DAR File No. 39329

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 Control
Administration
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 nmcdermott@utah.gov
• Andrew Hofeling at the above address, by phone at 801-977-6835, by FAX at 801-977-6888, or by Internet E-mail at ahofeling@utah.gov

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

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)