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[Introduced][Amended][Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 165 Enrolled
J. Morgan Philpot
Eli H. Anderson
Chad E. Bennion
Judy Ann Buffmire
Don E. BushDavid Clark
Margaret Dayton
Ben C. Ferry
Neal B. Hendrickson
David L. HogueTy McCartney
Jack A. Seitz
David Ure
Bradley A. Winn This act modifies parts of the Utah Code to make technical corrections including
wording, cross references, and numbering changes.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
10-1-203, as last amended by Chapter 172, Laws of Utah 2000
11-17-3, as last amended by Chapter 30, Laws of Utah 1992
11-27-2, as last amended by Chapter 12, Laws of Utah 2001
13-28-3, as enacted by Chapter 196, Laws of Utah 1995
13-34-105, as enacted by Chapter 222, Laws of Utah 2002
13-35-103, as enacted by Chapter 234, Laws of Utah 2002
13-35-202, as enacted by Chapter 234, Laws of Utah 2002
13-35-203, as enacted by Chapter 234, Laws of Utah 2002
13-35-204, as enacted by Chapter 234, Laws of Utah 2002
16-6a-102, as last amended by Chapter 197, Laws of Utah 2002
16-6a-1002, as enacted by Chapter 300, Laws of Utah 2000
17-27-106, as enacted by Chapter 169, Laws of Utah 1999
17-52-401, as last amended by Chapter 241, Laws of Utah 2001
17A-1-301, as last amended by Chapter 1, Laws of Utah 2000
17A-1-403, as last amended by Chapter 106, Laws of Utah 1999
17A-2-405, as last amended by Chapter 284, Laws of Utah 2002
17A-2-1304, as last amended by Chapter 243, Laws of Utah 2002
17A-3-606, as last amended by Chapter 8, Laws of Utah 2002, Fifth Special Session
19-2-104, as last amended by Chapter 177, Laws of Utah 1998
20A-3-105.5, as enacted by Chapter 177, Laws of Utah 2002
20A-5-403, as last amended by Chapter 167, Laws of Utah 2002
26A-1-110, as last amended by Chapter 249, Laws of Utah 2002
31A-1-301, as last amended by Chapters 71 and 308, Laws of Utah 2002
31A-5-101, as last amended by Chapter 197, Laws of Utah 2002
31A-9-101, as last amended by Chapter 300, Laws of Utah 2000
31A-21-105, as last amended by Chapter 114, Laws of Utah 2000
31A-22-617, as last amended by Chapter 308, Laws of Utah 2002
34A-2-301, as renumbered and amended by Chapter 375, Laws of Utah 1997
49-15-102, as renumbered and amended by Chapter 250, Laws of Utah 2002
49-21-102, as renumbered and amended by Chapter 250, Laws of Utah 2002
53-1-106, as last amended by Chapter 219, Laws of Utah 2002
53-3-218, as last amended by Chapter 200, Laws of Utah 2002
53-3-402, as last amended by Chapter 270, Laws of Utah 1998
53-3-805, as last amended by Chapter 117, Laws of Utah 2001
53-8-213, as last amended by Chapter 21, Laws of Utah 1999
53A-1a-601, as last amended by Chapter 198, Laws of Utah 2002
54-15-106, as enacted by Chapter 6, Laws of Utah 2002
58-13-4, as last amended by Chapter 248 and renumbered and amended by Chapter 253,
Laws of Utah 1996
58-31b-202, as last amended by Chapter 290, Laws of Utah 2002
58-37-2, as last amended by Chapter 64, Laws of Utah 1997
58-57-2, as last amended by Chapter 297, Laws of Utah 1993
58-59-501, as last amended by Chapter 261, Laws of Utah 2002
58-60-507, as enacted by Chapter 184, Laws of Utah 1996
58-60-509, as enacted by Chapter 248, Laws of Utah 1997
58-61-602, as enacted by Chapter 32, Laws of Utah 1994
58-71-102, as last amended by Chapter 10, Laws of Utah 1997
58-71-302, as enacted by Chapter 282, Laws of Utah 1996
58-76-502, as enacted by Chapter 218, Laws of Utah 2002
59-1-206, as last amended by Chapters 79 and 176, Laws of Utah 2002
59-14-408, as enacted by Chapter 175, Laws of Utah 2002
62A-3-301, as repealed and reenacted by Chapter 108, Laws of Utah 2002
62A-11-304.4, as last amended by Chapter 59, Laws of Utah 2002
63-2-304, as last amended by Chapters 78, 86, 108, 283 and 286, Laws of Utah 2002
63-55-236, as last amended by Chapter 5, Laws of Utah 2002, Fifth Special Session
63-55b-120, as last amended by Chapter 136, Laws of Utah 2002
63-55b-123, as enacted by Chapter 22, Laws of Utah 2001
63-55b-134, as last amended by Chapter 200, Laws of Utah 2001
63-55b-153, as last amended by Chapters 49, 219 and 301, Laws of Utah 2002
63-55b-172, as enacted by Chapter 222, Laws of Utah 2001
70A-2-403, as enacted by Chapter 154, Laws of Utah 1965
70A-11-105, as enacted by Chapter 272, Laws of Utah 1977
70A-11-106, as enacted by Chapter 272, Laws of Utah 1977
72-1-303, as last amended by Chapter 41, Laws of Utah 2001
72-3-104, as last amended by Chapter 324, Laws of Utah 2000
73-10-2, as last amended by Chapter 176, Laws of Utah 2002
75-2-1001, as repealed and reenacted by Chapter 39, Laws of Utah 1998
78-3a-306, as last amended by Chapter 265, Laws of Utah 2002
78-11-6, as last amended by Chapter 240, Laws of Utah 1996
78-11-7, as last amended by Chapter 240, Laws of Utah 1996
78-27-37, as last amended by Chapter 95, Laws of Utah 1999
78-27-43, as last amended by Chapter 95, Laws of Utah 1999
78-36-10.5, as last amended by Chapter 118, Laws of Utah 1998
REPEALS:
9-1-701, as enacted by Chapter 66, Laws of Utah 1993
58-60-505, as enacted by Chapter 184, Laws of Utah 1996
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 10-1-203 is amended to read:
10-1-203. License fees and taxes -- Application information to be transmitted to the
county auditor.
(1) For the purpose of this section, "business" means any enterprise carried on for the
purpose of gain or economic profit, except that the acts of employees rendering services to
employers are not included in this definition.
(2) Except as provided in Subsections (3) through (5), the governing body of a
municipality may license for the purpose of regulation and revenue any business within the limits
of the municipality and may regulate that business by ordinance.
(3) (a) The governing body of a municipality may raise revenue by levying and collecting
a municipal energy sales or use tax as provided in Part 3, Municipal Energy Sales and Use Tax
Act, except a municipality may not levy or collect a franchise tax or fee as defined in Subsection
10-1-303 (7) on an energy supplier other than the municipal energy sales and use tax provided in
Part 3, Municipal Energy Sales and Use Tax Act.
(b) (i) Subsection (3)(a) does not affect the validity of a franchise agreement as defined
in Subsection 10-1-303 (6), that is in effect on July 1, 1997, or a future franchise.
(ii) A franchise agreement as defined in Subsection 10-1-303 (6) in effect on January 1,
1997, or a future franchise shall remain in full force and effect.
(c) A municipality that collects a contractual franchise fee pursuant to a franchise
agreement as defined in Subsection 10-1-303 (6) with an energy supplier that is in effect on July
1, 1997, may continue to collect that fee as provided in Subsection 10-1-310 (2).
(d) (i) Subject to the requirements of Subsection (3)(d)(ii), a franchise agreement as
defined in Subsection 10-1-303 (6) between a municipality and an energy supplier may contain a
provision that:
(A) requires the energy supplier by agreement to pay a contractual franchise fee that is
otherwise prohibited under Part 3, Municipal Energy Sales and Use Tax Act; and
(B) imposes the contractual franchise fee on or after the day on which Part 3, Municipal
Energy Sales and Use Tax is:
(I) repealed, invalidated, or the maximum allowable rate provided in Section 10-1-305 is
reduced; and
(II) is not superseded by a law imposing a substantially equivalent tax.
(ii) A municipality may not charge a contractual franchise fee under the provisions
permitted by Subsection (3)(b)(i) unless the municipality charges an equal contractual franchise
fee or a tax on all energy suppliers.
(4) Subject to [
Limitation, a municipality may impose upon, charge, or collect from a public utility engaged in
the business of supplying telephone service or other person or entity engaged in the business of
supplying telephone service any tax, license, fee, license fee, license tax, or similar charge, or any
combination of any of these, based upon the gross revenues of the utility, person, or entity
derived from sales or use or both sales and use of the telephone service within the municipality.
(5) (a) The governing body of a municipality may by ordinance raise revenue by levying
and collecting a license fee or tax on:
(i) a parking service business in an amount that is less than or equal to:
(A) $1 per vehicle that parks at the parking service business; or
(B) 2% of the gross receipts of the parking service business;
(ii) a public assembly facility in an amount that is less than or equal to $1 per ticket
purchased from the public assembly facility; and
(iii) subject to the limitations of Subsections (5)(c) and (d), a business that causes
disproportionate costs of municipal services or for which the municipality provides an enhanced
level of municipal services in an amount that is reasonably related to the costs of the municipal
services provided by the municipality.
(b) For purposes of this Subsection (5):
(i) "Municipal services" include:
(A) public utilities; or
(B) services for:
(I) police;
(II) fire;
(III) storm water runoff;
(IV) traffic control;
(V) parking;
(VI) transportation;
(VII) beautification; or
(VIII) snow removal.
(ii) "Parking service business" means a business:
(A) that primarily provides off-street parking services for a public facility that is wholly
or partially funded by public moneys;
(B) that provides parking for one or more vehicles; and
(C) that charges a fee for parking.
(iii) "Public assembly facility" means a business operating an assembly facility that:
(A) is wholly or partially funded by public moneys; and
(B) requires a person attending an event at the assembly facility to purchase a ticket.
(c) Before the governing body of a municipality imposes a license fee or tax on a
business that causes disproportionate costs of municipal services under Subsection (5)(a)(iii), the
governing body of the municipality shall adopt an ordinance defining for purposes of the tax
under Subsection (5)(a)(iii) what constitutes disproportionate costs and what amounts are
reasonably related to the costs of the municipal services provided by the municipality.
(d) Before the governing body of a municipality imposes a license fee or tax on a
business for which it provides an enhanced level of municipal services under Subsection
(5)(a)(iii), the governing body of the municipality shall adopt an ordinance defining for purposes
of the tax under Subsection (5)(a)(iii) what constitutes the basic level of municipal services in the
municipality and what amounts are reasonably related to the costs of providing an enhanced level
of municipal services in the municipality.
(6) All license fees and taxes shall be uniform in respect to the class upon which they are
imposed.
(7) The governing body shall transmit the information from each approved business
license application to the county assessor within 60 days following the approval of the
application.
(8) If challenged in court, an ordinance enacted by a municipality before January 1, 1994,
imposing a business license fee or tax on rental dwellings under this section shall be upheld
unless the business license fee or tax is found to impose an unreasonable burden on the fee or tax
payer.
Section 2. Section 11-17-3 is amended to read:
11-17-3. Powers of municipalities, counties, and state universities.
(1) Each municipality, county, and state university may:
(a) finance or acquire, whether by construction, purchase, devise, gift, exchange, or lease,
or any one or more of those methods, and construct, reconstruct, improve, maintain, equip, and
furnish or fund one or more projects, which shall be located within this state, and which shall be
located within, or partially within, the municipality or county or within the county within which a
state university is located, unless an agreement under the Interlocal Cooperation Act has been
entered into as authorized by Subsection (5), except that if a governing body finds, by resolution,
that the effects of international trade practices have been or will be adverse to Utah
manufacturers of industrial products and, therefore, it is desirable to finance a project in order to
maintain or enlarge domestic or foreign markets for Utah industrial products, a project may
consist of the financing on behalf of a user of the costs of acquiring industrial products
manufactured in, and which are to be exported from, the state of Utah;
(b) finance for, sell, lease, contract the management of, or otherwise dispose of to, any
person, firm, partnership, or corporation, either public or private, including without limitation
any person, firm, partnership, or corporation engaged in business for a profit, any or all of its
projects upon the terms and conditions as the governing body deems advisable and which do not
conflict with this chapter;
(c) issue revenue bonds for the purpose of defraying the cost of financing, acquiring,
constructing, reconstructing, improving, maintaining, equipping, furnishing, or funding any
project and secure the payment of the bonds as provided in this chapter, which revenue bonds
may be issued in one or more series or issues where deemed advisable, and each series or issue
may contain different maturity dates, interest rates, priorities on securities available for
guaranteeing payment of them, and other differing terms and conditions deemed necessary and
not in conflict with this chapter;
(d) (i) grant options to renew any lease with respect to any project and to buy any project
at a price the governing body deems desirable; and
(ii) sell and convey any real or personal property acquired under Subsection (1)(a) at
public or private sale, and make an order respecting the sale deemed conducive to the best
interests of the municipality, county, or state university, the sale or conveyance to be subject to
the terms of any lease but to be free and clear of any other encumbrance;
(e) establish, acquire, develop, maintain, and operate industrial parks; and
(f) offer to the holders of its bonds issued pursuant to this chapter the right, where its
governing body deems it appropriate, to convert the bonds or some portion of the bond obligation
into an equity position in some or all of the assets developed with the proceeds of the bond
offering.
(2) An economic development or new venture investment fund shall be considered to be
located in the municipality or county where its headquarters is located or where any office of it is
located, as long as it is headquartered within the state. It need not make all of its investments
within the state of Utah or such county or municipality, so long as it locates within the state of
Utah or such county or municipality its headquarters where its actual investment decisions and
management functions occur and agrees to, and does, limit the aggregate amount of its
investments in companies located outside the state of Utah to an amount which in the aggregate
does not exceed the aggregate amount of investments made by institutions and funds located
outside the state of Utah in companies headquartered in Utah which the locally managed fund has
sponsored or in which it has invested and which it has brought to the attention of investors
outside the state of Utah. For purposes of enabling an offering of bonds to fund such a fund, a
certification of an executive managerial officer of the manager of said fund of the intention to
comply with this provision may be relied upon. Each fund shall at least annually certify to the
governmental offeror of such bonds its compliance with this provision.
(3) Before any municipality, county, or state university issues revenue bonds under this
chapter for the purpose of defraying the cost of acquiring, constructing, reconstructing,
improving, maintaining, equipping, or furnishing any industrial park project, the governing body
of the state university, county, or municipality shall adopt and establish a plan of development
for the tracts of land to constitute the industrial park and shall, by resolution, find that the project
for the establishment of the industrial park is well conceived and has a reasonable prospect of
success, that the project will tend to provide proper economic development of the municipality or
county and will encourage industry to locate within or near the municipality or county or, in the
case of state universities, will further, through industrial research and development, the
instructional progress of the state university. There may be included as a part of any plan of
development for any industrial park zoning regulations, restrictions on usage of sites within the
boundaries of the industrial park, minimum size of sites, parking and loading regulations, and
methods for the providing and furnishing of police and fire protection and for the furnishing of
other municipal or county services which are deemed necessary in order to provide for the
maintenance of the public health and safety. If any water or sewerage facilities are to be acquired
as part of the development of the land for an industrial park under this chapter, water and
sewerage facilities may be acquired as part of the issue of bonds issued under this chapter,
through the issuance of bonds payable from water and sewer charges in the manner as is now or
as may hereafter be provided by law, in combination with an issue of refunding bonds, in
combination with an issue of bonds upon the consent of the holders of outstanding bonds issued
for the same purpose, in combination with bonds issued for the purposes of financing water and
sewer facilities which will not be a part of an industrial park, or in any combination of the
foregoing. Any municipality, county, or state university establishing an industrial park may lease
any land acquired and developed as part of an industrial park to one or more lessees. The lessee
may sublease all or a portion of the land so leased from the municipality or county.
Municipalities, counties, and state universities may sell or lease land in connection with the
establishment, acquisition, development, maintenance, and operation of an industrial park
project. Any such lease or sale of land shall be undertaken only after the adoption by the
governing body of a resolution authorizing the lease or sale of the land for industrial park
purposes.
(4) (a) No municipality, county, or state university may operate any project referred to in
this section, as a business or in any other manner except as the lessor or administrator of it, nor
may it acquire any such project, or any part of it, by condemnation. This prohibition does not
apply to projects involving research conducted, administered, or managed by a state university.
(b) No municipality, county, or state university may, under this chapter, acquire or lease
projects, or issue revenue bonds for the purpose of defraying the cost of any project or part of it,
used for the generation, transmission, or distribution of electric energy beyond the project site, or
the production, transmission, or distribution of natural gas, except for any project defined in
Subsection 11-17-2 (8)(b) or (d).
(5) Each municipality, county, and state university may enter, either before or after the
bonds have been issued, into interlocal agreements under Title 11, Chapter 13, Interlocal
Cooperation Act, with one or more municipalities, counties, state universities, or special service
districts created pursuant to Title 17A, Chapter 2, Part 13, Utah Special Service District Act, in
order to accomplish economies of scale or other cost savings and any other additional purposes to
be specified in the interlocal agreement, for the issuance of bonds under this chapter on behalf of
all of the signatories to the interlocal agreement by one of the municipalities, counties, or state
universities which is a signatory to the interlocal agreement for the financing or acquisition of
projects qualifying as a project under Subsection 11-17-2 (8). For all purposes of Section
[
bonds constitutes the administrator of the interlocal agreement.
(6) Subsection (4) to the contrary notwithstanding, the governing body of any state
university owning or desiring to own facilities or administer projects described in Subsection
11-17-2 (8) may:
(a) become a signatory to the interlocal agreement provided for in Subsection (5);
(b) enter into a separate security agreement with the issuer of the bonds, as provided in
Section 11-17-5 for the financing or acquisition of a project under Subsection 11-17-2 (8) to be
owned by the state university;
(c) enter into agreements to secure the obligations of the state university under a security
agreement entered into under Subsection (6)(b), or to provide liquidity for such obligations
including, without limitation, letter of credit agreements with banking institutions for letters of
credit or for standby letters of credit, reimbursement agreements with financial institutions, line
of credit agreements, standby bond purchase agreements, and to provide for payment of fees,
charges, and other amounts coming due under the agreements entered into under the authority
contained in this Subsection (6)(c);
(d) provide in security agreements entered into under Subsection (6)(b) and in
agreements entered into under Subsection (6)(c) that the obligations of the state university under
an agreement shall be special obligations payable solely from the revenues derived from the
operation or management of the project, owned by the state university and from net profits from
proprietary activities and any other revenues pledged other than appropriations by the Utah
Legislature, and the governing body of the state university shall pledge all or any part of such
revenues to the payment of its obligations under an agreement; and
(e) in order to secure the prompt payment of the obligations of the state university under
a security agreement entered into under Subsection (6)(b) or an agreement entered into under
Subsection (6)(c) and the proper application of the revenues pledged to them, covenant and
provide appropriate provisions in an agreement to the extent permitted and provided for under
Section 53B-21-102 .
(7) Subsection (4) to the contrary notwithstanding, the governing body of any
municipality, county, or special service district owning, desiring to own, or administering
projects or facilities described in Subsection 11-17-2 (8) may:
(a) become a signatory to the interlocal agreement provided for in Subsection (5);
(b) enter into a separate security agreement with the issuer of the bonds, as provided in
Section 11-17-5 , for the financing or acquisition of a project under Subsection 11-17-2 (8) to be
owned by the municipality, county, or special service district, as the case may be, except that no
municipality, county, or special service district may mortgage the facilities so financed or
acquired;
(c) enter into agreements to secure the obligations of the municipality, county, or special
service district, as the case may be, under a security agreement entered into under Subsection
(7)(b), or to provide liquidity for such obligations including, without limitation, letter of credit
agreements with banking institutions for letters of credit or for standby letters of credit,
reimbursement agreements with financial institutions, line of credit agreements, standby bond
purchase agreements, and to provide for payment of fees, charges, and other amounts coming due
under the agreements entered into under the authority contained in this Subsection (7)(c);
(d) provide in security agreements entered into under Subsection (7)(b) and in
agreements entered into under Subsection (7)(c) that the obligations of the municipality, county,
or special service district, as the case may be, under an agreement shall be special obligations
payable solely from the revenues derived from the operation or management of the project,
owned by the municipality, county, or special service district, as the case may be, and the
governing body of the municipality, county, or special service district, as the case may be, shall
pledge all or any part of such revenues to the payment of its obligations under an agreement; and
(e) in order to secure the prompt payment of obligations under a security agreement
entered into under Subsection (7)(b) or an agreement entered into under Subsection (7)(c) and the
proper application of the revenues pledged to them, covenant and provide appropriate provisions
in an agreement to the extent permitted and provided for with respect to revenue obligations
under Section 11-14-17 .
(8) In connection with the issuance of bonds under this chapter, a municipality, county,
or state university:
(a) may provide for the repurchase of bonds tendered by their owners and may enter into
an agreement to provide liquidity for such repurchases, including a letter of credit agreement, line
of credit agreement, standby bond purchase agreement, or other type of liquidity agreement;
(b) may enter into remarketing, indexing, tender agent, or other agreements incident to
the financing of the project or the performance of the issuer's obligations relative to the bonds;
and
(c) may provide for payment of fees, charges, and other amounts coming due under the
agreements entered into pursuant to authority contained in Subsection (6).
Section 3. Section 11-27-2 is amended to read:
11-27-2. Definitions.
As used in this chapter:
(1) "Advance refunding bonds" means refunding bonds issued for the purpose of
refunding outstanding bonds in advance of their maturity.
(2) "Assessments" means a special tax levied against property within a special
improvement district to pay all or a portion of the costs of making improvements in the district.
(3) "Bond" means any revenue bond, general obligation bond, tax increment bond,
special improvement bond, or refunding bond.
(4) "General obligation bond" means any bond, note, warrant, certificate of indebtedness,
or other obligation of a public body payable in whole or in part from revenues derived from ad
valorem taxes and that constitutes an indebtedness within the meaning of any applicable
constitutional or statutory debt limitation.
(5) "Governing body" means the council, commission, county legislative body, board of
directors, board of trustees, board of education, board of regents, or other legislative body of a
public body designated in this chapter that is vested with the legislative powers of the public
body, and, with respect to the state, the State Bonding Commission created by Section
63B-1-201 .
(6) "Government obligations" means:
(a) direct obligations of the United States of America, or other securities, the principal of
and interest on which are unconditionally guaranteed by the United States of America; or
(b) obligations of any state, territory, or possession of the United States, or of any of the
political subdivisions of any state, territory, or possession of the United States, or of the District
of Columbia described in Section 103(a), Internal Revenue Code of 1986.
(7) "Issuer" means the public body issuing any bond or bonds.
(8) "Public body" means the state or any agency, authority, instrumentality, or institution
of the state, or any municipal or quasi-municipal corporation, political subdivision, agency,
school district, special district, or other governmental entity now or hereafter existing under the
laws of the state.
(9) "Refunding bonds" means bonds issued under the authority of this chapter for the
purpose of refunding outstanding bonds.
(10) "Resolution" means a resolution of the governing body of a public body taking
formal action under this chapter.
(11) "Revenue bond" means any bond, note, warrant, certificate of indebtedness, or other
obligation for the payment of money issued by a public body or any predecessor of any public
body and that is payable from designated revenues not derived from ad valorem taxes or from a
special fund composed of revenues not derived from ad valorem taxes, but excluding all of the
following:
(a) any obligation constituting an indebtedness within the meaning of any applicable
constitutional or statutory debt limitation;
(b) any obligation issued in anticipation of the collection of taxes, where the entire issue
matures not later than one year from the date of the issue; and
(c) any special improvement bond.
(12) "Special improvement bond" means any bond, note, warrant, certificate of
indebtedness, or other obligation of a public body or any predecessor of any public body that is
payable from assessments levied on [
improvement guaranty fund.
(13) "Special improvement guaranty fund" means any special improvement guaranty
fund established under Title 10, Chapter 6, Uniform Fiscal Procedures Act for Utah Cities; Title
17A, Chapter 3, Part 2, County Improvement Districts[
statute.
(14) "Tax increment bond" means any bond, note, warrant, certificate of indebtedness, or
other obligation of a public body issued under authority of Title 17A, Chapter 2, Part 16, Great
Salt Lake Development Authority [
Chapter [
Section 4. Section 13-28-3 is amended to read:
13-28-3. Notice requirement.
If a solicitor represents to an individual that he has been selected or may be eligible to
receive a prize, the solicitor may not request, and the solicitor or sponsor may not accept, a
payment from the individual in any form before the individual receives a written prize notice that
contains all of the information required under Subsection 13-28-4 (1) presented in the [
manner required under Subsections 13-28-4 (2) through (6).
Section 5. Section 13-34-105 is amended to read:
13-34-105. Exempted institutions.
(1) This chapter does not apply to the following institutions:
(a) a Utah institution directly supported, to a substantial degree, with funds provided by
the state, a local school district, or other Utah governmental subdivision;
(b) an institution which offers instruction exclusively at or below the 12th grade level;
(c) a lawful enterprise which offers only professional review programs, such as C.P.A.
and bar examination review and preparation courses;
(d) a Utah private, postsecondary educational institution that is owned, controlled,
operated, or maintained by a bona fide church or religious denomination, which is exempted
from property taxation under the laws of this state;
(e) a Utah school or institution which is accredited by a regional or national accrediting
agency recognized by the United States Department of Education. An institution, branch,
extension, or facility operating within the state which is affiliated with an institution operating in
another state must be separately approved by the affiliate's regional or national accrediting
agency to qualify for this exemption;
(f) a business organization, trade or professional association, fraternal society, or labor
union that sponsors or conducts courses of instruction or study predominantly for bona fide
employees or members and does not, in advertising, describe itself as a school[
purposes of this Subsection (1)(f), a business organization, trade or professional association,
fraternal society, or labor union that hires a majority of the persons who successfully complete its
course of instruction or study with a reasonable degree of proficiency and apply for employment
with that same entity is considered to be conducting the course predominantly for bona fide
employees or members;
(g) an institution that exclusively offers general education courses or instruction solely
remedial, avocational, nonvocational, or recreational in nature, which does not advertise
occupation objectives or grant educational credentials;
(h) an institution which offers only workshops or seminars lasting no longer than three
calendar days and for which academic credit is not awarded; and
(i) an institution which offers programs in barbering, cosmetology, real estate, insurance,
or flying that are regulated and approved by a state or federal governmental agency.
(2) (a) If available evidence suggests that an exempt institution under this section is not
in compliance with the standards of registration under this chapter and applicable division rules,
the division shall contact the institution and, if appropriate, the state or federal government
agency to request corrective action.
(b) Subsection (2)(a) does not apply to an institution exempted under Subsection (1)(e).
Section 6. Section 13-35-103 is amended to read:
13-35-103. Utah Powersport Vehicle Franchise Advisory Board -- Creation --
Appointment of members -- Alternate members -- Chair -- Quorum -- Conflict of interest.
(1) There is created within the department the Utah Powersport Vehicle Franchise
Advisory Board that consists of:
(a) the executive director or the executive director's designee; and
(b) six members appointed by the executive director, with the concurrence of the
governor, as follows:
(i) three new powersport vehicle franchisees from among the three congressional districts
of the state as the districts were constituted on January 1, 1996, no more than one of whom shall
be located in the same congressional district; and
(ii) three members representing powersport vehicle franchisors registered by the
department pursuant to Section 13-35-105 , or three members of the general public, none of
whom shall be related to any franchisee, or any combination of these representatives under this
Subsection (1)(b)(ii).
