Section 101170
CRIMINAL RECORD CLEARANCE
(a) The Department shall conduct a criminal record review of all persons specified
in Health and Safety Code Section 1596.871(b). The Department has the authority
to approve or deny a facility license, or employment, residence or presence
in the facility, based on the results of this review.
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- (1) Section 1596.871(a) of the Health and Safety Code states:
- Before issuing a license or special permit to any person to operate or
manage a day care facility, the department shall secure from an appropriate
law enforcement agency a criminal record to determine whether the applicant
or any other person specified in subdivision (b) has ever been convicted of
a crime other than a minor traffic violation, or arrested for any crime specified
in Section 290 of the Penal Code or arrested for violating Section 245, 273.5
subdivision (b) of Section 273a, or to January 1, 1994, paragraph (2) of Section
273a of the Penal Code, or for any crime for which the department cannot grant
an exemption if the person was convicted and the person has not been exonerated.
That criminal history information shall include the full criminal record,
if persons. No fee shall be charged by the Department of Justice or the department
for the or for obtaining a criminal record of such an applicant pursuant to
this section. If it is found that the applicant or any other person specified
in subdivision (b) has been convicted of a crime, other than a minor traffic
violation, the Department of Justice shall notify the Department of Social
Services of that fact and the application shall be denied, unless the director
grants an exemption pursuant to subdivision (f). If no criminal record information
has been recorded, the Department of Justice shall provide the applicant and
the California Department of Social Services with a statement of that fact.
- (2) Section 1596.871(b) of the Health and Safety Code provides in part:
- In addition to the applicant, this section shall be applicable to criminal
convictions of the following persons:
- (A) Adults responsible for administration or direct supervision of
staff.
- (B) Any person, other than a child, residing in the facility.
- (C) Any person who provides care and supervision to the children.
- (D) Any staff person or employee who has frequent and routine contact
with the children. In determining who has frequent contact, any volunteer
who is-in the facility shall be exempt unless the volunteer is used to
replace or supplement staff in providing direct care and supervision of
children in care. In determining who has routine contact, staff and employees
under direct on site supervision and who are not providing direct care
and supervision or who have only occasional or intermittent contact with
children shall be exempt.
- (E) If the applicant is a firm, partnership, association, or corporation,
the chief executive officer or other person serving in like capacity,
or a person designated by the chief executive officer as responsible for
the operation of the facility, as designated by the applicant agency.
- (F) If the applicant is a local educational agency, the president of
the governing board, the school district superintendent, or a person designated
to administer the operation of the facility, as designated by the local
educational agency.
- (G) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as determined
necessary by the department by regulation. The criteria used in
the development of these regulations shall be based on the person's capability
to exercise substantial influence over the operation of the facility.
- (H) This section does not apply to volunteers or adult staff employed
by the applicant on an intermittent basis for less than 10 days per month,
provided that these adults are under constant supervision by adults who
meet the requirements of this section.
- (I) This section does not apply to employees of a child care and development
program under contract with the State Department of Education who have
completed a criminal records clearance as part of an application to the
State Commission on Teacher Credentialing, and who possess a current credential
or permit issued by the commission, including employees of child care
and development programs that serve both children subsidized under, and
children not subsidized under, a California Department of "Education
contract." The State Commission on Teacher Credentialing shall notify
the department upon revocation of a current credential or permit issued
to an employee of a child care and development program under contract
with the State Department of Education.
- (j) This section does not apply to employees of child care and development
programs operated by a school district, county office of education, or
community college district under contract with the California Department
of Education who have completed a criminal records clearance as a condition
of employment. The school district, county office of education, or community
college district upon receiving information that the status of an employee's
criminal record clearance has changed shall submit that information to
the department.
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(b) The Department shall receive a fingerprint clearance on the applicant, the
administrator and all adults residing in the facility Prior to issuing
a license.
(c) All persons subject to criminal record review shall, prior to employment,
residence or initial presence in the facility, be fingerprinted and sign a statement
regarding prior criminal convictions as specified in Section 101216(i).
- (1) Completed fingerprint card(s) shall be submitted to the Department
of Justice as specified in Health and Safety Code Section 1596.871(c).
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- (2) Section 1596.871(c) of the Health and Safety Code provides in part:
- (A) Subsequent to initial licensure, any person specified in subdivision
(b) and not exempted from fingerprinting shall, as a condition to employment,
residence, or presence in a child day care facility, be fingerprinted
and sign a declaration under penalty of perjury regarding any prior criminal
convictions. The licensee shall submit these fingerprints to the Department
of Justice not later than four calendar days following employment, residence,
or initial in the child day care facility.
