H.B. 80

1

ADMINISTRATIVE RULE PENALTY
2 AMENDMENTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Ben C. Ferry
6 Senate Sponsor: Howard A. Stephenson
7
8 LONG TITLE
9 Committee Note:
10 The Administrative Rules Review Committee recommended this bill.
11 General Description:
12 This bill modifies various provisions regarding rulemaking authority by repealing
13 statutory provisions that authorize certain state agencies to determine by administrative
14 rule what conduct constitutes a criminal penalty.
15 Highlighted Provisions:
16 This bill:
17 . repeals statutory grants that authorize certain state agencies to determine by
18 administrative rule what conduct constitutes a criminal penalty;
19 . provides certain agencies with authority to assess criminal penalties by statute;
20 . provides a delayed repeal date for Section 73-18b-3; and
21 . makes technical changes.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 This bill provides a delayed effect date for certain sections.
26 Utah Code Sections Affected:
27 AMENDS:

28 23-13-11, as last amended by Laws of Utah 1995, Chapter 211
29 23-20-3, as last amended by Laws of Utah 1995, Chapter 211
30 32A-13-106, as last amended by Laws of Utah 1991, Chapter 5
31 34-23-402, as last amended by Laws of Utah 1997, Chapter 375
32 34A-2-407, as last amended by Laws of Utah 2006, Chapter 295
33 34A-2-801, as last amended by Laws of Utah 2006, Chapter 295
34 35A-4-103, as last amended by Laws of Utah 1998, Chapters 13 and 116
35 41-1a-712, as enacted by Laws of Utah 2003, Chapter 250
36 54-7-15, as last amended by Laws of Utah 2003, Chapter 200
37 54-7-26, as last amended by Laws of Utah 1986, Chapter 178
38 54-7-28, as last amended by Laws of Utah 1986, Chapter 178
39 58-37d-4, as last amended by Laws of Utah 2007, Chapter 358
40 59-14-208, as last amended by Laws of Utah 2007, Chapter 306
41 61-1-13, as last amended by Laws of Utah 2007, Chapters 292 and 307
42 61-1-21, as last amended by Laws of Utah 2001, Chapter 149
43 72-7-208, as renumbered and amended by Laws of Utah 1998, Chapter 270
44 72-7-302, as renumbered and amended by Laws of Utah 1998, Chapter 270
45 72-7-402, as last amended by Laws of Utah 2002, Chapter 151
46 72-7-406, as last amended by Laws of Utah 2006, Chapter 212
47 72-7-407, as last amended by Laws of Utah 2005, Chapter 2
48 72-7-409, as last amended by Laws of Utah 1998, Chapter 224 and renumbered and
49 amended by Laws of Utah 1998, Chapter 270
50 72-9-701, as renumbered and amended by Laws of Utah 1998, Chapter 270
51 72-10-120, as last amended by Laws of Utah 1998, Chapter 365 and renumbered and
52 amended by Laws of Utah 1998, Chapter 270
53 73-18-21, as last amended by Laws of Utah 1987, Chapter 99
54 73-18a-14, as last amended by Laws of Utah 1987, Chapter 99
55 76-8-1301, as last amended by Laws of Utah 2007, Chapter 264
56 ENACTS:
57 23-21-7, Utah Code Annotated 1953
58 61-1-1.3, Utah Code Annotated 1953

59 61-1-1.5, Utah Code Annotated 1953
60 61-1-2.1, Utah Code Annotated 1953
61 61-1-2.2, Utah Code Annotated 1953
62 61-1-2.3, Utah Code Annotated 1953
63 61-1-2.4, Utah Code Annotated 1953
64 61-1-2.5, Utah Code Annotated 1953
65 61-1-2.6, Utah Code Annotated 1953
66 61-1-2.7, Utah Code Annotated 1953
67 63-55b-173, Utah Code Annotated 1953
68 REPEALS AND REENACTS:
69 63-11-17.3, as last amended by Laws of Utah 1997, Chapter 315
70 REPEALS:
71 72-7-211, as renumbered and amended by Laws of Utah 1998, Chapter 270
72
73 Be it enacted by the Legislature of the state of Utah:
74 Section 1. Section 23-13-11 is amended to read:
75 23-13-11. Violations.
76 (1) Unless otherwise provided, a violation of any provision of this title is a class B
77 misdemeanor.
78 (2) [A] Except as otherwise provided in this title, a violation of any rule or
79 proclamation of the Wildlife Board [is a class C misdemeanor] is an infraction.
80 Section 2. Section 23-20-3 is amended to read:
81 23-20-3. Taking, transporting, selling, or purchasing protected wildlife illegal
82 except as authorized -- Penalty.
83 (1) Except as provided in this title or [a] an administrative rule, proclamation, or order
84 of the Wildlife Board, [a person may not] it is unlawful for any person to:
85 [(a) take or permit his dog to take:]
86 [(i) protected wildlife or their parts;]
87 [(ii) an occupied nest of protected wildlife; or]
88 [(iii) an egg of protected wildlife;]
89 [(b) transport, ship, or cause to be shipped protected wildlife or their parts;]

