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Second Substitute S.B. 36

Senator Scott N. Howell proposes to substitute the following bill:






Sponsor: Scott N. Howell

14    This act affects sections of Utah Code Annotated 1953 as follows:
15    AMENDS:
16         58-1-302, as renumbered and amended by Chapter 297, Laws of Utah 1993
17         58-1-401, as last amended by Chapter 175, Laws of Utah 1996
18         58-1-404, as renumbered and amended by Chapter 297, Laws of Utah 1993
19         58-1-503, as renumbered and amended by Chapter 297, Laws of Utah 1993
20    ENACTS:
21         58-1-405, Utah Code Annotated 1953
22         58-1-505, Utah Code Annotated 1953
23    Be it enacted by the Legislature of the state of Utah:
24        Section 1. Section 58-1-302 is amended to read:
25         58-1-302. License by endorsement and equivalency.

1        (1) The division may issue a license [without examination] by endorsement to a person
2    who [has been]:
3        (a) is currently licensed in good standing in any state, district, or territory of the United
4    States [or in any foreign country, whose education, experience, and examination requirements are,
5    or were at the time the license was issued, equal to those of this state. Before any person may be
6    issued a license under this section, he shall produce satisfactory evidence of his qualifications,
7    identity, and good standing in his occupation or profession.];
8        (b) unless a different hourly requirement is provided in the specific licensing chapter
9    within this title, has been actively engaged in the legal practice of his occupation or profession for
10    not less than 4,000 hours during the three years immediately preceding the date of application for
11    licensure in Utah;
12        (c) does not have any action pending against his license; and
13        (d) meets all additional requirements for licensure by endorsement as may be required
14    under the specific licensing chapter or by division rule.
15        (2) The division may issue a license by equivalency to a person who:
16        (a) has received his education and training outside the United States;
17        (b) meets all applicable statutory and regulatory requirements for entry into the United
18    States;
19        (c) has a current certificate from a recognized independent credentialing organization, as
20    defined by division rule in collaboration with the appropriate board, verifying that the applicant's
21    education, training, license, and experience:
22        (i) are equivalent to that required for a Utah licensee;
23        (ii) are authentic; and
24        (iii) in the case of a license, is active and in good standing;
25        (d) has passed all licensing or certification examinations as may be required under the
26    specific licensing chapter or by division rule; and
27        (e) meets all additional requirements for a license by equivalency as may be required under
28    the specific licensing chapter or by division rule.
29        (3) Before any person may be issued a license under this section, he shall produce
30    satisfactory evidence of his qualifications, identity, and good standing in his occupation or
31    profession.

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1        Section 2. Section 58-1-401 is amended to read:
2         58-1-401. Grounds for denial of license or other action upon a license -- Criminal
3     history checks -- Disciplinary proceedings -- Time limitations -- Sanctions.
4        (1) The division shall refuse to issue a license to an applicant and shall refuse to renew or
5    shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a licensee
6    who does not meet the qualifications for licensure under this title.
7        (2) The division may refuse to issue a license to an applicant and may refuse to renew or
8    may revoke, suspend, restrict, place on probation, issue a public or private reprimand to, or
9    otherwise act upon the license of any licensee in any of the following cases:
10        (a) the applicant or licensee has engaged in unprofessional conduct, as defined by statute
11    or rule under this title;
12        (b) the applicant or licensee has engaged in unlawful conduct as defined by statute under
13    this title;
14        (c) the applicant or licensee has been determined to be mentally incompetent for any
15    reason by a court of competent jurisdiction; or
16        (d) the applicant or licensee is unable to practice the occupation or profession with
17    reasonable skill and safety because of illness, drunkenness, excessive use of drugs, narcotics,
18    chemicals, or any other type of material, or as a result of any other mental or physical condition,
19    when the licensee's condition demonstrates a threat or potential threat to the public health, safety,
20    or welfare.
21        (3) (a) The division may query criminal history records or other relevant records from
22    other state agencies to which it has direct access in accordance with Section 58-1-405. As
23    specified by rule, the division may also require applicants for initial licensure to submit fingerprint
24    cards in a form acceptable to the division and to consent to a fingerprint background check by the
25    Utah Bureau of Criminal Identification and the Federal Bureau of Investigation.
26        (b) The division may request the Department of Public Safety to complete a Federal
27    Bureau of Investigation criminal background check for any applicant for licensure through the
28    national criminal history system (NCIC) or any successor system.
29        (c) The cost of any background check or fingerprinting conducted in accordance with this
30    section shall be borne by the applicant.
31        (d) Any license issued where a background check is required but has not yet been