(2) The executive director shall also appoint, with the concurrence of the governor, six
alternate members, with one alternate from each of the designations set forth in Subsections
(1)(b)(i) and (1)(b)(ii), who shall take the place of a regular advisory board member from the
same designation at a meeting of the advisory board where that regular advisory board member is
absent or otherwise disqualified from participating in the advisory board meeting.
(3) (a) Members of the advisory board shall be appointed for a term of four years.
(b) The executive director may adjust the term of members who were appointed to the
advisory board prior to July 1, 2002, by extending the unexpired term of a member for up to two
additional years in order to insure that approximately half of the members are appointed every
two years.
(c) In the event of a vacancy on the advisory board, the executive director with the
concurrence of the governor, shall appoint an individual to complete the unexpired term of the
member whose office is vacant.
(d) A member may not be appointed to more than two consecutive terms.
(4) (a) The executive director or the executive director's designee shall be the chair of the
advisory board.
(b) The department shall keep a record of all hearings, proceedings, transactions,
communications, and recommendations of the advisory board.
(5) (a) Four or more members of the advisory board constitute a quorum for the
transaction of business.
(b) The action of a majority of the members of the advisory board is considered the
action of the advisory board.
(6) (a) A member of the advisory board may not participate as a board member in a
proceeding or hearing:
(i) involving the member's business or employer; or
(ii) when a member, a member's business, family, or employer has a pecuniary interest in
the outcome or other conflict of interest concerning an issue before the advisory board.
(b) If a member of the advisory board is disqualified under Subsection (6)(a), the
executive director shall select the appropriate alternate member to act on the issue before the
advisory board as provided in Subsection [
(7) Except for the executive director or the executive director's designee, an individual
may not be appointed or serve on the advisory board while holding any other elective or
appointive state or federal office.
(8) (a) (i) A member of the advisory board who is not a government employee shall
receive no compensation or benefits for the member's services, but may receive per diem and
expenses incurred in the performance of the member's official duties at the rates established by
the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(ii) A member may decline to receive per diem and expenses for the member's services.
(b) (i) A state government officer or employee member who does not receive salary, per
diem, or expenses from the member's agency for the member's service may receive per diem and
expenses incurred in the performance of the member's official duties at the rates established by
the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(ii) A state government officer or employee member may decline to receive per diem and
expenses for the member's service.
(9) The department shall provide necessary staff support to the advisory board.
Section 7. Section 13-35-202 is amended to read:
13-35-202. Sale or transfer of ownership.
(1) (a) The franchisor shall give effect to the change in a franchise agreement as a result
of an event listed in Subsection (1)(b):
(i) subject to Subsection 13-35-305 (2)(b); and
(ii) unless exempted under Subsection (2).
(b) The franchisor shall give effect to the change in a franchise agreement pursuant to
Subsection (1)(a) for the:
(i) sale of a dealership;
(ii) contract for sale of a dealership;
(iii) transfer of ownership of a franchisee's dealership by sale, transfer of the business, or
by stock transfer; or
(iv) change in the executive management of the franchisee's dealership.
(2) A franchisor is exempted from the requirements of Subsection (1) if:
(a) the transferee is denied, or would be denied, a new powersport vehicle franchisee's
registration pursuant to Section 13-35-105 ; or
(b) the proposed sale or transfer of the business or change of executive management will
be substantially detrimental to the distribution of the franchisor's new powersport vehicles or to
competition in the relevant market area, provided that the franchisor has given written notice to
the franchisee within 60 days following receipt by the franchisor of the following:
(i) a copy of the proposed contract of sale or transfer executed by the franchisee and the
proposed transferee;
(ii) a completed copy of the franchisor's written application for approval of the change in
ownership or executive management, if any, including the information customarily required by
the franchisor; and
(iii) (A) a written description of the business experience of the executive management of
the transferee in the case of a proposed sale or transfer of the franchisee's business; or
(B) a written description of the business experience of the person involved in the
proposed change of the franchisee's executive management in the case of a proposed change of
executive management.
(3) For purposes of this section, the refusal by the franchisor to accept a proposed
transferee who is of good moral character and who otherwise meets the written, reasonable, and
uniformly applied standards or qualifications, if any, of the franchisor relating to the business
experience of executive management and financial capacity to operate and maintain the
dealership required by the franchisor of its franchisees is presumed to be unreasonable and
undertaken without good cause.
(4) (a) If after receipt of the written notice from the franchisor described in Subsection
(1) the franchisee objects to the franchisor's refusal to accept the proposed sale or transfer of the
business or change of executive management, the franchisee may file an application for a hearing
before the board up to 60 days from the date of receipt of the notice.
(b) After a hearing, the board shall determine, and enter an order providing that:
(i) the proposed transferee or change in executive management shall be approved or may
not be approved for specified reasons; or
(ii) a proposed transferee or change in executive management is approved if specific
conditions are timely satisfied.
(c) (i) The franchisee shall have the burden of proof with respect to all issues raised by
the franchisee's application for a hearing as provided in this section.
(ii) During the pendency of the hearing, the franchise agreement shall continue in effect
in accordance with its terms.
(d) The board shall expedite, upon written request, any determination sought under this
section.
Section 8. Section 13-35-203 is amended to read:
13-35-203. Succession to franchise.
(1) (a) A successor, including a family member of a deceased or incapacitated franchisee,
who is designated by the franchisee may succeed the franchisee in the ownership and operation
of the dealership under the existing franchise agreement if:
(i) the designated successor gives the franchisor written notice of an intent to succeed to
the rights of the deceased or incapacitated franchisee in the franchise agreement within 180 days
after the franchisee's death or incapacity;
(ii) the designated successor agrees to be bound by all of the terms and conditions of the
franchise agreement; and
(iii) the designated successor meets the criteria generally applied by the franchisor in
qualifying franchisees.
(b) A franchisor may refuse to honor the existing franchise agreement with the
designated successor only for good cause.
(2) (a) The franchisor may request in writing from a designated successor the personal
and financial data that is reasonably necessary to determine whether the existing franchise
agreement should be honored.
(b) The designated successor shall supply the personal and financial data promptly upon
the request.
(3) (a) If a franchisor believes that good cause exists for refusing to honor the requested
succession, the franchisor shall serve upon the designated successor notice of its refusal to
approve the succession, within 60 days after the later of:
(i) receipt of the notice of the designated successor's intent to succeed the franchisee in
the ownership and operation of the dealership; or
(ii) the receipt of the requested personal and financial data.
(b) Failure to serve the notice pursuant to Subsection (3)(a) is considered approval of the
designated successor and the franchise agreement is considered amended to reflect the approval
of the succession the day following the last day the franchisor can serve notice under Subsection
(3)(a).
(4) The notice of the franchisor provided in Subsection (3) shall state the specific
grounds for the refusal to approve the succession and that discontinuance of the franchise
agreement shall take effect not less than 180 days after the date the notice of refusal is served
unless the proposed successor files an application for hearing under Subsection (6).
(5) (a) This section does not prevent a franchisee from designating a person as the
successor by written instrument filed with the franchisor.
(b) If a franchisee files an instrument under Subsection (5)(a), the instrument governs the
succession rights to the management and operation of the dealership subject to the designated
successor satisfying the franchisor's qualification requirements as described in this section.
(6) (a) If a franchisor serves a notice of refusal to a designated successor pursuant to
Subsection (3), the designated successor may, within the 180-day period provided in Subsection
(4), file with the board an application for a hearing to determine whether or not good cause exists
for the refusal.
(b) If application for a hearing is timely filed, the franchisor shall continue to honor the
franchise agreement until after:
(i) the requested hearing has been concluded;
(ii) a decision is rendered by the board; and
(iii) the applicable appeal period has expired following a decision by the board.
Section 9. Section 13-35-204 is amended to read:
13-35-204. Franchisor's obligations related to service -- Franchisor audits -- Time
limits.
(1) Each franchisor shall specify in writing to each of its franchisees licensed as a new
powersport vehicle dealer in this state:
(a) the franchisee's obligations for new powersport vehicle preparation, delivery, and
warranty service on its products;
(b) the schedule of compensation to be paid to the franchisee for parts, work, and service;
and
(c) the time allowance for the performance of work and service.
(2) (a) The schedule of compensation described in Subsection (1) shall include
reasonable compensation for diagnostic work, as well as repair service, parts, and labor.
(b) Time allowances described in Subsection (1) for the diagnosis and performance of
warranty work and service shall be reasonable and adequate for the work to be performed.
(3) (a) In the determination of what constitutes reasonable compensation under this
section, the principal factor to be considered is the prevailing wage rates being paid by
franchisees in the relevant market area in which the franchisee is doing business.
(b) Compensation of the franchisee for warranty service work may not be less than the
amount charged by the franchisee for like parts and service to retail or fleet customers, if the
amounts are reasonable. For purposes of this Subsection (3)(b), the term "cost" shall be that
same price paid by a franchisee to a franchisor or supplier for the part when the part is purchased
for a nonwarranty repair.
(4) A franchisor may not fail to:
(a) perform any warranty obligation;
(b) include in written notices of franchisor's recalls to new powersport vehicle owners
and franchisees the expected date by which necessary parts and equipment will be available to
franchisees for the correction of the defects; or
(c) compensate any of the franchisees for repairs effected by the recall.
(5) If a franchisor disallows a franchisee's claim for a defective part, alleging that the part
is not defective, the franchisor at its option shall:
(a) return the part to the franchisee at the franchisor's expense; or
(b) pay the franchisee the cost of the part.
(6) (a) A claim made by a franchisee pursuant to this section for labor and parts shall be
paid within 30 days after its approval.
(b) (i) A claim shall be either approved or disapproved by the franchisor within 30 days
after receipt of the claim on a form generally used by the franchisor and containing the generally
required information.
(ii) Any claim not specifically disapproved of in writing within 30 days after the receipt
of the form is considered to be approved, and payment shall be made within 30 days.
(7) Warranty service audits of franchisee records may be conducted by the franchisor on
a reasonable basis.
(8) A franchisee's claim for warranty compensation may not be denied except for good
cause such as performance of nonwarranty repairs, lack of material documentation, fraud, or
misrepresentation.
(9) (a) Any charge backs for warranty parts or service compensation and service
incentives shall only be enforceable for the 12-month period immediately following the date the
payment for warranty reimbursement was made by the franchisor.
(b) Except as provided in Subsection (9)(c), all charge backs levied by a franchisor for
sales compensation or sales incentives arising out of the sale or lease of a powersport vehicle
sold by a franchisee shall be compensable only if written notice of the charge back is received by
the franchisee within 24 months immediately following the date when payment for the sales
compensation was made by the franchisor.
(c) The time limitations of this Subsection (9) do not preclude charge backs for any
fraudulent claim that was previously paid.
Section 10. Section 16-6a-102 is amended to read:
16-6a-102. Definitions.
As used in this chapter:
(1) (a) "Address" means a location where mail can be delivered by the United States
Postal Service.
(b) "Address" includes:
(i) a post office box number;
(ii) a rural free delivery route number; and
(iii) a street name and number.
(2) "Affiliate" means a person that directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with, the person
specified.
[
(a) amended articles of incorporation;
(b) restated articles of incorporation;
(c) articles of merger; and
(d) a document of a similar import to the documents described in Subsections [
through (c).
[
(a) by a:
(i) foreign corporation pursuant to Section 16-10a-1506 ; or
(ii) a foreign nonprofit corporation pursuant to Section 16-6a-1506 ; and
(b) because the corporate name of the foreign corporation described in Subsection [
(4)(a) is not available for use in this state.
(5) (a) Except as provided in Subsection (5)(b), "board of directors" means the body
authorized to manage the affairs of the domestic or foreign nonprofit corporation.
(b) Notwithstanding Subsection (5)(a), a person may not be considered a member of the
board of directors because of powers delegated to that person pursuant to Subsection
16-6a-801 (2).
(6) (a) "Bylaws" means the one or more codes of rules, other than the articles of
incorporation, adopted pursuant to this chapter for the regulation or management of the affairs of
the domestic or foreign nonprofit corporation irrespective of the name or names by which the
codes of rules are designated.
(b) "Bylaws" includes:
(i) amended bylaws; and
(ii) restated bylaws.
(7) (a) "Cash" or "money" means:
(i) legal tender;
(ii) a negotiable instrument; or
(iii) other cash equivalent readily convertible into legal tender.
(b) "Cash" and "money" are used interchangeably in this chapter.
(8) (a) "Class" refers to a group of memberships that have the same rights with respect to
voting, dissolution, redemption, transfer, or other characteristics.
(b) For purposes of Subsection (8)(a), rights are considered the same if they are
determined by a formula applied uniformly to a group of memberships.
(9) (a) "Conspicuous" means so written that a reasonable person against whom the
writing is to operate should have noticed the writing.
(b) "Conspicuous" includes printing or typing in:
(i) italics;
(ii) boldface;
(iii) contrasting color;
(iv) capitals; or
(v) underlining.
(10) "Control" or a "controlling interest" means the direct or indirect possession of the
power to direct or cause the direction of the management and policies of an entity by:
(a) the ownership of voting shares;
(b) contract; or
(c) means other than those specified in Subsection (10)(a) or (b).
(11) Subject to Section 16-6a-207 , "cooperative nonprofit corporation" or "cooperative"
means a nonprofit corporation organized or existing under this chapter.
(12) "Corporate name" means:
(a) the name of a domestic corporation as stated in the domestic corporation's articles of
incorporation;
(b) the name of a domestic nonprofit corporation as stated in the domestic nonprofit
corporation's articles of incorporation;
(c) the name of a foreign corporation as stated in the foreign corporation's:
(i) articles of incorporation; or
(ii) document of similar import to articles of incorporation; or
(d) the name of a foreign nonprofit corporation as stated in the foreign nonprofit
corporation's:
(i) articles of incorporation; or
(ii) document of similar import to articles of incorporation.
(13) "Corporation" or "domestic corporation" means a corporation for profit, which is not
a foreign corporation, incorporated under or subject to Chapter 10a, Utah Revised Business
Corporation Act.
(14) "Delegate" means any person elected or appointed to vote in a representative
assembly:
(a) for the election of a director; or
(b) on matters other than the election of a director.
(15) "Deliver" includes delivery by mail and any other means of transmission authorized
by Section 16-6a-103 , except that delivery to the division means actual receipt by the division.
(16) "Director" means a member of the board of directors.
(17) (a) "Distribution" means the payment of a dividend or any part of the income or
profit of a nonprofit corporation to the nonprofit corporation's:
(i) members;
(ii) directors; or
(iii) officers.
(b) "Distribution" does not include fair-value payments for:
(i) goods sold; or
(ii) services received.
(18) "Division" means the Division of Corporations and Commercial Code.
(19) "Effective date," when referring to a document filed by the division, means the time
and date determined in accordance with Section 16-6a-108 .
(20) "Effective date of notice" means the date notice is effective as provided in Section
16-6a-103 .
(21) (a) "Employee" includes an officer of a nonprofit corporation.
(b) (i) Except as provided in Subsection (21)(b)(ii), "employee" does not include a
director of a nonprofit corporation.
(ii) Notwithstanding Subsection (21)(b)(i), a director may accept duties that make that
director an employee of a nonprofit corporation.
(22) "Executive director" means the executive director of the Department of Commerce.
(23) "Entity" includes:
(a) a domestic or foreign corporation;
(b) a domestic or foreign nonprofit corporation;
(c) a limited liability company;
(d) a profit or nonprofit unincorporated association;
(e) a business trust;
(f) an estate;
(g) a partnership;
(h) a trust;
(i) two or more persons having a joint or common economic interest;
(j) a state;
(k) the United States; or
(l) a foreign government.
(24) "Foreign corporation" means a corporation for profit incorporated under a law other
than the laws of this state.
(25) "Foreign nonprofit corporation" means an entity:
(a) incorporated under a law other than the laws of this state; and
(b) that would be a nonprofit corporation if formed under the laws of this state.
(26) "Governmental subdivision" means:
(a) a county;
(b) a city;
(c) a town; or
(d) any other type of governmental subdivision authorized by the laws of this state.
(27) "Individual" means:
(a) a natural person;
(b) the estate of an incompetent individual; or
(c) the estate of a deceased individual.
(28) "Internal Revenue Code" means the federal "Internal Revenue Code of 1986," as
amended from time to time, or to corresponding provisions of subsequent internal revenue laws
of the United States of America.
(29) (a) "Mail," "mailed," or "mailing" means deposit, deposited, or depositing in the
United States mail, properly addressed, first-class postage prepaid.
(b) "Mail," "mailed," or "mailing" includes registered or certified mail for which the
proper fee has been paid.
(30) (a) "Member" means one or more persons identified or otherwise appointed as a
member of a domestic or foreign nonprofit corporation as provided:
(i) in the articles of incorporation;
(ii) in the bylaws;
(iii) by a resolution of the board of directors; or
(iv) by a resolution of the members of the nonprofit corporation.
(b) "Member" includes "voting member."
(31) "Membership" refers to the rights and obligations of a member or members.
(32) "Nonprofit corporation" or "domestic nonprofit corporation" means an entity, which
is not a foreign nonprofit corporation, incorporated under or subject to the provisions of this
chapter.
(33) "Notice" is as provided in Section 16-6a-103 .
(34) "Party related to a director" means:
(a) the spouse of the director;
(b) a child of the director;
(c) a grandchild of the director;
(d) a sibling of the director;
(e) a parent of the director;
(f) the spouse of an individual described in Subsections (34)(b) through (e);
(g) an individual having the same home as the director;
(h) a trust or estate of which the director or any other individual specified in this
Subsection (34) is a substantial beneficiary; or
(i) any of the following of which the director is a fiduciary:
(i) a trust;
(ii) an estate;
(iii) an incompetent;
(iv) a conservatee; or
(v) a minor.
(35) "Person" means an:
(a) individual; or
(b) entity.
(36) "Principal office" means:
(a) the office, in or out of this state, designated by a domestic or foreign nonprofit
corporation as its principal office in the most recent document on file with the division providing
that information, including:
(i) an annual report;
(ii) an application for a certificate of authority; or
(iii) a notice of change of principal office; or
(b) if no principal office can be determined, a domestic or foreign nonprofit corporation's
registered office.
(37) "Proceeding" includes:
(a) a civil suit;
(b) arbitration;
(c) mediation;
(d) a criminal action;
(e) an administrative action; or
(f) an investigatory action.
(38) "Receive," when used in reference to receipt of a writing or other document by a
domestic or foreign nonprofit corporation, means the writing or other document is actually
received:
(a) by the domestic or foreign nonprofit corporation at:
(i) its registered office in this state; or
(ii) its principal office;
(b) by the secretary of the domestic or foreign nonprofit corporation, wherever the
secretary is found; or
(c) by any other person authorized by the bylaws or the board of directors to receive the
writing or other document, wherever that person is found.
(39) (a) "Record date" means the date established under Part 6, Members or 7, Member
Meetings and Voting on which a nonprofit corporation determines the identity of the nonprofit
corporation's members.
(b) The determination described in Subsection (39)(a) shall be made as of the close of
business on the record date unless another time for doing so is specified when the record date is
fixed.
(40) "Registered agent" means the registered agent of:
(a) a domestic nonprofit corporation required to be maintained pursuant to Subsection
16-6a-501 (1)(b); or
(b) a foreign nonprofit corporation required to be maintained pursuant to Subsection
16-6a-1508 (1)(b).
(41) "Registered office" means the office within this state designated by a domestic or
foreign nonprofit corporation as its registered office in the most recent document on file with the
division providing that information, including:
(a) articles of incorporation;
(b) an application for a certificate of authority; or
(c) a notice of change of registered office.
(42) "Secretary" means the corporate officer to whom the bylaws or the board of
directors has delegated responsibility under Subsection 16-6a-818 (3) for:
(a) the preparation and maintenance of:
(i) minutes of the meetings of:
(A) the board of directors; or
(B) the members; and
(ii) the other records and information required to be kept by the nonprofit corporation
pursuant to Section 16-6a-1601 ; and
(b) authenticating records of the nonprofit corporation.
(43) "State," when referring to a part of the United States, includes:
(a) a state;
(b) a commonwealth;
(c) the District of Columbia;
(d) an agency or governmental and political subdivision of a state, commonwealth, or
District of Columbia;
(e) territory or insular possession of the United States; or
(f) an agency or governmental and political subdivision of a territory or insular
possession of the United States.
(44) "Street address" means:
(a) (i) street name and number;
(ii) city or town; and
(iii) United States post office zip code designation; or
(b) if, by reason of rural location or otherwise, a street name, number, city, or town does
not exist, an appropriate description other than that described in Subsection (44)(a) fixing as
nearly as possible the actual physical location but only if the information includes:
(i) the rural free delivery route;
(ii) the county; and
(iii) the United States post office zip code designation.
(45) "United States" includes any district, authority, office, bureau, commission,
department, and any other agency of the United States of America.
(46) "Vote" includes authorization by:
(a) written ballot; and
(b) written consent.
(47) (a) "Voting group" means all the members of one or more classes of members or
directors that, under this chapter, the articles of incorporation, or the bylaws, are entitled to vote
and be counted together collectively on a matter.
(b) All members or directors entitled by this chapter, the articles of incorporation, or the
bylaws to vote generally on a matter are for that purpose a single voting group.
(48) (a) "Voting member" means a person entitled to vote for all matters required or
permitted under this chapter to be submitted to a vote of the members, except as otherwise
provided in the articles of incorporation or bylaws.
(b) A person is not a voting member solely because of:
(i) a right the person has as a delegate;
(ii) a right the person has to designate a director; or
(iii) a right the person has as a director.
Section 11. Section 16-6a-1002 is amended to read:
16-6a-1002. Amendment of articles of incorporation by board of directors or
incorporators.
(1) Unless otherwise provided in the articles of incorporation, the board of directors may
adopt, without member approval, one or more amendments to the articles of incorporation to:
(a) delete the names and addresses of the initial directors;
(b) delete the name and address of the initial registered agent or registered office, if a
statement of change is on file with the division;
(c) change the corporate name by:
(i) substituting the word "corporation," "incorporated," "company," "limited," or an
abbreviation of any such word for a similar word or abbreviation in the name; or
(ii) adding, deleting, or changing a geographical attribution; or
(d) make any other change expressly permitted by this chapter to be made without
member action.
(2) The board of directors may adopt, without member action, one or more amendments
to the articles of incorporation to change the corporate name, if necessary, in connection with the
reinstatement of a nonprofit corporation pursuant to Section 16-6a-1412 .
(3) (a) Subject to any approval required pursuant to Section [
a nonprofit corporation has no members, no members entitled to vote on amendments, or no
members yet admitted to membership, one or more amendments to the nonprofit corporation's
articles of incorporation may be adopted by:
(i) its incorporators until directors have been chosen; or
(ii) its directors after the directors have been chosen.
(b) A nonprofit corporation described in Subsection (3)(a) shall provide notice of any
meeting at which an amendment is to be voted upon.
(c) The notice required by Subsection (3)(b) shall:
(i) be in accordance with Section 16-6a-814 ;
(ii) state that the purpose, or one of the purposes, of the meeting is to consider a proposed
amendment to the articles of incorporation; and
(iii) (A) contain or be accompanied by a copy or summary of the amendment; or
(B) state the general nature of the amendment.
(d) An amendment described in Subsection (3)(a) shall be approved:
(i) by a majority of the incorporators, until directors have been chosen; or
(ii) after directors are chosen by a majority of the directors in office at the time the
amendment is adopted.
Section 12. Section 17-27-106 is amended to read:
17-27-106. Limit on plan check fees.
(1) A county may not impose or collect a fee for reviewing or approving the plans for a
commercial or residential building that exceeds the [
(a) the actual cost of performing the plan review; and
(b) 65% of the amount the county charges for a building permit fee for that building.
(2) (a) For purposes of this Subsection (2):
(i) "Identical plans" means building plans submitted to a county that:
(A) are substantially identical to building plans that were previously submitted to and
reviewed and approved by the county; and
(B) describe a building that is:
(I) located on land zoned the same as the land on which the building described in the
previously approved plans is located; and
(II) subject to the same geological and meteorological conditions and the same law as the
building described in the previously approved plans.
(ii) "Nominal fee" means a fee that reasonably reimburses a county only for time spent
and expenses incurred in:
(A) verifying that building plans are identical plans; and
(B) reviewing and approving those minor aspects of identical plans that differ from the
previously reviewed and approved building plans referred to in Subsection (2)(a)(i).
(b) Subject to Subsection (1), a county may impose and collect only a nominal fee for
reviewing and approving identical plans.
Section 13. Section 17-52-401 is amended to read:
17-52-401. Contents of proposed optional plan.
(1) Each optional plan proposed under this chapter:
(a) shall propose the adoption of one of the forms of county government listed in
Subsection 17-52-402 (1)(a);
(b) shall contain detailed provisions relating to the transition from the existing form of
county government to the form proposed in the optional plan, including provisions relating to
the:
(i) election or appointment of officers specified in the optional plan for the new form of
county government;
(ii) retention, elimination, or combining of existing offices and, if an office is eliminated,
the division or department of county government responsible for performing the duties of the
eliminated office;
(iii) continuity of existing ordinances and regulations;
(iv) continuation of pending legislative, administrative, or judicial proceedings;
(v) making of interim and temporary appointments; and
(vi) preparation, approval, and adjustment of necessary budget appropriations;
(c) shall specify the date it is to become effective if adopted, which shall not be earlier
than the first day of January next following the election of officers under the new plan; and
(d) notwithstanding any other provision of this title and except with respect to an
optional plan that proposes the adoption of the county commission or expanded county
commission form of government, with respect to the county budget:
(i) may provide that the county auditor's role is to be the budget officer, to project county
revenues, and to prepare a tentative budget to present to the county executive; and
(ii) shall provide that the county executive's role is to prepare and present a proposed
budget to the county legislative body, and the county legislative body's role is to adopt a final
budget.
(2) Subject to Subsection (3), an optional plan may include provisions that are
considered necessary or advisable to the effective operation of the proposed optional plan.
(3) An optional plan may not include any provision that is inconsistent with or prohibited
by the Utah Constitution or any statute.
(4) Each optional plan proposing to change the form of government to a form under
Section [
(a) provide for the same executive and legislative officers as are specified in the
applicable section for the form of government being proposed by the optional plan;
(b) provide for the election of the county council;
(c) specify the number of county council members, which shall be an odd number from
three to nine;
(d) specify whether the members of the county council are to be elected from districts, at
large, or by a combination of at large and by district;
(e) specify county council members' qualifications and terms and whether the terms are
to be staggered;
(f) contain procedures for filling vacancies on the county council, consistent with the
provisions of Section 20A-1-508 ; and
(g) state the initial compensation, if any, of county council members and procedures for
prescribing and changing compensation.
(5) Each optional plan proposing to change the form of government to the county
commission form under Section 17-52-501 or the expanded county commission form under
Section 17-52-502 shall specify:
(a) (i) for the county commission form of government, that the county commission shall
have three members; or
(ii) for the expanded county commission form of government, whether the county
commission shall have five or seven members;
(b) the terms of office for county commission members and whether the terms are to be
staggered;
(c) whether members of the county commission are to be elected from districts, at large,
or by a combination of at large and from districts; and
(d) if any members of the county commission are to be elected from districts, the district
residency requirements for those commission members.
Section 14. Section 17A-1-301 is amended to read:
17A-1-301. Exemptions.