90 [(c) sell or purchase protected wildlife or their parts; or]
91 [(d) possess protected wildlife or their parts unaccompanied by a valid license, permit,
92 tag, certificate of registration, bill of sale, or invoice.]
93 (a) take protected wildlife or its parts;
94 (b) collect, import, possess, transport, propagate, store, donate, transfer, or export
95 protected wildlife or its parts;
96 (c) take, possess, sell, purchase, barter, donate, or trade protected wildlife or its parts
97 without first having procured the necessary licenses, permits, tags, stamps, certificates of
98 registration, authorizations, and receipts required in this title or an administrative rule,
99 proclamation, or order of the Wildlife Board;
100 (d) take protected wildlife with any weapon, ammunition, implement, tool, device or
101 any part of any of these not specifically authorized in this title or a rule, proclamation, or order
102 of the Wildlife Board;
103 (e) possess while in pursuit of protected wildlife any weapon, ammunition, implement,
104 tool, device, or any part of any of these not specifically authorized in this title or an
105 administrative rule, proclamation, or order of the Wildlife Board;
106 (f) take protected wildlife using any method, means, process, or practice not
107 specifically authorized in this title or an administrative rule, proclamation, or order of the
108 Wildlife Board;
109 (g) take protected wildlife outside the season dates, location boundaries, and daily time
110 frames established in rule, proclamation, or order of the Wildlife Board;
111 (h) take protected wildlife in excess of the bag and possession limits established in
112 rule, proclamation, or order of the Wildlife Board;
113 (i) take protected wildlife in an area closed to hunting, trapping, or fishing by rule,
114 proclamation, or order of the Wildlife Board, or by executive order of the division director
115 pursuant to Subsection 23-14-8 (4);
116 (j) practice falconry or capture, possess, or use birds in falconry;
117 (k) take any wildlife from an airplane or any other airborne vehicle or device or any
118 motorized terrestrial or aquatic vehicle, including snowmobiles and other recreational vehicles;
119 (l) hold in captivity at any time any live protected wildlife;
120 (m) use or permit a dog or other domestic or trained animal to take protected wildlife;

121 (n) remove, damage, or destroy an occupied nest of protected wildlife;
122 (o) release captured or captive wildlife into the wild;
123 (p) use spotlighting to take protected wildlife;
124 (q) employ or use a means of concealment or camouflage while taking protected
125 wildlife which is prohibited in this title or an administrative rule, proclamation, or order of the
126 Wildlife Board;
127 (r) possess or use bait or other attractant to take protected wildlife which is prohibited
128 in this title or an administrative rule, proclamation, or order of the Wildlife Board;
129 (s) use any decoy or recorded or electronically amplified call which is prohibited in this
130 title or an administrative rule, proclamation, or order of the Wildlife Board to take protected
131 wildlife;
132 (t) commercially harvest protected wildlife, including brine shrimp and brine shrimp
133 eggs;
134 (u) utilize protected wildlife for commercial purposes or financial gain;
135 (v) enter, establish, or hold a contest or tournament involving the taking of protected
136 wildlife;
137 (w) operate or participate in a commercial hunting area as described in Section
138 23-17-6 ; or
139 (x) operate or participate in a cooperative wildlife management unit as defined in
140 Section 23-23-2 .
141 (2) Possession of protected wildlife without a valid license, permit, tag, certificate of
142 registration, bill of sale, or invoice is prima facie evidence that the protected wildlife was
143 illegally taken and is illegally held in possession.
144 (3) A person is guilty of a class B misdemeanor if he:
145 (a) violates any provision of Subsection (1); and
146 (b) does so with criminal negligence as defined in Subsection 76-2-103 (4).
147 Section 3. Section 23-21-7 is enacted to read:
148 23-21-7. Unlawful uses and activities on division lands.
149 (1) Except as authorized by statute, administrative rule, contractual agreement, special
150 use permit, certificate of registration, or public notice, a person may not on division land:
151 (a) remove, extract, use, consume, or destroy any improvement or cultural or historic

