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First Substitute S.B. 60
This document includes Senate Committee Amendments incorporated into the bill on Thu, Feb 24, 2011 at 4:31 PM by rday. -->
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8 LONG TITLE
9 General Description:
10 This bill modifies public safety, labor, and criminal provisions to address issues related
11 to accountability permits and providing identifying information.
12 Highlighted Provisions:
13 This bill:
14 . enacts the Utah Pilot Accountability Permit Program Act, including:
15 . defining terms;
16 . establishing the purposes and limitations of permits;
17 . addressing charitable activities;
18 . providing for the administration of the Utah Pilot Accountability Permit
19 Program;
20 . requiring the governor to petition necessary waivers, exemptions, or authority to
21 implement the program;
22 . creating the Pilot Accountability Permit Program Restricted Account;
23 . addressing withholding under the program;
24 . providing for the issuance of permits;
25 . providing for the creation of a database related to the program and addressing
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confidentiality of records;26
27 . requiring an adult not lawfully present in the United States to obtain a permit;
28 . permitting a minor not lawfully present in the United States to obtain a permit
29 under certain circumstances;
30 . establishing the criteria to obtain and maintain a permit;
31 . creating the application and renewal process;
32 . requiring reporting by a permit holder;
33 . requiring a permit holder to carry the permit;
34 . requiring Type B permit holders to meet certain standards;
35 . addressing proficiency in English and civics;
36 . imposing requirements on a business to obtain the services of a permit holder;
37 . providing for registration of approved businesses;
38 . requiring reporting by an approved business;
39 . creating a complaint process concerning the participation of approved
40 businesses;
41 . requiring compliance with labor laws;
42 . establishing prohibited activities;
43 . providing for administrative and criminal enforcement; and
44 . providing for severability;
45 . enacts the Identity Enforcement Act, including:
46 . defining terms;
47 . requiring an individual to present a photographic document if subject to a lawful
48 stop, detention, or arrest by a law enforcement officer;
49 . requiring fingerprinting and photographing under certain circumstances;
50 . imposing penalties;
51 . requiring the establishment of a database; S. and .S
52 . providing for the sharing of information with federal agencies under certain
53 circumstances; S. [
53a . directs the Fraudulent Documents Identification Unit to administer
53b a new Identity Theft Victims Restricted Account; and .S
54 . makes technical and conforming amendments.
55 Money Appropriated in this Bill:
56 None
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Other Special Clauses:57
58 This bill provides an effective date.
59 Utah Code Sections Affected:
60 AMENDS:
61 32B-1-404 (Effective 07/01/11), as enacted by Laws of Utah 2010, Chapter 276
62 32B-1-406 (Effective 07/01/11), as enacted by Laws of Utah 2010, Chapter 276
63 46-1-2, as last amended by Laws of Utah 2009, Chapter 315
64 58-37c-10, as last amended by Laws of Utah 2008, Chapter 322
65 63G-2-206, as last amended by Laws of Utah 2009, Chapter 344
66 63G-2-302, as last amended by Laws of Utah 2010, Chapters 36 and 379
67 63G-2-305, as last amended by Laws of Utah 2010, Chapters 6, 113, and 247
68 63G-11-102, as last amended by Laws of Utah 2010, Chapter 281
69 63J-1-602.3, as enacted by Laws of Utah 2010, Chapter 265
69a S. 67-5-22.7, as enacted by Laws of Utah 2009, Chapter 30 .S
70 76-10-526, as last amended by Laws of Utah 2010, Chapter 62
71 ENACTS:
72 53-16-101, Utah Code Annotated 1953
73 53-16-102, Utah Code Annotated 1953
74 53-16-103, Utah Code Annotated 1953
75 53-16-104, Utah Code Annotated 1953
76 53-16-105, Utah Code Annotated 1953
77 53-16-201, Utah Code Annotated 1953
78 53-16-202, Utah Code Annotated 1953
79 53-16-203, Utah Code Annotated 1953
80 53-16-204, Utah Code Annotated 1953
81 53-16-301, Utah Code Annotated 1953
82 53-16-302, Utah Code Annotated 1953
83 53-16-303, Utah Code Annotated 1953
84 53-16-304, Utah Code Annotated 1953
85 53-16-305, Utah Code Annotated 1953
86 53-16-307, Utah Code Annotated 1953
87 53-16-308, Utah Code Annotated 1953
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89 53-16-402, Utah Code Annotated 1953
90 53-16-403, Utah Code Annotated 1953
91 53-16-404, Utah Code Annotated 1953
92 53-16-405, Utah Code Annotated 1953
93 53-16-501, Utah Code Annotated 1953
94 53-16-502, Utah Code Annotated 1953
95 53-16-503, Utah Code Annotated 1953
96 53-16-504, Utah Code Annotated 1953
97 76-8-1501, Utah Code Annotated 1953
98 76-8-1502, Utah Code Annotated 1953
99 76-8-1503, Utah Code Annotated 1953
100 76-8-1504, Utah Code Annotated 1953
101 76-8-1505, Utah Code Annotated 1953
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103 Be it enacted by the Legislature of the state of Utah:
104 Section 1. Section 32B-1-404 (Effective 07/01/11) is amended to read:
105 32B-1-404 (Effective 07/01/11). Presentation of proof of age upon request.
