanne Crouts have a combined 65+ years experience practicing law.
Attorney Robert K. Weinberg manages the firm’s professional license defense practice. He is a former prosecutor with more than 30 years of experience handling professional license defense, federal, DEA and state criminal defense matters. He has handled over 5,000 cases and jury trials.
Robert is an authority in the complex intersection of licensing and criminal law for medical, nursing, chiropractic, healthcare corporations and all professional licensees.
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Note: This update is being provided to our clients, media, business associates and professional licensees for informational purposes only. No warranty is made as to it’s accuracy. Legal advice should be based on your specific situation and provided by a qualified attorney. Contact us to speak with a lawyer about your case.