152 resource;
153 (b) remove, extract, use, consume, or destroy any sand, gravel, cinder, ornamental rock,
154 or other common mineral resource, or vegetation resource;
155 (c) allow livestock to graze;
156 (d) remove any plant or portion of a plant for commercial gain purposes;
157 (e) enter, use, or occupy division land that is posted against entry, use, or occupancy;
158 (f) enter, use, or occupy division land as part of a group of more than 25 people;
159 (g) enter, use, or occupy division land while engaged in or part of an organized event;
160 (h) use, occupy, destroy, move, or construct any structure, including fences, water
161 control devices, roads, survey and section markers, or signs;
162 (i) prohibit, prevent, or obstruct public entry on division lands when public entry is
163 authorized by the division;
164 (j) attempt to manage or control division lands in a manner inconsistent with division
165 management plans, administrative rules, or policies;
166 (k) solicit, promote, negotiate, barter, sell, or trade any product or service on, or
167 obtained from, division lands for commercial gain;
168 (l) park a motor vehicle or trailer or camp for more than 14 consecutive days unless the
169 area is posted for a different duration;
170 (m) light a fire without taking adequate precaution to prevent spreading of the fire or
171 leave a fire unattended;
172 (n) use fireworks, explosives, poisons, herbicides, insecticides, or pesticides;
173 (o) use motorized vehicles of any kind except as authorized by declaration,
174 management plan, or posting; or
175 (p) use division lands for any purpose that violates applicable land use restrictions
176 imposed by statute, administrative rule, or by the division.
177 (2) A person or entity which unlawfully uses division lands is liable for damages in the
178 amount of:
179 (a) the value of the resource removed, destroyed, or extracted;
180 (b) the amount of damage caused; and
181 (c) whichever is greater of:
182 (i) the value of any losses or expenses caused as a result of interference with authorized

183 activities; or
184 (ii) the consideration which would have been charged by the division for use of the
185 land during the period of trespass.
186 (3) This section does not apply to division employees or division volunteers while
187 acting in the lawful performance of their duties.
188 (4) Except as otherwise provided by statute, the criminal penalty for a violation of any
189 provision of this section is prescribed in Section 23-13-11 .
190 Section 4. Section 32A-13-106 is amended to read:
191 32A-13-106. Nuisances.
192 (1) (a) Any room, house, building, structure, place, aircraft, vehicle, vessel, or other
193 conveyance, where alcoholic products are possessed, kept, used, offered for sale, sold, given,
194 furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated,
195 shipped, carried, transported, or distributed in violation of this title [or commission rules,] and
196 all alcoholic products, packages, equipment, or other property kept or used in maintaining the
197 same, are common nuisances.
198 (b) Any person who maintains or assists in maintaining any common nuisance is guilty
199 of a class B misdemeanor.
200 (2) If any person has knowledge, or has reason to believe that the person's room, house,
201 building, structure, place, aircraft, vehicle, vessel, or other conveyance is occupied or used in
202 violation of this title or commission rules as described in this section, or allows it to be so
203 occupied or used, it is subject to a lien for and may be sold to pay all fines and costs assessed
204 against the person guilty of the nuisance. This lien may be enforced by action in any court
205 having jurisdiction.
206 (3) Any action to abate any nuisance defined in this title shall be brought in the name
207 of the department in any court having jurisdiction. It shall be tried as an action in equity. No
208 bond is required to initiate proceedings.
209 (4) The court may issue a temporary writ of injunction, if it appears that the nuisance
210 exists, restraining the defendant from conducting or permitting the continuance of the nuisance
211 until the conclusion of the trial. The court may also issue an order restraining the defendant
212 and all other persons from removing or interfering with the alcoholic products, packages,
213 equipment, or other property kept or used in violation of this title or commission rules.

