No. 29440 (Amendment): R81-1-26. Criminal History Background Checks

DAR File No.: 29440
Filed: 01/26/2007, 02:24
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule amendment is being proposed at the direction of the Alcoholic Beverage Control (ABC) Commission for the purpose of implementing statutory provisions that require license applicants and their supervisory employees to have backgrounds free of certain criminal convictions.

Summary of the rule or change:

The licensing chapters of Title 32A prohibit the Commission from issuing alcoholic beverage licenses to individuals who have certain disqualifying convictions in their personal backgrounds. The prohibition is also extended to supervisory staff of license applicants. This proposed rule amendment sets guidelines for license applicants to follow in order to provide proof of criminal background history when applying for an alcoholic beverage license.

State statutory or constitutional authorization for this rule:

Sections 32A-1-107, 32A-3-103, 32A-4-103, 32A-4-203, 32A-4-304, 32A-4-403, 32A-5-103, 32A-6-103, 32A-7-103, 32A-8-103, 32A-8-503, 32A-9-103, 32A-10-203, 32A-10-303, and 32A-11-103

Anticipated cost or savings to:

the state budget:

None--License applicants are required to pay any fees involved in obtaining a criminal background history. There are no costs to the state.

local governments:

None--The requirement of a criminal background check is a statutory requirement of the Department of Alcoholic Beverage Control (DABC). Though local governments may have their own criminal background requirements, they are apart from those of the DABC and are not regulated by this proposed rule amendment.

other persons:

Virtually all alcoholic beverage license applicants will be required to provide proof of criminal background history. Utah residents may obtain a background check from the State Bureau of Criminal Investigation for a cost of $10 per person. Applicants from outside Utah must obtain a background check from the FBI at a cost of $18 per person. Because there is currently a waiting period of up to six months for FBI checks, this proposed rule provides that the applicant may get a background check from a third-party provider and be licensed while waiting for the FBI check to arrive. The cost of the third-party background check is approximately $40 per person (and the applicant must still provide the FBI check when it becomes available).

Compliance costs for affected persons:

Virtually all alcoholic beverage license applicants will be required to provide proof of criminal background history. Utah residents may obtain a background check from the State Bureau of Criminal Investigation for a cost of $10 per person. Applicants from outside Utah must obtain a background check from the Federal Bureau of Investigations (FBI) at a cost of $18 per person. Because there is currently a waiting period of up to six months for FBI checks, this proposed rule provides that the applicant may get a background check from a third-party provider and be licensed while waiting for the FBI check to arrive. The cost of the third-party background check is approximately $40 per person (and the applicant must still provide the FBI check when it becomes available).

Comments by the department head on the fiscal impact the rule may have on businesses:

State law prohibits those with certain criminal convictions from holding alcoholic beverages licenses. Though there is a cost involved in obtaining a criminal background history, it is the only way the department and the ABC Commission can be certain an applicant meets this licensing requirement. Kenneth F. Wynn, 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:

Sharon Mackay at the above address, by phone at 801-977-6800, by FAX at 801-977-6889, or by Internet E-mail at [e-mail]

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:

03/19/2007

This rule may become effective on:

03/27/2007

Authorized by:

Kenneth F. Wynn, 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 32A-1-107 to set policy by written rules that establish criteria and procedures for granting, denying, suspending, or revoking permits, licenses, and package agencies; and

(b) 32A-3-103, 32A-4-103, 32A-4-203, 32A-4-304, 32A-4-403, 32A-5-103, 32A-6-103, 32A-7-103, 32A-8-103, 32A-8-503, 32A-9-103, 32A-10-203, 32A-10-303, and 32A-11-103 that prohibit certain persons that have been convicted of certain criminal offenses from holding or being employed by the holder of an alcoholic beverage license, permit, or package agency.

(2) Purpose. This rule:

(a) establishes the circumstances under which a person identified in the statutory sections enumerated in Subparagraph (1)(b), must provide the department with a criminal history background report that shows the person meets the qualifications of those statutory sections 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 reports.

(3) Application of Rule.

(a)(i) Except to the extent provided in Subparagraphs (3)(a)(iv), (v), and (vi) a person identified in Subparagraph (1)(b) who has been a resident of the state of Utah for at least one year, shall submit a criminal history background report from the Utah Bureau of Criminal Identification, Department of Public Safety.

(ii) Except to the extent provided in Subparagraphs (3)(a)(iv), (v), and (vi) and (3)(b) through (g), a person identified in Subparagraph (1)(b) who has been a resident of the state of Utah for less than one year, shall submit a criminal history background report from the Federal Bureau of Investigation (hereafter "F.B.I.@).

(iii) Except to the extent provided in Subparagraphs (3)(a)(iv), (v), and (vi) and (3)(b) through (g), a person identified in Subparagraph (1)(b) who currently resides outside the state of Utah shall submit a criminal history background report from the F.B.I.

(iv) A person identified in Subparagraph (1)(b) who previously submitted a criminal background check 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 file a new criminal history background report as part of the application process for a new license, permit, or package agency if the person attests that he or she has not been convicted of any disqualifying criminal offense identified in Subparagraph (1)(b).

(v) An applicant for a single event permit under Title 32A, Chapter 7 shall not be required to submit 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 32A-10-301 to -306 shall not be required to submit 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).

(b) An application that requires F.B.I. criminal history background report(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 providing the required 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 attests in writing that all request(s) for any required F.B.I. criminal history background report(s) have been submitted to the F.B.I, and provides the following information and documentation:

(A) the date the request(s) were submitted to the F.B.I.

(B) a copy of the written request(s) submitted to the F.B.I.

(C) a copy of the fingerprint card(s) submitted to the F.B.I.;

(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 an F.B.I. background check is required; and

(v) the applicant stipulates in writing that if an F.B.I. 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 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 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) Upon the department's receipt of the F.B.I. 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) In the case of a license or permit, if the statutory deadline for renewing the license or permit occurs before receipt of the F.B.I. 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).

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: [November 22, 2006]2007

Notice of Continuation: August 31, 2006

Authorizing, and Implemented or Interpreted Law: 32A-1-107; 32A-1-119(5)(c); 32A-3-103(1)(a); 32A-4-103(1)(a); 32A-4-106(22); 32A-4-203(1)(a); 32A-4-304(1)(a); 32A-4-307(22); 32A-4-401(1)(a); 32A-4-403(1)(a); 32A-5-103(1)(a); 32A-5-107(40); 32A-6-103(2)(a); 32A-7-103(2)(a); 32A-7-106(5); 32A-8-103(1)(a); 32A-8-503(1)(a); 32A-9-103(1)(a); 32A-10-203(1)(a); 32A-10-206(14); 32A-10-303(1)(a); 32A-10-306(5); 32A-11-103(1)(a)