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California Health and Safety Code Section 1596.871

Legal Research Home > California Laws > Health and Safety Code > California Health and Safety Code Section 1596.871

1596.871.  The Legislature recognizes the need to generate timely
and accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a child
care center or family child care home. It is the intent of the
Legislature in enacting this section to require the fingerprints of
those individuals whose contact with child day care facility clients
may pose a risk to the children's health and safety. An individual
shall be required to obtain either a criminal record clearance or a
criminal record exemption from the State Department of Social
Services before his or her initial presence in a child day care
facility.
   (a) (1) 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 subdivision
(c) of Section 290 of the Penal Code, for violating Section 245 or
273.5, subdivision (b) of Section 273a or, prior 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.
   (2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
   (3) Except during the 2003-04 to the 2014-15 fiscal years,
inclusive, neither the Department of Justice nor the department may
charge a fee for the fingerprinting of an applicant who will serve
six or fewer children or any family day care applicant for a license,
or for obtaining a criminal record of an applicant pursuant to this
section.
   (4) The following shall apply to the criminal record information:
   (A) If the State Department of Social Services finds that the
applicant or any other person specified in subdivision (b) has been
convicted of a crime, other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (f).
   (B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
   (C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
   (D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) of subdivision (b), has been convicted of a crime other
than a minor traffic violation, the license may be revoked, unless
the director grants an exemption pursuant to subdivision (f).
   (E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, in addition to the
search required by subdivision (a). If an applicant meets all other
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal history information for the applicant and
persons listed in subdivision (b), the department may issue a license
if the applicant and each person described by subdivision (b) has
signed and submitted a statement that he or she has never been
convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after licensure, the department
determines that the licensee or person specified in subdivision (b)
has a criminal record, the license may be revoked pursuant to Section
1596.885. The department may also suspend the license pending an
administrative hearing pursuant to Section 1596.886.
   (b) (1) 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, volunteer, or employee who has contact with
the children.
   (i) A volunteer providing time-limited specialized services shall
be exempt from the requirements of this subdivision if this person is
directly supervised by the licensee or a facility employee with a
criminal record clearance or exemption, the volunteer spends no more
than 16 hours per week at the facility, and the volunteer is not left
alone with children in care.
   (ii) A student enrolled or participating at an accredited
educational institution shall be exempt from the requirements of this
subdivision if the student is directly supervised by the licensee or
a facility employee with a criminal record clearance or exemption,
the facility has an agreement with the educational institution
concerning the placement of the student, the student spends no more
than 16 hours per week at the facility, and the student is not left
alone with children in care.
   (iii) A volunteer who is a relative, legal guardian, or foster
parent of a client in the facility shall be exempt from the
requirements of this subdivision.
   (iv) A contracted repair person retained by the facility, if not
left alone with children in care, shall be exempt from the
requirements of this subdivision.
   (v) Any person similar to those described in this subdivision, as
defined by the department in regulations.
   (E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer, 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 employees of child care and
development programs under contract with the State Department of
Education who have completed a criminal record clearance as part of
an application to the 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
State Department of Education contract. The 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.
   (I) This section does not apply to employees of a child care and
development program operated by a school district, county office of
education, or community college district under contract with the
State Department of Education who have completed a criminal record
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.
   (2) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individuals exempt from
the requirements under this subdivision.
   (c) (1) (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 conviction. The licensee shall
submit fingerprint images and related information to the Department
of Justice and the Federal Bureau of Investigation, through the
Department of Justice, or to comply with paragraph (1) of subdivision
(h), prior to the person's employment, residence, or initial
presence in the child day care facility.
   (B) These fingerprint images for the purpose of obtaining a
permanent set of fingerprints shall be electronically submitted to
the Department of Justice in a manner approved by the State
Department of Social Services and to the Department of Justice, or to
comply with paragraph (1) of subdivision (h), as required in this
section, shall result in the citation of a deficiency, and an
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee pursuant
to Section 1596.885 or Section 1596.886. The State Department of
Social Services may assess civil penalties for continued violations
permitted by Sections 1596.99 and 1597.62. The fingerprint images and
related information shall then be submitted to the department for
processing. Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided in
this subdivision. If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images. If new
fingerprint images are required for processing, the Department of
Justice shall, within 14 calendar days from the date of receipt of
the fingerprint images, notify the licensee that the fingerprints
were illegible.
   (C) Documentation of the individual's clearance or exemption shall
be maintained by the licensee, and shall be available for
inspection. When live-scan technology is operational, as defined in
Section 1522.04, the Department of Justice shall notify the
department, as required by that section, and notify the licensee by
mail within 14 days of electronic transmission of the fingerprints to
the Department of Justice, if the person has no criminal record. Any
violation of the regulations adopted pursuant to Section 1522.04
shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1596.885 or Section 1596.886. The department may assess civil
