DAR File No. 39329
This rule was published in the May 15, 2015, issue (Vol. 2015, No. 10) of the Utah State Bulletin.
Alcoholic Beverage Control, Administration
Section R81-1-26
Criminal History Background Checks
Notice of Proposed Rule
(Amendment)
DAR File No.: 39329
Filed: 04/30/2015 04:26:12 PM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The purpose of this amendment is to implement S.B. 198 passed by the legislature in the 2015 General Session, which modified procedures for collecting and storing of background checks.
Summary of the rule or change:
Due to the passage of S.B. 198, Section R81-1-26 needs to be amended to account for the changes in procedures for collecting and storing background checks. In addition to modifications to incorporate the legislative changes, the department will be amending the rule to address the following: starting 07/01/2015 a new system will be maintained by Utah's Bureau of Criminal Identification that will maintain background checks for applicable individuals. The new system will also notify the DABC if an applicable individual later has a conviction. Therefore, as of 07/01/2015 any new applicant will be required to submit to a new background check, regardless of whether the department has a background check on file. This rule eliminates the requirement for third party background checks to be submitted to the department as part of the application process. Applicants will continue to be required to attest that they have no disqualifying offenses and that they stipulate that they will surrender the license if a disqualifying offense if the background check reveals a disqualifying offense.
State statutory or constitutional authorization for this rule:
- Subsection 32B-1-304(1)(a)
- Section 32B-6-702
- Subsections 32B-4-414(1)(b) and (c)
- Subsection 32B-9-204(4)
- Subsection 32B-6-805(3)
- Section 32B-1-305
- Section 32B-2-202
- Subsection 32B-3-203(3)(c)
- Subsection 32B-2-201(10)
- Section 32B-1-306
- Section 32B-5-304
- Section 32B-1-607
- Section 32B-1-307
Anticipated cost or savings to:
the state budget:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. Any additional cost of or savings to state budget is due to the change in statute related to fees for retention at the Bureau of Criminal Identification and uniform background check fees for all individuals and not as a result of this rule amendment.
local governments:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. There are no anticipated cost or savings to local government.
small businesses:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. Any additional cost of or savings to small businesses is due to the change in statute related to fees for retention at the Bureau of Criminal Identification and uniform background check fees for all individuals and not as a result of this rule amendment.
persons other than small businesses, businesses, or local governmental entities:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. Any additional cost of or savings to persons other than small businesses, businesses or local government entities is due to the change in statute related to fees for retention at the Bureau of Criminal Identification and uniform background check fees for all individuals and not as a result of this rule amendment.
Compliance costs for affected persons:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. Any compliance costs are due to the change in statute related to fees for retention at the Bureau of Criminal Identification and uniform background check fees for all individuals and not as a result of this rule amendment.
Comments by the department head on the fiscal impact the rule may have on businesses:
None--This rule is necessary to implement S.B. 198, passed by the legislature in the 2015 General Session. Any fiscal impact on businesses is due to the change in statute related to fees for retention at the Bureau of Criminal Identification and uniform background check fees for all individuals and not as a result of this rule amendment.
Salvador D. Petilos, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
Alcoholic Beverage ControlAdministration
1625 S 900 W
SALT LAKE CITY, UT 84104-1630
Direct questions regarding this rule to:
- Nina McDermott at the above address, by phone at 801-977-6805, by FAX at 801-977-6888, or by Internet E-mail at [email protected]
- Andrew Hofeling at the above address, by phone at 801-977-6835, by FAX at 801-977-6888, or by Internet E-mail at [email protected]
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
06/15/2015
This rule may become effective on:
06/22/2015
Authorized by:
Sal Petilos, Executive Director
RULE TEXT
R81. Alcoholic Beverage Control, Administration.
R81-1. Scope, Definitions, and General Provisions.
R81-1-26. Criminal History Background Checks.