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1    completed shall be considered conditional, pending completion of the criminal background check.
2    If the criminal background check reveals that the applicant has failed to accurately disclose a
3    criminal history, the applicant's license shall be immediately and automatically revoked.
4        (e) Any person whose license has been revoked under Subsection (3)(d), is entitled to a
5    postrevocation hearing upon timely request, to challenge the revocation. The hearing shall be
6    conducted in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
7        [(3)] (4) Any licensee whose license to practice an occupation or profession regulated by
8    this title has been suspended, revoked, or restricted may apply for relicensure or reinstatement of
9    [the license] licensure at reasonable intervals and upon compliance with any conditions imposed
10    upon the licensee by statute, rule, or terms of the license suspension, revocation, or restriction.
11        [(4)] (5) The division may issue cease and desist orders:
12        (a) to a licensee or applicant who may be disciplined under Subsection (1) or (2);
13        (b) to any person who engages in or represents himself to be engaged in an occupation or
14    profession regulated under this title; and
15        (c) to any person who otherwise violates this title or any rules adopted under this title.
16        [(5)] (6) (a) The division may not take disciplinary action against any person for
17    unprofessional or unlawful conduct under this title, unless the division initiates an adjudicative
18    proceeding regarding the conduct within four years after the conduct is reported to the division,
19    except under Subsection [(5)](6)(b).
20        (b) The division may not take disciplinary action against any person for unprofessional
21    or unlawful conduct more than ten years after the occurrence of the conduct, unless the proceeding
22    is in response to a civil or criminal judgment or settlement and the proceeding is initiated within
23    one year following the judgment or settlement.
24        Section 3. Section 58-1-404 is amended to read:
25         58-1-404. Diversion -- Procedure.
26        (1) As used in this section, "diversion" means suspending action to discipline a licensee
27    charged with certain offenses within the category of unprofessional conduct on the condition that
28    the licensee agrees to participate in an educational or rehabilitation program or fulfill some other
29    condition.
30        (2) (a) The director may establish, as circumstances require, a diversion advisory
31    committee for each occupation or profession or similar groups of occupations or professions

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1    licensed by the division. The committees shall assist the director in the administration of this
2    section.
3        (b) Each committee shall consist of three or more licensees from the same or similar
4    occupation or profession as the person whose conduct is the subject of the committee's
5    consideration. The members of a diversion advisory committee shall be [nominated] appointed
6    by the director from nominations submitted by the corresponding board established for the same
7    occupation or profession under Section 58-1-201 or from other qualified nominees selected by the
8    division. Committee members may not serve concurrently as members of the corresponding
9    board. Committee members shall serve voluntarily without remuneration. The director may
10    dissolve any diversion advisory committee, remove or request the replacement of any member of
11    a committee, and establish any procedure that is necessary and proper for a committee's
12    administration.
13        (3) The director may, after consultation with the appropriate diversion advisory committee
14    and by written agreement with the licensee, divert the licensee to a diversion program, at any time
15    after receipt of a complaint, prior to notifying a licensee that formal disciplinary action for
16    unprofessional conduct is being considered against the licensee, or prior to the conclusion of a
17    hearing under Section 58-1-108.
18        (4) The division shall define by rule the particular offenses within the category of
19    unprofessional conduct which may be subject to diversion. A licensee may be eligible for a
20    diversion program only once for the same or similar offense and is not eligible if previously
21    disciplined by the division, by a licensing agency of another state, or by a federal government
22    agency for the same or a similar offense. Diversion programs may not be longer than [two] five
23    years. A decision by the director not to divert a licensee is not subject to appeal or judicial review.
24        (5) A licensee may be represented by counsel during the negotiations for diversion, at the
25    time of the execution of the diversion agreement, and at any hearing before the director relating
26    to a diversion program.
27        (6) Any diversion agreement entered into between the division and the licensee shall
28    contain a full detailed statement of the requirements agreed to by the licensee and the reasons for
29    diversion.
30        (7) A diversion agreement may not be approved unless the licensee in the agreement
31    knowingly and intelligently waives the right to a hearing under Section 58-1-108.