This part does not apply to:
(1) public transit districts established under authority of [
Utah Public Transit District Act;
(2) water conservancy districts established under [
Conservancy Districts;
(3) soil conservation districts created under the authority of [
8, Soil Conservation Districts;
[
[
2, Part 8, Metropolitan Water District Act;
[
Chapter 3, Dependent Special Districts; and
[
Part 17, Hazardous Waste Facilities Management Act.
Section 15. Section 17A-1-403 is amended to read:
17A-1-403. Applicability to special districts -- Exceptions.
This part applies to all special districts under Subsection 17A-1-404 (19) except the
following districts which are specifically excluded from this part:
(1) redevelopment agencies created under [
(2) public transit districts created under Chapter 2, Part 10;
(3) health departments created under Title 26A, Chapter 1; and
(4) entities created under Title 11, Chapter 13, Interlocal Cooperation Act, unless the
entity is also a mental health district created under Chapter 3, Part 6, Local Mental Health
Authorities.
Section 16. Section 17A-2-405 is amended to read:
17A-2-405. Area in county service area -- Overlapping of areas.
(1) (a) The boundaries of a county service area may include:
(i) all or part of any unincorporated area of one county; and
(ii) territory located within a municipality.
(b) Notwithstanding Subsection (1)(a)[
service area under this part shall, on and after June 1, 2001 and as provided in Subsection
17A-2-101.3 (1)(a)(i), be governed by Title 17B, Chapter 2, Part 5, Annexation.
(2) County service areas may overlap if the service area which overlaps is entirely within
the boundaries of the service area which it overlaps.
(3) (a) Except as provided in Subsection (3)(b), not more than two service areas may
occupy the same area in the county.
(b) Notwithstanding Subsection (3)(a), three service areas may occupy the same area in
the county if one of the overlapping service areas is countywide.
(4) No overlapping service areas may perform the same services.
(5) All parts of a county service area need not be contiguous.
Section 17. Section 17A-2-1304 is amended to read:
17A-2-1304. Establishing special service districts -- Improvement districts within
special service districts.
(1) (a) A county or a municipality may establish a special service district for the purpose
of providing within the area of the special service district any of the following services or any
combination of them:
(i) water;
(ii) sewerage;
(iii) drainage;
(iv) flood control;
(v) garbage;
(vi) health care;
(vii) transportation;
(viii) recreation;
(ix) fire protection;
(x) in a county of the first class, providing, operating, and maintaining jail facilities for
the confinement of municipal, state, and other detainees and prisoners;
(xi) street lighting;
(xii) consolidated 911 and emergency dispatch; and
(xiii) animal shelter and control.
(b) Snow removal services may be provided in special service districts established under
this section to more effectively carry out the purposes of those special service districts.
(c) These services may be provided through facilities or systems acquired or constructed
for that purpose through construction, purchase, lease, contract, gift, or condemnation or any
combination of the above.
(d) Special service districts may contract with a franchised, certificated public utility for
the construction and operation of an electrical service distribution system within the special
service district.
(2) (a) The area within any special service district may include all or any part of the
county or municipality that established it except that:
(i) a special service district may not include the area of any other special service district
established by the same county or municipality that is now providing the same service proposed
to be supplied by the new special service district;
(ii) a special service district established by a county may contain all or a part of any
municipality or of an existing improvement district that provides the same service proposed to be
provided by the special service district, but only with the consent of the governing authority as
provided in a resolution or ordinance adopted by the governing authority; and
(iii) a special service district may not include any area not directly [
by the services provided under this section without the consent of the [
nonbenefitted landowner.
(b) All parts of a special service district need not be contiguous.
(3) (a) As provided in Section 17A-2-1315 , the governing authority of any special service
district created under this part may create one or more improvement districts within the
boundaries of the special service district by following the procedures in, and meeting the
requirements of, Chapter 3, Part 2, County Improvement District Act, or Part 3, Utah Municipal
Improvement District Act.
(b) The intent to create an improvement district need not be present at the time a special
service district is organized.
(c) Any improvement district created within the boundaries of a special service district
may only be organized to undertake projects or improvements for which the special service
district creating that improvement district was organized.
(d) The special service district shall meet all procedural requirements for creating an
improvement district at the time the improvement district is created, as provided in Section
17A-2-1315 and in Chapter 3, Part 2, County Improvement District Act, or Part 3, Utah
Municipal Improvement District Act.
(e) In determining whether or not a project or improvement undertaken by an
improvement district is within the scope of the purposes for which the special service district
creating that improvement district was organized, any project or improvement reasonably related
to the purposes for which the special service district creating that improvement district was
organized is considered to be within the scope of those purposes.
(4) The creation of a special service district to provide jail services as provided in
Subsection (1)(a)(x) does not affect the ability of a municipality under Section 10-8-58 to
provide, operate, and maintain facilities for the temporary incarceration, not to exceed 72 hours,
of persons charged with the violation of a municipal ordinance.
Section 18. Section 17A-3-606 is amended to read:
17A-3-606. Contracts for mental health services provided by local mental health
authorities.
Where a local mental health authority has established a plan to provide services
authorized by this part, and those services meet standards fixed by rules of the board, the local
mental health authority may enter into a contract with the Division of Substance Abuse and
Mental Health for mental health services to be furnished by that local mental health authority for
an agreed compensation to be paid by the division.
Section 19. Section 19-2-104 is amended to read:
19-2-104. Powers of board.
(1) The board may make rules in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act:
(a) regarding the control, abatement, and prevention of air pollution from all sources and
the establishment of the maximum quantity of air contaminants that may be emitted by any air
contaminant source;
(b) establishing air quality standards;
(c) requiring persons engaged in operations which result in air pollution to:
(i) install, maintain, and use emission monitoring devices, as the board finds necessary;
(ii) file periodic reports containing information relating to the rate, period of emission,
and composition of the air contaminant; and
(iii) provide access to records relating to emissions which cause or contribute to air
pollution;
(d) implementing 15 U.S.C.A. 2601 et seq. Toxic Substances Control Act, Subchapter II
- Asbestos Hazard Emergency Response, and reviewing and approving asbestos management
plans submitted by local education agencies under that act;
(e) establishing a requirement for a diesel emission opacity inspection and maintenance
program for diesel-powered motor vehicles;
(f) implementing an operating permit program as required by and in conformity with
Titles IV and V of the federal Clean Air Act Amendments of 1990;
(g) establishing requirements for county emissions inspection and maintenance programs
after obtaining agreement from the counties that would be affected by the requirements;
(h) with the approval of the governor, implementing in air quality nonattainment areas
employer-based trip reduction programs applicable to businesses having more than 100
employees at a single location and applicable to federal, state, and local governments to the
extent necessary to attain and maintain ambient air quality standards consistent with the state
implementation plan and federal requirements under the standards set forth in Subsection (2);
and
(i) implementing lead-based paint remediation training, certification, and performance
requirements in accordance with 15 U.S.C.A. 2601 et seq., Toxic Substances Control Act,
Subchapter IV -- Lead Exposure Reduction, [
(2) When implementing Subsection (1)(h) the board shall take into consideration:
(a) the impact of the business on overall air quality; and
(b) the need of the business to use automobiles in order to carry out its business
purposes.
(3) The board may:
(a) hold hearings relating to any aspect of or matter in the administration of this chapter
and compel the attendance of witnesses and the production of documents and other evidence,
administer oaths and take testimony, and receive evidence as necessary;
(b) issue orders necessary to enforce the provisions of this chapter, enforce the orders by
appropriate administrative and judicial proceedings, and institute judicial proceedings to secure
compliance with this chapter;
(c) settle or compromise any civil action initiated to compel compliance with this chapter
and the rules made under this chapter;
(d) secure necessary scientific, technical, administrative, and operational services,
including laboratory facilities, by contract or otherwise;
(e) prepare and develop a comprehensive plan or plans for the prevention, abatement,
and control of air pollution in this state;
(f) encourage voluntary cooperation by persons and affected groups to achieve the
purposes of this chapter;
(g) encourage local units of government to handle air pollution within their respective
jurisdictions on a cooperative basis and provide technical and consultative assistance to them;
(h) encourage and conduct studies, investigations, and research relating to air
contamination and air pollution and their causes, effects, prevention, abatement, and control;
(i) determine by means of field studies and sampling the degree of air contamination and
air pollution in all parts of the state;
(j) monitor the effects of the emission of air contaminants from motor vehicles on the
quality of the outdoor atmosphere in all parts of this state and take appropriate action with
respect to them;
(k) collect and disseminate information and conduct educational and training programs
relating to air contamination and air pollution;
(l) advise, consult, contract, and cooperate with other agencies of the state, local
governments, industries, other states, interstate or interlocal agencies, the federal government,
and with interested persons or groups;
(m) consult, upon request, with any person proposing to construct, install, or otherwise
acquire an air contaminant source in the state concerning the efficacy of any proposed control
device, or system for this source, or the air pollution problem which may be related to the source,
device, or system, but a consultation does not relieve any person from compliance with this
chapter, the rules adopted under it, or any other provision of law;
(n) accept, receive, and administer grants or other funds or gifts from public and private
agencies, including the federal government, for the purpose of carrying out any of the functions
of this chapter;
(o) require the owner and operator of each new source which directly emits or has the
potential to emit 100 tons per year or more of any air contaminant or the owner or operator of
each existing source which by modification will increase emissions or have the potential of
increasing emissions by 100 tons per year or more of any air contaminant, to pay a fee sufficient
to cover the reasonable costs of:
(i) reviewing and acting upon the notice required under Section 19-2-108 ; and
(ii) implementing and enforcing requirements placed on the sources by any approval
order issued pursuant to notice, not including any court costs associated with any enforcement
action;
(p) assess and collect noncompliance penalties as required in Section 120 of the federal
Clean Air Act, 42 U.S.C. Sec. 7420;
(q) meet the requirements of federal air pollution laws;
(r) establish work practice, certification, and clearance air sampling requirements for
persons who:
(i) contract for hire to conduct demolition, renovation, salvage, encapsulation work
involving friable asbestos-containing materials, or asbestos inspections; or
(ii) conduct work described in Subsection (3)(r)(i) in areas to which the general public
has unrestrained access or in school buildings that are subject to the federal Asbestos Hazard
Emergency Response Act of 1986;
(iii) conduct asbestos inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic
Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response; or
(iv) conduct lead paint inspections in facilities subject to 15 U.S.C.A. 2601 et seq., Toxic
Substances Control Act, Subchapter IV -- Lead Exposure Reduction;
(s) establish certification requirements for persons required under 15 U.S.C.A. 2601 et
seq., Toxic Substances Control Act, Subchapter II - Asbestos Hazard Emergency Response, to be
accredited as inspectors, management planners, abatement project designers, asbestos abatement
contractors and supervisors, or asbestos abatement workers;
(t) establish certification requirements for asbestos project monitors, which shall provide
for experience-based certification of persons who, prior to establishment of the certification
requirements, had received relevant asbestos training, as defined by rule, and had acquired at
least 1,000 hours of experience as project monitors;
(u) establish certification procedures and requirements for certification of the conversion
of a motor vehicle to a clean-fuel vehicle, certifying the vehicle is eligible for the tax credit
granted in Section 59-7-605 or 59-10-127 ;
(v) establish a program to certify private sector air quality permitting professionals
(AQPP), as described in Section 19-2-109.5 ; and
(w) establish certification requirements for persons required under 15 U.S.C.A. 2601 et
seq., Toxic Control Act, Subchapter IV -- Lead Exposure Reduction, to be accredited as
inspectors, risk assessors, supervisors, project designers, or abatement workers.
(4) Any rules adopted under this chapter shall be consistent with provisions of federal
laws, if any, relating to control of motor vehicles or motor vehicle emissions.
(5) Nothing in this chapter authorizes the board to require installation of or payment for
any monitoring equipment by the owner or operator of a source if the owner or operator has
installed or is operating monitoring equipment that is equivalent to equipment which the board
would require under this section.
Section 20. Section 20A-3-105.5 is amended to read:
20A-3-105.5. Manner of voting -- Provisional ballot.
(1) As used in this section:
(a) "Proof of identity" means some form of photo identification, such as a driver license
or identification card, that establishes a person's identity.
(b) "Proof of residence" means some official document or form, such as a driver license
or utility bill that establishes a person's residence.
(2) The election judges shall follow the procedures and requirements of this section
when:
(a) the person's right to vote is challenged as provided in Section 20A-3-202 ; or
(b) the person's name is not found on the official register.
(3) When faced with one of the circumstances outlined in Subsection (2), the election
judge shall:
(a) request that the person provide proof of identity and proof of residency; and
(b) review the proof of identity and proof of residency provided by the person.
(4) If the election judge is satisfied that the person has established [
identity and [
(a) the election judge in charge of the official register shall:
(i) record in the official register the type of source documents that established the
person's proof of identity and proof of residency;
(ii) write the provisional ballot envelope number opposite the name of the voter in the
official register; and
(iii) direct the voter to sign his name in the election column in the official register;
(b) another judge shall list the ballot number and voter's name in the pollbook; and
(c) the election judge having charge of the ballots shall:
(i) endorse his initials on the stub;
(ii) check the name of the voter on the pollbook list with the number of the stub;
(iii) give the voter a ballot and a provisional ballot envelope; and
(iv) allow the voter to enter the voting booth.
(5) Whenever the election officer is required to furnish more than one kind of official
ballot to a voting precinct, the election judges of that voting precinct shall give the registered
voter the kind of ballot that the voter is qualified to vote.
Section 21. Section 20A-5-403 is amended to read:
20A-5-403. Polling places -- Booths -- Ballot boxes -- Inspections -- Provisions --
Arrangements.
(1) Each election officer shall:
(a) designate polling places for each voting precinct in the jurisdiction; and
(b) obtain the approval of the county or municipal legislative body or special district
governing board for those polling places.
(2) (a) For each polling place, the election officer shall provide:
(i) an American flag;
(ii) a sufficient number of voting booths or compartments;
(iii) the voting devices, voting booths, ballots, ballot boxes, ballot labels, ballot cards,
write-in ballots, and any other records and supplies necessary to enable a voter to vote; and
(iv) the constitutional amendment cards and voter information pamphlets required by
Part 1.
(b) Each election officer shall ensure that:
(i) each voting booth is at least three feet square, contains a shelf that is at least one foot
wide extending across one side of the booth at a convenient height for writing, and is arranged so
that the voter can prepare his ballot screened from observation;
(ii) there is at least one voting booth for every 100 voters who voted at the last similar
election in the voting precinct; and
(iii) there is at least one voting booth that is configured to accommodate persons with
disabilities.
(c) Each county clerk shall provide a ballot box for each polling place that is large
enough to properly receive and hold the ballots to be cast.
(3) (a) As of May 15, 2003, all polling places shall be physically inspected by each
county clerk to ensure access by [
(b) Any issues concerning inaccessibility to polling places by [
disability discovered during the inspections referred to in Subsection (3)(a) or reported to the
county clerk on or after May 15, 2002 shall be:
(i) forwarded to the Office of the Lieutenant Governor; and
(ii) within six months of the time of the complaint, the issue of inaccessibility shall be
either:
(A) remedied at the particular location by the county clerk;
(B) the county clerk shall designate an alternative accessible location for the particular
precinct; or
(C) if no practical solution can be identified, file with the Office of the Lieutenant
Governor a written explanation identifying the reasons compliance cannot reasonably be met.
(4) The municipality in which the election is held shall pay the cost of conducting each
municipal election, including the cost of printing and supplies.
(5) The county clerk shall make detailed entries of all proceedings had under this chapter.
Section 22. Section 26A-1-110 is amended to read:
26A-1-110. Local health officer -- Powers and duties -- Vacancy.
(1) The board shall appoint a local health officer and determine the officer's
compensation:
(a) subject to ratification by the county executive of the county or counties in the local
health department; and
(b) as provided by:
(i) ordinance adopted by a county creating a county health department; or
(ii) the interlocal agreement pursuant to which a multicounty health department is
created.
(2) The local health officer shall:
(a) have the qualifications of training and experience for that office equivalent to those
approved by the department for local health officers;
(b) be the administrative and executive officer of the local health department and devote
full time to the duties of the office;
(c) if provisions have been made with the department, act as the local registrar of vital
statistics within the local health department's boundaries without additional compensation or
payment of fees provided by law;
(d) (i) prior to the beginning of each fiscal year, prepare an annual budget approved by
the board and present it:
(A) to the county legislative body if the local health department is a county health
department; or
(B) to the entity designated in the interlocal agreement creating the local health
department if the local health department is a multicounty health department; and
(ii) obtain final approval of the annual budget from the governing bodies designated in
Subsection (2)(d)(i)(A) or (B) after the governing body either:
(A) reviews and approves the budget; or
(B) amends and approves the budget; and
(e) prepare an annual report and provide it to the department and all counties in the local
health department.
(3) The report under Subsection (2)(e) shall contain a copy of the independent financial
audit required under Section 26A-1-115 , a description of the population served by the local
health department, and other information as requested by the board or the county or counties
creating the local health department.
(4) In the absence or disability of the local health officer, or if there is a vacancy in that
office, the board shall appoint an acting health officer for a temporary period not to exceed one
year. The appointment shall be ratified by the county executive of the county or counties in the
local health department.
Section 23. Section 31A-1-301 is amended to read:
31A-1-301. Definitions.
As used in this title, unless otherwise specified:
(1) (a) "Accident and health insurance" means insurance to provide protection against
economic losses resulting from:
(i) a medical condition including:
(A) medical care expenses; or
(B) the risk of disability;
(ii) accident; or
(iii) sickness.
(b) "Accident and health insurance":
(i) includes a contract with disability contingencies including:
(A) an income replacement contract;
(B) a health care contract;
(C) an expense reimbursement contract;
(D) a credit accident and health contract;
(E) a continuing care contract; and
(F) long-term care contracts; and
(ii) may provide:
(A) hospital coverage;
(B) surgical coverage;
(C) medical coverage; or
(D) loss of income coverage.
(c) "Accident and health insurance" does not include workers' compensation insurance.
(2) "Administrator" is defined in Subsection (121).
(3) "Adult" means a natural person who has attained the age of at least 18 years.
(4) "Affiliate" means any person who controls, is controlled by, or is under common
control with, another person. A corporation is an affiliate of another corporation, regardless of
ownership, if substantially the same group of natural persons manages the corporations.
(5) "Alien insurer" means an insurer domiciled outside the United States.
(6) "Amendment" means an endorsement to an insurance policy or certificate.
(7) "Annuity" means an agreement to make periodical payments for a period certain or
over the lifetime of one or more natural persons if the making or continuance of all or some of
the series of the payments, or the amount of the payment, is dependent upon the continuance of
human life.
(8) "Application" means a document:
(a) completed by an applicant to provide information about the risk to be insured; and
(b) that contains information that is used by the insurer to:
(i) evaluate risk; and
(ii) decide whether to:
(A) insure the risk under:
(I) the coverages as originally offered; or
(II) a modification of the coverage as originally offered; or
(B) decline to insure the risk.
(9) "Articles" or "articles of incorporation" means the original articles, special laws,
charters, amendments, restated articles, articles of merger or consolidation, trust instruments, and
other constitutive documents for trusts and other entities that are not corporations, and
amendments to any of these.
(10) "Bail bond insurance" means a guarantee that a person will attend court when
required, or will obey the orders or judgment of the court, as a condition to the release of that
person from confinement.
(11) "Binder" is defined in Section 31A-21-102 .
(12) "Board," "board of trustees," or "board of directors" means the group of persons
with responsibility over, or management of, a corporation, however designated.
(13) "Business of insurance" is defined in Subsection [
(14) "Business plan" means the information required to be supplied to the commissioner
under Subsections 31A-5-204 (2)(i) and (j), including the information required when these
subsections are applicable by reference under:
(a) Section 31A-7-201 ;
(b) Section 31A-8-205 ; or
(c) Subsection 31A-9-205 (2).
(15) "Bylaws" means the rules adopted for the regulation or management of a
corporation's affairs, however designated and includes comparable rules for trusts and other
entities that are not corporations.
(16) "Casualty insurance" means liability insurance as defined in Subsection (75).
(17) "Certificate" means evidence of insurance given to:
(a) an insured under a group insurance policy; or
(b) a third party.
(18) "Certificate of authority" is included within the term "license."
(19) "Claim," unless the context otherwise requires, means a request or demand on an
insurer for payment of benefits according to the terms of an insurance policy.
(20) "Claims-made coverage" means an insurance contract or provision limiting coverage
under a policy insuring against legal liability to claims that are first made against the insured
while the policy is in force.
(21) (a) "Commissioner" or "commissioner of insurance" means Utah's insurance
commissioner.
(b) When appropriate, the terms listed in Subsection (21)(a) apply to the equivalent
supervisory official of another jurisdiction.
(22) (a) "Continuing care insurance" means insurance that:
(i) provides board and lodging;
(ii) provides one or more of the following services:
(A) personal services;
(B) nursing services;
(C) medical services; or
(D) other health-related services; and
(iii) provides the coverage described in Subsection (22)(a)(i) under an agreement
effective:
(A) for the life of the insured; or
(B) for a period in excess of one year.
(b) Insurance is continuing care insurance regardless of whether or not the board and
lodging are provided at the same location as the services described in Subsection (22)(a)(ii).
(23) (a) "Control," "controlling," "controlled," or "under common control" means the
direct or indirect possession of the power to direct or cause the direction of the management and
policies of a person. This control may be:
(i) by contract;
(ii) by common management;
(iii) through the ownership of voting securities; or
(iv) by a means other than those described in Subsections (23)(a)(i) through (iii).
(b) There is no presumption that an individual holding an official position with another
person controls that person solely by reason of the position.
(c) A person having a contract or arrangement giving control is considered to have
control despite the illegality or invalidity of the contract or arrangement.
(d) There is a rebuttable presumption of control in a person who directly or indirectly
owns, controls, holds with the power to vote, or holds proxies to vote 10% or more of the voting
securities of another person.
(24) (a) "Corporation" means insurance corporation, except when referring to:
(i) a corporation doing business as an insurance broker, consultant, or adjuster under:
(A) Chapter 23, Insurance Marketing - Licensing Agents, Brokers, Consultants, and
Reinsurance Intermediaries; and
(B) Chapter 26, Insurance Adjusters; or
(ii) a noninsurer that is part of a holding company system under Chapter 16, Insurance
Holding Companies.
(b) "Stock corporation" means stock insurance corporation.
(c) "Mutual" or "mutual corporation" means a mutual insurance corporation.
(25) "Credit accident and health insurance" means insurance on a debtor to provide
indemnity for payments coming due on a specific loan or other credit transaction while the debtor
is disabled.
(26) "Credit insurance" means surety insurance under which mortgagees and other
creditors are indemnified against losses caused by the default of debtors.
(27) "Credit life insurance" means insurance on the life of a debtor in connection with a
loan or other credit transaction.
(28) "Creditor" means a person, including an insured, having any claim, whether:
(a) matured;
(b) unmatured;
(c) liquidated;
(d) unliquidated;
(e) secured;
(f) unsecured;
(g) absolute;
(h) fixed; or
(i) contingent.
(29) (a) "Customer service representative" means a person that provides insurance
services and insurance product information:
(i) for its agent, broker, or consultant employer; and
(ii) to its employer's customer, client, or organization.
(b) A customer service representative may only operate within the scope of authority of
its agent, broker, or consultant employer.
(30) "Deadline" means the final date or time:
(a) imposed by:
(i) statute;
(ii) rule; or
(iii) order; and
(b) by which a required filing or payment must be received by the department.
(31) "Deemer clause" means a provision under this title under which upon the occurrence
of a condition precedent, the commissioner is deemed to have taken a specific action. If the
statute so provides, the condition precedent may be the commissioner's failure to take a specific
action.
(32) "Degree of relationship" means the number of steps between two persons
determined by counting the generations separating one person from a common ancestor and then
counting the generations to the other person.
(33) "Department" means the Insurance Department.
(34) "Director" means a member of the board of directors of a corporation.
(35) "Disability" means a physiological or psychological condition that partially or totally
limits an individual's ability to:
(a) perform the duties of:
(i) that individual's occupation; or
(ii) any occupation for which the individual is reasonably suited by education, training,
or experience; or
(b) perform two or more of the following basic activities of daily living:
(i) eating;
(ii) toileting;
(iii) transferring;
(iv) bathing; or
(v) dressing.
(36) "Domestic insurer" means an insurer organized under the laws of this state.
(37) "Domiciliary state" means the state in which an insurer:
(a) is incorporated;
(b) is organized; or
(c) in the case of an alien insurer, enters into the United States.
(38) (a) "Eligible employee" means:
(i) an employee who:
(A) works on a full-time basis; and
(B) has a normal work week of 30 or more hours; or
(ii) a person described in Subsection (38)(b).
(b) "Eligible employee" includes, if the individual is included under a health benefit plan
of a small employer:
(i) a sole proprietor;
(ii) a partner in a partnership; or
(iii) an independent contractor.
(c) "Eligible employee" does not include, unless eligible under Subsection (38)(b):
(i) an individual who works on a temporary or substitute basis for a small employer;
(ii) an employer's spouse; or
(iii) a dependent of an employer.
(39) "Employee" means any individual employed by an employer.
(40) "Employee benefits" means one or more benefits or services provided to:
(a) employees; or
(b) dependents of employees.
(41) (a) "Employee welfare fund" means a fund:
(i) established or maintained, whether directly or through trustees, by:
(A) one or more employers;
(B) one or more labor organizations; or
(C) a combination of employers and labor organizations; and
(ii) that provides employee benefits paid or contracted to be paid, other than income from
investments of the fund, by or on behalf of an employer doing business in this state or for the
benefit of any person employed in this state.
(b) "Employee welfare fund" includes a plan funded or subsidized by user fees or tax
revenues.
(42) "Endorsement" means a written agreement attached to a policy or certificate to
modify one or more of the provisions of the policy or certificate.
(43) "Excludes" is not exhaustive and does not mean that other things are not also
excluded. The items listed are representative examples for use in interpretation of this title.
(44) "Expense reimbursement insurance" means insurance:
(a) written to provide payments for expenses relating to hospital confinements resulting
from illness or injury; and
(b) written:
(i) as a daily limit for a specific number of days in a hospital; and
(ii) to have a one or two day waiting period following a hospitalization.
(45) "Fidelity insurance" means insurance guaranteeing the fidelity of persons holding
positions of public or private trust.
(46) (a) "Filed" means that a filing is:
(i) submitted to the department in accordance with any applicable statute, rule, or filing
order;
(ii) received by the department within the time period provided in the applicable statute,
rule, or filing order; and
(iii) accompanied with the applicable one or more filing fees required by:
(A) Section 31A-3-103 ; or
(B) rule.
(b) "Filed" does not include a filing that is rejected by the department because it is not
submitted in accordance with Subsection (46)(a).
(47) "Filing," when used as a noun, means an item required to be filed with the
department including:
(a) a policy;
(b) a rate;
(c) a form;
(d) a document;
(e) a plan;
(f) a manual;
(g) an application;
(h) a report;
(i) a certificate;
(j) an endorsement;
(k) an actuarial certification;
(l) a licensee annual statement;
(m) a licensee renewal application; or
(n) an advertisement.
(48) "First party insurance" means an insurance policy or contract in which the insurer
agrees to pay claims submitted to it by the insured for the insured's losses.
(49) "Foreign insurer" means an insurer domiciled outside of this state, including an alien
insurer.
(50) (a) "Form" means one of the following prepared for general use:
(i) a policy;
(ii) a certificate;
(iii) an application; or
(iv) an outline of coverage.