(1) Authority. This rule is pursuant to:
(a) the commission's powers and duties under 32B-2-202 to set policy by written rules that establish criteria and procedures for granting, denying, suspending, or revoking permits, licenses, and package agencies;
(b) 32B-1-301 to -307 that prohibit certain persons who have been convicted of certain criminal offenses from being employed by the department or from holding or being employed by the holder of an alcoholic beverage license, permit, or package agency; and
(c) 32B-1-301 to -307 that allow for the department to require criminal history background check reports on certain individuals.
(2) Purpose. This rule:
(a) establishes the circumstances under
which a person identified in the statutory sections enumerated in
Subparagraph (1)(b), must
submit to a background check to[provide the department with a criminal history background
report that] show[s] the person meets the qualifications of those
statutory sections as a condition of employment with the
department, or as a condition of the commission granting a license,
permit, or package agency to an applicant for a license, permit, or
package agency; and
(b) establishes the procedures for the
filing and processing of criminal history background
checks[reports].
(3) Application of Rule.
(a)(i) Except to the extent provided in
Subparagraphs (3)(a)
(ii),(iii), and (iv), [(v), (vi), and (vii) ]a person identified in
Subparagraph (1)(b) [who has been a resident of the state of Utah for at least
two years, ]shall[submit a fingerprint card to the department, and]
consent to a [fingerprint ]criminal background check by Utah
Bureau of Criminal Identification, Department of Public Safety
(hereafter "B.C.I.") and the Federal Bureau of Investigation (hereinafter
"F.B.I").
[(ii) Except to the extent provided in Subparagraphs
(3)(a)(iv), (v), (vi), and (vii), and (3)(b) through (h), a person
identified in Subparagraph (1)(b) who has been a resident of the
state of Utah for less than two years, shall submit a fingerprint
card to the department, and consent to a fingerprint criminal
background check by the Federal Bureau of Investigation (hereafter
"F.B.I.").
(iii) Except to the extent provided in Subparagraphs
(3)(a)(iv), (v), and (vi), and (vii), (3)(b) through (h), a
person identified in Subparagraph (1)(b) who currently resides
outside the state of Utah shall submit a fingerprint card to the
department, and consent to a fingerprint criminal background
check by the F.B.I.
](
ii[iv]) A person identified in Subparagraph (1)(b)
who [previously ]submitted a criminal background check
on or after July 1, 2015[as part of the application process for a different license,
permit, or package agency that was issued by the
commission] shall not be required to submit
to a background check[a fingerprint card with the department or provide a new
criminal history background report as part of the application
process for a new license, permit, or package agency]
if the department can confirm that the individual has maintained
a regulatory or employment relationship as outlined in the
department's privacy risk mitigation strategy required by
32B-1-307(4)(iv)(b).[if the person attests that he or she has not been convicted
of any disqualifying criminal offense identified in Subparagraph
(1)(b)].
([v]iii) An applicant for an [single ]event permit under 32B-9 shall not be
required to submit
to a background check[a fingerprint card or provide a criminal history background
report ]if the applicant attests that the persons
identified in Subparagraph (1)(b) have not been convicted of any
disqualifying criminal offense.
[(vi) An applicant for a temporary special event beer permit
under 32B-9 shall not be required to submit a fingerprint card or
provide a criminal history background report if the applicant
attests that the persons identified in Subparagraph (1)(b) have not
been convicted of any disqualifying criminal offense identified in
Subparagraph (1)(b).
] (
iv[ii]) An applicant for employment with benefits
with the department shall be required to submit
to a background check[a fingerprint card and consent to a fingerprint criminal
background check only] if the department has made the
decision to offer the applicant employment with the department.
