Utah Admin. Code 82-2-107

Current through Bulletin 2024-12, June 15, 2024

Section R82-2-107 - Criminal History Background Checks

(1) Authority. This rule is made pursuant to:

(a) the Commission's powers and duties under Section 32B-2-202 to set policy by written rules that establish criteria and procedures for granting, denying, suspending, or revoking a license, permit, or package agency;

(b) Sections 32B-1-301 through 32B-1-307 that prohibit certain persons who have been convicted of certain criminal offenses, including a crime involving moral turpitude, from being employed by the Department or from holding or being employed by the holder of an alcoholic beverage license, permit, or package agency;

(c) Sections 32B-1-301 through 32B-1-307 that allow for the Department to require criminal history background check reports on certain individuals; and

(d) Section 32B-1-102, which authorizes the Commission to define "crime involving moral turpitude."

(2)

(a) As used in this rule, "crime involving moral turpitude" means a crime that:

(i) involves actions done knowingly contrary to justice, honesty, or good morals;

(ii) is immoral in itself regardless of whether the crime is punishable by law; and involves an element of falsification or fraud or of harm or injury directed to another person or another person's property.

(b) "Crime of moral turpitude" includes a crime involving controlled substances, illegal drugs, or narcotics.

(3) Purpose. This rule:

(a) establishes the circumstances under which a person identified in the statutory sections enumerated in Subsection (1)(b), must submit to a background check to show 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.

(4) Application.

(a)

(i) Except to the extent provided in Subsections (3)(a)(ii) through (iv), a person identified in Subsection (1)(b) shall consent to a criminal background check by Utah Bureau of Criminal Identification, Department of Public Safety ("B.C.I.") and the Federal Bureau of Investigation ("F.B.I").

(ii) A person identified in Subsection (1)(b) who submitted a criminal background check on or after July 1, 2015, is not required to submit to a background check 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 Subsection 32B-1-307(4)(b).

(iii) An applicant for an event permit under Title 32B, Chapter 9, Event Permit Act, is not required to submit to a background check if the applicant attests that the persons identified in Subsection (1)(b) have not been convicted of any disqualifying criminal offense.

(iv) An applicant for employment with benefits with the Department is required to submit to a background check if the Department has made the decision to offer the applicant employment with the Department.

(b) An application that requires a background check 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 the requirements to apply for the license, permit, or package agency other than the Department receiving the required criminal history background report;

(ii) the applicant attests in writing that the applicant is not aware of any criminal conviction of any person identified in Subsection (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; and

(iv) the applicant stipulates in writing that if a 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 Subsection (4)(b), and the license, permit, or package agency shall be valid during the period the B.C.I. and F.B.I. is processing the criminal history report(s).

(d) Upon the Department's receipt of the criminal history background report:

(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, Department staff shall:

(A) inform the licensee, permittee, or package agency and ask them to either surrender the license or remove the individual with the disqualifying criminal history from their position; and

(B) if the licensee, permittee, or package agency does not comply with Subsection (4)(d)(ii)(A), issue an order to show cause and the Commission may enter an order accepting a surrender or an order revoking the license, permit, or package agency, depending on the circumstances.

(e) In the case of a license or permit, if the statutory deadline for renewing the license or permit occurs before receipt of criminal history background report, the licensee or permittee may file for renewal of the license or permit subject to meeting the requirements in this Subsection (4).

(f) An applicant for employment with benefits with the Department that requires a background check may be conditionally hired by the Department before receipt of the report if:

(i) the applicant attests in writing that the applicant 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; and

(iii) the applicant stipulates in writing that if a criminal history background report shows a criminal conviction that would disqualify the applicant from employment with the Department, the applicant shall terminate the applicant's employment with the Department.

(5) Failure to comply with this rule or statutory requirements governing background check information is a basis for the Department to issue an Order to Show Cause.

Utah Admin. Code R82-2-107

Adopted by Utah State Bulletin Number 2020-05, effective 2/25/2020

Amended by Utah State Bulletin Number 2024-01, effective 12/22/2023