Second Substitute H.B. 80

Senator Howard A. Stephenson proposes the following substitute bill:

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 General Description:
10 This bill modifies specified provisions of law by removing authority of certain state
11 agencies to impose by administrative rule criminal penalties for the violation of rules.
12 Highlighted Provisions:
13 This bill:
14 . repeals statutory grants of authority to the Alcoholic Beverage Control Commission,
15 Department of Workforce Services, State Tax Commission, Public Service
16 Commission, and Department of Public Safety which allow the imposition of a
17 criminal penalty for the violation of administrative rule provisions; and
18 . makes technical changes.
19 Monies Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 32A-13-106, as last amended by Laws of Utah 1991, Chapter 5

26 35A-4-103, as last amended by Laws of Utah 1998, Chapters 13 and 116
27 41-1a-712, as enacted by Laws of Utah 2003, Chapter 250
28 54-7-26, as last amended by Laws of Utah 1986, Chapter 178
29 54-7-28, as last amended by Laws of Utah 1986, Chapter 178
30 58-37d-4, as last amended by Laws of Utah 2007, Chapter 358
31 59-14-208, as last amended by Laws of Utah 2007, Chapter 306
32 72-7-406, as last amended by Laws of Utah 2006, Chapter 212
33 76-8-1301, as last amended by Laws of Utah 2007, Chapter 264
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 32A-13-106 is amended to read:
37 32A-13-106. Nuisances.
38 (1) (a) Any room, house, building, structure, place, aircraft, vehicle, vessel, or other
39 conveyance, where alcoholic products are possessed, kept, used, offered for sale, sold, given,
40 furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated,
41 shipped, carried, transported, or distributed in violation of this title [or commission rules,] and
42 all alcoholic products, packages, equipment, or other property kept or used in maintaining the
43 same, are common nuisances.
44 (b) Any person who maintains or assists in maintaining any common nuisance is guilty
45 of a class B misdemeanor.
46 (2) If any person has knowledge, or has reason to believe that the person's room, house,
47 building, structure, place, aircraft, vehicle, vessel, or other conveyance is occupied or used in
48 violation of this title or commission rules as described in this section, or allows it to be so
49 occupied or used, it is subject to a lien for and may be sold to pay all fines and costs assessed
50 against the person guilty of the nuisance. This lien may be enforced by action in any court
51 having jurisdiction.
52 (3) Any action to abate any nuisance defined in this title shall be brought in the name
53 of the department in any court having jurisdiction. It shall be tried as an action in equity. No
54 bond is required to initiate proceedings.
55 (4) The court may issue a temporary writ of injunction, if it appears that the nuisance
56 exists, restraining the defendant from conducting or permitting the continuance of the nuisance

57 until the conclusion of the trial. The court may also issue an order restraining the defendant
58 and all other persons from removing or interfering with the alcoholic products, packages,
59 equipment, or other property kept or used in violation of this title or commission rules.
60 (5) (a) In any action to abate or enjoin any nuisance, the court need not find that the
61 property involved was being unlawfully used at the time of the hearing.
62 (b) On finding that the material allegations of the petition or complaint are true, the
63 court shall order that no alcoholic product may be possessed, kept, used, offered for sale, sold,
64 given, furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated,
65 shipped, carried, transported, or distributed in the room, house, building, structure, place,
66 aircraft, vehicle, vessel, or other conveyance or in any part of these.
67 (c) Upon judgment of the court ordering abatement of the nuisance, the court may
68 order that the premises or conveyance in question may not be occupied or used for any purpose
69 for one year, except under Subsection (5)(d).
70 (d) The court may permit the premises or conveyance to be occupied or used if its
71 owner, lessee, tenant, or occupant gives bond in an appropriate amount with sufficient surety,
72 approved by the court, payable to the state of Utah, and on the conditions that alcoholic
73 products will not be present [therein or thereon] in or on the premises or the conveyance, and
74 that payment of all fines, costs, and damages that may be assessed for any violation of this title
75 or commission rules upon the property will be made.
76 (6) If a tenant of any premises uses the premises or any part of them in maintaining a
77 common nuisance as defined in this section, or knowingly permits use by another, the lease is
78 rendered void and the right to possession reverts to the owner or lessor who is entitled to the
79 remedy provided by law for forcible detention of the premises.
80 (7) Any person who knowingly permits any building or premises owned or leased by
81 the person, or under the person's control, or any part of any building or premises, to be used in
82 maintaining a common nuisance as defined in this section, or who, after being notified in
83 writing by a prosecuting officer or any citizen of the unlawful use, and who fails to take all
84 proper measures, either to abate the nuisance or to remove the person or persons from the
85 premises, is guilty of assisting in the maintaining of the nuisance as provided in Section
86 76-10-804 .
87 Section 2. Section 35A-4-103 is amended to read:

88 35A-4-103. Void agreements -- Child support obligations -- Penalties.
89 (1) (a) Any agreement by an individual to waive, release, or commute his rights to
90 benefits or any other rights under this chapter is void.
91 (b) Any agreement by any individual in the employ of any person or concern to pay all
92 or any portion of an employer's contributions, required under this chapter from the employer, is
93 void.
94 (c) An employer may not directly or indirectly:
95 (i) make, require, or accept any deduction from wages to finance the employer's
96 contributions required from the employer;
97 (ii) require or accept any waiver of any right under this chapter by any individual in the
98 employer's employ;
99 (iii) discriminate in regard to the hiring or tenure of work on any term or condition of
100 work of any individual on account of the individual claiming benefits under this chapter; or
101 (iv) in any manner obstruct or impede the filing of claims for benefits.
102 (d) (i) Any employer or officer or agent of an employer who violates Subsection (1)(c)
103 is, for each offense, guilty of a class B misdemeanor.
104 (ii) Notwithstanding Sections 76-3-204 and 76-3-301 , a fine imposed under Subsection
105 (1) shall be not less than $100, and a penalty of imprisonment shall be not more than six
106 months.
107 (2) An individual claiming benefits may not be charged fees or costs of any kind in any
108 proceeding under this chapter by the department or its representatives, or by any court or any
109 officer of the court.
110 (3) (a) Any individual claiming benefits in any proceeding before the department or its
111 representatives or a court may be represented by counsel or any other [duly] authorized agent.
112 (b) A counsel or agent may not either charge or receive for the counsel's or agent's
113 services more than an amount approved by the division or administrative law judge in
114 accordance with rules made by the department.
115 [(c) Any person who violates any provision of Subsection (3) is guilty of a class B
116 misdemeanor for each offense.]
117 [(d) Notwithstanding Sections 76-3-204 and 76-3-301 , a fine imposed under
118 Subsection (3) shall be not less than $50 nor more than $500, and a penalty for imprisonment

119 shall be not more than six months.]
120 (4) Except as provided for in Subsection (5):
121 (a) any assignment, pledge, or encumbrance of any right to benefits that are or may
122 become due or payable under this chapter is void;
123 (b) rights to benefits are exempt from levy, execution, attachment, or any other remedy
124 provided for the collection of debt;
125 (c) benefits received by any individual, so long as they are not mingled with other
126 funds of the recipient, are exempt from any remedy for the collection of all debts except debts
127 incurred for necessaries furnished to the individual or the individual's spouse or dependents
128 during the time when the individual was unemployed; and
129 (d) any waiver of any exemption provided for in Subsection (4) is void.
130 (5) (a) An individual filing a new claim for unemployment compensation shall, at the
131 time of filing the claim, disclose whether or not the individual owes:
132 (i) child support obligations; or
133 (ii) an uncollected overissuance of food stamp benefits.
134 (b) If the individual owes child support obligations, and is determined to be eligible for
135 unemployment compensation, the division shall notify the state or local child support agency
136 charged with enforcing that obligation that the individual is eligible for unemployment
137 compensation.
138 (c) The division shall deduct and withhold from any unemployment compensation
139 payable to an individual that owes child support obligations:
140 (i) any amount required to be deducted and withheld from unemployment
141 compensation under legal process, as defined in the Social Security Act, 42 U.S.C. Sec. 659(i),
142 properly served upon the department;
143 (ii) the amount determined under an agreement submitted to the division under
144 Subsection 454 (19)(B)(i) of the Social Security Act, 42 U.S.C. Sec. 654, by the state or local
145 child support enforcement agency, except if Subsection (5)(c)(i) is applicable; or
146 (iii) the amount specified by the claimant to the division if neither Subsection (5)(c)(i)
147 nor (ii) is applicable.
148 (d) The division shall notify the state food stamp agency that an individual is eligible
149 for unemployment compensation if the individual:

150 (i) owes an uncollected overissuance of food stamp benefits; and
151 (ii) is determined to be eligible for unemployment compensation.
152 (e) The division shall deduct and withhold from any unemployment compensation
153 payable to an individual who owes an uncollected overissuance of food stamp benefits:
154 (i) the amount specified by the individual to the division to be deducted and withheld
155 under this Subsection (5)(e);
156 (ii) the amount, if any, determined pursuant to an agreement submitted to the state food
157 stamp agency under Section 13(c)(3)(B) of the Food Stamp Act of 1977; or
158 (iii) any amount otherwise required to be deducted and withheld from unemployment
159 compensation pursuant to Section 13(c)(3)(B) of the Food Stamp Act of 1977.
160 (f) Any amount deducted and withheld under Subsection (5)(c) or (e) shall:
161 (i) be paid by the department to the appropriate:
162 (A) state or local child support enforcement agency; or
163 (B) state food stamp agency; and
164 (ii) for all purposes, be treated as if it was paid to the individual as unemployment
165 compensation and then paid by the individual to the appropriate:
166 (A) state or local child support enforcement agency in satisfaction of the individual's
167 child support obligation; or
168 (B) state food stamp agency in satisfaction of the individual's uncollected overissuance.
169 (g) For purposes of Subsection (5):
170 (i) "Child support obligation" means obligations that are enforced under a plan
171 described in Section 454 of the Social Security Act, 42 U.S.C. Sec. 654, that has been approved
172 by the Secretary of Health and Human Services under Part D of Title IV of the Social Security
173 Act, 42 U.S.C. Sec. 651 et seq.
174 (ii) "State food stamp agency" means the Department of Workforce Services or its
175 designee responsible for the collection of uncollected overissuances.
176 (iii) "State or local child support enforcement agency" means any agency or political
177 subdivision of the state operating under a plan described in Subsection (5).
178 (iv) "Uncollected overissuance" is as defined in Section 13(c)(1) of the Food Stamp
179 Act of 1977.
180 (v) "Unemployment compensation" means any compensation payable under this

181 chapter, including amounts payable under an agreement directed by federal law that provides
182 compensation assistance or allowances for unemployment.
183 (h) Subsection (5) is applicable only if appropriate arrangements have been made for
184 reimbursement by the state or local child support enforcement agency or state food stamp
185 agency for the administrative costs of the department under Subsection (5) that are directly
186 related to the enforcement of child support obligations or the repayment of uncollected
187 overissuance of food stamp benefits.
188 Section 3. Section 41-1a-712 is amended to read:
189 41-1a-712. Foreign vehicle disclosure requirements -- Penalties -- Civil damages.
190 (1) A person may not knowingly sell or offer for sale in this state any vehicle that was
191 initially delivered for disposition or sale in a country other than the United States of America
192 unless, prior to the sale, the person provides written notice to the purchaser on a separate form
193 furnished by the Motor Vehicle Enforcement Division:
194 (a) that indicates:
195 [(a)] (i) that the vehicle was initially delivered for disposition or sale in a country
196 outside of the United States as indicated on the Manufacturer's Statement of Origin or similar
197 ownership document; and
198 [(b)] (ii) the country where the vehicle was initially delivered for the disposition or
199 sale; and
200 [(c) any other information required by the commission under rules made by the
201 commission in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.]
202 (b) that contains language substantially similar to each of the following statements:
203 (i) "the odometer for this vehicle may have been converted to miles";
204 (ii) "this vehicle meets U.S. Department of Transportation safety standards"; and
205 (iii) "this vehicle may have manufacturer warranty exclusions if sold or offered for sale
206 in this country".
207 (2) A person who violates this section is guilty of a class B misdemeanor.
208 (3) (a) In addition to any other penalties, a purchaser may bring a civil action to recover
209 damages resulting from a seller's failure to provide notice as required under this section.
210 (b) The amount of damages that may be recovered in a civil action are the actual
211 damages or $1,500, whichever is greater.