106 (1) To obtain one or more of the following, an individual shall present proof of age at
107 the request of a person listed in Subsection (2):
108 (a) an alcoholic product;
109 (b) admittance to a restricted area; or
110 (c) employment that under this title may not be obtained by a minor.
111 (2) To determine whether the individual described in Subsection (1) is 21 years of age,
112 the following may request a person described in Subsection (1) to present proof of age:
113 (a) an authorized person;
114 (b) a peace officer;
115 (c) a representative of the State Bureau of Investigation of the Department of Public
116 Safety, established in Section 53-10-301 ; or
117 (d) an authorized department employee.
118 (3) The following may not be used as evidence of the legal age of an individual for
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120 (a) a driving privilege card issued in accordance with Section 53-3-207 ; or
121 (b) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
122 Accountability Permit Program Act.
123 Section 2. Section 32B-1-406 (Effective 07/01/11) is amended to read:
124 32B-1-406 (Effective 07/01/11). Acceptance of identification.
125 (1) An authorized person may accept as evidence of the legal age of the individual
126 presenting the following:
127 (a) proof of age; or
128 (b) if a statement of age is required under Section 32B-1-405 :
129 (i) proof of age; and
130 (ii) a statement of age.
131 (2) A statement of age, if properly completed, signed, and filed in accordance with
132 Section 32B-1-405 , may be offered as a defense in a case when there is at issue the legality of:
133 (a) selling, offering for sale, or furnishing an alcoholic product to the individual who
134 signed the statement of age;
135 (b) admitting the individual who signed the statement of age into a restricted area; or
136 (c) allowing the individual who signed the statement of age to be employed in
137 employment that under this title may not be obtained by a minor.
138 (3) An authorized person may not accept as evidence of the legal age of an individual:
139 (a) a driving privilege card issued in accordance with Section 53-3-207 [
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141 (b) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
142 Accountability Permit Program Act.
143 Section 3. Section 46-1-2 is amended to read:
144 46-1-2. Definitions.
145 As used in this chapter:
146 (1) "Acknowledgment" means a notarial act in which a notary certifies that a signer,
147 whose identity is personally known to the notary or proven on the basis of satisfactory
148 evidence, has admitted, in the presence of the notary, to voluntarily signing a document for the
149 document's stated purpose.
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151 (a) to empower to perform notarial acts; and
152 (b) the written authority to perform those acts.
153 (3) "Copy certification" means a notarial act in which a notary certifies that a
154 photocopy is an accurate copy of a document that is neither a public record nor publicly
155 recorded.
156 (4) "Electronic signature" has the same meaning as provided under Section 46-4-102 .
157 (5) "Jurat" means a notarial act in which a notary certifies that a signer, whose identity
158 is personally known to the notary or proven on the basis of satisfactory evidence, has made, in
159 the notary's presence, a voluntary signature and taken an oath or affirmation vouching for the
160 truthfulness of the signed document.
161 (6) "Notarial act" and "notarization" mean any act that a notary is empowered to
162 perform under this section.
163 (7) "Notarial certificate" means the part of or attachment to a notarized document for
164 completion by the notary and bearing the notary's signature and seal.
165 (8) "Notary" means any person commissioned to perform notarial acts under this
166 chapter.
167 (9) "Oath" or "affirmation" means a notarial act in which a notary certifies that a person
168 made a vow or affirmation in the presence of the notary on penalty of perjury.
169 (10) "Official misconduct" means a notary's performance of any act prohibited or
170 failure to perform any act mandated by this chapter or by any other law in connection with a
171 notarial act.
172 (11) "Personal knowledge of identity" means familiarity with an individual resulting
173 from interactions with that individual over a period of time sufficient to eliminate every
174 reasonable doubt that the individual has the identity claimed.
175 (12) (a) "Satisfactory evidence of identity" means identification of an individual based
176 on:
177 (i) valid personal identification with the individual's photograph, signature, and
178 physical description issued by the United States government, any state within the United States,
179 or a foreign government;
180 (ii) a valid passport issued by any nation; or
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182 and who personally knows the individual.
183 (b) "Satisfactory evidence of identity" does not include:
184 (i) a driving privilege card under Subsection 53-3-207 (10); [
185 (ii) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
186 Accountability Permit Program Act; or
187 [
188 Section 4. Section 53-16-101 is enacted to read:
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190
191 53-16-101. Title.
192 This chapter is known as the "Utah Pilot Accountability Permit Program Act."
193 Section 5. Section 53-16-102 is enacted to read:
194 53-16-102. Definitions.
195 As used in this chapter:
196 (1) "Approved business" means a person who registers with the department in
197 accordance with Section 53-16-402 .
198 (2) "Database" means the database created under Section 53-16-302 .
199 (3) "Government entity" includes:
200 (a) the state;
201 (b) an administrative unit of the state;
202 (c) a political subdivision of the state;
203 (d) an administrative unit of a political subdivision of the state; or
204 (e) an officer or employee of an entity described in Subsections (3)(a) through (d).
205 (4) "Lawfully present in the United States" is as defined in 8 C.F.R. Sec. 103.12.
206 (5) "Permit" means an accountability permit issued in accordance with this chapter, and
207 includes:
208 (a) a Type A permit; and
209 (b) a Type B permit.
210 (6) "Permit holder" means an individual to whom is issued a permit.
211 (7) "Proficiency standards in English and civics" means the following determined by
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213 (a) proficiency standards for English; and
214 (b) proficiency standards for civics and government.
