(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 nonviolent 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.