212 Section 4. Section 54-7-26 is amended to read:
213 54-7-26. Violations by officers or agents of utility -- Penalty.
214 Every officer, agent, or employee of any public utility who violates or fails to comply
215 with, or who procures, aids, or abets any violation by any public utility of any provision of the
216 Constitution of this state or of this title, or who fails to obey, observe, or comply with any
217 order, decision, [rule,] direction, demand, or requirement, or any part or provision thereof, of
218 the commission, or who procures, aids, or abets any public utility in its failure to obey, observe,
219 and comply with any order, decision, [rule,] direction, demand, or requirement, or any part or
220 provision thereof, in a case in which a penalty has not been provided for, the officer, agent, or
221 employee is guilty of a class A misdemeanor.
222 Section 5. Section 54-7-28 is amended to read:
223 54-7-28. Violations by individuals -- Penalty.
224 Every person who, either individually, or acting as an officer, agent, or employee of a
225 corporation other than a public utility, violates any provision of this title or fails to observe,
226 obey, or comply with any order, decision, [rule,] direction, demand, or requirement, or any part
227 or provision thereof, of the commission, or who procures, aids, or abets any public utility in its
228 violation of this title or in its failure to obey, observe, or comply with any order, decision,
229 [rule,] direction, demand, or requirement, or any part or portion thereof, in a case in which a
230 penalty has not been provided for the person, is guilty of a class A misdemeanor.
231 Section 6. Section 58-37d-4 is amended to read:
232 58-37d-4. Prohibited acts -- Second degree felony.
233 (1) It is unlawful for any person to knowingly or intentionally:
234 (a) possess a controlled substance precursor with the intent to engage in a clandestine
235 laboratory operation;
236 (b) possess laboratory equipment or supplies with the intent to engage in a clandestine
237 laboratory operation;
238 (c) sell, distribute, or otherwise supply a precursor chemical, laboratory equipment, or
239 laboratory supplies, knowing or having reasonable cause to believe any of these items will be
240 used for a clandestine laboratory operation;
241 (d) evade the recordkeeping provisions of Title 58, Chapter 37c, Utah Controlled
242 Substance Precursor Act, [or the administrative rules issued under that chapter,] knowing or

243 having reasonable cause to believe that the material distributed or received will be used for a
244 clandestine laboratory operation;
245 (e) conspire with or aid another to engage in a clandestine laboratory operation;
246 (f) produce or manufacture, or possess with intent to produce or manufacture a
247 controlled or counterfeit substance except as authorized under Title 58, Chapter 37, Utah
248 Controlled Substances Act;
249 (g) transport or convey a controlled or counterfeit substance with the intent to
250 distribute or to be distributed by the person transporting or conveying the controlled or
251 counterfeit substance or by any other person regardless of whether the final destination for the
252 distribution is within this state or any other location; or
253 (h) engage in compounding, synthesis, concentration, purification, separation,
254 extraction, or other physical or chemical processing of any substance, including a controlled
255 substance precursor, or the packaging, repackaging, labeling, or relabeling of a container
256 holding a substance that is a product of any of these activities, knowing or having reasonable
257 cause to believe that the substance is a product of any of these activities and will be used in the
258 illegal manufacture of specified controlled substances.
259 (2) A person who violates any provision of Subsection (1) is guilty of a second degree
260 felony punishable by imprisonment for an indeterminate term of not less than 3 years nor more
261 than 15 years.
262 Section 7. Section 59-14-208 is amended to read:
263 59-14-208. Rules for stamping and packaging procedures -- Penalty.
264 (1) The commission may by rule provide for the method of breaking packages, the
265 forms and kinds of containers, and the method of affixing or cancelling stamps. These rules
266 shall allow for the enforcement of payment by inspection.
267 (2) A person is guilty of a class B misdemeanor who:
268 (a) engages in or permits any practice which is prohibited by law [or by rules of the
269 commission] and makes it difficult to enforce the provisions of this chapter by inspection;
270 (b) refuses to allow full inspection of his premises by any peace officer or of any agent
271 of the commission upon demand; or
272 (c) hinders or in any way delays or prevents inspection when the demand is made.
273 Section 8. Section 72-7-406 is amended to read:

274 72-7-406. Oversize permits and oversize and overweight permits for vehicles of
275 excessive size or weight -- Applications -- Restrictions -- Fees -- Rulemaking provisions --
276 Penalty.
277 (1) (a) The department may, upon receipt of an application and good cause shown,
278 issue in writing an oversize permit or an oversize and overweight permit. The oversize permit
279 or oversize and overweight permit may authorize the applicant to operate or move upon a
280 highway:
281 (i) a vehicle or combination of vehicles, unladen or with a load weighing more than the
282 maximum weight specified in Section 72-7-404 for any wheel, axle, group of axles, or total
283 gross weight; or
284 (ii) a vehicle or combination of vehicles that exceeds the vehicle width, height, or
285 length provisions under Section 72-7-402 .
286 (b) Except as provided under Subsection (8), an oversize and overweight permit may
287 not be issued under this section to allow the transportation of a load that is reasonably divisible.
288 (c) The maximum size or weight authorized by a permit under this section shall be
289 within limits that do not impair the state's ability to qualify for federal-aid highway funds.
290 (d) The department may deny or issue a permit under this section to protect the safety
291 of the traveling public and to protect highway foundation, surfaces, or structures from undue
292 damage by one or more of the following:
293 (i) limiting the number of trips the vehicle may make;
294 (ii) establishing seasonal or other time limits within which the vehicle may operate or
295 move on the highway indicated;
296 (iii) requiring security in addition to the permit to compensate for any potential damage
297 by the vehicle to any highway; and
298 (iv) otherwise limiting the conditions of operation or movement of the vehicle.
299 (e) Prior to granting a permit under this section, the department shall approve the route
300 of any vehicle or combination of vehicles.
301 (2) An application for a permit under this section shall state:
302 (a) the proposed maximum wheel loads, maximum axle loads, all axle spacings of each
303 vehicle or combination of vehicles;
304 (b) the proposed maximum load size and maximum size of each vehicle or

305 combination of vehicles;
306 (c) the specific roads requested to be used under authority of the permit; and
307 (d) if the permit is requested for a single trip or if other seasonal limits or time limits
308 apply.
309 (3) Each oversize permit or oversize and overweight permit shall be carried in the
310 vehicle or combination of vehicles to which it refers and shall be available for inspection by
311 any peace officer, special function officer, port of entry agent, or other personnel authorized by
312 the department.
313 (4) A permit under this section may not be issued or is not valid unless the vehicle or
314 combination of vehicles is:
315 (a) properly registered for the weight authorized by the permit; or
316 (b) registered for a gross laden weight of 78,001 pounds or over, if the gross laden
317 weight authorized by the permit exceeds 80,000 pounds.
318 (5) (a) (i) An oversize permit may be issued under this section for a vehicle or
319 combination of vehicles that exceeds one or more of the maximum width, height, or length
320 provisions under Section 72-7-402 .
321 (ii) Except for an annual oversize permit for an implement of husbandry under Section
322 72-7-407 or for an annual oversize permit issued under Subsection (5)(a)(iii), only a single trip
323 oversize permit may be issued for a vehicle or combination of vehicles that is more than 14 feet
324 6 inches wide, 14 feet high, or 105 feet long.
325 (iii) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
326 the department shall make rules for the issuance of an annual oversize permit for a vehicle or
327 combination of vehicles that is more than 14 feet 6 inches wide, 14 feet high, or 105 feet long
328 if the department determines that the permit is needed to accommodate highway transportation
329 needs for multiple trips on a specified route.
330 (b) The fee is $25 for a single trip oversize permit under this Subsection (5). This
331 permit is valid for not more than 96 continuous hours.
332 (c) The fee is $60 for a semiannual oversize permit under this Subsection (5). This
333 permit is valid for not more than 180 continuous days.
334 (d) The fee is $75 for an annual oversize permit under this Subsection (5). This permit
335 is valid for not more than 365 continuous days.