- (B) These fingerprints shall be on a card provided by the California
Department of Social Services for the purpose of obtaining a permanent
set of fingerprints. Fingerprints not to the Department of Justice, as
required in this section, shall result in the citation of a deficiency
and the fingerprints shall then be submitted to the California Social
Services for processing.
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(d) In determining whether individuals must submit fingerprint card(s) as specified
in Health and Safety l(b), the Department shall consider the following:
- (1) Anticipated type and degree of contact with the children.
- (2) Supervision received by the employee or volunteer.
- (3) Duties of the employee or volunteer.
- (4) Whether the facility constitutes the -legal residence or the place
an adult lives the majority of the time.
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- (5) Section 1596.871(h) of the Health and Safety Code states:
- (A) For the purposes of compliance with this section, the department
may permit an individual to transfer a current criminal records clearance,
as defined in subdivision (a), from one facility to another as long as
the criminal record clearance has been processed through a state licensing
district office and is being transferred to another state licensing district
office.
- (B) The California Department of Social Services shall hold criminal
records clearances in its active files for a minimum of two years after
an employee is no longer employed at a licensed facility in order-for
the criminal records clearances to be transferred.
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(e) The reasons for any exemption granted shall be in writing and shall be kept
by the Department.
(f) If the criminal record transcript of any of the persons specified in Health
and Safety Code Section 1596.871(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 $50 or less before April 5, 1984,
or pursuant to paragraph (1) of subdivision (a) of Section 42001 of the Vehicle
Code after April 4, 1984, the Department shall take the following actions:
- (1) For initial applicants, denial of the application.
- (2) For current licensees, institution of legal remedies including, but
not limited to, revocation of the license.
- (3) For current or prospective employees, denial of the application or
revocation of the license if the person continues to provide services and/or
reside at the facility.
- (4) For convicted persons residing in the facility, including spouses of
the applicant, licensee or employee, denial of the application or revocation
of the license if the person continues to provide services and/or reside at
the facility.
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- (5) Section 1596.871(c)(3) of the Health d Safety Code provides in
part:
- (A) Except for persons specified in paragraph (2) of subdivision (b),
the licensee shall endeavor to ascertain the previous employment history
of persons required to be fingerprinted under this subdivision. If it
is determined by the department, on the basis of the fingerprints submitted
to the Department of Justice, that the L Person has been convicted of
a sex offense against a minor, or has been convicted of an offense specified
in section 243.4, 273a, 273d or subdivision (a) or (b) of Section 368
of the Penal Code, or has been convicted of a felony, the State Department
of Social Services shall notify the licensee to act immediately to terminate
the person's employment, remove the person from the child day care facility,
or bar the person from entering the child day care facility. The department
may subsequently grant an exemption pursuant to subdivision (f). If the
conviction was for another crime except a minor traffic violation, the
licensee shall, Upon notification by the California Department of Social
Services, act immediately to either (1) terminate the employment, remove
the from the child day care facility, or bar the person from entering
the child day care facility; or (2) seek an exemption pursuant to subdivision
(f). The department shall determine if the person shall be allowed to
remain in the facility until a decision on the exemption is rendered.
- (B) The department may issue an exemption on its own motion pursuant
to subdivision (f) if the person's criminal history indicates that the
person is of good character based on the age, seriousness, and frequency
of the conviction or convictions. The department, in consultation . with
interested parties, shall develop regulations to establish the criteria
to grant an exemption pursuant to this paragraph.
- (C) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or her
right to seek an exemption pursuant to subdivision (f). The individual
may seek an exemption only if the licensee terminates the person's employment
or removes the person from the facility after receiving notice from the
department pursuant to paragraph (3).
- (6) Section 1596.871(e) of the Health and Safety Code provides in part:
- The California Department of Social Services shall not use a record of
arrest to deny, revoke, or terminate any application, license, employment,
or residence unless the department investigates the incident and secures evidence,
whether or not related to the incident or arrest, that is admissible in an
administrative hearing to establish conduct by the person that may pose a
risk to the health and safety of any person who is or may become a client.
- (7) Section 243.4 of the Penal Code provides in part:
- (A) Any person who touches an intimate part of another person while
that person is unlawfully restrained by the accused or an accomplice,
and if the touching is against the will of the person touched and is for
the purpose of sexual arousal, gratification, or abuse, is guilty of sexual
battery. Such an act is punishable by either imprisonment in the county
jail for not more than one year or in the state prison for two, three,
or four years.
- (B) Any person who touches an intimate part of another person who is
institutionalized for medical treatment and who is seriously disabled
or medically incapacitated, if the touching is against the will of the
person touched, and if the touching is for the purpose of sexual arousal,
gratification, or abuse, is guilty of sexual battery. Such an act is punishable
by either imprisonment in the county jail for not more than one year or
in the state prison for two, three, or four years.