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1        (8) The director shall dismiss the charges against a licensee who has completed the
2    requirements of his diversion agreement. The licensee may not thereafter be subject to disciplinary
3    action for the conduct involved.
4        (9) Diversion is not a determination that charges have been proven. If the charges are
5    dismissed following diversion, the matter shall be treated as if the charge had never been filed,
6    except the fact that a licensee has completed a diversion program and the terms and conditions of
7    the diversion program may be considered by the division in determining appropriate disciplinary
8    action to be taken in the event the licensee is charged in the future with the same or a similar
9    offense. No reporting or release of information regarding the diversion program of an individual
10    licensee or the fact that charges were filed may be made to anyone outside the division. The
11    licensee may not be required to report to any person, agency, or corporation the fact that he has
12    been subject to a diversion program if the licensee successfully completes the diversion program.
13    Negotiations or hearings regarding diversion may not be subject to the requirements of Title 52,
14    Chapter 4, Open and Public Meetings.
15        (10) If, during the course of the diversion of a licensee, information is brought to the
16    attention of the director that the licensee has violated the diversion agreement, and if it appears in
17    the best interest of the public to proceed with the charges, the director after consultation with the
18    diversion advisory committee, shall cause to be served on the licensee an order to show cause
19    specifying the facts relied upon by the director to terminate diversion and which sets a time and
20    place for a hearing to determine whether or not the licensee has violated the diversion agreement.
21    If, after the hearing, the director finds that the licensee has failed to comply with any terms or
22    conditions of the diversion agreement, the director shall proceed with the charges against the
23    licensee which resulted in the diversion agreement plus any additional charges of unprofessional
24    conduct arising from a violation of the diversion agreement.
25        Section 4. Section 58-1-405 is enacted to read:
26         58-1-405. Access to records
27        (1) The division shall be allowed direct access to records of other state agencies which are
28    relevant to the division's responsibilities under this title. These records shall include records
29    maintained by the Department of Public Safety, including criminal history records or warrant of
30    arrest information maintained by the Law Enforcement and Technical Services Division.
31        (2) The division shall implement procedures acceptable to each state agency to ensure the

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1    security and confidentiality of the records of that agency.
2        Section 5. Section 58-1-503 is amended to read:
3         58-1-503. Maximum civil penalty for violation of court order.
4        (1) If any written order issued under this title or if an injunction or temporary restraining
5    order issued by a court of competent jurisdiction relating to this title is violated, the court may
6    impose a civil penalty of not more than $2,000 for each day the written order, injunction, or
7    temporary restraining order is violated, if the person in violation has received notice of the written
8    order, injunction, or temporary restraining order.
9        (2) All penalties ordered under this section shall be deposited into the [General] Division
10    of Occupational and Professional Licensing Education and Enforcement Fund.
11        Section 6. Section 58-1-505 is enacted to read:
12         58-1-505. Education and enforcement fund.
13        (1) There is created a restricted account in the General Fund known as the "Division of
14    Occupational and Professional Licensing Education and Enforcement Fund."
15        (2) The fund consists of monies from administrative penalties and fines collected pursuant
16    to this title.
17        (3) The fund shall earn interest and all interest earned on fund monies shall be deposited
18    into the fund.
19        (4) The director may make distributions of monies appropriated from the fund by the
20    Legislature for the following purposes:
21        (a) education and training of licensees under this title;
22        (b) education and training of the public or other interested persons in matters concerning
23    occupational and professional laws and practices; and
24        (c) enforcement of this title including:
25        (i) investigating unprofessional or unlawful conduct; and
26        (ii) providing legal representation to the division when the division takes legal action
27    against a person engaging in unprofessional or unlawful conduct.
28        (5) If the balance in the fund exceeds $100,000 at the close of any fiscal year, the excess
29    shall be transferred to the General Fund.
30        (6) The division shall report annually to the appropriate appropriations subcommittee of
31    the Legislature concerning the fund.

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