336 (6) (a) An oversize and overweight permit may be issued under this section for a
337 vehicle or combination of vehicles carrying a nondivisible load that exceeds one or more of the
338 maximum weight provisions of Section 72-7-404 by not more than 25%, except that the gross
339 weight may not exceed 125,000 pounds.
340 (b) The fee is $50 for a single trip oversize and overweight permit under this
341 Subsection (6). This permit is valid for not more than 96 continuous hours.
342 (c) A semiannual oversize and overweight permit under this Subsection (6) is valid for
343 not more than 180 continuous days. The fee for this permit is:
344 (i) $150 for a vehicle or combination of vehicles with gross vehicle weight of more
345 than 80,000 pounds, but not exceeding 84,000 pounds;
346 (ii) $260 for a vehicle or combination of vehicles with gross vehicle weight of more
347 than 84,000 pounds, but not exceeding 112,000 pounds; and
348 (iii) $350 for a vehicle or combination of vehicles with gross vehicle weight of more
349 than 112,000 pounds, but not exceeding 125,000 pounds.
350 (d) An annual oversize and overweight permit under this Subsection (6) is valid for not
351 more than 365 continuous days. The fee for this permit is:
352 (i) $200 for a vehicle or combination of vehicles with gross vehicle weight of more
353 than 80,000 pounds, but not exceeding 84,000 pounds;
354 (ii) $400 for a vehicle or combination of vehicles with gross vehicle weight of more
355 than 84,000 pounds, but not exceeding 112,000 pounds; and
356 (iii) $450 for a vehicle or combination of vehicles with gross vehicle weight of more
357 than 112,000 pounds, but not exceeding 125,000 pounds.
358 (7) (a) A single trip oversize and overweight permit may be issued under this section
359 for a vehicle or combination of vehicles carrying a nondivisible load that exceeds one or more
360 of the maximum weight provisions of Section 72-7-404 by more than 25% or that exceeds a
361 gross weight of 125,000 pounds.
362 (b) (i) The fee for a single trip oversize and overweight permit under this Subsection
363 (7), which is valid for not more than 96 continuous hours, is $.01 per mile for each 1,000
364 pounds above 80,000 pounds subject to the rounding described in Subsection (7)(c).
365 (ii) The minimum fee that may be charged under this Subsection (7) is $65.
366 (iii) The maximum fee that may be charged under this Subsection (7) is $450.

367 (c) (i) The miles used to calculate the fee under this Subsection (7) shall be rounded up
368 to the nearest 50 mile increment.
369 (ii) The pounds used to calculate the fee under this Subsection (7) shall be rounded up
370 to the nearest 25,000 pound increment.
371 (8) (a) An oversize and overweight permit may be issued under this section for a
372 vehicle or combination of vehicles carrying a divisible load if:
373 (i) the bridge formula under Subsection 72-7-404 (3) is not exceeded; and
374 (ii) the length of the vehicle or combination of vehicles is:
375 (A) more than the limitations specified under Subsections 72-7-402 (4)(c) and (d) but
376 not exceeding 81 feet in cargo carrying length and the application is for a single trip,
377 semiannual trip, or annual trip permit; or
378 (B) more than 81 feet in cargo carrying length but not exceeding 95 feet in cargo
379 carrying length and the application is for an annual trip permit.
380 (b) The fee is $50 for a single trip oversize and overweight permit under this
381 Subsection (8). The permit is valid for not more than 96 continuous hours.
382 (c) The fee for a semiannual oversize and overweight permit under this Subsection (8),
383 which permit is valid for not more than 180 continuous days is:
384 (i) $150 for a vehicle or combination of vehicles with gross vehicle weight of more