215 (8) "Program" means the Utah Pilot Accountability Permit Program described in
216 Section 53-16-201 .
217 (9) "Restricted account" means the Pilot Accountability Permit Program Restricted
218 Account created in Section 53-16-203 .
219 (10) "Significant crime" means a crime that the multi-agency strike force combats in
220 accordance with Subsection 67-5-22.7 (1).
221 (11) "Type A permit" means a permit issued to an individual in accordance with
222 Subsection 53-16-304 (3)(a).
223 (12) "Type B permit" means a permit issued to an individual in accordance with
224 Subsection 53-16-304 (3)(b).
225 (13) "Unauthorized alien" is as defined in 8 U.S.C. Sec. 1324A(h)(3).
226 Section 6. Section 53-16-103 is enacted to read:
227 53-16-103. Accountability permit purposes and limitations.
228 (1) (a) A permit only authorizes the individual to whom the permit is issued to
229 participate in the program. An individual may not use a permit for any other government
230 purpose.
231 (b) The issuance of a permit to an individual does not affect whether the individual is
232 lawfully present in the United States for purposes of a law other than this chapter.
233 (2) (a) A permit is not considered identification for purposes of Title 63G, Chapter 11,
234 Identity Documents and Verification, except as provided in Title 76, Chapter 8, Part 15,
235 Identity Enforcement Act.
236 (b) An individual may not use a permit:
237 (i) to establish entitlement to a federal, state, or local benefit as described in Section
238 63G-11-104 ;
239 (ii) as identification or proof of the individual's age for any government required
240 purpose, except as provided in Title 76, Chapter 8, Part 15, Identity Enforcement Act; or
241 (iii) to obtain work or provide services in a state other than Utah.
242 (c) A government entity may not accept a permit as proof of personal identification or
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244 (3) Notwithstanding any other provision of law, a permit holder is not considered an
245 employee for purposes of the following:
246 (a) Title 13, Chapter 47, Private Employer Verification Act;
247 (b) Title 35A, Chapter 4, Employment Security Act; and
248 (c) Title 63G, Chapter 11, Identity Documents and Verification.
249 Section 7. Section 53-16-104 is enacted to read:
250 53-16-104. Application to charitable activities.
251 This chapter is not intended to discourage a person lawfully present in this state from
252 providing charitable service to an individual who resides in this state to the extent that the
253 charitable service is not expressly prohibited by this chapter.
254 Section 8. Section 53-16-105 is enacted to read:
255 53-16-105. Severability.
256 If a provision of this chapter or the application of a provision to a person or
257 circumstance is held invalid, the remainder of this chapter shall be given effect without the
258 invalid provision or application. The provisions of this chapter are severable.
259 Section 9. Section 53-16-201 is enacted to read:
260
261 53-16-201. General powers and duties.
262 (1) In accordance with this chapter, the department shall administer this chapter as a
263 program known as the "Utah Pilot Accountability Permit Program."
264 (2) Under the program, the department shall:
265 (a) issue a permit in accordance with Section 53-16-304 ;
266 (b) register an approved business in accordance with Section 53-16-402 ;
267 (c) take necessary action under Section 53-16-405 ;
268 (d) take administrative action under Section 53-16-502 in accordance with Title 63G,
269 Chapter 4, Administrative Procedures Act; and
270 (e) annually report to the governor and the Business and Labor Interim Committee
271 related to:
272 (i) efforts described in Section 53-16-202 ;
273 (ii) the number of permits issued in the previous calendar year;
274
275 year;
276 (iv) the number of approved businesses registered in the previous calendar year;
277 (v) the number and nature of violations found under Part 5, Prohibited Activities and
278 Enforcement, in the previous calendar year; and
279 (vi) the need, if any, for legislative action.
280 (3) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
281 department may make rules to provide:
282 (a) the form for an application submitted under this chapter;
283 (b) what documentation is required to show compliance under this chapter;
284 (c) notice of an opportunity for a hearing on a denial of a permit; and
285 (d) the procedure a person is to follow to verify the validity of a permit under Section
286 53-16-401 .
287 Section 10. Section 53-16-202 is enacted to read:
288 53-16-202. Petition federal government -- Cooperative efforts.
289 (1) (a) The governor, with the assistance of the attorney general, shall petition one or
290 more federal government entities to obtain the necessary waivers, exemptions, or authority to
291 implement the program.
292 (b) To implement a waiver, exemption, or authority under Subsection (1), the governor
293 may enter into an agreement with a federal government entity to obtain a necessary waiver,
294 exemption, or authority to implement the program, except that the agreement may not:
295 (i) take effect until the governor reports to the Legislative Management Committee
296 concerning the agreement; and
297 (ii) contain a provision that is inconsistent with this chapter or other state law.
298 (c) In seeking a necessary waiver, exemption, or authority under this section, the
299 governor shall negotiate:
300 (i) appropriate protections for both a permit holder and a person who obtains services
301 from a permit holder;
302 (ii) effective means for the collection of taxes, fees, and charges owed to federal and
303 state government by a permit holder or person who obtains services from a permit holder; and
304 (iii) effective enforcement of the laws to which a permit holder or person who obtains
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services from a permit holder are subject.305
306 (d) The governor shall determine when the state obtains the necessary waivers,
307 exemptions, or authority to implement the program.