214 (5) (a) In any action to abate or enjoin any nuisance, the court need not find that the
215 property involved was being unlawfully used at the time of the hearing.
216 (b) On finding that the material allegations of the petition or complaint are true, the
217 court shall order that no alcoholic product may be possessed, kept, used, offered for sale, sold,
218 given, furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated,
219 shipped, carried, transported, or distributed in the room, house, building, structure, place,
220 aircraft, vehicle, vessel, or other conveyance or in any part of these.
221 (c) Upon judgment of the court ordering abatement of the nuisance, the court may
222 order that the premises or conveyance in question may not be occupied or used for any purpose
223 for one year.
224 (d) The court may permit the premises or conveyance to be occupied or used if its
225 owner, lessee, tenant, or occupant gives bond in an appropriate amount with sufficient surety,
226 approved by the court, payable to the state of Utah, and on the conditions that alcoholic
227 products will not be present [therein or thereon] in or on the premises or the conveyance, and
228 that payment of all fines, costs, and damages that may be assessed for any violation of this title
229 or commission rules upon the property will be made.
230 (6) If a tenant of any premises uses the premises or any part of them in maintaining a
231 common nuisance as defined in this section, or knowingly permits use by another, the lease is
232 rendered void and the right to possession reverts to the owner or lessor who is entitled to the
233 remedy provided by law for forcible detention of the premises.
234 (7) Any person who knowingly permits any building or premises owned or leased by
235 the person, or under the person's control, or any part of any building or premises, to be used in
236 maintaining a common nuisance as defined in this section, or who, after being notified in
237 writing by a prosecuting officer or any citizen of the unlawful use, and who fails to take all
238 proper measures, either to abate the nuisance or to remove the person or persons from the
239 premises, is guilty of assisting in the maintaining of the nuisance as provided in Section
240 76-10-804 .
241 Section 5. Section 34-23-402 is amended to read:
242 34-23-402. Violation -- Criminal penalty.
243 (1) The commission may prosecute a misdemeanor criminal action in the name of the
244 state. The county attorney, district attorney, or attorney general shall provide assistance in

245 prosecutions under this section at the request of the commission.
246 (2) It is a class B misdemeanor for a person, whether individually or as an officer,
247 agent, or employee of any person, firm, or corporation to:
248 (a) knowingly employ a minor or permit a minor to work in a repeated violation of this
249 chapter;
250 (b) refuse or knowingly neglect to furnish to the commission, any information
251 requested by the commission under this chapter;
252 (c) refuse access to that person's place of business or employment to the commission or
253 its authorized representative when access has been requested in conjunction with an
254 investigation related to this section;
255 (d) hinder the commission or its authorized representative in the securing of any
256 information authorized by this section;
257 (e) refuse or knowingly omit or neglect to keep any of the records required by this
258 chapter;
259 (f) knowingly make any false statement, representation, or certification in any
260 application, record, report, plan, or other document filed or required to be maintained under
261 this chapter;
262 (g) discharge an employee or threaten to or retaliate against an employee because:
263 (i) the employee has testified;
264 (ii) is about to testify; or
265 (iii) the employer believes that the employee may testify in any investigation or
266 proceedings relative to the enforcement of this chapter; and
267 (h) willfully violate any [rule or] order issued under this chapter.
268 (3) This section does not apply to violations of Section 34-23-301 .
269 Section 6. Section 34A-2-407 is amended to read:
270 34A-2-407. Reporting of industrial injuries -- Regulation of health care providers
271 -- Funeral expenses.
272 (1) As used in this section, "physician" is as defined in Section 34A-2-111 .
273 (2) (a) Any employee sustaining an injury arising out of and in the course of
274 employment shall provide notification to the employee's employer promptly of the injury.
275 (b) If the employee is unable to provide the notification required by Subsection (2)(a),

276 the following may provide notification of the injury to the employee's employer:
277 (i) the employee's next-of-kin; or
278 (ii) the employee's attorney.
279 (c) An employee claiming benefits under this chapter, or Chapter 3, Utah Occupational
280 Disease Act, shall comply with rules adopted by the commission regarding disclosure of
281 medical records of the employee medically relevant to the industrial accident or occupational
282 disease claim.
283 (3) (a) An employee is barred for any claim of benefits arising from an injury if the
284 employee fails to notify within the time period described in Subsection (3)(b):
285 (i) the employee's employer in accordance with Subsection (2); or
286 (ii) the division.
287 (b) The notice required by Subsection (3)(a) shall be made within:
288 (i) 180 days of the day on which the injury occurs; or
289 (ii) in the case of an occupational hearing loss, the time period specified in Section
290 34A-2-506 .
291 (4) The following constitute notification of injury required by Subsection (2):
292 (a) an employer's or physician's injury report filed with:
293 (i) the division;
294 (ii) the employer; or
295 (iii) the employer's insurance carrier; or
296 (b) the payment of any medical or disability benefits by:
297 (i) the employer; or
298 (ii) the employer's insurance carrier.
299 (5) (a) In the form prescribed by the division, each employer shall file a report with the
300 division of any:
301 (i) work-related fatality; or
302 (ii) work-related injury resulting in:
303 (A) medical treatment;
304 (B) loss of consciousness;
305 (C) loss of work;
306 (D) restriction of work; or