(b) An application that requires [B.C.I. or F.B.I. criminal history ]background [report]checks(s) may be included on a commission meeting agenda,
and may be considered by the commission for issuance of a license,
permit, or package agency if:
(i) the applicant has completed all
requirements to apply for the license, permit, or package agency
other than the department receiving the required [B.C.I. or F.B.I. ]criminal history background
report(s);
(ii) the applicant attests in writing that he or she is not aware of any criminal conviction of any person identified in Subparagraph (1)(b) that would disqualify the applicant from applying for and holding the license, permit, or package agency;
(iii) the applicant has submitted to
a background check in a form acceptable to the department[the necessary fingerprint card(s) required for the
application, and consented to the fingerprint criminal background
check(s) by the B.C.I. or F.B.I.]; and
[(iv) the applicant at the time of application supplies the
department with a current criminal history background report
conducted by a third-party background check reporting service on
any person for which a B.C.I. or an F.B.I. background check is
required; and
] (
iv) the applicant stipulates in writing that if a [B.C.I. or an F.B.I.]criminal history background report shows a criminal
conviction that would disqualify the applicant from holding the
license, permit, or package agency, the applicant shall immediately
surrender the license, permit, or package agency to the
department.
(c) The commission may issue a license,
permit, or package agency to an applicant that has met the
requirements of Subparagraph (3)(b), and the license, permit, or
package agency shall be valid during the period the B.C.I. [or]and F.B.I. is processing the criminal history report(s).
[(d) The department shall use a unique file tracking system
for such licenses, permits, and package agencies.
(e) If the required B.C.I. or F.B.I. report(s) are not
received by the department within six (6) months of the date the
license, permit, or package agency is issued by the commission,
the licensee, permittee, or package agent shall appear at the
next regular meeting of the commission for a status report, and
the commission may either order the surrender of the license,
permit, or package agency, or may extend the reporting
period.
]([f]d) Upon the department's receipt of the [B.C.I. or F.B.I.]criminal history background report(s):
(i) if there is no disqualifying criminal history, the license, permit, or package agency shall continue for the balance the license or permit period, or the package agency contract period; or
(ii) if there is a disqualifying criminal history, the license, permit, or package agency shall be immediately surrendered, and the commission may enter an order accepting the surrender, or an order revoking the license, permit, or package agency depending on the circumstances.
([g]e) In the case of a license or permit, if the statutory
deadline for renewing the license or permit occurs before receipt
of [the B.C.I. or F.B.I.]criminal history background report(s), the licensee or
permittee may file for renewal of the license or permit subject to
meeting all of the requirements in Subparagraphs (3)(b) through ([f]e).
([h]f) An applicant for employment with benefits with the
department that requires a [B.C.I. or an F.B.I. criminal history ]background [report]check may be conditionally hired by the department prior to
receipt of the report if:
(i) the applicant attests in writing that he or she is not aware of any criminal conviction that would disqualify the applicant from employment with the department;
(ii) the applicant has submitted to
a background check in a form acceptable to the department[the necessary fingerprint card(s) required for the
application, and consented to the fingerprint criminal background
check(s) by the B.C.I. or F.B.I.];
(iii) the applicant stipulates in writing
that if a [B.C.I. or an F.B.I.]criminal history background report shows a criminal
conviction that would disqualify the applicant from employment with
the department, the applicant shall terminate his or her employment
with the department.
KEY: alcoholic beverages
Date of Enactment or Last Substantive Amendment: [April 29, 2014]2015
Notice of Continuation: May 10, 2011
Authorizing, and Implemented or Interpreted Law: 32B-2-201(10); 32B-2-202; 32B-3-203(3)(c); 32B-5-304; 32B-1-305; 32B-1-306; 32B-1-307; 32B-1-607; 32B-1-304(1)(a); 32B-6-702; 32B-6-805(3); 32B-9-204(4); 32B-4-414(1)(b) and (c)
Additional Information
More information about a Notice of Proposed Rule is available online.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2015/b20150515.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
Text to be deleted is struck through and surrounded by brackets ([example]). Text to be added is underlined (example). Older browsers may not depict some or any of these attributes on the screen or when the document is printed.
For questions regarding the content or application of this rule, please contact Nina McDermott at the above address, by phone at 801-977-6805, by FAX at 801-977-6888, or by Internet E-mail at [email protected]; Andrew Hofeling at the above address, by phone at 801-977-6835, by FAX at 801-977-6888, or by Internet E-mail at [email protected]. For questions about the rulemaking process, please contact the Division of Administrative Rules.