(b) "Form" does not include a document specially prepared for use in an individual case.
(51) "Franchise insurance" means individual insurance policies provided through a mass
marketing arrangement involving a defined class of persons related in some way other than
through the purchase of insurance.
(52) "Group health plan" means an employee welfare benefit plan to the extent that the
plan provides medical care:
(a) (i) to employees; or
(ii) to a dependent of an employee; and
(b) (i) directly;
(ii) through insurance reimbursement; or
(iii) through any other method.
(53) "Health benefit plan" means a policy or certificate for health care insurance, except
that health benefit plan does not include coverage:
(a) solely for:
(i) accident;
(ii) dental;
(iii) vision;
(iv) Medicare supplement;
(v) long-term care; or
(vi) income replacement; or
(b) that is:
(i) offered and marketed as supplemental health insurance;
(ii) not offered or marketed as a substitute for:
(A) hospital or medical expense insurance; or
(B) major medical expense insurance; and
(iii) solely for:
(A) a specified disease;
(B) hospital confinement indemnity; or
(C) limited benefit plan.
(54) "Health care" means any of the following intended for use in the diagnosis,
treatment, mitigation, or prevention of a human ailment or impairment:
(a) professional services;
(b) personal services;
(c) facilities;
(d) equipment;
(e) devices;
(f) supplies; or
(g) medicine.
(55) (a) "Health care insurance" or "health insurance" means insurance providing:
(i) health care benefits; or
(ii) payment of incurred health care expenses.
(b) "Health care insurance" or "health insurance" does not include accident and health
insurance providing benefits for:
(i) replacement of income;
(ii) short-term accident;
(iii) fixed indemnity;
(iv) credit accident and health;
(v) supplements to liability;
(vi) workers' compensation;
(vii) automobile medical payment;
(viii) no-fault automobile;
(ix) equivalent self-insurance; or
(x) any type of accident and health insurance coverage that is a part of or attached to
another type of policy.
(56) "Income replacement insurance" or "disability income insurance" means insurance
written to provide payments to replace income lost from accident or sickness.
(57) "Indemnity" means the payment of an amount to offset all or part of an insured loss.
(58) "Independent adjuster" means an insurance adjuster required to be licensed under
Section 31A-26-201 who engages in insurance adjusting as a representative of insurers.
(59) "Independently procured insurance" means insurance procured under Section
31A-15-104 .
(60) "Individual" means a natural person.
(61) "Inland marine insurance" includes insurance covering:
(a) property in transit on or over land;
(b) property in transit over water by means other than boat or ship;
(c) bailee liability;
(d) fixed transportation property such as bridges, electric transmission systems, radio and
television transmission towers and tunnels; and
(e) personal and commercial property floaters.
(62) "Insolvency" means that:
(a) an insurer is unable to pay its debts or meet its obligations as they mature;
(b) an insurer's total adjusted capital is less than the insurer's mandatory control level
RBC under Subsection 31A-17-601 (8)(c); or
(c) an insurer is determined to be hazardous under this title.
(63) (a) "Insurance" means:
(i) an arrangement, contract, or plan for the transfer of a risk or risks from one or more
persons to one or more other persons; or
(ii) an arrangement, contract, or plan for the distribution of a risk or risks among a group
of persons that includes the person seeking to distribute that person's risk.
(b) "Insurance" includes:
(i) risk distributing arrangements providing for compensation or replacement for
damages or loss through the provision of services or benefits in kind;
(ii) contracts of guaranty or suretyship entered into by the guarantor or surety as a
business and not as merely incidental to a business transaction; and
(iii) plans in which the risk does not rest upon the person who makes the arrangements,
but with a class of persons who have agreed to share it.
(64) "Insurance adjuster" means a person who directs the investigation, negotiation, or
settlement of a claim under an insurance policy other than life insurance or an annuity, on behalf
of an insurer, policyholder, or a claimant under an insurance policy.
[
"agent" means a person who represents insurers in soliciting, negotiating, or placing insurance.
[
"broker" means a person who:
(a) acts in procuring insurance on behalf of an applicant for insurance or an insured; and
(b) does not act on behalf of the insurer except by collecting premiums or performing
other ministerial acts.
[
(a) providing health care insurance, as defined in Subsection (55), by organizations that
are or should be licensed under this title;
(b) providing benefits to employees in the event of contingencies not within the control
of the employees, in which the employees are entitled to the benefits as a right, which benefits
may be provided either:
(i) by single employers or by multiple employer groups; or
(ii) through trusts, associations, or other entities;
(c) providing annuities, including those issued in return for gifts, except those provided
by persons specified in Subsections 31A-22-1305 (2) and (3);
(d) providing the characteristic services of motor clubs as outlined in Subsection (82);
(e) providing other persons with insurance as defined in Subsection (63);
(f) making as insurer, guarantor, or surety, or proposing to make as insurer, guarantor, or
surety, any contract or policy of title insurance;
(g) transacting or proposing to transact any phase of title insurance, including
solicitation, negotiation preliminary to execution, execution of a contract of title insurance,
insuring, and transacting matters subsequent to the execution of the contract and arising out of it,
including reinsurance; and
(h) doing, or proposing to do, any business in substance equivalent to Subsections [
(67)(a) through (g) in a manner designed to evade the provisions of this title.
[
"consultant" means a person who:
(a) advises other persons about insurance needs and coverages;
(b) is compensated by the person advised on a basis not directly related to the insurance
placed; and
(c) is not compensated directly or indirectly by an insurer, agent, or broker for advice
given.
[
persons, at least one of whom is an insurer.
[
a promise in an insurance policy and includes:
(i) policyholders;
(ii) subscribers;
(iii) members; and
(iv) beneficiaries.
(b) The definition in Subsection [
(i) applies only to this title; and
(ii) does not define the meaning of this word as used in insurance policies or certificates.
[
including:
(A) fraternal benefit societies;
(B) issuers of gift annuities other than those specified in Subsections 31A-22-1305 (2)
and (3);
(C) motor clubs;
(D) employee welfare plans; and
(E) any person purporting or intending to do an insurance business as a principal on that
person's own account.
(ii) "Insurer" does not include a governmental entity, as defined in Section 63-30-2 , to
the extent it is engaged in the activities described in Section 31A-12-107 .
(b) "Admitted insurer" is defined in Subsection (125)(b).
(c) "Alien insurer" is defined in Subsection (5).
(d) "Authorized insurer" is defined in Subsection (125)(b).
(e) "Domestic insurer" is defined in Subsection (36).
(f) "Foreign insurer" is defined in Subsection (49).
(g) "Nonadmitted insurer" is defined in Subsection (125)(a).
(h) "Unauthorized insurer" is defined in Subsection (125)(a).
[
(73) "Large employer," in connection with a health benefit plan, means an employer who,
with respect to a calendar year and to a plan year:
(a) employed an average of at least 51 eligible employees on each business day during
the preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(74) (a) Except for a retainer contract or legal assistance described in Section 31A-1-103 ,
"legal expense insurance" means insurance written to indemnify or pay for specified legal
expenses.
(b) "Legal expense insurance" includes arrangements that create reasonable expectations
of enforceable rights.
(c) "Legal expense insurance" does not include the provision of, or reimbursement for,
legal services incidental to other insurance coverages.
(75) (a) "Liability insurance" means insurance against liability:
(i) for death, injury, or disability of any human being, or for damage to property,
exclusive of the coverages under:
(A) Subsection (79) for medical malpractice insurance;
(B) Subsection (102) for professional liability insurance; and
(C) Subsection (128) for workers' compensation insurance;
(ii) for medical, hospital, surgical, and funeral benefits to persons other than the insured
who are injured, irrespective of legal liability of the insured, when issued with or supplemental to
insurance against legal liability for the death, injury, or disability of human beings, exclusive of
the coverages under:
(A) Subsection (79) for medical malpractice insurance;
(B) Subsection (102) for professional liability insurance; and
(C) Subsection (128) for workers' compensation insurance;
(iii) for loss or damage to property resulting from accidents to or explosions of boilers,
pipes, pressure containers, machinery, or apparatus;
(iv) for loss or damage to any property caused by the breakage or leakage of sprinklers,
water pipes and containers, or by water entering through leaks or openings in buildings; or
(v) for other loss or damage properly the subject of insurance not within any other kind
or kinds of insurance as defined in this chapter, if such insurance is not contrary to law or public
policy.
(b) "Liability insurance" includes:
(i) vehicle liability insurance as defined in Subsection (126);
(ii) residential dwelling liability insurance as defined in Subsection (111); and
(iii) making inspection of, and issuing certificates of inspection upon, elevators, boilers,
machinery, and apparatus of any kind when done in connection with insurance on them.
(76) (a) "License" means the authorization issued by the insurance commissioner under
this title to engage in some activity that is part of or related to the insurance business.
(b) "License" includes certificates of authority issued to insurers.
(77) (a) "Life insurance" means insurance on human lives and insurances pertaining to or
connected with human life.
(b) The business of life insurance includes:
(i) granting death benefits;
(ii) granting annuity benefits;
(iii) granting endowment benefits;
(iv) granting additional benefits in the event of death by accident;
(v) granting additional benefits to safeguard the policy against lapse in the event of
disability; and
(vi) providing optional methods of settlement of proceeds.
(78) (a) "Long-term care insurance" means an insurance policy or rider advertised,
marketed, offered, or designated to provide coverage:
(i) in a setting other than an acute care unit of a hospital;
(ii) for not less than 12 consecutive months for each covered person on the basis of:
(A) expenses incurred;
(B) indemnity;
(C) prepayment; or
(D) another method;
(iii) for one or more necessary or medically necessary services that are:
(A) diagnostic;
(B) preventative;
(C) therapeutic;
(D) rehabilitative;
(E) maintenance; or
(F) personal care; and
(iv) that may be issued by:
(A) an insurer;
(B) a fraternal benefit society;
(C) (I) a nonprofit health hospital; and
(II) a medical service corporation;
(D) a prepaid health plan;
(E) a health maintenance organization; or
(F) an entity similar to the entities described in Subsections (78)(a)(iv)(A) through (E) to
the extent that the entity is otherwise authorized to issue life or health care insurance.
(b) "Long-term care insurance" includes:
(i) any of the following that provide directly or supplement long-term care insurance:
(A) a group or individual annuity or rider; or
(B) a life insurance policy or rider;
(ii) a policy or rider that provides for payment of benefits based on:
(A) cognitive impairment; or
(B) functional capacity; or
(iii) a qualified long-term care insurance contract.
(c) "Long-term care insurance" does not include:
(i) a policy that is offered primarily to provide basic Medicare supplement coverage;
(ii) basic hospital expense coverage;
(iii) basic medical/surgical expense coverage;
(iv) hospital confinement indemnity coverage;
(v) major medical expense coverage;
(vi) income replacement or related asset-protection coverage;
(vii) accident only coverage;
(viii) coverage for a specified:
(A) disease; or
(B) accident;
(ix) limited benefit health coverage; or
(x) a life insurance policy that accelerates the death benefit to provide the option of a
lump sum payment:
(A) if the following are not conditioned on the receipt of long-term care:
(I) benefits; or
(II) eligibility; and
(B) the coverage is for one or more the following qualifying events:
(I) terminal illness;
(II) medical conditions requiring extraordinary medical intervention; or
(III) permanent institutional confinement.
(79) "Medical malpractice insurance" means insurance against legal liability incident to
the practice and provision of medical services other than the practice and provision of dental
services.
(80) "Member" means a person having membership rights in an insurance corporation.
(81) "Minimum capital" or "minimum required capital" means the capital that must be
constantly maintained by a stock insurance corporation as required by statute.
(82) "Motor club" means a person:
(a) licensed under:
(i) Chapter 5, Domestic Stock and Mutual Insurance Corporations;
(ii) Chapter 11, Motor Clubs; or
(iii) Chapter 14, Foreign Insurers; and
(b) that promises for an advance consideration to provide for a stated period of time:
(i) legal services under Subsection 31A-11-102 (1)(b);
(ii) bail services under Subsection 31A-11-102 (1)(c); or
(iii) trip reimbursement, towing services, emergency road services, stolen automobile
services, a combination of these services, or any other services given in Subsections
31A-11-102 (1)(b) through (f).
(83) "Mutual" means mutual insurance corporation.
(84) "Network plan" means health care insurance:
(a) that is issued by an insurer; and
(b) under which the financing and delivery of medical care is provided, in whole or in
part, through a defined set of providers under contract with the insurer, including the financing
and delivery of items paid for as medical care.
(85) "Nonparticipating" means a plan of insurance under which the insured is not entitled
to receive dividends representing shares of the surplus of the insurer.
(86) "Ocean marine insurance" means insurance against loss of or damage to:
(a) ships or hulls of ships;
(b) goods, freight, cargoes, merchandise, effects, disbursements, profits, moneys,
securities, choses in action, evidences of debt, valuable papers, bottomry, respondentia interests,
or other cargoes in or awaiting transit over the oceans or inland waterways;
(c) earnings such as freight, passage money, commissions, or profits derived from
transporting goods or people upon or across the oceans or inland waterways; or
(d) a vessel owner or operator as a result of liability to employees, passengers, bailors,
owners of other vessels, owners of fixed objects, customs or other authorities, or other persons in
connection with maritime activity.
(87) "Order" means an order of the commissioner.
(88) "Outline of coverage" means a summary that explains an accident and health
insurance policy.
(89) "Participating" means a plan of insurance under which the insured is entitled to
receive dividends representing shares of the surplus of the insurer.
(90) "Participation," as used in a health benefit plan, means a requirement relating to the
minimum percentage of eligible employees that must be enrolled in relation to the total number
of eligible employees of an employer reduced by each eligible employee who voluntarily declines
coverage under the plan because the employee has other health care insurance coverage.
(91) "Person" includes an individual, partnership, corporation, incorporated or
unincorporated association, joint stock company, trust, reciprocal, syndicate, or any similar entity
or combination of entities acting in concert.
(92) "Plan sponsor" is as defined in 29 U.S.C. Sec. 1002(16)(B).
(93) "Plan year" means:
(a) the year that is designated as the plan year in:
(i) the plan document of a group health plan; or
(ii) a summary plan description of a group health plan;
(b) if the plan document or summary plan description does not designate a plan year or
there is no plan document or summary plan description:
(i) the year used to determine deductibles or limits;
(ii) the policy year, if the plan does not impose deductibles or limits on a yearly basis; or
(iii) the employer's taxable year if:
(A) the plan does not impose deductibles or limits on a yearly basis; and
(B) (I) the plan is not insured; or
(II) the insurance policy is not renewed on an annual basis; or
(c) in a case not described in Subsection (93)(a) or (b), the calendar year.
(94) (a) (i) "Policy" means any document, including attached endorsements and riders,
purporting to be an enforceable contract, which memorializes in writing some or all of the terms
of an insurance contract.
(ii) "Policy" includes a service contract issued by:
(A) a motor club under Chapter 11, Motor Clubs;
(B) a service contract provided under Chapter 6a, Service Contracts; and
(C) a corporation licensed under:
(I) Chapter 7, Nonprofit Health Service Insurance Corporations; or
(II) Chapter 8, Health Maintenance Organizations and Limited Health Plans.
(iii) "Policy" does not include:
(A) a certificate under a group insurance contract; or
(B) a document that does not purport to have legal effect.
(b) (i) "Group insurance policy" means a policy covering a group of persons that is issued
to a policyholder on behalf of the group, for the benefit of group members who are selected under
procedures defined in the policy or in agreements which are collateral to the policy.
(ii) A group insurance policy may include members of the policyholder's family or
dependents.
(c) "Blanket insurance policy" means a group policy covering classes of persons without
individual underwriting, where the persons insured are determined by definition of the class with
or without designating the persons covered.
(95) "Policyholder" means the person who controls a policy, binder, or oral contract by
ownership, premium payment, or otherwise.
(96) "Policy illustration" means a presentation or depiction that includes nonguaranteed
elements of a policy of life insurance over a period of years.
(97) "Policy summary" means a synopsis describing the elements of a life insurance
policy.
(98) "Preexisting condition," in connection with a health benefit plan, means:
(a) a condition for which medical advice, diagnosis, care, or treatment was recommended
or received during the six months immediately preceding the earlier of:
(i) the enrollment date; or
(ii) the effective date of coverage; or
(b) for an individual insurance policy, a pregnancy existing on the effective date of
coverage.
(99) (a) "Premium" means the monetary consideration for an insurance policy, and
includes assessments, membership fees, required contributions, or monetary consideration,
however designated.
(b) Consideration paid to third party administrators for their services is not "premium,"
though amounts paid by third party administrators to insurers for insurance on the risks
administered by the third party administrators are "premium."
(100) "Principal officers" of a corporation means the officers designated under
Subsection 31A-5-203 (3).
(101) "Proceedings" includes actions and special statutory proceedings.
(102) "Professional liability insurance" means insurance against legal liability incident to
the practice of a profession and provision of any professional services.
(103) "Property insurance" means insurance against loss or damage to real or personal
property of every kind and any interest in that property, from all hazards or causes, and against
loss consequential upon the loss or damage including vehicle comprehensive and vehicle
physical damage coverages, but excluding inland marine insurance and ocean marine insurance
as defined under Subsections (61) and (86).
(104) "Qualified long-term care insurance contract" or "federally tax qualified long-term
care insurance contract" means:
(a) an individual or group insurance contract that meets the requirements of Section
7702B(b), Internal Revenue Code; or
(b) the portion of a life insurance contract that provides long-term care insurance:
(i) (A) by rider; or
(B) as a part of the contract; and
(ii) that satisfies the requirements of Section 7702B(b) and (e), Internal Revenue Code.
(105) (a) "Rate" means:
(i) the cost of a given unit of insurance; or
(ii) for property-casualty insurance, that cost of insurance per exposure unit either
expressed as:
(A) a single number; or
(B) a pure premium rate, adjusted before any application of individual risk variations
based on loss or expense considerations to account for the treatment of:
(I) expenses;
(II) profit; and
(III) individual insurer variation in loss experience.
(b) "Rate" does not include a minimum premium.
(106) (a) Except as provided in Subsection (106)(b), "rate service organization" means
any person who assists insurers in rate making or filing by:
(i) collecting, compiling, and furnishing loss or expense statistics;
(ii) recommending, making, or filing rates or supplementary rate information; or
(iii) advising about rate questions, except as an attorney giving legal advice.
(b) "Rate service organization" does not mean:
(i) an employee of an insurer;
(ii) a single insurer or group of insurers under common control;
(iii) a joint underwriting group; or
(iv) a natural person serving as an actuarial or legal consultant.
(107) "Rating manual" means any of the following used to determine initial and renewal
policy premiums:
(a) a manual of rates;
(b) classifications;
(c) rate-related underwriting rules; and
(d) rating formulas that describe steps, policies, and procedures for determining initial
and renewal policy premiums.
(108) "Received by the department" means:
(a) except as provided in Subsection (108)(b), the date delivered to and stamped received
by the department, whether delivered:
(i) in person;
(ii) by a delivery service; or
(iii) electronically; and
(b) if an item with a department imposed deadline is delivered to the department by a
delivery service, the delivery service's postmark date or pick-up date unless otherwise stated in:
(i) statute;
(ii) rule; or
(iii) a specific filing order.
(109) "Reciprocal" or "interinsurance exchange" means any unincorporated association
of persons:
(a) operating through an attorney-in-fact common to all of them; and
(b) exchanging insurance contracts with one another that provide insurance coverage on
each other.
(110) "Reinsurance" means an insurance transaction where an insurer, for consideration,
transfers any portion of the risk it has assumed to another insurer. In referring to reinsurance
transactions, this title sometimes refers to:
(a) the insurer transferring the risk as the "ceding insurer"; and
(b) the insurer assuming the risk as the:
(i) "assuming insurer"; or
(ii) "assuming reinsurer."
(111) "Residential dwelling liability insurance" means insurance against liability
resulting from or incident to the ownership, maintenance, or use of a residential dwelling that is a
detached single family residence or multifamily residence up to four units.
(112) "Retrocession" means reinsurance with another insurer of a liability assumed under
a reinsurance contract. A reinsurer "retrocedes" when it reinsures with another insurer part of a
liability assumed under a reinsurance contract.
(113) "Rider" means an endorsement to:
(a) an insurance policy; or
(b) an insurance certificate.
(114) (a) "Security" means any:
(i) note;
(ii) stock;
(iii) bond;
(iv) debenture;
(v) evidence of indebtedness;
(vi) certificate of interest or participation in any profit-sharing agreement;
(vii) collateral-trust certificate;
(viii) preorganization certificate or subscription;
(ix) transferable share;
(x) investment contract;
(xi) voting trust certificate;
(xii) certificate of deposit for a security;
(xiii) certificate of interest of participation in an oil, gas, or mining title or lease or in
payments out of production under such a title or lease;
(xiv) commodity contract or commodity option;
(xv) any certificate of interest or participation in, temporary or interim certificate for,
receipt for, guarantee of, or warrant or right to subscribe to or purchase any of the items listed in
Subsections (114)(a)(i) through (xiv); or
(xvi) any other interest or instrument commonly known as a security.
(b) "Security" does not include:
(i) any insurance or endowment policy or annuity contract under which an insurance
company promises to pay money in a specific lump sum or periodically for life or some other
specified period; or
(ii) a burial certificate or burial contract.
(115) "Self-insurance" means any arrangement under which a person provides for
spreading its own risks by a systematic plan.
(a) Except as provided in this Subsection (115), self-insurance does not include an
arrangement under which a number of persons spread their risks among themselves.
(b) Self-insurance does include an arrangement by which a governmental entity, as
defined in Section 63-30-2 , undertakes to indemnify its employees for liability arising out of the
employees' employment.
(c) Self-insurance does include an arrangement by which a person with a managed
program of self-insurance and risk management undertakes to indemnify its affiliates,
subsidiaries, directors, officers, or employees for liability or risk which is related to the
relationship or employment.
(d) Self-insurance does not include any arrangement with independent contractors.
(116) "Short-term care insurance" means any insurance policy or rider advertised,
marketed, offered, or designed to provide coverage that is similar to long-term care insurance but
that provides coverage for less than 12 consecutive months for each covered person.
(117) "Small employer," in connection with a health benefit plan, means an employer
who, with respect to a calendar year and to a plan year:
(a) employed an average of at least two employees but not more than 50 eligible
employees on each business day during the preceding calendar year; and
(b) employs at least two employees on the first day of the plan year.
(118) (a) "Subsidiary" of a person means an affiliate controlled by that person either
directly or indirectly through one or more affiliates or intermediaries.
(b) "Wholly owned subsidiary" of a person is a subsidiary of which all of the voting
shares are owned by that person either alone or with its affiliates, except for the minimum
number of shares the law of the subsidiary's domicile requires to be owned by directors or others.
(119) Subject to Subsection (63)(b), "surety insurance" includes:
(a) a guarantee against loss or damage resulting from failure of principals to pay or
perform their obligations to a creditor or other obligee;
(b) bail bond insurance; and
(c) fidelity insurance.
(120) (a) "Surplus" means the excess of assets over the sum of paid-in capital and
liabilities.
(b) (i) "Permanent surplus" means the surplus of a mutual insurer that has been
designated by the insurer as permanent.
(ii) Sections 31A-5-211 , 31A-7-201 , 31A-8-209 , 31A-9-209 , and 31A-14-209 require
that mutuals doing business in this state maintain specified minimum levels of permanent
surplus.
(iii) Except for assessable mutuals, the minimum permanent surplus requirement is
essentially the same as the minimum required capital requirement that applies to stock insurers.
(c) "Excess surplus" means:
(i) for life or accident and health insurers, health organizations, and property and casualty
insurers as defined in Section 31A-17-601 , the lesser of:
(A) that amount of an insurer's or health organization's total adjusted capital, as defined
in Subsection (123), that exceeds the product of:
(I) 2.5; and
(II) the sum of the insurer's or health organization's minimum capital or permanent
surplus required under Section 31A-5-211 , 31A-9-209 , or 31A-14-205 ; or
(B) that amount of an insurer's or health organization's total adjusted capital, as defined
in Subsection (123), that exceeds the product of:
(I) 3.0; and
(II) the authorized control level RBC as defined in Subsection 31A-17-601 (8)(a); and
(ii) for monoline mortgage guaranty insurers, financial guaranty insurers, and title
insurers, that amount of an insurer's paid-in-capital and surplus that exceeds the product of:
(A) 1.5; and
(B) the insurer's total adjusted capital required by Subsection 31A-17-609 (1).
(121) "Third party administrator" or "administrator" means any person who collects
charges or premiums from, or who, for consideration, adjusts or settles claims of residents of the
state in connection with insurance coverage, annuities, or service insurance coverage, except:
(a) a union on behalf of its members;
(b) a person administering any:
(i) pension plan subject to the federal Employee Retirement Income Security Act of
1974;
(ii) governmental plan as defined in Section 414(d), Internal Revenue Code; or
(iii) nonelecting church plan as described in Section 410(d), Internal Revenue Code;
(c) an employer on behalf of the employer's employees or the employees of one or more
of the subsidiary or affiliated corporations of the employer;
(d) an insurer licensed under Chapter 5, 7, 8, 9, or 14, but only for a line of insurance for
which the insurer holds a license in this state; or
(e) a person licensed or exempt from licensing under Chapter 23 or 26 whose activities
are limited to those authorized under the license the person holds or for which the person is
exempt.
(122) "Title insurance" means the insuring, guaranteeing, or indemnifying of owners of
real or personal property or the holders of liens or encumbrances on that property, or others
interested in the property against loss or damage suffered by reason of liens or encumbrances
upon, defects in, or the unmarketability of the title to the property, or invalidity or
unenforceability of any liens or encumbrances on the property.
(123) "Total adjusted capital" means the sum of an insurer's or health organization's
statutory capital and surplus as determined in accordance with:
(a) the statutory accounting applicable to the annual financial statements required to be
filed under Section 31A-4-113 ; and
(b) any other items provided by the RBC instructions, as RBC instructions is defined in
Section 31A-17-601 .
(124) (a) "Trustee" means "director" when referring to the board of directors of a
corporation.
(b) "Trustee," when used in reference to an employee welfare fund, means an individual,
firm, association, organization, joint stock company, or corporation, whether acting individually
or jointly and whether designated by that name or any other, that is charged with or has the
overall management of an employee welfare fund.
(125) (a) "Unauthorized insurer," "unadmitted insurer," or "nonadmitted insurer" means
an insurer:
(i) not holding a valid certificate of authority to do an insurance business in this state; or
(ii) transacting business not authorized by a valid certificate.
(b) "Admitted insurer" or "authorized insurer" means an insurer:
(i) holding a valid certificate of authority to do an insurance business in this state; and
(ii) transacting business as authorized by a valid certificate.
(126) "Vehicle liability insurance" means insurance against liability resulting from or
incident to ownership, maintenance, or use of any land vehicle or aircraft, exclusive of vehicle
comprehensive and vehicle physical damage coverages under Subsection (103).
(127) "Voting security" means a security with voting rights, and includes any security
convertible into a security with a voting right associated with it.
(128) "Workers' compensation insurance" means:
(a) insurance for indemnification of employers against liability for compensation based
on:
(i) compensable accidental injuries; and
(ii) occupational disease disability;
(b) employer's liability insurance incidental to workers' compensation insurance and
written in connection with it; and
(c) insurance assuring to the persons entitled to workers' compensation benefits the
compensation provided by law.
Section 24. Section 31A-5-101 is amended to read:
31A-5-101. Definitions.
