ASSEMBLY, No. 3889

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED MARCH 7, 2011

 


 

Sponsored by:

Assemblyman  JOHN F. MCKEON

District 27 (Essex)

 

 

 

 

SYNOPSIS

     Requires criminal history background check for owners and employees of home service enterprises.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning criminal history record background checks and supplementing Title 45 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    For the purposes of this act:

     "Criminal history record background check" means a determination of whether a person has a criminal record by cross-referencing that person's name and fingerprints with those on file with the Federal Bureau of Investigation, Identification Division and the State Bureau of Identification in the Division of State Police.

     "Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.

     "Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.

     "Home service enterprise" means any public or private business, corporation or partnership which provides for a fee a service requiring entry into the home.  "Home service enterprise" shall not include an individual who is not regularly engaged in the business for which they are hired, nor shall it include independent contractors.

 

     2.    a.  The division shall initiate criminal history record background checks of present and prospective owners and employees of a home service enterprise as set forth in this act.

     b.    No person shall own or be employed by a home service enterprise unless the division certifies that the person has no criminal history record of a conviction for an offense enumerated in subsection c. of this section.

     c.     A person subject to subsection b. of this section whose criminal history record background check reveals a conviction for any of the following crimes and offenses shall be disqualified from owning or being employed by a home service enterprise:

     (1)   If the conviction was in New Jersey, for a crime:

     (a)   involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.; or

     (b)   against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq. or N.J.S.2C:25-17 et seq.; or

     (c)   involving theft as set forth in chapter 20 of Title 2C of the New Jersey Statutes; or

     (d)   involving any controlled dangerous substance or analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10.

     (2)   If the conviction was in any other state or jurisdiction, for conduct constituting any of the crimes described in paragraph (1) of this subsection.

 

     3.    a. Every owner or prospective owner of a home service enterprise shall apply to the director to be certified as qualified to own the enterprise.

     b.    Every owner of a home service enterprise shall apply to the director to have certified as qualified any person who will be employed by the enterprise.

     c.     The owner of a home service enterprise shall apply to the director, within 90 days of the effective date of this act, for the certifications of persons employed by the enterprise on the effective date.  These persons shall be permitted to continue their employment pending the completion of the certification process.

     d.    An application for certification shall be accompanied by the fee required to perform a criminal history record background check.

     e.     The home service enterprise shall retain a copy of the certification of persons subject to certification under this act.  The certifications shall be made available upon request to interested members of the public.

 

     4.    a.  The director is authorized to receive criminal history record information from the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation consistent with applicable State and federal laws, rules and regulations.  The applicant shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.

     b.    The Division of State Police in the Department of Law and Public Safety, upon the request of the director, shall conduct a criminal history record background check requested by the director in accordance with the provisions of this act.  The check shall be performed only upon certification by the director that the person has submitted to the director the person's name, address, fingerprints and written consent for a criminal history record background check to be performed.

     For the purpose of conducting the criminal history record background check, the State Police shall examine its own files and arrange for a similar examination of federal criminal records.  The information obtained as a result of any such check shall be forwarded to the director.

 

     5.    a.  The division shall not initiate a criminal history record background check pursuant to this act without the written consent of the person.  The consent required under this section shall be in a manner and form prescribed by the director and shall include, but not be limited to, the signature, name, address and fingerprints of the person.

     b.    Upon receiving the results of a criminal history record background check, the director shall promptly notify any person who has not been convicted of a disqualifying offense.  Along with that notice, the director shall forward a certification stating that the person has been subjected to a criminal history record background check and that the check has not revealed any record that the person has been convicted of a disqualifying offense.  The certificate shall be in a form and contain any additional information as the director may prescribe by rule and regulation.

     c.     The director shall promptly notify a person whose criminal history record background check reveals a disqualifying criminal conviction of the results of the background check.  The person shall have 30 days from the receipt of that notice to petition the director for a review and cite reasons substantiating the review.  If the person successfully challenges the accuracy of the criminal history record information indicating a criminal conviction or the person demonstrates affirmatively to the director clear and convincing evidence of rehabilitation, the director may issue a certificate indicating that the person has successfully cleared a background check.

     In determining whether the rehabilitation of a person has been affirmatively demonstrated, the director shall consider:

     (1)   The nature and seriousness of the offense;

     (2)   The circumstances under which the offense occurred;

     (3)   The date of the offense;

     (4)   The age of the person when the offense was committed;

     (5)   Whether the offense was repeated;

     (6)   Social conditions which may have contributed to the offense; and

     (7)   Any evidence of rehabilitation, including good conduct in the community; counseling, psychological or psychiatric treatment; additional academic or vocational training; or personal recommendations.

     d.    In the case of a home service enterprise employee, a copy of the notification required under subsections b. or c. of this section also shall be forwarded to the owner of the enterprise.

     e.     The director shall not certify a person subject to the provisions of this act who refuses to consent to, or cooperate in, the securing of a criminal history record background check.

