R986-700-754. Exclusion from Child Care Due to Criminal Convictions

  (1) As required by Utah Code Subsection 35A-3-310.5(4), if the criminal conviction was a felony, or is a misdemeanor that is not excluded under paragraphs (2) or (3) below, the covered individual may not provide child care or reside in a home where child care is provided.

  (2) As allowed by Utah Code Subsection 35A-3-310.5(5), the Department hereby excludes the following misdemeanors and determines that a misdemeanor conviction listed below does not disqualify a covered individual from providing child care:

  (a) any class B or C misdemeanor offense under Title 32A, Alcoholic Beverage Control Act, except for 32A-12-203, Unlawful sale or furnishing to minors;

  (b) any class B or C misdemeanor offense under Title 41, Chapter 6a, Traffic Code except for 41-6a-502, Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration, when the individual had a child in the car at the time of the offense;

  (c) any class B or C misdemeanor offense under Title 58, Chapter 37, Utah Controlled Substances Act;

  (d) any Class B or C misdemeanor offense under Title 58, Chapter 37a, Utah Drug Paraphernalia Act;

  (e) any class B or C misdemeanor offense under Title 58, Chapter 37b, Imitation Controlled Substances Act;

  (f) any class B or C misdemeanor offense under Title 76, Chapter 4, Inchoate Offenses, except for 76-4-401, Enticing a Minor;

  (g) any class B or C conviction under Chapter 6, Title 76, Offenses Against Property, Utah Criminal Code;

  (h) any class B or C conviction under Chapter 6a, Title 76, Pyramid Schemes, Utah Criminal Code;

  (i) any class B or C misdemeanor offense under Title 76, Chapter 7, Subsection 103, Adultery, and 104, Fornication;

  (j) any class B or C conviction under Chapter 8, Title 76, Offenses Against the Administration of Government, Utah Criminal Code except 76-8-1201 through 1207, Public Assistance Fraud; and 76-8-1301 False statements regarding unemployment compensation;

  (k) any class B or C conviction under Chapter 9, Title 76, Offenses Against Public Order and Decency, Utah Criminal Code, except for:

  (i) 76-9-301, Cruelty to Animals;

  (ii) 76-9-301.1, Dog Fighting;

  (iii) 76-9-301.8, Bestiality;

  (iv) 76-9-702, Lewdness;

  (v) 76-9-702.5, Lewdness Involving Child; and

  (vi) 76-9-702.7, Voyeurism; and

  (l) any class B or C conviction under Chapter 10, Title 76, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code, except for:

  (i) 76-10-509.5, Providing Certain Weapons to a Minor;

  (ii) 76-10-509.6, Parent or guardian providing firearm to violent minor;

  (iii) 76-10-509.7, Parent or Guardian Knowing of a Minor's Possession of a Dangerous Weapon;

  (iv) 76-10-1201 to 1229.5, Pornographic Material or Performance;

  (v) 76-10-1301 to 1314, Prostitution; and

  (vi) 76-10-2301, Contributing to the Delinquency of a Minor and

  (m) any class A misdemeanor where the conviction occurred more than ten years ago and the offense would be an excludable offense listed in this section.

  (3) The Department will rely on the criminal background screening as conclusive evidence of the conviction and the Department may revoke or deny approval for a provider based on that evidence.

  (4) If a covered individual causes a provider to be disqualified as a provider based upon the criminal background screening and the covered individual disagrees with the information provided by BCI, the covered individual may challenge the information by contacting BCI directly. If the information causing the disqualification came from a Utah court, the covered individual must contact that court or seek an expungement as provided in Utah Code Ann. Sections 77-18-10 through 77-18-15.

  (5) All child care providers must report all felony and misdemeanor arrests, charges or convictions of covered individuals to DOH within 48 hours of the arrest, notice of the charge, or conviction. All child care providers must also report a person aged 12 or older moving into the home where child care is provided within ten calendar days of that person moving in. A release for a background check must also be provided for that person within the time requested by the Department or DOH.

  (6)(a) Pursuant to Utah Code Ann. Section 35A-3-310.5(5)(b), the Department's designee for considering and exempting individual cases is the Child Care Licensing Administrator within the Utah Department of Health.

  (b) The Department's designee may exempt a covered individual from being excluded from providing child care due to a criminal conviction if the Department's designee determines that the nature of the background check finding or relevant mitigating circumstances indicate the covered individual does not pose a risk to children.

  (c) Notwithstanding Subsection (b) above, the Department's designee shall not exempt a covered individual convicted of any of the following:

  (i) Any offense specifically not excluded under Subsection (2) above;

  (ii) Any "violent felony" as that term is used in Section 76-3-203.5(1)(c) of the Utah Code;

  (iii) Any felony against a child, including child pornography;

  (iv) Any felony involving abuse or neglect of a spouse, child, or vulnerable adult;

  (v) Any felony involving rape or sexual assault;

  (vi) Any felony involving kidnapping;

  (vii) Any felony involving arson;

  (viii) Any felony involving physical assault or battery;

  (ix) Any drug-related felony, unless the offense was a non-violent offense and occurred at least ten years prior to the date of the background check; or

  (x) Any violent misdemeanor committed as an adult against a child, including offenses involving child abuse, child endangerment, sexual assault, or child pornography.