penalties for continued violations, as permitted by Sections 1596.99
and 1597.62.
   (2) 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
fingerprints submitted to the Department of Justice, that the person
has been convicted of a sex offense against a minor, an offense
specified in Section 243.4, 273a, 273d, 273g, or 368 of the Penal
Code, or 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
State Department of Social Services, act immediately to either (1)
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; 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. A
licensee's failure to comply with the department's prohibition of
employment, contact with clients, or presence in the facility as
required by this paragraph shall result in a citation of deficiency
and an immediate assessment of civil penalties by the department
against the licensee, in the amount of one hundred dollars ($100) per
violation per day for a maximum of five days, unless the violation
is a second or subsequent violation within a 12-month period in which
case the civil penalties shall be in the amount of one hundred
dollars ($100) per violation for a maximum of 30 days, and shall be
grounds for disciplining the licensee pursuant to Section 1596.885 or
1596.886.
   (3) 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.
   (4) 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).
   (d) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
department is permitted to take following the establishment of a
conviction may be taken when the time for appeal has elapsed, when
the judgment of conviction has been affirmed on appeal, or when an
order granting probation is made suspending the imposition of
sentence, notwithstanding a subsequent order pursuant to Sections
1203.4 and 1203.4a of the Penal Code permitting the person to
withdraw his or her plea of guilty and to enter a plea of not guilty,
or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment. For purposes of this section
or any other provision of this chapter, the record of a conviction,
or a copy thereof certified by the clerk of the court or by a judge
of the court in which the conviction occurred, shall be conclusive
evidence of the conviction. For purposes of this section or any other
provision of this chapter, the arrest disposition report certified
by the Department of Justice, or documents admissible in a criminal
action pursuant to Section 969b of the Penal Code, shall be prima
facie evidence of conviction, notwithstanding any other provision of
law prohibiting the admission of these documents in a civil or
administrative action.
   (2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
   (e) The State Department of Social Services may 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
of 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. The State
Department of Social Services is authorized to obtain any arrest or
conviction records or reports from any law enforcement agency as
necessary to the performance of its duties to inspect, license, and
investigate community care facilities and individuals associated with
a community care facility.
   (f) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and (4) of subdivision (a), or for
employment, residence, or presence in a child day care facility as
specified in paragraphs (3), (4), and (5) of subdivision (c) if the
director has substantial and convincing evidence to support a
reasonable belief that the applicant and the person convicted of the
crime, if other than the applicant, are of good character so as to
justify issuance of the license or special permit or granting an
exemption for purposes of subdivision (c). However, an exemption may
not be granted pursuant to this subdivision if the conviction was for
any of the following offenses:
   (A) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or 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.
   (B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) or (b) of
Section 451 of the Penal Code.
   (2) The department may not prohibit a person from being employed
or having contact with clients in a facility on the basis of a denied
criminal record exemption request or arrest information unless the
department complies with the requirements of Section 1596.8897.
   (g) Upon request of the licensee, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprint images.
   (h) (1) For the purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record 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 facility licensed by a state licensing district office.
The request shall be in writing to the department, and shall include
a copy of the person's driver's license or valid identification card
issued by the Department of Motor Vehicles, or a valid photo
identification issued by another state or the United States
government if the person is not a California resident. Upon request
of the licensee, who shall enclose a self-addressed stamped envelope
for this purpose, the department shall verify whether the individual
has a clearance that can be transferred.
   (2) The State Department of Social Services shall hold criminal
record 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 record clearances to be transferred.
   (3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:
   (A) A county office with department-delegated licensing authority
may accept a clearance or exemption from the department.
   (B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
   (C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
   (4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
   (A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice, only if all of the following
conditions are met:
   (i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
   (ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
   (iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
   (B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
   (ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
   (C) The Department of Justice shall charge the department or a
county office with department-delegated licensing authority a fee for
each time a request to substitute the recipient agency is received
for purposes of this paragraph. This fee shall not exceed the cost of
providing the service.
   (i) Notwithstanding any other provision of law, the department may
provide an individual with a copy of his or her state or federal
level criminal offender record information search response as
provided to that department by the Department of Justice if the
department has denied a criminal background clearance based on this
information and the individual makes a written request to the
department for a copy specifying an address to which it is to be
sent. The state or federal level criminal offender record information
search response shall not be modified or altered from its form or
content as provided by the Department of Justice and shall be
provided to the address specified by the individual in his or her
written request. The department shall retain a copy of the individual'
s written request and the response and date provided.

Section: Previous  1596.862  1596.865  1596.866  1596.8661  1596.867  1596.869  1596.87  1596.871  1596.8712  1596.8713  1596.8714  1596.8715  1596.8716  1596.872a  1596.872b  Next

Last modified: March 17, 2014