 

     6.    a.  The division shall act as a clearinghouse for the collection and dissemination of information obtained as a result of conducting criminal history record background checks pursuant to this act.  The dissemination of such information shall be consistent with the purposes of this act and in accordance with rules and regulations promulgated by the director.

     b.    The division shall develop and undertake a public education program designed to inform the citizens of this State of the provisions of this act.  A component of this program shall be the establishment and maintenance of a file of certifications granted by the director in accordance with the provisions of this act.  The certifications shall be made available to interested members of the public upon request.  The program also shall publicize those home service enterprises which are in compliance with the provisions of this act.

 

     7.    a.  The division may require home service enterprises operating in this State to register with the division and to pay an annual registration fee sufficient to defray the cost of administering this act.

     b.    A person who violates any provision of this act shall be fined $200 for the first offense and $500 for each subsequent offense. Penalties shall be collected by summary proceedings pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) and shall be used to fund enforcement of this act.

 

     8.    The director, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall promulgate and enforce rules and regulations to effectuate the purposes of this act.

 

     9.    This act shall take effect on the first day of the seventh month following enactment.

 

 

STATEMENT

 

     The purpose of this bill is to protect the residents of this State from persons hired to perform services in the home who have criminal pasts.  It requires persons owning or employed by a business that performs in-home services to pass a criminal history record background check.  The background check would entail cross-referencing a person's name and fingerprints against those in the criminal records on file with the Federal Bureau of Investigation, Identification Division and the State Bureau of Identification in the Division of State Police.

     The bill defines a "home service enterprise" as any public or private business, corporation or partnership which provides for a fee a service requiring entry into the home.  The definition of "home service enterprise" excludes individuals who are not regularly engaged in the business for which they are hired, such as an occasional babysitter or pet sitter.  The definition also excludes independent contractors.

     Specifically, the bill would require the Director of Consumer Affairs in the Department of Law and Public Safety to conduct criminal history record background checks of current and prospective owners and employees of home service enterprises.  Persons subject to the criminal history record background check are to be certified by the director as qualified to serve in their positions in the enterprise if the background check indicates that the person has not been convicted in New Jersey or another jurisdiction of a crime: (1) involving danger to another person, such as criminal homicide, assault, reckless endangerment, terroristic threats, stalking, kidnapping, sexual offenses and robbery; (2) against the family, children or incompetents, including bigamy, endangering the welfare of children, incompetents, the elderly or the disabled, willful nonsupport, unlawful adoption or domestic violence; (3) involving theft; or (4) involving a controlled dangerous substance.

     Owners of home service enterprises would be required to apply to the director for certification on their own behalf and on behalf of current and prospective employees.  Applications for certification are to be accompanied by a fee sufficient to cover the costs associated with performing the check.  The home service enterprise is required to maintain on file copies of the certifications so they can be made available to interested members of the public upon request.

     The bill would authorize the director to receive criminal history information and exchange fingerprint data with law enforcement agencies.  The director, however, is prohibited from initiating a criminal history record background check without the person's written consent to the check.  The consent form would include, at a minimum, the person's name, signature, address and fingerprints.

     Once a background check has been completed, the director must notify the subject of the check of the results.  If the director notifies the person that the background check has not revealed a disqualifying crime, the director also is required to issue a certificate to that person. If the director notifies the person that the background check indicates a disqualifying crime, the person has 30 days from the date of notification to appeal the finding on the grounds that it is inaccurate or the person has been successfully rehabilitated.

     In determining whether a person has been rehabilitated, the director is to consider: (1) the nature and seriousness of the offense committed; (2) the circumstances under which the offense occurred; (3) the date of the offense; (4) the age of the person when the offense was committed; (5) whether the offense was an isolated or repeated incident; (6) any social conditions which may have contributed to the offense; and (7) any evidence of rehabilitation, including good conduct in prison or the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs or the recommendation of those who have had the person under their supervision.

     The bill directs the division to act as a clearinghouse for the collection and dissemination of information relating to criminal history record background checks required by the bill.  The division is also responsible for educating the public concerning this act, maintaining and making available to the public a file of the certifications which have been granted under the act and publicizing those home service enterprises which are in compliance with the act.

     The director is authorized by the bill to require owners and employees of home service enterprises to register with the division and pay an annual registration fee to cover the costs associated with the administration of the act.

     A person who violates any provision of the act is to be fined $200 for the first offense and $500 for each subsequent offense.  The penalties are to be dedicated to enforcing the act.