308 (2) The department may enter into one or more agreements with federal, state, and
309 local government entities to coordinate efforts to meet the needs of businesses in this state to
310 obtain necessary labor or services in a manner consistent with this chapter.
311 Section 11. Section 53-16-203 is enacted to read:
312 53-16-203. Pilot Accountability Permit Program Restricted Account.
313 (1) There is created a restricted account within the General Fund known as the "Pilot
314 Accountability Permit Program Restricted Account."
315 (2) (a) The restricted account shall consist of:
316 (i) a fee collected under this chapter;
317 (ii) civil penalties imposed under Section 53-16-501 or 53-16-502 ;
318 (iii) money appropriated to the restricted account by the Legislature; and
319 (iv) interest earned on the restricted account.
320 (b) The restricted account shall earn interest.
321 (3) The Legislature may appropriate money from the restricted account to:
322 (a) the department to administer the program;
323 (b) the State Tax Commission for costs associated with implementing Section
324 53-16-204 ;
325 (c) the attorney general for costs associated with:
326 (i) a multi-agency strike force created under Section 67-5-22.7 ; S. [
327 (ii) a memorandum of understanding executed under Section 67-5-28 ;
327a S. (iii) the Fraudulent Documents Identification Unit created in Section 67-5-22.7; or
327b (iv) the Identity Theft Victims Restricted Account created in Subsection 67-5-22.7(5); .S
328 (d) the State Office of Education for costs associated with implementing Section
329 53-16-308 ; or
330 (e) fund the costs associated with Title 76, Chapter 8, Part 15, Identity Enforcement
331 Act.
332 Section 12. Section 53-16-204 is enacted to read:
333 53-16-204. Withholding under the program.
334 (1) (a) If a waiver, exemption, or authority described in Section 53-16-202 does not
335 provide for the issuance of a Social Security number to a permit holder, the State Tax
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Commission shall by rule made in accordance with Title 63G, Chapter 3, Utah Administrative336
337 Rulemaking Act, provide a means for a person who receives services from a permit holder to
338 withhold from compensation paid to the permit holder an amount to be determined by State
339 Tax Commission rule that, as closely as possible, equals the income S. [
339a taxes that
340 would be imposed by state law if the permit holder were an employee with a Social Security
341 number.
342 (b) If a waiver, exemption, or authority described in Section 53-16-202 provides for the
343 issuance of a Social Security number to a permit holder, a person who receives services from a
344 permit holder is required to withhold from compensation as provided in Title 59, Chapter 10,
345 Part 4, Withholding of Tax.
346 (2) The rules described in Subsection (1)(a) shall be substantially similar to Title 59,
347 Chapter 10, Part 4, Withholding of Tax.
348 (3) To the extent feasible and consistent with a waiver, exemption, or authority entered
349 into under Section 53-16-202 , the State Tax Commission shall work with the applicable federal
350 government agencies to ensure that the withholding provided for under Subsection (2) is
351 compatible with a federal process by which the S. federal government collects federal .S
351a income and employment taxes S. [
352 that would be imposed under federal law if a permit holder were an employee with a Social
353 Security number.
354 Section 13. Section 53-16-301 is enacted to read:
355
356 53-16-301. Issuing a permit.
357 (1) The department may not issue a permit under this chapter:
358 (a) before 120 days after the day on which the governor notifies that department that
359 the state has obtained the necessary waivers, exemptions, or authority to implement the
360 program; or
361 (b) after the day on which the necessary waivers, exemptions, or authority described in
362 Subsection (1)(a) terminate.
363 (2) The department shall:
364 (a) create a permit that:
365 (i) is of impervious material that is resistant to wear or damage; and
366 (ii) minimizes the risk that the permit may be forged, falsified, or counterfeited;
367
368 (i) using format, color, font, or other means; and
369 (ii) displaying clearly on the front of a permit a phrase substantially similar to "FOR
370 WORK PRIVILEGES ONLY -- NOT VALID FOR IDENTIFICATION"; and
371 (c) ensure that a permit:
372 (i) includes a photograph of the individual to whom the permit is issued;
373 (ii) prominently states the day on which the permit expires; and
374 (iii) prominently states the type of permit.
375 Section 14. Section 53-16-302 is enacted to read:
376 53-16-302. Database -- Status of records.
377 (1) The department shall maintain a database of individuals who apply for or who are
378 issued a permit.
379 (2) (a) The database created under this section shall include a record for each
380 individual who applies for a permit of the following:
381 (i) the individual's name and address;
382 (ii) the date on which the individual applies for a permit;
383 (iii) if a permit is issued:
384 (A) the type of permit issued;
385 (B) the date on which the permit is issued; and
386 (C) for a Type A permit, the date on which the permit is renewed;
387 (iv) if a permit is not issued or, if a Type A permit is not renewed, the grounds for
388 which the permit is not issued or not renewed; and
389 (v) for a Type B permit, the name and address of the approved business for which a
390 permit holder provides services, as last reported by the permit holder.
391 (b) The department shall develop and maintain the database so that a person can
392 efficiently access the database under Section 53-16-401 .
393 (3) A record created under this chapter, including the database created under this
394 section, is a protected record under Title 63G, Chapter 2, Government Records Access and
395 Management Act, except that:
396 (a) a record may not be shared under Section 63G-2-206 , unless:
397 (i) requested by the Office of Legislative Auditor General in accordance with Section
398
399 (ii) disclosed to a federal government entity in accordance with this chapter or an
400 agreement under Section 53-16-202 ; and
401 (b) an individual's individual tax identification number is a private record under
402 Subsection 63G-2-302 (1)(h).
403 (4) The department shall maintain a record created as part of the database for at least
404 three years from the day on which the record is created in the database.