- (8) Section 273a of the Penal Code provides:
- (A) Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any child to suffer,
or inflicts thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any child, willfully causes or permits the
person or health of such child to be injured, or willfully causes or permits
such child to be placed in such situation that its person or health is
endangered, is punishable by imprisonment in the county jail not exceeding
one year, or in the state prison for 2, 4 or 6 years.
- (B) Any person who, under circumstances or conditions other than those
likely to produce great bodily harm or death, willfully causes or permits
any child to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of any child, willfully
causes or permits the person or health of such child to be injured, or
willfully causes or permits such child to be placed in such situation
that its person or health may be endangered, is guilty of a misdemeanor.
- (9) Section 273d of the Penal Code provides:
- (A) Any person who willfully inflicts upon any child any cruel or inhuman
corporal punishment or injury resulting in a traumatic condition is guilty
of a felony, and upon conviction thereof shall be punished by imprisonment
in the state prison for 2, 4 or 6 years, or in the county jail for not
more than one year, or by a fine of up to six thousand dollars ($6,000)
or by both.
- (10) Section 368 of the Penal Code provides:
- (A) Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any elder or dependent
adults with knowledge that he or she is an elder or a dependent adult,
to suffer, or inflicts thereon unjustifiable physical pain or mental suffering,
or having the care or Custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or dependent adult
to be injured, or willfully causes or permits the elder or dependent adult
to be placed in a situation such that his or her person or health is endangered,
is punishable by imprisonment in the county jail not exceeding one year,
or in the state prison for two, three, or four years.
- (B) Any person who, under circumstances or conditions other than those
likely to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an elder
or a dependent adult, to suffer, inflicts thereon unjustifiable physical
pain or mental suffering, or having the care or custody of any older or
dependent adult, willfully causes or permits the person or health the
elder or dependent adult to be suffer or willfully causes or permits the
elder or dependent adult to be laced in a situation such that his or person
or health may be endangered, is guilty misdemeanor.
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(g) After a review of the criminal record transcript, the Department has the authority
to grant an exemption from (f) above if such person requests an exemption in writing
and presents evidence satisfactory to the Department that he/she has been rehabilitated
and presently is of such good character as to justify being issued a license or
being cleared to provide services in the facility.
- (1) The Department has the authority to consider factors including, but
not limited to, the following as evidence of good character and rehabilitation:
- (A) The nature of the crime.
- (B) Period of time since the crime was committed and number of offenses.
- (C) Circumstances surrounding the commission of the crime that would
demonstrate the unlikelihood of repetition.
- (D) Activities since conviction, including employment or participation
in therapy or education, that would indicate changed behavior.
- (E) A full and unconditional pardon granted by the Governor.
- (F) Character references.
- (G) A certificate of rehabilitation from a superior court.
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- (2) Section 1596.871(f) of the Health and Safety Code provides in part:
- No exemption shall be granted pursuant to this subdivision if the conviction
was for an offense specified in Section 220, 243.4 or 264.1 or subdivision
(a) of Section 273a, or prior to January 1, 1994, paragraph (1) of Section
273a or Section 273d or Section 288, 289 or subdivision (a) or (b) of Section
368 of the Penal Code, or was a conviction of another crime against an individual
specified in subdivision (c) of Section 667.5 of the Penal Code.
- (A) Section 667.5(c) of the Penal Code provides in part:
- For the purpose of this section, "violent felony" shall mean
any of the following:
- Murder or voluntary manslaughter.
- Mayhem.
- Rape as defined in subdivision (2) of Section 261.
- Sodomy by force, violence, duress, menace;, or fear of immediate
and unlawful bodily injury on the victim or another person.
- Oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another person.
- Lewd acts on a child under 14 as defined in Section 288.
- Any felony punishable by death or imprisonment in the state
prison for life.
- Any other felony in which the defendant inflicts great bodily
injury on any person other than an accomplice which has been charged
and proved as provided for in Section 12022.7 or 12022.9 on or after
July 1, 1977, or as specified prior to July 1, 1977, in Sections 213,
264, and 461, or any felony in which the defendant uses a firearm
which use has been charged and proved as provided in Section 12022.5
or 12022.55.
- Any robbery perpetrated in an inhabited dwelling house or
trailer coach, as defined in the Vehicle Code, or in the inhabited
portion of any other building, wherein it is charged and proved that
the defendant personally used a deadly or dangerous weapon, as provided
in subdivision (b) of Section 12022, in the commission of that robbery.
- Arson, in violation of subdivision (a) of Section 451.
- The offense defined in subdivision (a) of Section 289 where
the act is accomplished against the victim's will by force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person.
- Attempted murder.
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NOTE: Authority cited: Section 1596.81, Health and Safety Code. Reference: Sections
1596.81(b) and 1596.871, Health and Safety Code.
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