In this chapter, unless the context requires otherwise:
(1) The definitions applicable to the Utah Revised Business Corporation Act in
Subsections 16-10a-102 (2), (23), and (24) apply to stock corporations.
(2) The definitions applicable to nonprofit corporations in Subsections 16-6a-102 [
(6), and (30) apply to mutuals.
(3) "Promoter securities" are securities issued by a stock insurer to the incorporators,
directors, officers, or their families or nominees at any time prior to, and up to one year
following, the issuance of a certificate of authority to the stock insurer.
Section 25. Section 31A-9-101 is amended to read:
31A-9-101. Definitions.
(1) As used in this chapter:
(a) "Fraternal" or "fraternal benefit society" means a corporation organized or operating
under this chapter that:
(i) has no capital stock;
(ii) exists solely for:
(A) the benefit of its members and their beneficiaries; and
(B) any lawful social, intellectual, educational, charitable, benevolent, moral, fraternal,
patriotic, or religious purpose for the benefit of its members or the public, carried on through
voluntary activity of its members in their local lodges or through institutional programs of the
fraternal or its local lodges;
(iii) has a lodge system;
(iv) has a representative form of government; and
(v) provides insurance benefits authorized under this chapter.
(b) "Laws of a fraternal" include its articles of incorporation and bylaws, however
designated.
(c) "Lodge system" means one in which:
(i) there is a supreme governing body;
(ii) subordinate to the supreme governing body are local lodges, however designated,
into which natural persons are admitted as members in accordance with the laws of the fraternal;
(iii) the local lodges are required by the laws of the fraternal to hold regular meetings at
least monthly; and
(iv) the local lodges regularly engage in programs involving member participation to
implement the purposes of Subsection (1)(a)(ii).
(d) "Representative form of government" means the fraternal complies with Section
31A-9-403 .
(2) In any provisions of law made applicable to fraternals by this chapter, the technical
terms used in those provisions are applicable to fraternals despite the use of other parallel terms
by fraternals.
(3) The definitions provided in Subsections 16-6a-102 [
31A-1-301 apply to fraternals.
Section 26. Section 31A-21-105 is amended to read:
31A-21-105. Representations, warranties, and conditions.
(1) (a) No statement, representation, or warranty made by any person representing the
insurer in the negotiation for an individual or franchise insurance contract affects the insurer's
obligations under the policy unless it is stated in the policy or in a written application signed by
the applicant. No person, except the applicant or another by his written consent, may alter the
application, except for administrative purposes in a way which is clearly not ascribable to the
applicant.
(b) No statement, representation, or warranty made by or on behalf of a particular
certificate holder under a group policy affects the insurer's obligations under the certificate unless
it is stated in the certificate or in a written document signed by the certificate holder, and a copy
of it is supplied to the certificate holder.
(c) The policyholder, his assignee, the loss payee or mortgagee or lienholder under
property insurance, and any person whose life or health is insured under a policy may request, in
writing, from the company a copy of the application, if he did not receive the policy or a copy of
it, or if the policy has been reinstated or renewed without the attachment of a copy of the original
application. If the insurer does not deliver or mail a copy as requested within 30 days after
receipt of the request by the insurer or its agent, or in the case of a group policy certificate holder,
does not inform that person within the same period how he may inspect the policy or a copy of it
and application or enrollment card or a copy of it during normal business hours at a place
reasonably convenient to the certificate holder, nothing in the application or enrollment card
affects the insurer's obligations under the policy to the person making the request. Each person
whose life or health is insured under a group policy has the same right to request a copy of any
document under Subsection (1)(b).
(2) Except as provided in Subsection (5), no misrepresentation or breach of an
affirmative warranty affects the insurer's obligations under the policy unless:
(a) the insurer relies on it and it is either material or is made with intent to deceive; or
(b) the fact misrepresented or falsely warranted contributes to the loss.
(3) No failure of a condition prior to the loss and no breach of a promissory warranty
affects the insurer's obligations under the policy unless it exists at the time of the loss and either
increases the risk at the time of the loss or contributes to the loss. This Subsection (3) does not
apply to failure to tender payment of premium.
(4) Nondisclosure of information not requested by the insurer is not a defense to an
action against the insurer. Failure to correct within a reasonable time any representation that
becomes incorrect because of changes in circumstances is misrepresentation, not nondisclosure.
(5) If after issuance of a policy the insurer acquires knowledge of sufficient facts to
constitute a general defense to all claims under the policy, the defense is only available if the
insurer notifies the insured within 60 days after acquiring the knowledge of its intention to
defend against a claim if one should arise, or within 120 days if the insurer considers it necessary
to secure additional medical information and is actively seeking the information at the end of the
60 days. The insurer and insured may mutually agree to a policy rider in order to continue the
policy in force with exceptions or modifications. For purposes of this Subsection (5), an insurer
has acquired knowledge only if the information alleged to give rise to the knowledge was
disclosed to the insurer or its agent in connection with communications or investigations
associated with the insurance policy under which the subject claim arises.
(6) (a) An insurer that offers coverage to a small employer group as required by [
individual certificate holder based on application misrepresentation unless the insurer would not
have been required to issue the coverage in the absence of the misrepresentation.
(b) Subsection (6)(a) does not prevent an insurer from correcting rates if:
(i) in the absence of misrepresentation a different rate would have been required; and
(ii) the corrected rates are in compliance with Section 31A-30-106 .
(7) No trivial or transitory breach of or noncompliance with any provision of this chapter
is a basis for avoiding an insurance contract.
Section 27. Section 31A-22-617 is amended to read:
31A-22-617. Preferred provider contract provisions.
Health insurance policies may provide for insureds to receive services or reimbursement
under the policies in accordance with preferred health care provider contracts as follows:
(1) Subject to restrictions under this section, any insurer or third party administrator may
enter into contracts with health care providers as defined in Section 78-14-3 under which the
health care providers agree to supply services, at prices specified in the contracts, to persons
insured by an insurer.
(a) A health care provider contract may require the health care provider to accept the
specified payment as payment in full, relinquishing the right to collect additional amounts from
the insured person.
(b) The insurance contract may reward the insured for selection of preferred health care
providers by:
(i) reducing premium rates;
(ii) reducing deductibles;
(iii) coinsurance;
(iv) other copayments; or
(v) [
(c) If the insurer is a managed care organization, as defined in Subsection
31A-27-311.5 (1)(f):
(i) the insurance contract and the health care provider contract shall provide that in the
event the managed care organization becomes insolvent, the rehabilitator or liquidator may:
(A) require the health care provider to continue to provide health care services under the
contract until the earlier of:
(I) 90 days after the date of the filing of a petition for rehabilitation or the petition for
liquidation; or
(II) the date the term of the contract ends; and
(B) subject to Subsection (1)(c)(v), reduce the fees the provider is otherwise entitled to
receive from the managed care organization during the time period described in Subsection
(1)(c)(i)(A);
(ii) the provider is required to:
(A) accept the reduced payment under Subsection (1)(c)(i)(B) as payment in full; and
(B) relinquish the right to collect additional amounts from the insolvent managed care
organization's enrollee, as defined in Section 31A-27-311.5 (1)(b);
(iii) if the contract between the health care provider and the managed care organization
has not been reduced to writing, or the contract fails to contain the language required by
Subsection (1)(c)(i), the provider may not collect or attempt to collect from the enrollee:
(A) sums owed by the insolvent managed care organization; or
(B) the amount of the regular fee reduction authorized under Subsection (1)(c)(i)(B);
(iv) the following may not bill or maintain any action at law against an enrollee to collect
sums owed by the insolvent managed care organization or the amount of the regular fee reduction
authorized under Subsection (1)(c)(i)(B):
(A) a provider;
(B) an agent;
(C) a trustee; or
(D) an assignee of a person described in Subsections (1)(c)(iv)(A) through (C); and
(v) notwithstanding Subsection (1)(c)(i):
(A) a rehabilitator or liquidator may not reduce a fee by less than 75% of the provider's
regular fee set forth in the contract; and
(B) the enrollee shall continue to pay the copayments, deductibles, and other payments
for services received from the provider that the enrollee was required to pay before the filing of:
(I) a petition for rehabilitation; or
(II) a petition for liquidation.
(2) (a) Subject to Subsections (2)(b) through (2)(f), an insurer using preferred health care
provider contracts shall pay for the services of health care providers not under the contract,
unless the illnesses or injuries treated by the health care provider are not within the scope of the
insurance contract. As used in this section, "class of health care providers" means all health care
providers licensed or licensed and certified by the state within the same professional, trade,
occupational, or facility licensure or licensure and certification category established pursuant to
Titles 26, Utah Health Code and 58, Occupations and Professions.
(b) When the insured receives services from a health care provider not under contract,
the insurer shall reimburse the insured for at least 75% of the average amount paid by the insurer
for comparable services of preferred health care providers who are members of the same class of
health care providers. The commissioner may adopt a rule dealing with the determination of
what constitutes 75% of the average amount paid by the insurer for comparable services of
preferred health care providers who are members of the same class of health care providers.
(c) When reimbursing for services of health care providers not under contract, the insurer
may make direct payment to the insured.
(d) Notwithstanding Subsection (2)(b), an insurer using preferred health care provider
contracts may impose a deductible on coverage of health care providers not under contract.
(e) When selecting health care providers with whom to contract under Subsection (1), an
insurer may not unfairly discriminate between classes of health care providers, but may
discriminate within a class of health care providers, subject to Subsection (7).
(f) For purposes of this section, unfair discrimination between classes of health care
providers shall include:
(i) refusal to contract with class members in reasonable proportion to the number of
insureds covered by the insurer and the expected demand for services from class members; and
(ii) refusal to cover procedures for one class of providers that are:
(A) commonly utilized by members of the class of health care providers for the treatment
of illnesses, injuries, or conditions;
(B) otherwise covered by the insurer; and
(C) within the scope of practice of the class of health care providers.
(3) Before the insured consents to the insurance contract, the insurer shall fully disclose
to the insured that it has entered into preferred health care provider contracts. The insurer shall
provide sufficient detail on the preferred health care provider contracts to permit the insured to
agree to the terms of the insurance contract. The insurer shall provide at least the following
information:
(a) a list of the health care providers under contract and if requested their business
locations and specialties;
(b) a description of the insured benefits, including any deductibles, coinsurance, or other
copayments;
(c) a description of the quality assurance program required under Subsection (4); and
(d) a description of the adverse benefit determination procedures required under
Subsection (5).
(4) (a) An insurer using preferred health care provider contracts shall maintain a quality
assurance program for assuring that the care provided by the health care providers under contract
meets prevailing standards in the state.
(b) The commissioner in consultation with the executive director of the Department of
Health may designate qualified persons to perform an audit of the quality assurance program.
The auditors shall have full access to all records of the organization and its health care providers,
including medical records of individual patients.
(c) The information contained in the medical records of individual patients shall remain
confidential. All information, interviews, reports, statements, memoranda, or other data
furnished for purposes of the audit and any findings or conclusions of the auditors are privileged.
The information is not subject to discovery, use, or receipt in evidence in any legal proceeding
except hearings before the commissioner concerning alleged violations of this section.
(5) An insurer using preferred health care provider contracts shall provide a reasonable
procedure for resolving complaints and adverse benefit determinations initiated by the insureds
and health care providers.
(6) An insurer may not contract with a health care provider for treatment of illness or
injury unless the health care provider is licensed to perform that treatment.
(7) (a) A health care provider or insurer may not discriminate against a preferred health
care provider for agreeing to a contract under Subsection (1).
(b) Any health care provider licensed to treat any illness or injury within the scope of the
health care provider's practice, who is willing and able to meet the terms and conditions
established by the insurer for designation as a preferred health care provider, shall be able to
apply for and receive the designation as a preferred health care provider. Contract terms and
conditions may include reasonable limitations on the number of designated preferred health care
providers based upon substantial objective and economic grounds, or expected use of particular
services based upon prior provider-patient profiles.
(8) Upon the written request of a provider excluded from a provider contract, the
commissioner may hold a hearing to determine if the insurer's exclusion of the provider is based
on the criteria set forth in Subsection (7)(b).
(9) Insurers are subject to the provisions of Sections 31A-22-613.5 , 31A-22-614.5 , and
31A-22-618 .
(10) Nothing in this section is to be construed as to require an insurer to offer a certain
benefit or service as part of a health benefit plan.
(11) This section does not apply to catastrophic mental health coverage provided in
accordance with Section 31A-22-625 .
Section 28. Section 34A-2-301 is amended to read:
34A-2-301. Places of employment to be safe -- Willful neglect -- Penalty.
(1) An employer may not:
(a) construct, occupy, or maintain any place of employment that is not safe;
(b) require or knowingly permit any employee to be in any employment or place of
employment that is not safe;
(c) fail to provide and use safety devices and safeguards;
(d) remove, disable, or bypass safety devices and safeguards;
(e) fail to obey orders of the commission;
(f) fail to obey rules of the commission;
(g) fail to adopt and use methods and processes reasonably adequate to render the
employment and place of employment safe; or
(h) fail or neglect to do every other thing reasonably necessary to protect the life, health,
and safety of the employer's employees.
(2) Compensation as provided in this chapter [
of injury resulting in death, when injury is caused by the willful failure of an employer to comply
with:
(a) the law;
(b) a rule of the commission;
(c) any lawful order of the commission; or
(d) the employer's own written workplace safety program.
Section 29. Section 49-15-102 is amended to read:
49-15-102. Definitions.
As used in this chapter:
(1) (a) "Compensation" means the total amount of payments that are includable in gross
income received by a public safety service employee as base income for the regularly scheduled
work period. The participating employer shall establish the regularly scheduled work period.
Base income shall be determined prior to the deduction of any amounts the public safety service
employee authorizes to be deducted for salary deferral or other benefits authorized by federal
law.
(b) "Compensation" includes performance-based bonuses and cost-of-living adjustments.
(c) "Compensation" does not include:
(i) overtime;
(ii) sick pay incentives;
(iii) retirement pay incentives;
(iv) the monetary value of remuneration paid in kind, as in a residence, use of equipment
or uniform, travel, or similar payments;
(v) a lump-sum payment or special payment covering accumulated leave; and
(vi) all contributions made by a participating employer under this system or under any
other employee benefit system or plan maintained by a participating employer for the benefit of a
member or participant.
(d) "Compensation" for purposes of this chapter may not exceed the amount allowed
under Internal Revenue Code Section 401(a)(17).
(2) "Final average salary" means the amount computed by averaging the highest three
years of annual compensation preceding retirement subject to Subsections (2)(a) and (b).
(a) Except as provided in Subsection (2)(b), the percentage increase in annual
compensation in any one of the years used may not exceed the previous year's compensation by
more than 10% plus a cost-of-living adjustment equal to the decrease in the purchasing power of
the dollar during the previous year, as measured by a United States Bureau of Labor Statistics
Consumer Price Index average as determined by the board.
(b) In cases where the participating employer provides acceptable documentation to the
office, the limitation in Subsection [
(i) the public safety service employee has transferred from another agency; or
(ii) the public safety service employee has been promoted to a new position.
(3) "Line-of-duty death" means a death resulting from external force, violence, or disease
occasioned by an act of duty as a public safety service employee.
(4) "Participating employer" means an employer which meets the participation
requirements of Section 49-15-201 .
(5) (a) "Public safety service" means at least 2,080 hours of regularly scheduled
compensated employment per year rendered by a member who is a:
(i) law enforcement officer in accordance with Section 53-13-103 ;
(ii) correctional officer in accordance with Section 53-13-104 ; and
(iii) special function officer approved in accordance with [
49-15-201 and [
(b) "Public safety service" also requires that in the course of employment the employee's
life or personal safety is at risk.
(6) "Public safety service employee" means an employee of a participating employer who
performs public safety service under this chapter.
(7) "System" means the Public Safety Noncontributory Retirement System created under
this chapter.
(8) "Years of service credit" means the number of periods, each to consist of 12 full
months as determined by the board, whether consecutive or not, during which a public safety
service employee was employed by a participating employer, including time the public safety
service employee was absent in the service of the United States government on military duty.
Section 30. Section 49-21-102 is amended to read:
49-21-102. Definitions.
As used in this chapter:
(1) "Date of disability" means the date on which a period of continuous disability
commences, and may not commence on or before the last day of actual work.
(2) "Elimination period" means the three months at the beginning of each continuous
period of total disability for which no benefit will be paid and commences with the date of
disability.
(3) (a) "Eligible employee" means:
(i) any regular full-time employee as defined under Section 49-12-102 or 49-13-102 ,
public safety service employee as defined under Section 49-14-102 or 49-15-102 , or judge as
defined under Section 49-17-102 or 49-18-102 , whose employer provides coverage under this
chapter, or the governor of the state; and
(ii) an employee who is covered by a retirement program offered by the Teachers'
Insurance and Annuity Association of America, if the employee's employer provides coverage
under this chapter; and
(b) "Eligible employee" does not include any employee that is exempt from coverage
under Section 49-21-201 .
(4) "Maximum benefit period" means the maximum period of time the monthly disability
income benefit will be paid under Section 49-21-403 for any continuous period of total disability.
(5) "Monthly disability benefit" means the monthly payments and accrual of service
credit under Section 49-21-401 and health insurance reimbursements paid under Section
[
(6) "Objective medical impairment" means an impairment resulting from an injury or
illness which is diagnosed by a physician and which is based on accepted objective medical tests
or findings rather than subjective complaints.
(7) "Physician" means a licensed physician.
(8) "Regular monthly salary" means the amount certified by the participating employer as
the monthly salary of the eligible employee, unless there is a discrepancy between the certified
amount and the amount actually paid, in which case the office shall determine the regular
monthly salary.
(9) "Regular occupation" means either the primary duties performed by the eligible
employee for the twelve months preceding the date of disability, or a permanent assignment of
duty to the eligible employee.
(10) "Rehabilitative employment" means any occupation or employment for wage or
profit, for which the eligible employee is reasonably qualified to perform based on education,
training, or experience while unable to perform the employee's regular occupation.
(11) (a) "Total disability" or "totally disabled" means the complete inability, due to
objective medical impairment, whether physical or mental, to engage in the eligible employee's
regular occupation during the elimination period and the first 24 months of disability benefits.
(b) "Total disability" means, after the elimination period and the first 24 months of
disability benefits, the complete inability, based solely on physical objective medical impairment,
to engage in any gainful occupation which is reasonable, considering the eligible employee's
education, training, and experience.
Section 31. Section 53-1-106 is amended to read:
53-1-106. Department duties -- Powers.
(1) In addition to the responsibilities contained in this title, the department shall:
(a) make rules and perform the functions specified in Title 41, Chapter 6, Traffic Rules
and Regulations, including:
(i) setting performance standards for towing companies to be used by the department, as
required by Section 41-6-102.5 ; and
(ii) advising the Department of Transportation regarding the safe design and operation of
school buses, as required by Section 41-6-115 ;
(b) make rules to establish and clarify standards pertaining to the curriculum and
teaching methods of a motor vehicle accident prevention course under Section 31A-19a-211 ;
(c) aid in enforcement efforts to combat drug trafficking [
[
[
establish priorities, and develop funding mechanisms for dispatch and telecommunications
operations, as required by Section 63A-6-107 ;
[
Office in conducting research or monitoring victims' programs, as required by Section
63-25a-405 ;
[
Hospital Association;
[
procedure and rulemaking necessary for implementation of the federal Emergency Planning and
Community Right to Know Act of 1986, as required by Section 63-5-5 ;
[
Assistance Compact; and
[
license or state identification card status check made by a law enforcement officer:
(A) the agency employing the law enforcement officer;
(B) the name of the law enforcement officer or the identifying number the agency has
assigned to the law enforcement officer;
(C) the race and gender of the law enforcement officer;
(D) the purpose of the law enforcement officer's status check, including but not limited to
a traffic stop or a pedestrian stop; and
(E) the race of the individual regarding whom the status check is made, based on the
information provided through the application process under Section 53-3-205 or 53-3-804 ;
(ii) provide access to the database created in Subsection (1)[
on Criminal and Juvenile Justice for the purpose of:
(A) evaluating the data;
(B) evaluating the effectiveness of the data collection process; and
(C) reporting and making recommendations to the Legislature; and
(iii) classify any personal identifying information of any individual, including law
enforcement officers, in the database as protected records under Subsection 63-2-304 (9).
(2) (a) The department may establish a schedule of fees as required or allowed in this
title for services provided by the department.
(b) The fees shall be established in accordance with Section 63-38-3.2 .
Section 32. Section 53-3-218 is amended to read:
53-3-218. Court to report convictions and may recommend suspension of license --
Severity of speeding violation defined.
(1) As used in this section:
(a) "conviction" means conviction by the court of first impression or final administrative
determination in an administrative traffic proceeding; and
(b) "court" includes an administrative traffic proceeding [
(2) (a) A court having jurisdiction over offenses committed under this chapter or any
other law of this state, or under any municipal ordinance regulating driving motor vehicles on
highways or driving motorboats on the water, shall forward to the division within ten days, an
abstract of the court record of the conviction or plea held in abeyance of any person in the court
for a reportable traffic or motorboating violation of any laws or ordinances, and may recommend
the suspension of the license of the person convicted.
(b) When the division receives a court record of a conviction or plea in abeyance for a
motorboat violation, the division may only take action against a person's driver license if the
motorboat violation is for a violation of Title 41, Chapter 6, Article 5, Driving While Intoxicated
and Reckless Driving.
(3) The abstract shall be made in the form prescribed by the division and shall include:
(a) the name and address of the party charged;
(b) the number of his license certificate, if any;
(c) the registration number of the motor vehicle or motorboat involved;
(d) whether the motor vehicle was a commercial motor vehicle;
(e) whether the motor vehicle carried hazardous materials;
(f) the nature of the offense;
(g) the date of the hearing;
(h) the plea;
(i) the judgment or whether bail was forfeited; and
(j) the severity of the violation, which shall be graded by the court as "minimum,"
"intermediate," or "maximum" as established in accordance with Subsection 53-3-221 (4).
(4) When a convicted person secures a judgment of acquittal or reversal in any appellate
court after conviction in the court of first impression, the division shall reinstate his license
immediately upon receipt of a certified copy of the judgment of acquittal or reversal.
Section 33. Section 53-3-402 is amended to read:
53-3-402. Definitions.
As used in this part:
(1) "Alcohol" means any substance containing any form of alcohol, including ethanol,
methanol, propanol, and isopropanol.
(2) "Alcohol concentration" means the number of grams of alcohol per:
(a) 100 milliliters of blood;
(b) 210 liters of breath; or
(c) 67 milliliters of urine.
(3) "Commercial driver instruction permit" or "CDIP" means a permit issued under
Section 53-3-408 .
(4) "Commercial driver license information system" or "CDLIS" means the information
system established under Title XII, Pub. L. 99-570, the Commercial Motor Vehicle Safety Act
of 1986, as a clearinghouse for information related to the licensing and identification of
commercial motor vehicle drivers.
(5) "Controlled substance" means any substance so classified under Section 102(6) of the
Controlled Substance Act, 21 U.S.C. 802(6), and includes all substances listed on the current
Schedules I through V of 21 C.F.R., Part 1308 as they may be revised from time to time.
(6) "Employee" means any driver of a commercial motor vehicle, including:
(a) full-time, regularly employed drivers;
(b) casual, intermittent, or occasional drivers;
(c) leased drivers; and
(d) independent, owner-operator contractors while in the course of driving a commercial
motor vehicle who are either directly employed by or under lease to an employer.
(7) "Employer" means any individual or person including the United States, a state, or a
political subdivision of a state, who owns or leases a commercial motor vehicle, or assigns an
individual to drive a commercial motor vehicle.
(8) "Felony" means any offense under state or federal law that is punishable by death or
imprisonment for a term of more than one year.
(9) "Foreign jurisdiction" means any jurisdiction other than the United States or a state of
the United States.
(10) "Gross vehicle weight rating" or "GVWR" means the value specified by the
manufacturer as the maximum loaded weight of a single vehicle or GVWR of a combination or
articulated vehicle, and includes the GVWR of the power unit plus the total weight of all towed
units and the loads on those units.
(11) "Hazardous material" has the same meaning as defined under [
[
(12) "NDR" means the National Driver Register.
(13) "Nonresident CDL" means a commercial driver license issued by a state to an
individual who resides in a foreign jurisdiction.
(14) "Out-of-service order" means a temporary prohibition against driving a commercial
motor vehicle.
(15) "Port-of-entry agent" has the same meaning as provided in Section 72-1-102 .
(16) "Serious traffic violation" means a conviction of any of the following:
(a) speeding 15 or more miles per hour above the posted speed limit;
(b) reckless driving as defined by state or local law;
(c) improper or erratic traffic lane changes;
(d) following the vehicle ahead too closely;
(e) any other motor vehicle traffic law which arises in connection with a fatal traffic
accident;
(f) all other violations under Section 53-3-220 for which mandatory suspension or
revocation are required.
(17) "State" means a state of the United States, the District of Columbia, any province or
territory of Canada, or Mexico.
(18) "United States" means the 50 states and the District of Columbia.
Section 34. Section 53-3-805 is amended to read:
53-3-805. Identification card -- Contents -- Specifications.
(1) The division shall issue an identification card that:
(a) provides all the information contained in the application, other than the applicant's:
(i) Social Security number, except as provided in Subsection (3); and
(ii) place of birth;
(b) contains a photograph of the applicant; and
(c) contains a facsimile of the applicant's signature.
(2) (a) The card shall be of an impervious material, resistant to wear, damage, and
alteration.
(b) The size, form, and color of the card is prescribed by the commissioner.
(3) At the applicant's request, the card may include any of the following:
(a) a statement that the applicant has a special medical problem or allergies to certain
drugs, for the purpose of medical treatment; and
(b) the applicant's Social Security number.
(4) (a) The indication of intent under Subsection 53-3-804 (2)[
authenticated by the applicant in accordance with division rule.
(b) (i) Notwithstanding Title 63, Chapter 2, Government Records Access and
Management Act, the division may, upon request, release to an organ procurement organization,
as defined in Section 26-28-2 , the names and addresses of all persons who under Subsection
53-3-804 (2)[
(ii) An organ procurement organization may use released information only to:
(A) obtain additional information for an anatomical gift registry; and
(B) inform applicants of anatomical gift options, procedures, and benefits.
(5) The division and its employees are not liable, as a result of false or inaccurate
information provided under Subsection 53-3-804 (2)[
(a) loss;
(b) detriment; or
(c) injury.
Section 35. Section 53-8-213 is amended to read:
53-8-213. Special function officer status for certain employees -- Retirement
provisions.
(1) The commissioner may designate an employee of the Utah Highway Patrol Division
as a special function officer, as defined in Section 53-13-105 , for the purpose of enforcing all
laws relating to vehicle parts and equipment, including the provisions of this part and Title 41,
Chapter 6, Article 16, Equipment.
(2) Notwithstanding Section [
under this section may not become or be designated as a member of the Public Safety Retirement
Systems.
Section 36. Section 53A-1a-601 is amended to read:
53A-1a-601. Job enhancements for technology training.
(1) In conjunction with the Engineering and Computer Science Initiative provided for in
Section 53B-6-105 , there is established a Public Education Job Enhancement Program to attract,
train, and retain highly qualified secondary teachers in mathematics, physics, chemistry, physical
science, learning technology, and information technology.