405 Section 15. Section 53-16-303 is enacted to read:
406 53-16-303. Requirement to have a permit -- Criteria to obtain a permit --
407 Criminal background check -- Minor.
408 (1) (a) During the period of time that under Subsection 53-16-301 (1) the department
409 may issue a permit under this chapter, an individual who resides in Utah shall obtain a permit
410 under this chapter if the individual is:
411 (i) an alien not lawfully present in the United States; and
412 (ii) 18 years of age or older.
413 (b) Failure to obtain a permit as required by this Subsection (1)(a) is a violation of this
414 chapter subject to administrative action under Section 53-16-502 .
415 (c) During the period of time that under Subsection 53-16-301 (1) the department may
416 issue a permit under this chapter, an individual who resides in Utah may obtain a permit under
417 this chapter if the individual:
418 (i) is an alien not lawfully present in the United States;
419 (ii) is younger than 18 years of age;
420 (iii) has the permission of the individual's parent or guardian; and
421 (iv) is seeking work to the extent permitted under Title 34, Chapter 23, Employment of
422 Minors.
423 (2) To obtain a permit an individual shall:
424 (a) apply for the permit in accordance with Section 53-16-304 ;
425 (b) meet the criteria for a Type A or Type B permit as described in Subsection (3);
426 (c) not have been convicted of, pled guilty to, pled no contest to, pled guilty in a
427 similar manner to, or resolved by diversion or its equivalent a significant crime;
428 (d) submit to a criminal background check in accordance with Subsection (4);
429
430 provide for the issuance of a Social Security number to a permit holder, have an individual tax
431 identification number issued by the Internal Revenue Service;
432 (f) agree to participate in withholding as provided in Section 53-16-204 ;
433 (g) agree to use the permit only for purposes of the program and not use a permit to
434 obtain work or provide services in a state other than Utah;
435 (h) for a Type B permit, agree to provide services to an approved business as required
436 by Section 53-16-307 ; and
437 (i) agree to comply with Section 53-16-308 related to meeting proficiency standards in
438 English and civics.
439 (3) (a) To obtain a Type A permit, the individual shall have had as the individual's
440 primary household, a household located in Utah continuously for at least two years from the
441 day on which the individual applies for a Type A permit.
442 (b) To obtain a Type B permit, on the day on which the individual applies for a Type B
443 permit, the individual shall demonstrate an agreement to provide services to an approved
444 business beginning at least 30 days from the day on which the permit is issued.
445 (4) (a) The department shall require an individual applying for a permit, or renewing a
446 Type A permit, to submit to a criminal background check as a condition of receiving or
447 renewing the permit.
448 (b) An individual required to submit to a criminal background check under Subsection
449 (4)(a), shall:
450 (i) submit a fingerprint card in a form acceptable to the department; and
451 (ii) consent to a fingerprint background check by:
452 (A) the Utah Bureau of Criminal Identification; and
453 (B) the Federal Bureau of Investigation.
454 (c) For a person who submits a fingerprint card and consents to a fingerprint
455 background check under Subsection (4)(b), the department may request:
456 (i) criminal background information maintained pursuant to Title 53, Chapter 10, Part
457 2, Bureau of Criminal Identification, from the Bureau of Criminal Identification; and
458 (ii) complete Federal Bureau of Investigation criminal background checks through the
459 national criminal history system.
460
461 received under this Subsection (4) shall be used by the department to determine eligibility to
462 obtain a permit.
463 (e) The department shall:
464 (i) pay to the Federal Bureau of Investigation the costs incurred by the Federal Bureau
465 of Investigation in providing the department criminal background information under this
466 Subsection (4); and
467 (ii) in accordance with Section 63J-1-504 , charge the person applying for the permit a
468 fee equal to the aggregate of the costs incurred by the department under this Subsection (4) and
469 amount paid under Subsection (4)(e)(i).
470 (5) (a) If an individual described in Subsection (1)(c) is unable to apply for a permit,
471 the individual's parent or guardian may apply for the permit on behalf of the individual.
472 (b) A parent or guardian applying for a permit on behalf of an individual described in
473 Subsection (5)(a) shall provide documentation that the parent or guardian is the parent or
474 guardian of the individual.
475 Section 16. Section 53-16-304 is enacted to read:
476 53-16-304. Application and issuance process -- Reporting to federal agencies.
477 (1) Subject to Subsection (2), to apply for a permit, an individual shall submit to the
478 department, in a form acceptable under this chapter:
479 (a) an application;
480 (b) documentation of meeting the criteria in Section 53-16-303 ;
481 (c) a signed statement verifying the information in the application and documentation;
482 and
483 (d) a fee established by the department in accordance with Section 63J-1-504 .
484 (2) An individual applying for a permit, or renewing a Type A permit, shall appear in
485 person at a location designated by the department to submit the information required by
486 Subsection (1).
487 (3) If an individual submits a complete application and the department determines that
488 the person meets the criteria of Section 53-16-303 , the department shall issue:
489 (a) a Type A permit if the individual qualifies under Subsection 53-16-303 (3)(a); and
490 (b) a Type B permit if the individual qualifies under Subsection 53-16-303 (3)(b).
