No. 31289 (Amendment): R81-1-26. Criminal History Background Checks

DAR File No.: 31289
Filed: 04/29/2008, 10:48
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule amendment is proposed to implement new laws passed by S.B. 211 (2008). (DAR NOTE: S.B. 211 (2008) is found at Chapter 391, Laws of Utah 2008, and was effective 05/05/2008.)

Summary of the rule or change:

New statues require that those applying for package agency contracts and those being offered an employment position with the Department of Alcoholic Beverage Control (DABC) must now submit and pass a criminal background history check. This proposed amendment outlines guidelines for implementing the new laws. The amendment also requires that a person who may obtain the criminal background check from the Utah Bureau of Criminal Investigation (BCI) (rather than the FBI) must be a Utah resident for two years rather than for one year as previously required.

State statutory or constitutional authorization for this rule:

Section 32A-1-107

Anticipated cost or savings to:

the state budget:

The new law states that DABC will pay the cost of background checks for individuals who have been offered employment with the department. The cost for an FBI criminal background check is currently $18 and the cost for a BCI background check is currently $10. The actual cost cannot be calculated because the number of new employees fluctuates from year to year.

local governments:

None--Local governments conduct their own criminal history background checks and are not affected by the requirements of state law.

small businesses and persons other than businesses:

The passage of the new criminal background history laws created by S.B. 211 will require that package agency applicants and their agents, managers, officers, directors, partners, and 20% stockholders submit fingerprint cards and receive a favorable criminal history background report from either the FBI or the Utah BCI. The cost for an FBI background check is currently $18 and the cost for a BCI background check is currently $10. These costs will be paid by the package agency applicant. The cost of the criminal history background check required for persons being offered employment with DABC will be paid by DABC. No other persons will be affected.

Compliance costs for affected persons:

An applicant for a package agency contract will be required to pay the cost for the criminal history background check before the package agency contract may be granted.

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

It has become increasingly important for the DABC to ensure that its employees and package agents have no criminal background history. This, in part, helps ensure the safety of other staff members as well as the fiscal management of the department. DABC is happy to pay the cost of background checks for those individuals being offered an employment position with the department. Dennis R. Kellen, 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:

06/16/2008

This rule may become effective on:

06/23/2008

Authorized by:

Dennis R. Kellen, 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-1-111, 32A-2-101(1)(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 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) 32A-1-107 through 704 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 provide the department with a criminal history background report that shows 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 reports.

(3) Application of Rule.

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

(ii) Except to the extent provided in Subparagraphs (3)(a)(iv), (v), [and ](vi), and (vii), and (3)(b) through [(g)](h), a person identified in Subparagraph (1)(b) who has been a resident of the state of Utah for less than [one year]two years, shall submit a [criminal history background report from]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], and (vii), (3)(b) through [(g)](h), a person identified in Subparagraph (1)(b) who currently resides outside the state of Utah shall submit a [criminal history background report from]fingerprint card to the department, and consent to a fingerprint criminal background check by 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]submit 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 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 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 32A-10-301 to -306 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).

(vii) An applicant for employment with the department shall be required to submit 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 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 department receiving 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.;]has submitted to the department the necessary fingerprint card(s) required for the application, and consented to the fingerprint criminal background check(s) by 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).

(h) An applicant for employment with the department that requires an F.B.I. criminal history background report 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 the department the necessary fingerprint card(s) required for the application, and consented to the fingerprint criminal background check(s) by the F.B.I;

(iii) the applicant stipulates in writing that if an F.B.I. 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: [August 27, 2007]2008

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)