(2) The program shall provide for the following:
(a) application by a school district superintendent or the principal of a secondary school
on behalf of a qualified teacher;
(b) an award of up to $20,000 or a scholarship to cover the tuition costs for a master's
degree, an endorsement, or graduate education in the areas identified in Subsection (1) to be
given to selected public school teachers on a competitive basis:
(i) whose applications are approved under Subsection 53A-1a-602 (4); and
(ii) who teach at the secondary level in the state's public education system for four years
in the areas identified in Subsection (1);
(c) (i) as to the cash awards under Subsection (2)(b), payment of the award in two
installments, with an initial payment of up to $10,000 at the beginning of the term and up to
$10,000 at the conclusion of the term;
(ii) repayment of a portion of the initial payment by the teacher if the teacher fails to
complete two years of the four-year teaching term in the areas identified in Subsection (1) as
provided by rule of the State Board of Education in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act, unless waived for good cause by the Job Enhancement
Committee created in Section 53A-1a-602 ; and
(iii) nonpayment of the second installment if the teacher fails to complete the four-year
teaching term; and
(d) (i) as to the scholarships awarded under Subsection (2)(b), provision for the
providing institution to certify adequate performance in obtaining the master's degree,
endorsement, or graduate education in order for the teacher to maintain the scholarship; and
(ii) repayment by the teacher of a prorated portion of the scholarship, if the teacher fails
to teach in the state system of public education in the areas identified in Subsection (1) for four
years after obtaining the master's degree, the endorsement, or graduate education.
(3) An individual teaching in the public schools under a letter of authorization may
participate in the cash award program if:
(a) the individual has taught under the letter of authorization for at least one year in the
areas referred to in Subsection (1); and
(b) the application made under Subsection (2)(a) is based in large part upon the
individual receiving a superior evaluation as a classroom teacher.
(4) (a) The program may provide for the expenditure of up to $1,000,000 of available
monies, if at least an equal amount of matching monies become available, to provide professional
development training to superintendents, administrators, and principals in the effective use of
technology in public schools.
(b) An award granted under this Subsection (4) shall be made in accordance with criteria
developed and adopted by the Job Enhancement Committee created in Section [
53A-1a-602 .
(c) An amount up to $120,000 of the $1,000,000 authorized in Subsection (4)(a) may be
expended, regardless of the matching monies being available.
Section 37. Section 54-15-106 is amended to read:
54-15-106. Customer to provide equipment necessary to meet applicable code
requirements -- Commission may adopt additional requirements -- Testing and inspection
of interconnection.
(1) Each customer participating in a net metering program shall provide at the customer's
expense all equipment necessary to meet applicable local and national standards regarding
electrical and fire safety, power quality, and interconnection requirements established by the
National Electrical Code, the National Electrical Safety Code, the Institute of Electrical and
Electronics Engineers, and Underwriters Laboratories.
(2) After appropriate notice and opportunity for comment, the commission may by
[
customer generation systems that the commission considers to be necessary to protect public
safety and system reliability.
(3) (a) If a customer participating in a net metering program complies with requirements
referred to under Subsection (1) and additional requirements established under Subsection (2), an
electrical corporation may not require that customer to:
(i) perform or pay for additional tests; or
(ii) purchase additional liability insurance.
(b) An electrical corporation may not be held directly or indirectly liable for permitting
or continuing to permit an interconnection of a customer generation system to the electrical
corporation's system or for an act or omission of a customer participating in a net metering
program for loss, injury, or death to a third party.
(4) An electrical corporation may test and inspect an interconnection at times that the
electrical corporation considers necessary to ensure the safety of electrical workers and to
preserve the integrity of the electric power grid.
Section 38. Section 58-13-4 is amended to read:
58-13-4. Liability immunity for health care providers on committees -- Evaluating
and approving medical care.
(1) As used in this section, "health care provider" has the same meaning as in Section
78-14-3 .
(2) Health care providers serving in the following capacities and the organizations or
entities sponsoring these activities are immune from liability with respect to deliberations,
decisions, or determinations made or information furnished in good faith and without malice:
(a) serving on committees[
(i) established to determine if hospitals and long-term care facilities are being used
properly;
(ii) established to evaluate and improve the quality of health care or determine whether
provided health care was necessary, appropriate, properly performed, or provided at a reasonable
cost;
(iii) functioning under Pub. L. No. 89-97 or as professional standards review
organizations under Pub. L. No. 92-603;
(iv) that are ethical standards review committees; or
(v) that are similar to committees listed in this Subsection (2) and that are established by
any hospital, professional association, the Utah Medical Association, or one of its component
medical societies to evaluate or review the diagnosis or treatment of, or the performance of
health or hospital services to, patients within this state;
(b) members of licensing boards established under Title 58, Occupations and
Professions, to license and regulate health care providers; and
(c) health care providers or other persons furnishing information to those committees, as
required by law, voluntarily, or upon official request.
(3) This section does not relieve any health care provider from liability incurred in
providing professional care and treatment to any patient.
(4) Health care providers serving on committees or providing information described in
this section are presumed to have acted in good faith and without malice, absent clear and
convincing evidence to the contrary.
Section 39. Section 58-31b-202 is amended to read:
58-31b-202. Prescriptive Practice Peer Committee.
(1) (a) There is created under Subsection 58-1-203 [
Peer Committee.
(b) The Prescriptive Practice Peer Committee shall:
(i) advise the board of nursing regarding prescriptive practice issues;
(ii) periodically audit and review the prescribing records of advanced practice registered
nurses located on the Controlled Substance Data Bank on a schedule established by rule;
(iii) recommend the scope of prescriptive practice authority of advanced practice
registered nurses consistent with this chapter and with professionally accepted therapies and
treatments;
(iv) periodically review the current consultation and referral plans prepared in
accordance with Subsection 58-31b-102 (16)(c)(iii) and evaluate compliance with the proposed
plans; and
(v) recommend disciplinary action.
(c) The composition of this committee shall be:
(i) two individuals who are licensed as advanced practice registered nurses who prescribe
within their practice and possess a controlled substance license;
(ii) two individuals licensed as physicians and surgeons or osteopathic physicians and
surgeons; and
(iii) one individual who is a pharmacologist.
(2) The division, in collaboration with the board, may create other peer committees to the
Board of Nursing pursuant to Subsection 58-1-203 [
board regarding licensure, practice, and education issues.
Section 40. Section 58-37-2 is amended to read:
58-37-2. Definitions.
(1) As used in this chapter:
(a) "Administer" means the direct application of a controlled substance, whether by
injection, inhalation, ingestion, or any other means, to the body of a patient or research subject
by:
(i) a practitioner or, in his presence, by his authorized agent; or
(ii) the patient or research subject at the direction and in the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of or at the direction of a
manufacturer, distributor, or practitioner but does not include a motor carrier, public
warehouseman, or employee of any of them.
(c) "Continuing criminal enterprise" means any individual, sole proprietorship,
partnership, corporation, business trust, association, or other legal entity, and any union or groups
of individuals associated in fact although not a legal entity, and includes illicit as well as licit
entities created or maintained for the purpose of engaging in conduct which constitutes the
commission of episodes of activity made unlawful by Title 58, Chapters 37, 37a, 37b, 37c, or
37d, which episodes are not isolated, but have the same or similar purposes, results, participants,
victims, methods of commission, or otherwise are interrelated by distinguishing characteristics.
Taken together, the episodes shall demonstrate continuing unlawful conduct and be related either
to each other or to the enterprise.
(d) "Control" means to add, remove, or change the placement of a drug, substance, or
immediate precursor under Section 58-37-3 .
(e) (i) "Controlled substance" means a drug or substance included in Schedules I, II, III,
IV, or V of Section 58-37-4 , and also includes a drug or substance included in Schedules I, II, III,
IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled
substance analog.
(ii) "Controlled substance" does not include:
(A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title
32A, regarding tobacco or food;
(B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
or furnished as an over-the-counter medication without prescription; or
(C) dietary supplements, vitamins, minerals, herbs, or other similar substances including
concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(f) (i) "Controlled substance analog" means a substance the chemical structure of which
is substantially similar to the chemical structure of a controlled substance listed in Schedules I
and II of Section 58-37-4 , or in Schedules I and II of the federal Controlled Substances Act, Title
II, P.L. 91-513:
(A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central
nervous system of controlled substances in the schedules set forth in this subsection; or
(B) which, with respect to a particular individual, is represented or intended to have a
stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar
to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled
substances in the schedules set forth in this subsection.
(ii) Controlled substance analog does not include:
(A) a controlled substance currently scheduled in Schedules I through V of Section
58-37-4 ;
(B) a substance for which there is an approved new drug application;
(C) a substance with respect to which an exemption is in effect for investigational use by
a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 366, to the
extent the conduct with respect to the substance is permitted by the exemption; or
(D) any substance to the extent not intended for human consumption before an
exemption takes effect with respect to the substance.
(E) Any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
or furnished as an over-the-counter medication without prescription.
(F) Dietary supplements, vitamins, minerals, herbs, or other similar substances including
concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(g) "Conviction" means a determination of guilt by verdict, whether jury or bench, or
plea, whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a, 37b,
37c, or 37d, or for any offense under the laws of the United States and any other state which, if
committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b, 37c, or 37d.
(h) "Counterfeit substance" means:
(i) any substance or container or labeling of any substance that without authorization
bears the trademark, trade name, or other identifying mark, imprint, number, device, or any
likeness of them, of a manufacturer, distributor, or dispenser other than the person or persons
who in fact manufactured, distributed, or dispensed the substance which falsely purports to be a
controlled substance distributed by, any other manufacturer, distributor, or dispenser; or
(ii) any substance that is represented to be a controlled substance.
(i) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a
controlled substance or a listed chemical, whether or not an agency relationship exists.
(j) "Department" means the Department of Commerce.
(k) "Depressant or stimulant substance" means:
(i) a drug which contains any quantity of[
barbituric acid; [
[
(ii) a drug which contains any quantity of:
(A) amphetamine or any of its optical isomers;
(B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
(C) any substance which the Secretary of Health and Human Services or the Attorney
General of the United States after investigation has found and by regulation designated
habit-forming because of its stimulant effect on the central nervous system; or
(iii) lysergic acid diethylamide; or
(iv) any drug which contains any quantity of a substance which the Secretary of Health
and Human Services or the Attorney General of the United States after investigation has found to
have, and by regulation designated as having, a potential for abuse because of its depressant or
stimulant effect on the central nervous system or its hallucinogenic effect.
(l) "Dispense" means the delivery of a controlled substance by a pharmacist to an
ultimate user pursuant to the lawful order or prescription of a practitioner, and includes
distributing to, leaving with, giving away, or disposing of that substance as well as the
packaging, labeling, or compounding necessary to prepare the substance for delivery.
(m) "Dispenser" means a pharmacist who dispenses a controlled substance.
(n) "Distribute" means to deliver other than by administering or dispensing a controlled
substance or a listed chemical.
(o) "Distributor" means a person who distributes controlled substances.
(p) "Drug" means:
(i) articles recognized in the official United States Pharmacopoeia, Official Homeopathic
Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of
them;
(ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
disease in man or other animals;
(iii) articles, other than food, intended to affect the structure or function of man or other
animals; and
(iv) articles intended for use as a component of any articles specified in Subsection (i),
(ii), or (iii); but does not include devices or their components, parts, or accessories.
(q) "Drug dependent person" means any individual who unlawfully and habitually uses
any controlled substance to endanger the public morals, health, safety, or welfare, or who is so
dependent upon the use of controlled substances as to have lost the power of self-control with
reference to his dependency.
(r) "Food" means:
(i) any nutrient or substance of plant, mineral, or animal origin other than a drug as
specified in this chapter, and normally ingested by human beings; and
(ii) foods for special dietary uses as exist by reason of a physical, physiological,
pathological, or other condition including but not limited to the conditions of disease,
convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and
overweight; uses for supplying a particular dietary need which exist by reason of age including
but not limited to the ages of infancy and childbirth, and also uses for supplementing and for
fortifying the ordinary or unusual diet with any vitamin, mineral, or other dietary property for use
of a food. Any particular use of a food is a special dietary use regardless of the nutritional
purposes.
(s) "Immediate precursor" means a substance which the Attorney General of the United
States has found to be, and by regulation designated as being, the principal compound used or
produced primarily for use in the manufacture of a controlled substance, or which is an
immediate chemical intermediary used or likely to be used in the manufacture of a controlled
substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the
controlled substance.
(t) "Manufacture" means the production, preparation, propagation, compounding, or
processing of a controlled substance, either directly or indirectly by extraction from substances of
natural origin, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis.
(u) "Manufacturer" includes any person who packages, repackages, or labels any
container of any controlled substance, except pharmacists who dispense or compound
prescription orders for delivery to the ultimate consumer.
(v) "Marijuana" means all species of the genus cannabis and all parts of the genus,
whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or
cake made from the seeds of the plant, any other compound, manufacture, salt, derivative,
mixture, or preparation of the mature stalks, except the resin extracted from them, fiber, oil or
cake, or the sterilized seed of the plant which is incapable of germination. Any synthetic
equivalents of the substances contained in the plant cannabis sativa or any other species of the
genus cannabis which are chemically indistinguishable and pharmacologically active are also
included.
(w) "Money" means officially issued coin and currency of the United States or any
foreign country.
(x) "Narcotic drug" means any of the following, whether produced directly or indirectly
by extraction from substances of vegetable origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical synthesis:
(i) opium, coca leaves, and opiates;
(ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or
opiates;
(iii) opium poppy and poppy straw; or
(iv) a substance, and any compound, manufacture, salt, derivative, or preparation of the
substance, which is chemically identical with any of the substances referred to in Subsection (i),
(ii), or (iii), except narcotic drug does not include decocainized coca leaves or extracts of coca
leaves which do not contain cocaine or ecgonine.
(y) "Negotiable instrument" means documents, containing an unconditional promise to
pay a sum of money, which are legally transferable to another party by endorsement or delivery.
(z) "Opiate" means any drug or other substance having an addiction-forming or
addiction-sustaining liability similar to morphine or being capable of conversion into a drug
having addiction-forming or addiction-sustaining liability.
(aa) "Opium poppy" means the plant of the species papaver somniferum L., except the
seeds of the plant.
(bb) "Person" means any corporation, association, partnership, trust, other institution or
entity or one or more individuals.
(cc) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(dd) "Possession" or "use" means the joint or individual ownership, control, occupancy,
holding, retaining, belonging, maintaining, or the application, inhalation, swallowing, injection,
or consumption, as distinguished from distribution, of controlled substances and includes
individual, joint, or group possession or use of controlled substances. For a person to be a
possessor or user of a controlled substance, it is not required that he be shown to have
individually possessed, used, or controlled the substance, but it is sufficient if it is shown that the
person jointly participated with one or more persons in the use, possession, or control of any
substances with knowledge that the activity was occurring, or the controlled substance is found in
a place or under circumstances indicating that the person had the ability and the intent to exercise
dominion and control over it.
(ee) "Practitioner" means a physician, dentist, veterinarian, pharmacist, scientific
investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to
distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical
analysis a controlled substance in the course of professional practice or research in this state.
(ff) "Prescribe" means to issue a prescription orally or in writing.
(gg) "Prescription" means an order issued by a licensed practitioner, in the course of that
practitioner's professional practice, for a controlled substance, other drug, or device which it
dispenses or administers for use by a patient or an animal. The order may be issued by word of
mouth, written document, telephone, facsimile transmission, computer, or other electronic means
of communication as defined by rule.
(hh) "Production" means the manufacture, planting, cultivation, growing, or harvesting
of a controlled substance.
(ii) "Securities" means any stocks, bonds, notes, or other evidences of debt or of
property.
(jj) "State" means the state of Utah.
(kk) "Ultimate user" means any person who lawfully possesses a controlled substance for
his own use, for the use of a member of his household, or for administration to an animal owned
by him or a member of his household.
(2) If a term used in this chapter is not defined, the definition and terms of Title 76, Utah
Criminal Code, shall apply.
Section 41. Section 58-57-2 is amended to read:
58-57-2. Definitions.
In addition to the definitions in Section 58-1-102 , as used in this chapter:
(1) "Board" means the Respiratory Care Licensing Board created in Section 58-57-3 .
(2) "Health care facility" means any facility or institution in which health care services
are performed or furnished and includes a hospital, clinic, or emergency care center.
(3) "Physician" means a person licensed to practice medicine under Title 58, Chapter [
(4) "Practice of respiratory care" means the treatment, operation of equipment,
management, diagnostic testing, and care of any human disease, deficiency, pain, injury, or other
physical condition associated with the cardiopulmonary system under the qualified medical
direction or supervision of a physician who has training and knowledge in the diagnosis,
treatment, and assessment of respiratory problems. "Practice of respiratory care" includes:
(a) accepting and carrying out a licensed physician's written, verbal, or telephonic
prescription or order specifically relating to respiratory care in a hospital or other health care
setting and includes consultation with licensed nurses, as appropriate;
(b) administering respiratory care during transportation of a patient and under other
circumstances where an emergency requires immediate respiratory care;
(c) serving as a resource to other health care professionals and hospital administrators in
relation to the technical aspects of, and the safe and effective methods for, administering
respiratory care;
(d) functioning in situations of patient contact requiring individual judgment in
administering respiratory care under the general supervision of a qualified physician; and
(e) supervising, directing, or teaching personnel in the performance of respiratory care
modalities as part of a respiratory care education program.
(5) "Respiratory care practitioner" means any person licensed to practice respiratory care
under this chapter.
(6) "Unprofessional conduct" as defined in Section 58-1-501 and as may be further
defined by rule includes:
(a) acting contrary to the instructions of the physician responsible for supervising the
licensee;
(b) knowingly operating any respiratory care equipment that is unsafe or not in
compliance with standards of condition or operation consistent with the patient's safety;
(c) permitting any person to operate respiratory care equipment who is not competent or
not allowed to operate the equipment;
(d) revealing to any unauthorized person confidential or privileged information about a
patient;
(e) using any controlled substance, unless the controlled substance is prescribed by a
physician and used in accordance with the physician's instructions; and
(f) making any statement that is incorrect due to negligence, willfulness, or intent to
provide false information or entry on any patient record or other record that is used for payment
of respiratory care services.
Section 42. Section 58-59-501 is amended to read:
58-59-501. Unlawful conduct.
Unlawful conduct includes:
(1) engaging in practice as a professional employer organization without a license;
(2) offering an employee a self-funded medical program, unless:
(a) the program provides its benefits under an employee benefit plan that complies with
29 U.S.C. Sec. [
(b) the program is maintained for the sole benefit of participating coemployees;
(3) misrepresenting that any self-funded medical program it offers is other than
self-funded;
(4) offering to its employees any self-funded or partially self-funded medical plan
without delivering to each plan participant a summary plan description that accurately describes
terms of the plan, including disclosure that the plan is self-funded or partially self-funded;
(5) providing coemployees to any client company under any provision, term, or condition
that is not contained in a clearly written agreement between the professional employer
organization and client company;
(6) any willful, fraudulent, or deceitful act by a licensee, caused by a licensee, or at a
licensee's direction, that causes material injury to a client company or coemployee of a client
company;
(7) failing to maintain or ensure that client companies maintain in full force and effect
required workers' compensation insurance on all coemployees in accordance with Utah law
pursuant to Section 34A-2-103;
(8) failing to pay in a timely manner any federal or state income tax withholding, FICA,
unemployment tax, employee insurance benefit premium, workers' compensation premium, or
other obligation due and payable directly as a result of engaging in business as a professional
employer organization; and
(9) failing to comply with federal law regarding any employee benefit offered to an
employee.
Section 43. Section 58-60-507 is amended to read:
58-60-507. Qualifications for admission to examination.
All applicants for admission to any examination qualifying an individual for licensure
under this part shall:
(1) submit an application on a form provided by the division;
(2) pay the fee established for the examination; and
(3) certify under penalty of perjury as evidenced by notarized signature on the application
for admission to the examination that the applicant has completed the education or experience
requirements, or both, as required under Section [
Section 44. Section 58-60-509 is amended to read:
58-60-509. Confidentiality -- Exemptions.
(1) A licensed substance abuse counselor under this part may not disclose any
confidential communication with a client or patient without the express consent of:
(a) the client or patient;
(b) the parent or legal guardian of a minor client or patient; or
(c) the authorized agent of a client or patient.
(2) A licensed substance abuse counselor under this part is not subject to Subsection (1)
if:
(a) he is permitted or required by state or federal law, rule, regulation, or order to report
or disclose any confidential communication, including:
(i) reporting under Title 62A, Chapter 4a, Part [
Requirements;
(ii) reporting under Title 62A, Chapter 3, Part 3, Abuse, Neglect, or Exploitation of
Disabled Adult;
(iii) reporting under Title 78, Chapter 14a, Limitation of Therapist's Duty to Warn; and
(iv) reporting of a communicable disease as required under Section 26-6-6 ;
(b) the disclosure is part of an administrative, civil, or criminal proceeding and is made
under an exemption from evidentiary privilege under Rule 506, Utah Rules of Evidence; or
(c) the disclosure is made under a generally recognized professional or ethical standard
that authorizes or requires the disclosure.
Section 45. Section 58-61-602 is amended to read:
58-61-602. Confidentiality -- Exemptions.
(1) A psychologist under this chapter may not disclose any confidential communication
with a client or patient without the express consent of:
(a) the client or patient;
(b) the parent or legal guardian of a minor client or patient; or
(c) the authorized agent of a client or patient.
(2) A psychologist under this chapter is not subject to Subsection (1) if:
(a) he is permitted or required by state or federal law, rule, regulation, or order to report
or disclose any confidential communication, including:
(i) reporting under Title 62A, Chapter [
Reporting Requirements;
(ii) reporting under Title 62A, Chapter 3, Part 3, Abuse, Neglect, or Exploitation of
Disabled Adult;
(iii) reporting under Title 78, Chapter 14a, Limitation of Therapist's Duty to Warn;
(iv) reporting of a communicable disease as required under Section 26-6-6 ;
(b) the disclosure is part of an administrative, civil, or criminal proceeding and is made
under an exemption from evidentiary privilege under Rule 506, Utah Rules of Evidence; or
(c) the disclosure is made under a generally recognized professional or ethical standard
that authorizes or requires the disclosure.
Section 46. Section 58-71-102 is amended to read:
58-71-102. Definitions.
In addition to the definitions in Section 58-1-102 , as used in this chapter:
(1) "Administrative penalty" means a monetary fine imposed by the division for acts or
omissions determined to constitute unprofessional or unlawful conduct, as a result of an
adjudicative proceeding conducted in accordance with Title 63, Chapter 46b, [
Administrative Procedures Act.
(2) "Acupuncture" has the same definition as in Section 58-72-102 .
(3) "Board" means the Naturopathic Physicians Licensing Board created in Section
58-71-201 .
(4) "Diagnose" means:
(a) to examine in any manner another person, parts of a person's body, substances, fluids,
or materials excreted, taken, or removed from a person's body, or produced by a person's body, to
determine the source, nature, kind, or extent of a disease or other physical or mental condition;
(b) to attempt to conduct an examination or determination described under Subsection
(4)(a); or
(c) to hold oneself out as making or to represent that one is making an examination or
determination as described in Subsection (4)(a); or
(d) to make an examination or determination as described in Subsection (4)(a) upon or
from information supplied directly or indirectly by another person, whether or not in the presence
of the person making or attempting the diagnosis or examination.
(5) "Local anesthesia" means an agent, whether a natural medicine or prescription drug,
which:
(a) is applied topically or by injection in superficial tissues associated with the
performance of minor office procedures;
(b) has the ability to produce loss of sensation at the site of minor office procedures; and
(c) does not cause loss of consciousness or produce general sedation.
(6) "Medical naturopathic assistant" means an unlicensed individual working under the
direct and immediate supervision of a licensed naturopathic physician and engaged in specific
tasks assigned by the licensed naturopathic physician in accordance with the standards and ethics
of the profession.
(7) (a) "Minor office procedures" means:
(i) the use of operative, electrical, or other methods for repair and care of superficial
lacerations, abrasions, and benign lesions;
(ii) removal of foreign bodies located in the superficial tissues, excluding the eye or ear;
and
(iii) the use of antiseptics and local anesthetics in connection with minor office surgical
procedures; and
(b) "Minor office procedures" does not include:
(i) general or spinal anesthesia;
(ii) office procedures more complicated or extensive than those set forth in Subsection
(7)(a);
(iii) procedures involving the eye; or
(iv) any office procedure involving tendons, nerves, veins, or arteries.
(8) "Natural medicine" means:
(a) food, food extracts, dietary supplements as defined by the federal Food, Drug, and
Cosmetics Act, all homeopathic remedies, and plant substances that are not designated as
prescription drugs or controlled substances;
(b) over-the-counter medications;
(c) other non-prescription substances, the prescription or administration of which is not
otherwise prohibited or restricted under federal or state law; and
(d) prescription drugs:
(i) that are not controlled substances as defined in Section 58-37-2 ;
(ii) the prescription of which is consistent with the competent practice of naturopathic
medicine; and
(iii) the prescription of which is approved by the division in collaboration with the
naturopathic formulary advisory peer committee.
(9) (a) "Naturopathic childbirth" means uncomplicated natural childbirth assisted by a
naturopathic physician, and includes the use of:
(i) natural medicines; and
(ii) uncomplicated episiotomy.
(b) "Naturopathic childbirth" does not include the use of:
(i) forceps delivery;
(ii) general or spinal anesthesia;
(iii) caesarean section delivery; or
(iv) induced labor or abortion.
(10) "Naturopathic mobilization therapy":
(a) means manually administering mechanical treatment of body structures or tissues for
the purpose of restoring normal physiological function to the body by normalizing and balancing
the musculoskeletal system of the body;
(b) does not mean manipulation or adjustment of the joints of the human body beyond
the elastic barrier; and
(c) does not include manipulation as defined in Title 58, Chapter 73, [
Chiropractic Physician Practice Act.
(11) "Naturopathic physical medicine" means the use of the physical agents of air, water,
heat, cold, sound, light, and electromagnetic nonionizing radiation, and the physical modalities of
electrotherapy, biofeedback, acupuncture, diathermy, ultraviolet light, ultrasound, hydrotherapy,
naturopathic mobilization therapy, and exercise. Naturopathic medicine does not include the
practice of physical therapy or physical rehabilitation.
(12) "Practice of naturopathic medicine" means:
(a) a system of primary health care for the prevention, diagnosis, and treatment of human
health conditions, injuries, and diseases that uses education, natural medicines, and natural
therapies, to support and stimulate the patient's intrinsic self-healing processes:
(i) using naturopathic childbirth, but only if:
(A) the licensee meets standards of the American College of Naturopathic Obstetricians
(ACNO) or its successor as determined by the division in collaboration with the board; and
(B) the licensee follows a written plan for naturopathic physicians practicing
naturopathic childbirth approved by the division in collaboration with the board, which includes
entering into an agreement with a consulting physician and surgeon or osteopathic physician, in
cases where the scope of practice of naturopathic childbirth may be exceeded and specialty care
and delivery is indicated, detailing the guidelines by which the naturopathic physician will:
(I) refer patients to the consulting physician; and
(II) consult with the consulting physician;
(ii) using naturopathic mobilization therapy;
(iii) using naturopathic physical medicine;
(iv) using minor office procedures;
(v) prescribing or administering natural medicine;
(vi) prescribing medical equipment and devices, diagnosing by the use of medical
equipment and devices, and administering therapy or treatment by the use of medical devices
necessary and consistent with the competent practice of naturopathic medicine;
(vii) prescribing barrier devices for contraception;
(viii) using dietary therapy;
(ix) taking and using diagnostic x-rays, electrocardiograms, ultrasound, and physiological
function tests;
(x) taking of body fluids for clinical laboratory tests and using the results of the tests in
diagnosis;
(xi) taking of a history from and conducting of a physical examination upon a human
patient; and
(xii) prescribing and administering natural medicines and medical devices, except a
naturopathic physician may only administer:
(A) a prescription drug, as defined in Section 58-17a-102 , in accordance with Subsection
(8)(d); and
(B) local anesthesia that is not a controlled substance, and only in the performance of
minor office procedures;
(b) to maintain an office or place of business for the purpose of doing any of the acts
described in Subsection (12)(a), whether or not for compensation; or
(c) to use, in the conduct of any occupation or profession pertaining to the diagnosis or
treatment of human diseases or conditions, in any printed material, stationery, letterhead,
envelopes, signs, or advertisements, the designation "naturopathic physician," "naturopathic
doctor," "naturopath," "doctor of naturopathic medicine," "doctor of naturopathy," "naturopathic
medical doctor," "naturopathic medicine," "naturopathic health care," "naturopathy," "N.D.,"
"N.M.D.," or any combination of these designations in any manner that might cause a reasonable
person to believe the individual using the designation is a licensed naturopathic physician.
(13) "Prescription drug or device" means:
(a) a drug or device which, under federal law, is required to be labeled with either of the
following statements or their equivalent:
(i) "CAUTION: Federal law prohibits dispensing without prescription"; or
(ii) "CAUTION: Federal law restricts this drug to use by or on the order of a licensed
veterinarian"; or
(b) a drug or device that is required by any applicable federal or state law or rule to be
dispensed on prescription only or is restricted to use by practitioners only.
(14) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-71-501 .
(15) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-71-502 , and as
may be further defined by division rule.
Section 47. Section 58-71-302 is amended to read:
58-71-302. Qualifications for licensure.
(1) An applicant for licensure as a naturopathic physician, except as set forth in
[
(a) submit an application in a form prescribed by the division which may include:
(i) submissions by the applicant of information maintained by practitioner data banks, as
designated by division rule, with respect to the applicant; and
(ii) a record of professional liability claims made against the applicant and settlements
paid by or in behalf of the applicant;
(b) pay a fee determined by the department under Section 63-38-3.2 ;
(c) be of good moral character;
(d) provide satisfactory documentation of having successfully completed a program of
professional education preparing an individual as a naturopathic physician, as evidenced by
having received an earned degree of doctor of naturopathic medicine from:
(i) a naturopathic medical school or college accredited by the Council of Naturopathic
Medical Education or its successor organization approved by the division;
(ii) a naturopathic medical school or college that is a candidate for accreditation by the
Council of Naturopathic Medical Education or its successor organization, and is approved by the
division in collaboration with the board, upon a finding there is reasonable expectation the school
or college will be accredited; or
(iii) a naturopathic medical school or college which, at the time of the applicant's
graduation, met current criteria for accreditation by the Council of Naturopathic Medical
Education or its successor approved by the division;
(e) provide satisfactory documentation of having successfully completed, after successful
completion of the education requirements set forth in Subsection (1)(d), 12 months of clinical
experience in naturopathic medicine in a residency program recognized by the division and
associated with an accredited school or college of naturopathic medicine, and under the
preceptorship of a licensed naturopathic physician, physician and surgeon, or osteopathic
physician;
(f) pass the licensing examination sequence required by division rule established in
collaboration with the board;
(g) be able to read, write, speak, understand, and be understood in the English language
and demonstrate proficiency to the satisfaction of the board if requested by the board; and
(h) meet with the board and representatives of the division, if requested, for the purpose
of evaluating the applicant's qualifications for licensure.
(2) An applicant for licensure as a naturopathic physician qualifying under the
endorsement provision of Section 58-1-302 shall:
(a) be currently licensed in good standing in another jurisdiction as set forth in Section
58-1-302 ;
(b) document having met all requirements for licensure under Subsection (1) except the
clinical experience requirement of Subsection (1)(e);
(c) have passed the examination requirements established under Subsection (1)(f) which
the applicant has not passed in connection with licensure in another state or jurisdiction;
(d) have been actively engaged in the practice as a naturopathic physician for not less
than 6,000 hours during the five years immediately preceding the date of application for licensure
in Utah; and
(e) meet with the board and representatives of the division, if requested for the purpose
of evaluating the applicant's qualifications for licensure.
Section 48. Section 58-76-502 is amended to read:
58-76-502. Penalty for unlawful conduct.
(1) (a) If, upon inspection or investigation, the division concludes that a person has
violated Section 58-76-501 or any rule or order issued with respect to Section 58-76-501 , and
that disciplinary action is appropriate, the director or his or her designee from within the division
shall promptly issue a citation to the person according to this chapter and any pertinent rules,
attempt to negotiate a stipulated settlement, or notify the person to appear before an adjudicative
proceeding conducted under Title 63, Chapter 46b, Administrative Procedures Act.
(i) A person who violates Subsections 58-1-501 (1)(a) through (d) or Section 58-76-501
or any rule or order issued with respect to Section 58-76-501 , as evidenced by an uncontested
citation, a stipulated settlement, or by a finding of violation in an adjudicative proceeding, may
be assessed a fine pursuant to this Subsection (1) and may, in addition to or in lieu of, be ordered
to cease and desist from violating Subsections 58-1-501 (1)(a) through (d) or Section 58-76-501
or any rule or order issued with respect to this section.
(ii) Except for a cease and desist order, the licensure sanctions cited in Section 58-76-401
may not be assessed through a citation.
(b) A citation shall:
(i) be in writing;
(ii) describe with particularity the nature of the violation, including a reference to the
provision of the chapter, rule, or order alleged to have been violated;
(iii) clearly state that the recipient must notify the division in writing within 20 calendar
days of service of the citation if the recipient wishes to contest the citation at a hearing conducted
under Title 63, Chapter 46b, Administrative Procedures Act; and
(iv) clearly explain the consequences of failure to timely contest the citation or to make
payment of any fines assessed by the citation within the time specified in the citation.
(c) The division may issue a notice in lieu of a citation.
(d) Each citation issued under this section, or a copy of each citation, may be served
upon any person upon whom a summons may be served in accordance with the Utah Rules of
Civil Procedure and may be made personally or upon his agent by a division investigator or by
any person specially designated by the director or by mail.
(e) If within 20 calendar days from the service of the citation, the person to whom the
citation was issued fails to request a hearing to contest the citation, the citation becomes the final
order of the division and is not subject to further agency review. The period to contest a citation
may be extended by the division for cause.
(f) The division may refuse to issue or renew, suspend, revoke, or place on probation the
license of a licensee who fails to comply with a citation after it becomes final.
(g) The failure of an applicant for licensure to comply with a citation after it becomes
final is a ground for denial of license.
(h) No citation may be issued under this section after the expiration of six months
following the occurrence of any violation.
(i) The director or his designee shall assess fines according to the following:
(i) for a first offense handled pursuant to Subsection (1)(a), a fine of up to $1,000;
(ii) for a second offense handled pursuant to Subsection (1)(a), a fine of up to $2,000;
and
(iii) for any subsequent offense handled pursuant to Subsection (1)(a), a fine of up to
$2,000 for each day of continued offense.
(2) An action initiated for a first or second offense which has not yet resulted in a final
order of the division shall not preclude initiation of any subsequent action for a second or
subsequent offense during the pendency of any preceding action. The final order on a subsequent
action shall be considered a second or subsequent offense, respectively, provided the preceding
action resulted in a first or second offense, respectively.
(3) Any penalty which is not paid may be collected by the director by either referring the
matter to a collection agency or bringing an action in the district court of the county in which the
person against whom the penalty is imposed resides or in the county where the office of the
director is located. Any county attorney or the attorney general of the state shall provide legal
assistance and advice to the director in any action to collect the penalty. In any action brought to
enforce the provisions of this section, reasonable attorney's fees and costs shall be awarded to the
division.
Section 49. Section 59-1-206 is amended to read:
59-1-206. Appointment of staff -- Executive director -- Compensation --
Administrative secretary -- Internal audit unit -- Appeals office staff -- Division directors --
Criminal tax investigators.
(1) The commission shall appoint the following persons who are qualified,
knowledgeable, and experienced in matters relating to their respective positions, exempt under
Title 67, Chapter 19, Utah State Personnel Management Act, to serve at the pleasure of, and who
are directly accountable to, the commission:
(a) in consultation with the governor and with the consent of the Senate, an executive
director;
(b) an administrative secretary;
(c) an internal audit unit; and
(d) an appeals staff.
(2) The governor shall establish the executive director's salary within the salary range
fixed by the Legislature in Title 67, Chapter 22, State Officer Compensation.
(3) Division directors shall be appointed by the executive director subject to the approval
of the commission. The division directors are exempt employees under Title 67, Chapter 19,
Utah State Personnel Management Act.
(4) (a) The executive director may with the approval of the commission employ
additional staff necessary to perform the duties and responsibilities of the commission. These
employees are subject to Title 67, Chapter 19, Utah State Personnel Management Act.
(b) (i) The executive director may under Subsection (4)(a) employ criminal tax
investigators to help the commission carry out its duties and responsibilities regarding criminal
provisions of the state tax laws. The executive director may not employ more than eight criminal
tax investigators at one time.
(ii) The executive director may designate investigators hired under this Subsection (4)(b)
as special function officers, as defined in Section 53-13-105 , to enforce the criminal provisions
of the state tax laws.
(iii) Notwithstanding Section [
designated under this Subsection (4)(b) may not become or be designated as a member of the
Public Safety Retirement [
(5) The internal audit unit shall provide the following:
(a) an examination to determine the honesty and integrity of fiscal affairs, the accuracy
and reliability of financial statements and reports, and the adequacy and effectiveness of financial
controls to properly record and safeguard the acquisition, custody, and use of public funds;
(b) an examination to determine whether commission administrators have faithfully
adhered to commission policies and legislative intent;
(c) an examination to determine whether the operations of the divisions and other units
of the commission have been conducted in an efficient and effective manner;
(d) an examination to determine whether the programs administered by the divisions and
other units of the commission have been effective in accomplishing intended objectives; and
(e) an examination to determine whether management control and information systems
are adequate and effective in assuring that commission programs are administered faithfully,
efficiently, and effectively.
(6) The appeals office shall receive and hear appeals to the commission and shall conduct
the hearings in compliance with formal written rules approved by the commission. The
commission has final review authority over the appeals.
Section 50. Section 59-14-408 is amended to read:
59-14-408. Compliance certification -- Prohibition on stamping.
(1) As used in this section:
(a) "cigarette" has the same meaning as defined in Section 59-22-202 ; and
(b) "tobacco product manufacturer" has the same meaning as defined in Section
59-22-202 .
(2) No person may affix, or cause to be affixed, a stamp to an individual package or
container of cigarettes under Section 59-14-205 , or pay the tax levied under Part 3, Tobacco
Products, if the tobacco product manufacturer is not included on the list published by the
commission under Subsection (3).
(3) (a) The commission shall make available for public inspection a list of tobacco
product manufacturers that have provided the certification required by Subsection (4) and the
cigarette brands of those manufacturers sold for consumption in the state.
(b) The commission shall update the list as necessary.
(c) A person is not liable for a violation of Subsection (2) if the cigarette brand and
manufacturer is included in the commission's list at the time the stamp is affixed or the tax paid.
(4) A tobacco product manufacturer shall certify to the commission under penalty of
perjury, that:
(a) the manufacturer is:
(i) a participating manufacturer as defined in Subsection 59-22-203 (1)(a); or
(ii) in full compliance with Subsection 59-22-203 (1)(b);
(b) the list attached to the certification is a complete and updated list of all cigarette
brands sold by the manufacturer for consumption in the state;
(c) the list will be updated as necessary; and
(d) all escrow payments required by Subsection 59-22-203 (1)(b) have, to the best of the
manufacturer's knowledge, been made by all other tobacco product manufacturers that previously
made or sold the cigarette brands included in the manufacturer's list.
(5) Notwithstanding the requirement of Subsection (4)(d), if the tobacco product
manufacturer [
subject of the certification prior to March 1, 2002, the tobacco product manufacturer is only
required to identify the predecessor tobacco product manufacturer.
(6) The commission may require licensees who affix stamps to individual packages or
containers of cigarettes under Section 59-14-205 or who pay the tax under Part 3, Tobacco
Products, to submit information necessary to enable the commission to determine whether a
tobacco product manufacturer is in compliance with Section 59-22-203 .
(7) The commission may require each tobacco product manufacturer to appoint a
registered agent for service of process in the state and identify the registered agent to the
commission.
(8) A tobacco product manufacturer who falsely represents to any person any information
specified in Subsection (4), or who fails to appoint the registered agent required by this section is
guilty of a class B misdemeanor for each violation or false representation.
Section 51. Section 62A-3-301 is amended to read:
62A-3-301. Definitions.
As used in this part:
(1) "Abandonment" means any knowing or intentional action or inaction, including
desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
medical[
(2) "Abuse" means:
(a) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
or knowingly placing another in fear of imminent harm;
(b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's orders
or used as an unauthorized substitute for treatment, unless that conduct furthers the health and
safety of the adult;
(c) emotional or psychological abuse;
(d) sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
(e) deprivation of life sustaining treatment, except:
(i) as provided in Title 75, Chapter 2, Part 11, Personal Choice and Living Will Act; or
(ii) when informed consent, as defined in Section 76-5-111 , has been obtained.
(3) "Adult" means a person who is 18 years of age or older.
(4) "Adult protection case file" means documents and information contained in the file
maintained by Adult Protective Services on a particular case, including any report or other
notification received by the division or Adult Protective Services.
(5) "Adult Protective Services" means the unit within the division responsible to
investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
protective services.
(6) "Caretaker" means any person, entity, corporation, or public institution that assumes
the responsibility to provide a vulnerable adult with care, food, shelter, clothing, supervision,
medical or other health care, or other necessities. "Caretaker" includes a relative by blood or
marriage, a household member, a person who is employed or who provides volunteer work, or a
person who contracts or is under court order to provide care.
(7) "Counsel" means an attorney licensed to practice law in this state.
(8) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
(9) "Elder adult" means a person 65 years of age or older.
(10) "Emergency" means a circumstance in which a vulnerable adult is at an immediate
risk of death or serious physical injury or is at risk of immediate, serious harm. Risk of
immediate, serious harm includes exploitation that results in the inability of a vulnerable adult to
provide funds for immediate needs, including food, shelter, and necessary medical care.
(11) "Emotional or psychological abuse" means intentional or knowing verbal or
nonverbal conduct directed at a vulnerable adult including ridiculing, intimidating, yelling,
swearing, threatening, isolating, coercing, harassing, or other forms of intimidating behavior that
results or could result in the vulnerable adult suffering mental anguish or emotional distress,
including fear, humiliation, degradation, agitation, confusion, or isolation.
(12) "Exploitation" means the offense described in Subsection 76-5-111 (4).
(13) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
knowingly or intentionally.
(14) "Intimidation” means communication through verbal or nonverbal conduct which
threatens deprivation of money, food, clothing, medicine, shelter, social interaction, supervision,
health care, or companionship, or which threatens isolation or abuse.
(15) (a) "Isolation” means knowingly or intentionally preventing a vulnerable adult from
having contact with another person by:
(i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
contrary to the express wishes of the vulnerable adult, including communicating to a visitor that
the vulnerable adult is not present or does not want to meet with or talk to the visitor, knowing
that communication to be false;
(ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
from meeting with a visitor; or
(iii) making false or misleading statements to the vulnerable adult in order to induce the
vulnerable adult to refuse to receive communication from visitors or other family members.
(b) The term "isolation" does not include an act intended to protect the physical or mental
welfare of the vulnerable adult or an act performed pursuant to the treatment plan or instructions
of a physician or other professional advisor of the vulnerable adult.
(16) "Lacks capacity to consent" has the meaning as provided in Section 76-5-111 .
(17) "Neglect" means:
(a) (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
care, or dental, medical, or other health care; or
(ii) failure to provide protection from health and safety hazards or maltreatment;
(b) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
with the degree of care that a reasonable person in a like position would exercise;
(c) a pattern of conduct by a caretaker, without the vulnerable adult's informed consent,
resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or other
services necessary to maintain the vulnerable adult's well being;
(d) knowing or intentional failure by a caretaker to carry out a prescribed treatment plan
that causes or is likely to cause harm to the vulnerable adult;
(e) self-neglect by the vulnerable adult; or
(f) abandonment by a caretaker.
(18) "Physical injury” includes damage to any bodily tissue caused by nontherapeutic
conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot be
restored to a sound and healthy condition. "Physical injury" includes skin bruising, a dislocation,
physical pain, illness, impairment of physical function, a pressure sore, bleeding, malnutrition,
dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling, injury to any
internal organ, or any other physical condition that imperils the health or welfare of a vulnerable
adult and is not a serious physical injury as defined in this section.
(19) "Protected person" means a vulnerable adult for whom the court has ordered
protective services, including a vulnerable adult for whom emergency protective services have
been established under the provisions of this chapter.
(20) "Protective services" means any services provided by Adult Protective Services to a
vulnerable adult, either with the consent of the vulnerable adult or the vulnerable adult's guardian
or conservator, or by court order, if that adult has been abused, neglected, exploited, or is in a
state of self-neglect; protective services may include:
(a) an intake system for receiving and screening reports;
(b) investigation of referrals in accordance with statutory and policy guidelines;
(c) protective needs assessment;
(d) coordination and referral to community resources for services; or
(e) short-term, limited services including emergency shelter or respite when family or
other community resources are not available to provide protection.
(21) "Self-neglect” means the failure of a vulnerable adult to provide food, water,
medication, health care, shelter, cooling, heating, safety, or other services necessary to maintain
the vulnerable adult's well being when that failure is the result of the adult's mental or physical
impairment. Choice of lifestyle or living arrangements may not, by themselves, be evidence of
self-neglect.
(22) "Serious physical injury” has the meaning as provided in Section 76-5-111 .
(23) "Substantiated" or "substantiation" means a finding, based upon a preponderance of
the evidence, that there is a reasonable basis to conclude that abuse, neglect, or exploitation
occurred, regardless of whether there is an identified perpetrator or current need for protective
services. If more than one allegation is made or identified during the course of the investigation,
any allegation determined to meet the criteria for substantiation requires a case finding of
"substantiated."
(24) "Undue influence” occurs when a person uses the person's role, relationship, or
power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear of
a vulnerable adult, or uses the person's role, relationship, or power to gain control deceptively
over the decision making of the vulnerable adult.
(25) "Unsubstantiated" means a finding, based upon a preponderance of the evidence,
that there is insufficient evidence to conclude that abuse, neglect, or exploitation occurred.
(26) "Vulnerable adult” means an elder adult, or an adult who has a mental or physical
impairment which substantially affects that person's ability to:
(a) provide personal protection;
(b) provide necessities such as food, shelter, clothing, or mental or other health care;
(c) obtain services necessary for health, safety, or welfare;
(d) carry out the activities of daily living;
(e) manage the adult's own resources; or
(f) comprehend the nature and consequences of remaining in a situation of abuse,
neglect, or exploitation.
Section 52. Section 62A-11-304.4 is amended to read:
62A-11-304.4. Filing of location information -- Service of process.
(1) (a) Upon the entry of an order in a proceeding to establish paternity or to establish,
modify, or enforce a support order, each party shall file identifying information and shall update
that information as changes occur:
(i) with the court or administrative agency that conducted the proceeding; and
(ii) after October 1, 1998, with the state case registry.
(b) The identifying information required under Subsection (1)(a) shall include the
person's social security number, driver's license number, residential and mailing addresses,
telephone numbers, the name, address, and telephone number of employers, and any other data
required by the United States Secretary of Health and Human Services.
(c) In any subsequent child support action involving the office or between the parties,
state due process requirements for notice and service of process shall be satisfied as to a party
upon:
(i) a sufficient showing that diligent effort has been made to ascertain the location of the
party; and
(ii) delivery of notice to the most recent residential or employer address filed with the
court, administrative agency, or state case registry under Subsection (1)(a).
(2) (a) The office shall provide individuals who are applying for or receiving services
under this chapter or who are parties to cases in which services are being provided under this
chapter:
(i) with notice of all proceedings in which support obligations might be established or
modified; and
(ii) with a copy of any order establishing or modifying a child support obligation, or in
the case of a petition for modification, a notice of determination that there should be no change in
the amount of the child support award, within 14 days after issuance of such order or
determination.
(b) Notwithstanding Subsection (2)(a)(ii), notice in the case of an interstate order shall be
provided in accordance with Section 78-45f-614 .
(3) Service of all notices and orders under this part shall be made in accordance with
Title 63, Chapter 46b, Administrative Procedures Act, the Utah Rules of Civil Procedure, or this
section.
(4) Consistent with Title 63, Chapter 2, Government Records Access and Management
Act, the office shall adopt procedures to classify records to prohibit the unauthorized use or
disclosure of information relating to a proceeding to:
(a) establish paternity; or
(b) establish or enforce support.
(5) (a) The office shall, upon written request, provide location information available in
its files on a custodial or noncustodial parent to the other party or the other party's legal counsel
provided that:
(i) the party seeking the information produces a copy of the parent-time order signed by
the court;
(ii) the information has not been safeguarded in accordance with Section 454 of the
Social Security Act;
(iii) the party whose location is being sought has been afforded notice in accordance with
[
(iv) the party whose location is being sought has not provided the office with a copy of a
protective order, a current court order prohibiting disclosure, a current court order limiting or
prohibiting the requesting person's contact with the party whose location is being sought, a
criminal order, or documentation of a pending proceeding for any of the above; and
(v) there is no other state or federal law that would prohibit disclosure.
(b) "Location information" shall consist of the current residential address of the custodial
or noncustodial parent and, if different and known to the office, the current residence of any
children who are the subject of the parent-time order. If there is no current residential address
available, the person's place of employment and any other location information shall be
disclosed.
(c) For the purposes of this section, "reason to believe" under Section 454 of the Social
Security Act means that the person seeking to safeguard information has provided to the office a
copy of a protective order, current court order prohibiting disclosure, current court order
prohibiting or limiting the requesting person's contact with the party whose location is being
sought, [
pending proceeding for any of the above.
(d) Neither the state, the department, the office nor its employees shall be liable for any
information released in accordance with this section.
Section 53. Section 63-2-304 is amended to read:
63-2-304. Protected records.
The following records are protected if properly classified by a governmental entity:
(1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
has provided the governmental entity with the information specified in Section 63-2-308 ;
(2) commercial information or nonindividual financial information obtained from a
person if:
(a) disclosure of the information could reasonably be expected to result in unfair
competitive injury to the person submitting the information or would impair the ability of the
governmental entity to obtain necessary information in the future;
(b) the person submitting the information has a greater interest in prohibiting access than
the public in obtaining access; and
(c) the person submitting the information has provided the governmental entity with the
information specified in Section 63-2-308 ;
(3) commercial or financial information acquired or prepared by a governmental entity to
the extent that disclosure would lead to financial speculations in currencies, securities, or
commodities that will interfere with a planned transaction by the governmental entity or cause
substantial financial injury to the governmental entity or state economy;
(4) records the disclosure of which could cause commercial injury to, or confer a
competitive advantage upon a potential or actual competitor of, a commercial project entity as
defined in Subsection 11-13-103 [
(5) test questions and answers to be used in future license, certification, registration,
employment, or academic examinations;
(6) records the disclosure of which would impair governmental procurement proceedings
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
governmental entity, except that this Subsection (6) does not restrict the right of a person to see
bids submitted to or by a governmental entity after bidding has closed;
(7) records that would identify real property or the appraisal or estimated value of real or
personal property, including intellectual property, under consideration for public acquisition
before any rights to the property are acquired unless:
(a) public interest in obtaining access to the information outweighs the governmental
entity's need to acquire the property on the best terms possible;
(b) the information has already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(c) in the case of records that would identify property, potential sellers of the described
property have already learned of the governmental entity's plans to acquire the property; or
(d) in the case of records that would identify the appraisal or estimated value of property,
the potential sellers have already learned of the governmental entity's estimated value of the
property;
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
compensated transaction of real or personal property including intellectual property, which, if
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
the subject property, unless:
(a) the public interest in access outweighs the interests in restricting access, including the
governmental entity's interest in maximizing the financial benefit of the transaction; or
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
value of the subject property have already been disclosed to persons not employed by or under a
duty of confidentiality to the entity;
(9) records created or maintained for civil, criminal, or administrative enforcement
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
release of the records:
(a) reasonably could be expected to interfere with investigations undertaken for
enforcement, discipline, licensing, certification, or registration purposes;
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
proceedings;
(c) would create a danger of depriving a person of a right to a fair trial or impartial
hearing;
(d) reasonably could be expected to disclose the identity of a source who is not generally
known outside of government and, in the case of a record compiled in the course of an
investigation, disclose information furnished by a source not generally known outside of
government if disclosure would compromise the source; or
(e) reasonably could be expected to disclose investigative or audit techniques,
procedures, policies, or orders not generally known outside of government if disclosure would
interfere with enforcement or audit efforts;
(10) records the disclosure of which would jeopardize the life or safety of an individual;
(11) records the disclosure of which would jeopardize the security of governmental
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
other appropriation or use contrary to law or public policy;
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
(13) records that, if disclosed, would reveal recommendations made to the Board of
Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
of Pardons and Parole, or the Department of Human Services that are based on the employee's or
contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
(14) records and audit workpapers that identify audit, collection, and operational
procedures and methods used by the State Tax Commission, if disclosure would interfere with
audits or collections;
(15) records of a governmental audit agency relating to an ongoing or planned audit until
the final audit is released;
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
litigation that are not available under the rules of discovery;
(17) records disclosing an attorney's work product, including the mental impressions or
legal theories of an attorney or other representative of a governmental entity concerning
litigation;
(18) records of communications between a governmental entity and an attorney
representing, retained, or employed by the governmental entity if the communications would be
privileged as provided in Section 78-24-8 ;
(19) personal files of a legislator, including personal correspondence to or from a
member of the Legislature, provided that correspondence that gives notice of legislative action or
policy may not be classified as protected under this section;
(20) (a) records in the custody or control of the Office of Legislative Research and
General Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation
or contemplated course of action before the legislator has elected to support the legislation or
course of action, or made the legislation or course of action public; and
(b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
Office of Legislative Research and General Counsel is a public document unless a legislator asks
that the records requesting the legislation be maintained as protected records until such time as
the legislator elects to make the legislation or course of action public;
(21) research requests from legislators to the Office of Legislative Research and General
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in
response to these requests;
(22) drafts, unless otherwise classified as public;
(23) records concerning a governmental entity's strategy about collective bargaining or
pending litigation;
(24) records of investigations of loss occurrences and analyses of loss occurrences that
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
Employers' Fund, or similar divisions in other governmental entities;
(25) records, other than personnel evaluations, that contain a personal recommendation
concerning an individual if disclosure would constitute a clearly unwarranted invasion of
personal privacy, or disclosure is not in the public interest;
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
resources that if known would jeopardize the security of those resources or of valuable historic,
scientific, educational, or cultural information;
(27) records of independent state agencies if the disclosure of the records would conflict
with the fiduciary obligations of the agency;
(28) records of a public institution of higher education regarding tenure evaluations,
appointments, applications for admissions, retention decisions, and promotions, which could be
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
Meetings, provided that records of the final decisions about tenure, appointments, retention,
promotions, or those students admitted, may not be classified as protected under this section;
(29) records of the governor's office, including budget recommendations, legislative
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
policies or contemplated courses of action before the governor has implemented or rejected those
policies or courses of action or made them public;
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
recommendations in these areas;
(31) records provided by the United States or by a government entity outside the state
that are given to the governmental entity with a requirement that they be managed as protected
records if the providing entity certifies that the record would not be subject to public disclosure if
retained by it;
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
except as provided in Section 52-4-7 ;
(33) records that would reveal the contents of settlement negotiations but not including
final settlements or empirical data to the extent that they are not otherwise exempt from
disclosure;
(34) memoranda prepared by staff and used in the decision-making process by an
administrative law judge, a member of the Board of Pardons and Parole, or a member of any
other body charged by law with performing a quasi-judicial function;
(35) records that would reveal negotiations regarding assistance or incentives offered by
or requested from a governmental entity for the purpose of encouraging a person to expand or
locate a business in Utah, but only if disclosure would result in actual economic harm to the
person or place the governmental entity at a competitive disadvantage, but this section may not
be used to restrict access to a record evidencing a final contract;
(36) materials to which access must be limited for purposes of securing or maintaining
the governmental entity's proprietary protection of intellectual property rights including patents,
copyrights, and trade secrets;
(37) the name of a donor or a prospective donor to a governmental entity, including a
public institution of higher education, and other information concerning the donation that could
reasonably be expected to reveal the identity of the donor, provided that:
(a) the donor requests anonymity in writing;
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
classified protected by the governmental entity under this Subsection (37); and
(c) except for public institutions of higher education, the governmental unit to which the
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
regulatory or legislative authority over the donor, a member of his immediate family, or any
entity owned or controlled by the donor or his immediate family;
(38) accident reports, except as provided in Sections 41-6-40 , 41-12a-202 , and 73-18-13 ;
(39) a notification of workers' compensation insurance coverage described in Section
34A-2-205 ;
(40) (a) the following records of a public institution of education, which have been
developed, discovered, or received by or on behalf of faculty, staff, employees, or students of the
institution:
(i) unpublished lecture notes;
(ii) unpublished research notes and data;
(iii) unpublished manuscripts;
(iv) creative works in process;
(v) scholarly correspondence; and
(vi) confidential information contained in research proposals; and
(b) Subsection (40)(a) may not be construed to affect the ownership of a record;
(41) (a) records in the custody or control of the Office of Legislative Auditor General
that would reveal the name of a particular legislator who requests a legislative audit prior to the
date that audit is completed and made public; and
(b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
Office of the Legislative Auditor General is a public document unless the legislator asks that the
records in the custody or control of the Office of Legislative Auditor General that would reveal
the name of a particular legislator who requests a legislative audit be maintained as protected
records until the audit is completed and made public;
(42) records that provide detail as to the location of an explosive, including a map or
other document that indicates the location of:
(a) a production facility; or
(b) a magazine;
(43) information contained in the database described in Section 62A-3-311.1 ; and
(44) information contained in the Management Information System and Licensing
Information System described in Title 62A, Chapter 4a, Child and Family Services.
Section 54. Section 63-55-236 is amended to read:
63-55-236. Repeal dates, Title 36.
[
[
Section 55. Section 63-55b-120 is amended to read:
63-55b-120. Repeal dates, Title 20A.
[
[
Section 56. Section 63-55b-123 is amended to read:
63-55b-123. Repeal dates -- Title 23.
[
Section 57. Section 63-55b-134 is amended to read:
63-55b-134. Repeal dates -- Title 34A.
[
[
Section 58. Section 63-55b-153 is amended to read:
63-55b-153. Repeal dates -- Titles 53 and 53A.
(1) Subsection 53-3-205 (9)(a)(i)(D) is repealed July 1, 2007.
(2) Subsection 53-3-804 (2)(g) is repealed July 1, 2007.
[
[
July 1, 2003.
[
[
[
Section 59. Section 63-55b-172 is amended to read:
63-55b-172. Repeal dates -- Title 72.
[
Section 60. Section 70A-2-403 is amended to read:
70A-2-403. Power to transfer -- Good faith purchase of goods -- Definition of
Entrusting.
(1) A purchaser of goods acquires all title which his transferor had or had power to
transfer except that a purchaser of a limited interest acquires rights only to the extent of the
interest purchased. A person with voidable title has power to transfer a good title to a good faith
purchaser for value. When goods have been delivered under a transaction of purchase the
purchaser has such power even though:
(a) the transferor was deceived as to the identity of the purchaser[
(b) the delivery was in exchange for a check which is later dishonored[
(c) it was agreed that the transaction was to be a "cash sale[
(d) the delivery was procured through fraud punishable as larcenous under the criminal
law.
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind
gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
(3) "Entrusting" includes any delivery and any acquiescence in retention of possession
regardless of any condition expressed between the parties to the delivery or acquiescence and
regardless of whether the procurement of the entrusting or the possessor's disposition of the
goods have been such as to be larcenous under the criminal law.
(4) The rights of other purchasers of goods and of lien creditors are governed by [
Commercial Code - Secured Transactions and [
Commercial Code - Documents of Title.
Section 61. Section 70A-11-105 is amended to read:
70A-11-105. Transition provision on change of place of filing.
(1) A financing statement or continuation statement filed prior to July 1, 1977 which
shall not have lapsed prior to July 1, 1977 shall remain effective for the period provided in the
old Uniform Commercial Code, but not less than five years after the filing.
(2) With respect to any collateral acquired by the debtor subsequent to the effective date
of the corrected Uniform Commercial Code, any effective financing statement or continuation
statement described in this section shall apply only if the filing or filings are in the office or
offices that would be appropriate to perfect the security interests in the new collateral under the
corrected Uniform Commercial Code.
(3) The effectiveness of any financing statement or continuation statement filed prior to
July 1, 1977 may be continued by a continuation statement as permitted by the corrected Uniform
Commercial Code, except that if the corrected Uniform Commercial Code requires a filing in an
office where there was no previous financing statement, a new financing statement conforming to
Section 70A-11-106 shall be filed in that office.
(4) If the record of a mortgage of real estate would have been effective as a fixture filing
of goods described therein if the corrected Uniform Commercial Code had been in effect on the
date of recording the mortgage, the mortgage shall be deemed effective as a fixture filing as to
such goods under [
Uniform Commercial Code on the effective date of the corrected Uniform Commercial Code.
Section 62. Section 70A-11-106 is amended to read:
70A-11-106. Required refilings.
(1) If a security interest is perfected or has priority when this act takes effect as to all
persons or as to certain persons without any filing or recording, and if the filing of a financing
statement would be required for the perfection or priority of the security interest against those
persons under the corrected Uniform Commercial Code, the perfection and priority rights of the
security interest continue until three years after the effective date of the corrected Uniform
Commercial Code. The perfection will then lapse unless a financing statement is filed as
provided in Subsection (4) or unless the security interest is perfected otherwise than by filing.
(2) If a security interest is perfected when the corrected Uniform Commercial Code takes
effect under a law other than the Uniform Commercial Code which requires no further filing,
refiling, or recording to continue its perfection, perfection continues until and will lapse three
years after the corrected Uniform Commercial Code takes effect, unless a financing statement is
filed as provided in Subsection (4) or unless the security interest is perfected otherwise than by
filing, or unless under [
continues to govern filing.
(3) If a security interest is perfected by a filing, refiling, or recording under a law
repealed by this act which required further filing, refiling or recording to continue its perfection,
perfection continues and will lapse on the date provided by the law so repealed for such further
filing, refiling, or recording unless a financing statement is filed as provided in Subsection (4) or
unless the security interest is perfected otherwise than by filing.
(4) A financing statement may be filed within six months before the perfection of a
security interest would otherwise lapse. Any such financing statement may be signed by either
the debtor or the secured party. It must identify the security agreement, statement, or notice
(however denominated in any statute or other law repealed or modified by this act), state the
office where and the date when the last filing, refiling, or recording, if any, was made with
respect thereto, and the filing number, if any, or book and page, if any, of recording and further
state that the security agreement, statement, or notice, however denominated, in another filing
office under the Uniform Commercial Code or under any statute or other law repealed or
modified by this act is still effective. Section [
Sections 70A-9a-301 through 70A-9a-307 determine the proper place to file such a financing
statement. Except as specified in this subsection, the provisions of Section [
70A-9a-515 for continuation statements apply to such a financing statement.
Section 63. Section 72-1-303 is amended to read:
72-1-303. Duties of commission.
The commission has the following duties:
(1) determining priorities and funding levels of projects in the state transportation
systems for each fiscal year based on project lists compiled by the department;
(2) determining additions and deletions to state highways under Chapter 4, Designation
of State Highways Act;
(3) holding public hearings and otherwise providing for public input in transportation
matters;
(4) making policies and rules in accordance with Title 63, Chapter 46a, Utah
Administrative Rulemaking Act, necessary to perform the commission's duties described under
this section;
(5) in accordance with Section 63-46b-12 , reviewing orders issued by the executive
director in adjudicative proceedings held in accordance with Title 63, Chapter 46b,
Administrative Procedures Act;
(6) advising the department in state transportation systems policy; and
(7) approving settlement agreements of condemnation cases subject to Section
[
Section 64. Section 72-3-104 is amended to read:
72-3-104. City streets -- Class C roads -- Construction and maintenance.
(1) City streets comprise:
(a) highways, roads, and streets within the corporate limits of the municipalities that are
not designated as class A state roads or as class B roads; and
(b) those highways, roads, and streets located within a national forest and constructed or
maintained by the municipality under agreement with the appropriate federal agency.
(2) City streets are class C roads.
(3) Except for city streets within counties of the first and second class as defined in
Section [
rights-of-way for all city streets.
(4) The municipal governing body exercises sole jurisdiction and control of the city
streets within the municipality.
(5) The department shall cooperate with the municipal legislative body in the
construction and maintenance of the class C roads within each municipality.
(6) The municipal legislative body shall expend or cause to be expended upon the class C
roads the funds allocated to each municipality from the Transportation Fund under rules made by
the department.
(7) Any town or city in the third class may:
(a) contract with the county or the department for the construction and maintenance of
class C roads within its corporate limits; or
(b) transfer, with the consent of the county, its:
(i) class C roads to the class B road system; and
(ii) funds allocated from the Transportation Fund to the municipality to the county
legislative body for use upon the transferred class C roads.
(8) A municipal legislative body of any municipality of the third class may use any
portion of the class C road funds allocated to the municipality for the construction of sidewalks,
curbs, and gutters on class A state roads within the municipal limits by cooperative agreement
with the department.
Section 65. Section 73-10-2 is amended to read:
73-10-2. Board of Water Resources -- Members -- Appointment -- Terms --
Vacancies.
(1) (a) The Board of Water Resources shall be comprised of eight members to be
appointed by the governor with the consent of the Senate.
(b) Not more than four members shall be from the same political party.
(2) One member of the board shall be appointed from each of the following districts:
(a) Bear River District, comprising the counties of Box Elder, Cache, and Rich;
(b) Weber District, comprising the counties of Weber, Davis, Morgan, and Summit;
(c) Salt Lake District, comprising the counties of Salt Lake and Tooele;
(d) Provo River District, comprising the counties of Juab, Utah, and Wasatch;
(e) Sevier River District, comprising the counties of Millard, Sanpete, Sevier, Piute, and
Wayne;
(f) Green River District, comprising the counties of Daggett, Duchesne, and Uintah;
(g) Upper Colorado River District, comprising the counties of Carbon, Emery, Grand,
and San Juan; and
(h) Lower Colorado River District, comprising the counties of Beaver, Garfield, Iron,
Washington, and Kane.
[
terms of four years.
(b) Notwithstanding the requirements of Subsection [
time of appointment or reappointment, adjust the length of terms to ensure that the terms of
board members are staggered so that approximately half of the board is appointed every two
years.
(c) When a vacancy occurs in the membership for any reason, the replacement shall be
appointed for the unexpired term with the consent of the Senate and shall be from the same
district as such person.
[
may receive per diem and expenses incurred in the performance of the member's official duties
at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(b) Members may decline to receive per diem and expenses for their service.
Section 66. Section 75-2-1001 is amended to read:
75-2-1001. Honorary trusts -- Trusts for pets.
(1) Subject to Subsection (3), if a trust is for a specific lawful noncharitable purpose or
for a lawful noncharitable purpose to be selected by the trustee and there is no definite or
definitely ascertainable beneficiary designated, the trust may be performed by the trustee for 21
years but no longer whether or not the terms of the trust contemplate a longer duration.
(2) Subject to this Subsection (2) and Subsection (3), a trust for the care of a designated
domestic or pet animal is valid. The trust terminates when no living animal is covered by the
trust. A governing instrument shall be liberally construed to bring the transfer within this
subsection, to presume against the merely precatory or honorary nature of the disposition, and to
carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the
transferor's intent.
(3) In addition to the provisions of Subsection (3)(a) or (b), a trust covered by either of
those subsections is subject to the following provisions:
(a) Except as expressly provided otherwise in the trust instrument, no portion of the
[
for the trust's purposes or for the benefit of a covered animal.
(b) Upon termination, the trustee shall transfer the unexpended trust property in the
following order:
(i) as directed in the trust instrument;
(ii) if the trust was created in a nonresiduary clause in the transferor's will or in a codicil
to the transferor's will, under the residuary clause in the transferor's will; and
(iii) if no taker is produced by the application of Subsection (3)(b)(i) or (ii), to the
transferor's heirs under Section 75-2-711 .
(c) For the purposes of Section 75-2-707 , the residuary clause is treated as creating a
future interest under the terms of a trust.
(d) The intended use of the principal or income can be enforced by an individual
designated for that purpose in the trust instrument or, if none, by an individual appointed by a
court upon application to it by an individual.
(e) Except as ordered by the court or required by the trust instrument, no filing, report,
registration, periodic accounting, separate maintenance of funds, appointment, or fee is required
by reason of the existence of the fiduciary relationship of the trustee.
(f) A court may reduce the amount of the property transferred, if it determines that that
amount substantially exceeds the amount required for the intended use. The amount of the
reduction, if any, passes as unexpended trust property under Subsection (3)(b).
(g) If no trustee is designated or no designated trustee is willing or able to serve, a court
shall name a trustee. A court may order the transfer of the property to another trustee, if required
to assure that the intended use is carried out and if no successor trustee is designated in the trust
instrument or if no designated successor trustee agrees to serve or is able to serve. A court may
also make such other orders and determinations as shall be advisable to carry out the intent of the
transferor and the purpose of this section.
Section 67. Section 78-3a-306 is amended to read:
78-3a-306. Shelter hearing.
(1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
after any one or all of the following occur:
(a) removal of the child from his home by the Division of Child and Family Services;
(b) placement of the child in the protective custody of the Division of Child and Family
Services;
(c) emergency kinship placement under Subsection 62A-4a-202.1 (6); or
(d) as an alternative to removal of the child, a parent has entered a domestic violence
shelter at the request of the Division of Child and Family Services.
(2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
through (1)(d), the division shall issue a notice that contains all of the following:
(a) the name and address of the person to whom the notice is directed;
(b) the date, time, and place of the shelter hearing;
(c) the name of the minor on whose behalf a petition is being brought;
(d) a concise statement regarding:
(i) the reasons for removal or other action of the division under Subsection (1); and
(ii) the allegations and code sections under which the proceeding has been instituted;
(e) a statement that the parent or guardian to whom notice is given, and the minor, are
entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
provided; and
(f) a statement that the parent or guardian is liable for the cost of support of the minor in
the protective custody, temporary custody, and custody of the division, and the cost for legal
counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
ability.
(3) That notice shall be personally served as soon as possible, but no later than one
business day after removal of a child from his home, on:
(a) the appropriate guardian ad litem; and
(b) both parents and any guardian of the minor, unless they cannot be located.
(4) The following persons shall be present at the shelter hearing:
(a) the child, unless it would be detrimental for the child;
(b) the child's parents or guardian, unless they cannot be located, or fail to appear in
response to the notice;
(c) counsel for the parents, if one has been requested;
(d) the child's guardian ad litem;
(e) the caseworker from the Division of Child and Family Services who has been
assigned to the case; and
(f) the attorney from the attorney general's office who is representing the division.
(5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
or guardian, if present, and any other person having relevant knowledge, to provide relevant
testimony. The court may also provide an opportunity for the minor to testify.
(b) The court may consider all relevant evidence, in accordance with the Utah Rules of
Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
evidence to only that which goes to the issues of removal and the child's need for continued
protection.
(6) If the child is in the protective custody of the division, the division shall report to the
court:
(a) the reasons why the minor was removed from the parent's or guardian's custody;
(b) any services provided to the child and his family in an effort to prevent removal;
(c) the need, if any, for continued shelter;
(d) the available services that could facilitate the return of the minor to the custody of his
parent or guardian; and
(e) whether the child has any relatives who may be able and willing to take temporary
custody.
(7) The court shall consider all relevant evidence provided by persons or entities
authorized to present relevant evidence pursuant to this section.
(8) If necessary to protect the child, preserve the rights of a party, or for other good cause
shown, the court may grant no more than one time-limited continuance, not to exceed five
judicial days.
(9) If the child is in the protective custody of the division, the court shall order that the
minor be released from the protective custody of the division unless it finds, by a preponderance
of the evidence, that any one of the following exist:
(a) there is a substantial danger to the physical health or safety of the minor and the
minor's physical health or safety may not be protected without removing him from his parent's
custody. If a minor has previously been adjudicated as abused, neglected, or dependent and a
subsequent incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie
evidence that the child cannot safely remain in the custody of his parent;
(b) the minor is suffering emotional damage, as may be indicated by, but is not limited
to, extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or
others, and there are no reasonable means available by which the minor's emotional health may
be protected without removing the minor from the custody of his parent;
(c) the minor or another minor residing in the same household has been physically or
sexually abused, or is considered to be at substantial risk of being physically or sexually abused,
by a parent, a member of the parent's household, or other person known to the parent. If a parent
has received actual notice that physical or sexual abuse by a person known to the parent has
occurred, and there is evidence that the parent has allowed the child to be in the physical
presence of the alleged abuser, that fact constitutes prima facie evidence that the child is at
substantial risk of being physically or sexually abused;
(d) the parent is unwilling to have physical custody of the child;
(e) the minor has been left without any provision for his support;
(f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
safe and appropriate care for the minor;
(g) a relative or other adult custodian with whom the minor has been left by the parent is
unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
unknown, and reasonable efforts to locate him have been unsuccessful;
(h) the minor is in immediate need of medical care;
(i) the physical environment or the fact that the child is left unattended poses a threat to
the child's health or safety;
(j) the minor or another minor residing in the same household has been neglected;
(k) the parent, or an adult residing in the same household as the parent, has been charged
or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
property where the child resided; or
(l) the child's welfare is otherwise endangered.
(10) (a) The court shall also make a determination on the record as to whether reasonable
efforts were made to prevent or eliminate the need for removal of the minor from his home and
whether there are available services that would prevent the need for continued removal. If the
court finds that the minor can be safely returned to the custody of his parent or guardian through
the provision of those services, it shall place the minor with his parent or guardian and order that
those services be provided by the division.
(b) In making that determination, and in ordering and providing services, the child's
health, safety, and welfare shall be the paramount concern, in accordance with federal law.
(11) Where the division's first contact with the family occurred during an emergency
situation in which the child could not safely remain at home, the court shall make a finding that
any lack of preplacement preventive efforts was appropriate.
(12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
or to, in any other way, attempt to maintain a child in his home, return a child to his home,
provide reunification services, or attempt to rehabilitate the offending parent or parents.
(13) The court may not order continued removal of a minor solely on the basis of
educational neglect as described in Subsection 78-3a-103 (1)[
(14) (a) Whenever a court orders continued removal of a minor under this section, it shall
state the facts on which that decision is based.
(b) If no continued removal is ordered and the minor is returned home, the court shall
state the facts on which that decision is based.
(15) If the court finds that continued removal and temporary custody are necessary for
the protection of a child because harm may result to the child if he were returned home, it shall
order continued removal regardless of any error in the initial removal of the child, or the failure
of a party to comply with notice provisions, or any other procedural requirement of this chapter
or Title 62A, Chapter 4a, Child and Family Services.
Section 68. Section 78-11-6 is amended to read:
78-11-6. Injury or death of child -- Suit by parent or guardian.
Except as provided in Title [
parent or guardian may maintain an action for the death or injury of a minor child when the injury
or death is caused by the wrongful act or neglect of another. Any civil action may be maintained
against the person causing the injury or death or, if the person is employed by another person
who is responsible for that person's conduct, also against the employer. If a parent, stepparent,
adoptive parent, or legal guardian is the alleged defendant in an action for the death or injury of a
child, a guardian ad litem may be appointed for the injured child or a child other than the
deceased child according to the procedures outlined in Section 78-7-9 .
Section 69. Section 78-11-7 is amended to read:
78-11-7. Death of adult -- Suit by heir or personal representative.
Except as provided in Title [
the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or
his personal representatives for the benefit of his heirs, may maintain an action for damages
against the person causing the death, or, if such person is employed by another person who is
responsible for his conduct, then also against such other person. If such adult person has a
guardian at the time of his death, only one action can be maintained for the injury to or death of
such person, and such action may be brought by either the personal representatives of such adult
deceased person, for the benefit of his heirs, or by such guardian for the benefit of the heirs as
provided in Section 78-11-6 . In every action under this and Section 78-11-6 such damages may
be given as under all the circumstances of the case may be just.
Section 70. Section 78-27-37 is amended to read:
78-27-37. Definitions.
As used in Sections 78-27-37 through 78-27-43 :
(1) "Defendant" means a person, other than a person immune from suit as defined in
Subsection (3), who is claimed to be liable because of fault to any person seeking recovery.
(2) "Fault" means any actionable breach of legal duty, act, or omission proximately
causing or contributing to injury or damages sustained by a person seeking recovery, including
negligence in all its degrees, comparative negligence, assumption of risk, strict liability, breach of
express or implied warranty of a product, products liability, and misuse, modification, or abuse
of a product.
(3) "Person immune from suit" means:
(a) an employer immune from suit under Title 34A, Chapter [
Compensation Act, or Chapter [
(b) a governmental entity or governmental employee immune from suit pursuant to Title
63, Chapter 30, Utah Governmental Immunity Act.
(4) "Person seeking recovery" means any person seeking damages or reimbursement on
its own behalf, or on behalf of another for whom it is authorized to act as legal representative.
Section 71. Section 78-27-43 is amended to read:
78-27-43. Effect on immunity, exclusive remedy, indemnity, contribution.
Nothing in Sections 78-27-37 through 78-27-42 affects or impairs any common law or
statutory immunity from liability, including, but not limited to, governmental immunity as
provided in Title 63, Chapter 30, and the exclusive remedy provisions of Title 34A, Chapter [
2, Workers' Compensation Act. Nothing in Sections 78-27-37 through 78-27-42 affects or
impairs any right to indemnity or contribution arising from statute, contract, or agreement.
Section 72. Section 78-36-10.5 is amended to read:
78-36-10.5. Order of restitution -- Service -- Enforcement -- Disposition of personal
property -- Hearing.
(1) Each order of restitution shall:
(a) direct the defendant to vacate the premises, remove his personal property, and restore
possession of the premises to the plaintiff, or be forcibly removed by a sheriff or constable;
(b) advise the defendant of the time limit set by the court for the defendant to vacate the
premises, which shall be three business days following service of the order, unless the court
determines that a longer or shorter period is appropriate under the circumstances; and
(c) advise the defendant of the defendant's right to a hearing to contest the manner of its
enforcement.
(2) (a) A copy of the order of restitution and a form for the defendant to request a hearing
as listed on the form shall be served in accordance with Section 78-36-6 by a person authorized
to serve process pursuant to Section 78-27-58 . If personal service is impossible or impracticable,
service may be made by:
(i) mailing a copy of the order and the form to the defendant's last-known address and
posting a copy of the order and the form at a conspicuous place on the premises; or
(ii) mailing a copy of the order and the form to the commercial tenant defendant's
last-known place of business and posting a copy of the order and the form at a conspicuous place
on the business premises.
(b) A request for hearing by the defendant may not stay enforcement of the restitution
order unless:
(i) the defendant furnishes a corporate bond, cash bond, certified funds, or a property
bond to the clerk of the court in an amount approved by the court according to the formula set
forth in Subsection 78-36-8.5 (2)(b); and
(ii) the court orders that the restitution order be stayed.
(c) The date of service, the name, title, signature, and telephone number of the person
serving the order and the form shall be legibly endorsed on the copy of the order and the form
served on the defendant.
(d) Within ten days of service, the person serving the order and the form shall file proof
of service in accordance with Rule 4[
(3) (a) If the defendant fails to comply with the order within the time prescribed by the
court, a sheriff or constable at the plaintiff's direction may enter the premises by force using the
least destructive means possible to remove the defendant.
(b) Any personal property of the defendant may be removed from the premises by the
sheriff or constable and transported to a suitable location for safe storage. The sheriff or
constable may delegate responsibility for storage to the plaintiff, who shall store the personal
property in a suitable place and in a reasonable manner.
(c) The personal property removed and stored shall be inventoried by the sheriff or
constable or the plaintiff who shall keep the original inventory and personally deliver or mail the
defendant a copy of the inventory immediately after the personal property is removed.
(4) (a) After demand made by the defendant within 30 days of removal of personal
property from the premises, the sheriff or constable or the plaintiff shall promptly return all of the
defendant's personal property upon payment of the reasonable costs incurred for its removal and
storage.
(b) The person storing the personal property may sell the property remaining in storage at
a public sale if:
(i) the defendant does not request a hearing or demand return of the personal property
within 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
the personal property.
(c) In advance of the sale, the person storing the personal property shall mail to the
defendant's last-known address a written notice of the time and place of the sale.
(d) If the defendant is present at the sale, he may specify the order in which the personal
property shall be sold, and only so much personal property shall be sold as to satisfy the costs of
removal, storage, advertising, and conducting the sale. The remainder of the personal property, if
any, shall be released to the defendant. If the defendant is not present at the sale, the proceeds,
after deduction of the costs of removal, storage, advertising, and conducting the sale shall be paid
to the plaintiff up to the amount of any judgment the plaintiff obtained against the defendant.
Any surplus shall be paid to the defendant, if the defendant's whereabouts are known. If the
defendant's whereabouts are not known, any surplus shall be disposed of in accordance with Title
67, Chapter 4a, Unclaimed Property Act.
(e) The plaintiff may donate the property to charity if:
(i) the defendant does not request a hearing or demand return of the personal property
within 30 days of its removal from the premises; or
(ii) the defendant fails to pay the reasonable costs incurred for the removal and storage of
the personal property; and
(iii) donation is a commercially reasonable alternative.
(f) If the property belonging to a person who is not a defendant is removed and stored in
accordance with this section, that person may claim the property by delivering a written demand
for its release to the sheriff or constable or the plaintiff. If the claimant provides proper
identification and evidence of ownership, the sheriff or constable or the plaintiff shall promptly
release the property at no cost to the claimant.
(5) In the event of a dispute concerning the manner of enforcement of the restitution
order, the defendant or any person claiming to own stored personal property may file a request
for a hearing. The court shall set the matter for hearing within ten days from the filing of the
request, or as soon thereafter as practicable, and shall mail notice of the hearing to the parties.
(6) The Judicial Council shall draft the forms necessary to implement this section.
Section 73. Repealer.
This act repeals:
Section 9-1-701, Short title.
Section 58-60-505, Qualifications for licensure prior to July 1, 1998.
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