491
492 immediately notify the individual who applies for the permit to provide the individual an
493 opportunity for a hearing in the county where the individual resides.
494 (b) The department shall document a hearing under this section.
495 (c) As part of a hearing under this section, the department or its authorized agent may:
496 (i) administer an oath;
497 (ii) issue a subpoena for the attendance of a witness or the production of information;
498 or
499 (iii) permit a party or witness to attend or to testify by means of telephone or live
500 audiovisual.
501 (d) After a hearing the department shall rescind or extend its order of denial.
502 (e) An individual who requests a hearing under this Subsection (4) shall pay the costs
503 of the hearing.
504 (f) An individual denied a permit by the department following an administrative
505 hearing may seek judicial review of the order in accordance with Title 63G, Chapter 4,
506 Administrative Procedures Act.
507 (5) (a) If the department denies issuance of a permit, the individual who is denied
508 issuance of a permit shall leave this state within 60 calendar days of the day on which the time
509 for appeal of the denial ends, except that on request by the individual, the department may
510 provide additional days for the individual to leave this state.
511 (b) If the department denies issuance of a permit because the applicant is found to have
512 been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner to, or
513 resolved by diversion or its equivalent a significant crime, the department shall notify
514 Immigration and Customs Enforcement that the applicant is found to have been convicted of,
515 pled guilty to, pled no contest to, pled guilty in a similar manner to, or resolved by diversion or
516 its equivalent to a significant crime.
517 (c) The notice described in Subsection (5)(b) shall:
518 (i) include the address of the applicant as it appears on the application; and
519 (ii) be sent promptly after the time for appeal under Subsection (4) ends.
520 Section 17. Section 53-16-305 is enacted to read:
521 53-16-305. Terms of permits -- Renewal process for Type A permit.
522
523 be renewed in accordance with Subsection (2).
524 (b) A Type B permit expires two years after the day on which it is first issued and may
525 not be renewed.
526 (2) To renew a Type A permit, an individual shall submit to the department, in a form
527 acceptable under this chapter:
528 (a) an application;
529 (b) the documentation of meeting the criteria in Section 53-16-303 ;
530 (c) evidence that the permit holder in accordance with Section 53-16-308 :
531 (i) participates in at least an aggregate of 160 hours of training to meet proficiency
532 standards in English and civics during the previous two-year term of the permit; or
533 (ii) has met:
534 (A) the proficiency standards for English; and
535 (B) the proficiency standards for civics and government;
536 (d) a statement verifying the information in the application and documentation; and
537 (e) a fee established by the department in accordance with Section 63J-1-504 .
538 Section 18. Section 53-16-307 is enacted to read:
539 53-16-307. Permit holder reporting and working requirements -- Carrying permit
540 -- Special requirements for Type B permit.
541 (1) A permit holder shall notify the department in writing within three days of being
542 convicted of, pleading guilty to, pleading no contest to, pleading guilty in a similar manner to,
543 or resolving by diversion or its equivalent a significant crime.
544 (2) In addition to complying with Subsection (1), a permit holder to whom is issued a
545 Type B permit, shall notify the department in writing within three days of one of the following:
546 (a) a change of address of the permit holder; or
547 (b) the day on which the permit holder's term of service begins or ends with an
548 approved business.
549 (3) (a) A Type B permit is automatically revoked if after issuance of the Type B permit,
550 the permit holder to whom it is issued is not employed by an approved employer for more than
551 30 consecutive days.
552 (b) The department shall treat a permit revoked under this Subsection (3) in the same
553
554 (4) A permit holder shall carry the permit issued to the permit holder and have the
555 permit in the permit holder's personal possession at all times that the permit holder is in the
556 state.
557 Section 19. Section 53-16-308 is enacted to read:
558 53-16-308. Proficiency standards for English and civics.
559 (1) (a) By no later than 120 days after the day on which the department may first issue
560 a permit under Section 53-16-301 , the State Office of Education shall establish by rule made in
561 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
562 (i) proficiency standards for English;
563 (ii) proficiency standards for civics and government; and
564 (iii) the procedure for a permit holder to take a test to determine if the permit holder
565 meets:
566 (A) the proficiency standards for English; or
567 (B) the proficiency standards for civics and government.
568 (b) (i) The proficiency standards for English shall demonstrate that a permit holder is
569 proficient in the English language at or above the level of intermediate on the basis of a
570 language proficiency assessment test used by the State Office of Education for purposes of
571 secondary school students.
572 (ii) The proficiency standards for civics and government shall demonstrate that a
573 permit holder is proficient in civics and government at or above the level of necessary to pass
574 the civics test administered by the United States Citizenship and Immigration Services for
575 purposes of naturalization.
576 (2) (a) A permit holder shall:
577 (i) participate in at least an aggregate of 160 hours of training during the two-year term
578 of the permit to prepare to meet:
579 (A) the proficiency standards for English under this section; or
580 (B) the proficiency standards for civics and government under this section; or
581 (ii) before renewal of the permit meet:
582 (A) the proficiency standards for English under this section; and
583 (B) the proficiency standards for civics and government under the section.
584
585 (3) The state may charge a permit holder a fee established by the State Office of
586 Education in accordance with Section 63J-1-504 to take a test described in Subsection (1).
587 (4) In accordance with Title 63G, Chapter 6, Utah Procurement Code, the State Office
588 of Education may contract with a third party to provide the testing required under this section.