307 (E) transfer to another job.
308 (b) The employer shall file the report required by Subsection (5)(a) within seven days
309 after:
310 (i) the occurrence of a fatality or injury;
311 (ii) the employer's first knowledge of the fatality or injury; or
312 (iii) the employee's notification of the fatality or injury.
313 (c) (i) An employer shall file a subsequent report with the division of any previously
314 reported injury that later results in death.
315 (ii) The subsequent report required by this Subsection (5)(c) shall be filed with the
316 division within seven days following:
317 (A) the death; or
318 (B) the employer's first knowledge or notification of the death.
319 (d) A report is not required to be filed under this Subsection (5) for minor injuries,
320 such as cuts or scratches that require first-aid treatment only, unless:
321 (i) a treating physician files a report with the division in accordance with Subsection
322 (9); or
323 (ii) a treating physician is required to file a report with the division in accordance with
324 Subsection (9).
325 (6) An employer required to file a report under Subsection (5) shall provide the
326 employee with:
327 (a) a copy of the report submitted to the division; and
328 (b) a statement, as prepared by the division, of the employee's rights and
329 responsibilities related to the industrial injury.
330 (7) Each employer shall maintain a record in a manner prescribed by the division by
331 administrative rule of all:
332 (a) work-related fatalities; or
333 (b) work-related injuries resulting in:
334 (i) medical treatment;
335 (ii) loss of consciousness;
336 (iii) loss of work;
337 (iv) restriction of work; or

338 (v) transfer to another job.
339 (8) (a) Except as provided in Subsection (8)(b), an employer who refuses or neglects to
340 make reports, to maintain records, or to file reports with the division as required by this section
341 is:
342 (i) guilty of a class C misdemeanor; and
343 (ii) subject to a civil assessment:
344 (A) imposed by the division, subject to the requirements of Title 63, Chapter 46b,
345 Administrative Procedures Act; and
346 (B) that may not exceed $500.
347 (b) An employer is not subject to the civil assessment or guilty of a class C
348 misdemeanor under this Subsection (8) if:
349 (i) the employer submits a report later than required by this section; and
350 (ii) the division finds that the employer has shown good cause for submitting a report
351 later than required by this section.
352 (c) A civil assessment collected under this Subsection (8) shall be deposited into the
353 Uninsured Employers' Fund created in Section 34A-2-704 .
354 (9) (a) A physician attending an injured employee shall comply with administrative
355 rules established by the commission regarding:
356 (i) fees for physician's services;
357 (ii) disclosure of medical records of the employee medically relevant to the employee's
358 industrial accident or occupational disease claim; and
359 (iii) reports to the division regarding:
360 (A) the condition and treatment of an injured employee; or
361 (B) any other matter concerning industrial cases that the physician is treating.
362 (b) A physician who is associated with, employed by, or bills through a hospital is
363 subject to Subsection (9)(a).
364 (c) A hospital providing services for an injured employee is not subject to the
365 requirements of Subsection (9)(a) except for rules made by the commission that are described
366 in Subsection (9)(a)(ii) or (iii).
367 (d) The commission's schedule of fees may reasonably differentiate remuneration to be
368 paid to providers of health services based on:

369 (i) the severity of the employee's condition;
370 (ii) the nature of the treatment necessary; and
371 (iii) the facilities or equipment specially required to deliver that treatment.
372 (e) This Subsection (9) does not prohibit a contract with a provider of health services
373 relating to the pricing of goods and services.
374 (10) A copy of the initial report filed under Subsection (9)(a)(iii) shall be furnished to:
375 (a) the division;
376 (b) the employee; and
377 (c) (i) the employer; or
378 (ii) the employer's insurance carrier.
379 [(11) (a) Except as provided in Subsection (11)(b), a person subject to Subsection
380 (9)(a)(iii) who fails to comply with Subsection (9)(a)(iii) is guilty of a class C misdemeanor for
381 each offense.]
382 [(b) A person subject to Subsection (9)(a)(iii) is not guilty of a class C misdemeanor
383 under this Subsection (11), if:]
384 [(i) the person files a late report; and]
385 [(ii) the division finds that there is good cause for submitting a late report.]
386 [(12)] (11) (a) Subject to appellate review under Section 34A-1-303 , the commission
387 has exclusive jurisdiction to hear and determine:
388 (i) whether goods provided to or services rendered to an employee are compensable
389 pursuant to this chapter or Chapter 3, Utah Occupational Disease Act, including: