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

(1) As required by Subsection 35A-3-310.5(4), if a criminal conviction was a felony, or is a misdemeanor that is not excluded under Subsection R986-700-754(2) or R986-700-754(3), a covered individual may not provide child care or reside in a home where child care is provided. (2) As allowed by Subsection 35A-3-310.5(5), the Department excludes the following misdemeanors and determines that a misdemeanor conviction listed below does not disqualify a covered individual from providing child care: (a) a class B or C misdemeanor offense under Title 32B, Alcoholic Beverage Control Act, except for Section 32B-4-403, Unlawful sale, offer for sale, or furnishing to minor; (b) a class B or C misdemeanor offense under Title 41, Chapter 6a, Traffic Code except for Section 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) a class B or C misdemeanor offense under Title 58, Chapter 37, Utah Controlled Substances Act; (d) a Class B or C misdemeanor offense under Title 58, Chapter 37a, Utah Drug Paraphernalia Act; (e) a class B or C misdemeanor offense under Title 58, Chapter 37b, Imitation Controlled Substances Act; (f) a class B or C misdemeanor offense under Title 76, Chapter 4, Inchoate Offenses, except for Section 76-4-401, Enticing a Minor; (g) a class B or C conviction under Title 76, Chapter 6, Offenses Against Property,; (h) a class B or C conviction under Title 76, Chapter 6a, Pyramid Scheme Act,; (i) a class B or C conviction under Title 76, Chapter 8, Offenses Against the Administration of Government, Utah Criminal Code, except Sections 76-8-1201 through 76-8-1207, Public Assistance Fraud; and 76-8-1301 False statements regarding unemployment compensation; (j) a class B or C conviction under Title 76, Chapter 9, Offenses Against Public Order and Decency, 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 (k) a class B or C conviction under Title 76, Chapter 10, Offenses Against Public Health, Welfare, Safety and Morals, except for the following sections: (i) 76-10-509.5, Penalties for 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 minor's possession of dangerous weapon; (iv) 76-10-1201 through 1229.5, Pornographic and Harmful Materials and Performances; (v) 76-10-1301 through 1314, Prostitution; and (vi) 76-10-2301, Contributing to the delinquency of a minor; and (l) a class A misdemeanor where the conviction occurred more than ten years before the background check 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)(a) 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. (b) 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 Title 77, Chapter 40a, Expungement. (5)(a) A provider shall report any felony and misdemeanor arrest, charge, or conviction of a covered individual to DHHS within 48 hours of the arrest, notice of the charge, or conviction. (b)(i) A provider shall 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. (ii) A release for a background check shall be provided for that person within the time requested by the Department or DHHS. (6)(a) Pursuant to Subsection 35A-3-310.5(5)(b), the Department's designee for considering and exempting individual cases is the Child Care Licensing Administrator within DHHS. (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 R986-700-754(6)(b), the Department's designee shall not exempt a covered individual convicted of any of the following: (i) an offense specifically not excluded under Subsection R986-700-754(2); (ii) a "violent felony" as that term is used in Subsection 76-3-203.5(1)(c); (iii) a felony against a child, including child pornography; (iv) a felony involving abuse or neglect of a spouse, child, or vulnerable adult; (v) a felony involving rape or sexual assault; (vi) a felony involving kidnapping; (vii) a felony involving arson; (viii) a felony involving physical assault or battery; (ix) a drug-related felony, unless the offense was a nonviolent offense and occurred at least ten years before the date of the background check; or (x) a violent misdemeanor committed as an adult against a child, including offenses involving child abuse, child endangerment, sexual assault, or child pornography.