589 The State Office of Education shall supervise the contract.
590 Section 20. Section 53-16-401 is enacted to read:
591
592 53-16-401. Obtaining the services of a permit holder.
593 (1) (a) To obtain the services of a permit holder, a person shall contact the department
594 to verify that the permit held by the permit holder is valid.
595 (b) A person shall contact the department at the same point at which the person would
596 contact a status verification system if the permit holder were subject to verification as an
597 employee under Title 13, Chapter 47, Private Employer Verification Act.
598 (2) (a) The department may by rule provide the procedure to be followed under this
599 section.
600 (b) Verification may be provided through the Internet or other electronic medium, if
601 the department determines that sufficient security is provided to ensure compliance with
602 Section 53-16-302 .
603 Section 21. Section 53-16-402 is enacted to read:
604 53-16-402. Registration of approved business -- Renewal.
605 (1) Subject to the other provisions of this section, to be an approved business, at least
606 10 days before the day on which the person first obtains the services of a permit holder who is
607 issued a Type B permit, the person shall register with the department by submitting to the
608 department in a form acceptable under this chapter:
609 (a) a registration application that requires the person to:
610 (i) agree that the person will participate in withholding as provided in Section
611 53-16-204 ;
612 (ii) provide evidence that the person participates in a status verification system if
613 required under Title 13, Chapter 47, Private Employer Verification Act;
614 (iii) describe the labor shortage experienced by the person; and
615
616 provide services to the person; and
617 (b) a registration fee established by the department in accordance with Section
618 63J-1-504 .
619 (2) (a) A registration under this section expires five years after the day on which
620 registration is complete under Subsection (1).
621 (b) To renew a registration, an approved business shall submit to the department in a
622 form acceptable under this chapter:
623 (i) a renewal application, except that the renewal application shall contain the
624 requirements described in Subsection (1)(a); and
625 (ii) a registration fee established by the department in accordance with Section
626 63J-1-504 .
627 (3) On and after 120 days after the day on which the department may first issue a
628 permit under Section 53-16-301 , the department shall publish electronically a list of approved
629 employers on a website accessible to the general public without a charge.
630 (4) Nothing in this section prohibits an approved business from terminating the term of
631 service of a permit holder in the ordinary course of business.
632 Section 22. Section 53-16-403 is enacted to read:
633 53-16-403. Approved business reporting and records.
634 An approved business shall notify the department in writing within three days of the
635 day on which a term of service begins or ends for a permit holder to whom a Type B permit is
636 issued.
637 Section 23. Section 53-16-404 is enacted to read:
638 53-16-404. Complaints against participation of approved business.
639 (1) As used in this section, "local worker" may be defined by the department by rule
640 made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
641 (2) A person lawfully present in the United States may file a complaint with the
642 department if a local worker is terminated or not hired as a result of an approved business'
643 participation in the program.
644 (3) The department shall evaluate a complaint filed under this section and if the
645 department determines that sufficient complaints are received by the department against a
646
647 to participate in the program.
648 (4) The department may revoke an approved business' registration to participate in the
649 program if the department determines that the approved business did not take sufficient
650 measures to obtain local workers.
651 Section 24. Section 53-16-405 is enacted to read:
652 53-16-405. Labor laws.
653 (1) A person who obtains the services of a permit holder shall comply with the
654 applicable labor laws prescribed by the federal government and this state.
655 (2) In accordance with Title 63G, Chapter 4, Administrative Procedures Act, for a
656 violation of this section, in addition to any other remedy, the department may revoke an
657 approved business' registration.
658 (3) The Labor Commission shall notify the department within 30 business days of the
659 day on which an order of the Labor Commission becomes final and unappealable that finds a
660 violation of a labor law under the jurisdiction of the Labor Commission.
661 Section 25. Section 53-16-501 is enacted to read:
662
663 53-16-501. Prohibited activities.
664 (1) A permit holder may not file for unemployment benefits.
665 (2) (a) A person may not employ, hire, or contract for services from an individual who
666 is:
667 (i) an unauthorized alien; and
668 (ii) not a permit holder.
669 (b) Notwithstanding Section 53-16-502 , in accordance with Title 63G, Chapter 4,
670 Administrative Procedures Act, the department may impose a civil fine not to exceed:
671 (i) for the first violation of this Subsection (2), $10,000;
672 (ii) for a second violation of Subsection (2), $15,000; and
673 (iii) for each additional violation, an amount calculated by adding $5,000 to the amount
674 imposed for the previous violation of Subsection (2).
675 Section 26. Section 53-16-502 is enacted to read:
676 53-16-502. Violations -- Administrative remedies.
677
678 (i) shall suspend, limit, or revoke and repossess a permit; and
679 (ii) may impose a civil fine not to exceed $1,000 for each violation.
680 (b) The department shall take an action under this Subsection (1), if a permit holder:
681 (i) furnishes false or forged information or documentation in support of an application;
682 (ii) alters the information on a permit;
683 (iii) is reported absent from work for 10 consecutive days without the approval of the
684 person who obtains the services of the permit holder; or
685 (iv) is convicted of, pleads guilty to, pleads no contest to, pleads guilty in a similar
686 manner to, or resolves by diversion or its equivalent a significant crime.
