License revocation or withholding; additional requirements

(a)(1) An owner of a facility with an unsatisfactory determination or whose name appears on a registry check shall not operate or hold a license, and the department shall revoke the license of any owner operating such facility or refuse to issue a license to any owner operating such facility if such owner has an unsatisfactory determination or is on a registry check. (2) Prior to approving any license for a facility and periodically as established by the department by rule, the department shall require each owner and employee to submit to a registry check and criminal background check pursuant to Code Sections 31-7-352 and 31-7-353. 417 31-7-359 (3)(A) An employee or applicant who received an unsatisfactory determination or whose name appears on a registry check shall be eligible to appeal such determination pursuant to Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act.’’ (B) In a hearing held pursuant to subparagraph (A) of this paragraph, the hearing officer shall consider in mitigation the length of time since the crime was committed, the absence of additional criminal charges, the circumstances surrounding the commission of the crime, and other indicia of rehabilitation. (4)(A) The department’s determination regarding an owner’s unsatisfactory criminal background check, or any action by the department revoking or refusing to grant a license based on such determination, shall constitute a contested case for purposes of Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act,’’ except that any hearing required to be held pursuant thereto may be held reasonably expeditiously after such determination or action by the department. (B) In a hearing held pursuant to subparagraph (A) of this paragraph, the hearing officer shall consider in mitigation the length of time since the crime was committed, the absence of additional criminal charges, the circumstances surrounding the commission of the crime, other indicia of rehabilitation, the facility’s history of compliance with the regulations, and the owner’s involvement with the licensed facility in arriving at a decision as to whether the criminal record requires the denial or revocation of the license to operate the facility. When a hearing is required, at least 30 days prior to such hearing, the hearing officer shall notify the office of the prosecuting attorney who initiated the prosecution of the crime in question in order to allow the prosecuting attorney to object to a possible determination that the conviction would not be a bar for the grant or continuation of a license as contemplated within this Code section. If objections are made, the hearing officer shall take such objections into consideration. (b) The requirements of this Code section are supplemental to any requirements for a license imposed by Article 1 of this chapter. History. — Code 1981, § 31-7-358, enacted by Ga. L. 2018, p. 611, § 1-4/SB 406. Effective date. — This Code section becomes effective October 1, 2019. 31-7-359. Liability for civil damages; sovereign immunity not waived. (a) No person, including the department, a facility, or an individual acting on behalf of such entities, shall be liable for civil damages or be subject to any claim, demand, cause of action, or proceeding of any 418 31-7-360 nature as a result of actions taken in good faith to comply with this article, including the disqualification of an applicant from employment on the basis of a disqualifying crime. (b)(1) A facility that has obtained a satisfactory determination on an owner, applicant, or employee in accordance with this article, or confirmation that such owner, applicant, or employee has obtained a favorable final appeal decision under Code Section 31-7-358, shall be immune from liability for claims of negligent hiring when such claims are based upon the criminal record of such owner, applicant, or employee, even when the information contained in the criminal background check used by the department is later determined to have been incomplete or inaccurate; provided, however, that such immunity shall not preclude the liability of a facility concerning claims based on information beyond the scope of the criminal record and satisfactory determination about the owner, applicant, or employee which the facility knew or should have known. (2) When a facility has obtained a satisfactory determination on an owner, applicant, or employee, there shall be a rebuttable presumption of due care for claims of negligent hiring, negligent retention, or other similar claims to the extent such claims are based upon an owner’s, applicant’s, or employee’s criminal record. (c) Nothing in this article shall require a facility to conduct any other type of criminal history check of an owner, applicant, or employee, and a facility shall not be held liable for claims of negligent hiring, negligent retention, or other similar claims based solely or in part on its failure to conduct other types of criminal history checks. (d) Nothing in this article shall be construed to waive the sovereign immunity of the state, the department, or any other entity of the state. History. — Code 1981, § 31-7-359, enacted by Ga. L. 2018, p. 611, § 1-4/SB 406. Effective date. — This Code section becomes effective October 1, 2019. 31-7-360. Rules and regulations.