687 (2) (a) For a violation described in Subsection (2)(b), the department may:
688 (i) suspend, limit, or revoke and repossess a permit;
689 (ii) impose a civil fine not to exceed $1,000 for each violation; or
690 (iii) take an action under both Subsections (2)(a)(i) and (ii).
691 (b) The department may take an action under this Subsection (2) if a person:
692 (i) fails to comply with a reporting requirement;
693 (ii) fails to comply with Subsection 53-16-307 (4);
694 (iii) allows an individual to use a permit if the individual is not entitled to use the
695 permit;
696 (iv) displays or represents that a permit is issued to an individual, if the permit is not
697 issued to the individual;
698 (v) displays a revoked permit as a valid permit;
699 (vi) knowingly or with reckless disregard acquires, uses, displays, or transfers an item
700 that purports to be a valid permit, but that is not a valid permit;
701 (vii) who holds a Type B permit, is unable to be located by the approved business for
702 which the person provides services; or
703 (viii) otherwise violates this chapter.
704 (c) Notwithstanding the other provisions of this Subsection (2), the department shall
705 revoke and repossess a permit if the permit holder to whom the permit is issued has had
706 administrative action taken against the permit holder under this section twice before the
707 violation that subjects the permit holder to an action under this Subsection (2).
708
709 53-16-503. Effects of revocation of permit -- Effects of expiration of a permit.
710 (1) (a) If the department revokes a permit, the permit holder to whom the permit was
711 issued shall leave this state within 60 calendar days, except that on request by the permit
712 holder, the department may provide additional days for the permit holder to leave this state.
713 (b) If the department revokes a permit, the department shall notify Immigration and
714 Customs Enforcement that the permit holder is no longer authorized to provide services within
715 the state.
716 (c) The notice described in Subsection (1)(b) shall:
717 (i) include the last-known address of the permit holder; and
718 (ii) be sent promptly after the time for appeal of the revocation ends.
719 (2) (a) If a permit holder's Type A permit expires, the permit holder to whom the
720 permit is issued shall leave this state within 60 calendar days, except that on request by the
721 permit holder, the department may provide additional days for the permit holder to leave this
722 state.
723 (b) If a permit holder's Type B permit expires, the permit holder to whom the permit is
724 issued shall within 60 days of the day on which the Type B permit expires:
725 (i) leave the state; or
726 (ii) obtain a Type A permit.
727 Section 28. Section 53-16-504 is enacted to read:
728 53-16-504. Criminal penalties.
729 (1) It is a class C misdemeanor for a person to knowingly or with reckless disregard:
730 (a) allow an individual to use a permit if the individual is not entitled to use the permit;
731 (b) display or represent that a permit is issued to an individual, if it is not issued to the
732 individual;
733 (c) display a revoked permit as a valid permit;
734 (d) acquire, use, display, or transfer an item that purports to be a valid permit, if it is
735 not a valid permit;
736 (e) fail to surrender a permit to the department upon demand;
737 (f) use a false name or give a false address for any purpose under this chapter;
738 (g) make a false statement, or conceal a material fact in an application; or
739
740 (2) It is a third degree felony if a person knowingly acquires, uses, displays, or transfers
741 a false or altered permit to:
742 (a) aid or further the person's efforts to fraudulently obtain goods or services; or
743 (b) aid or further the person's efforts to commit a violent felony.
744 Section 29. Section 58-37c-10 is amended to read:
745 58-37c-10. Reporting and recordkeeping.
746 (1) Any person who engages in a regulated transaction, unless excepted under the
747 provisions of Subsections 58-37c-8 (3) and (4), shall submit a report with respect to such
748 transaction and shall maintain records of inventories in accordance with rules adopted by the
749 division.
750 (2) The division shall provide reporting forms upon which regulated transactions shall
751 be reported.
752 (3) The division shall furnish copies of reports of transactions under this section to
753 appropriate law enforcement agencies.
754 (4) The division shall adopt rules regulating:
755 (a) records which shall be maintained and reports which shall be submitted by
756 regulated distributors and regulated purchasers with respect to listed controlled substance
757 precursors obtained, distributed, and held in inventory;
758 (b) records which shall be maintained and reports which shall be submitted by
759 regulated distributors and regulated purchasers with respect to extraordinary or unusual
760 regulated transactions and a requirement that in such cases the report must be received at least
761 three working days prior to transfer of the listed controlled substance precursor;
762 (c) identification which must be presented by a purchaser of any listed controlled
763 substance precursor before the sale or transfer can be completed and recordkeeping
764 requirements related to such identification presented;
765 (d) filing by each licensee the identification of all locations where any listed controlled
766 substance precursor is held in inventory or stored and amending such filing when any change in
767 location is made;
768 (e) reports and actions which must be taken by a regulated distributor or regulated
769 purchaser in the event of any theft, loss, or shortage of a listed controlled substance precursor;
770
771 regulated transaction with an out-of-state purchaser;
772 (g) reports and actions which must be taken by a regulated purchaser relating to a
773 regulated transaction with an out-of-state distributor; and
774 (h) regulated transactions to the extent such regulation is reasonable and necessary to
775 protect the public health, safety, or welfare.
776 (5) A person who engages in a regulated transaction may not accept as proof of
777 identification as required under Subsection (4)(c):
778 (a) a driving privilege card issued in accordance with Section 53-3-207 [
779
780 (b) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
781 Accountability Permit Program Act.
782 Section 30. Section 63G-2-206 is amended to read:
783 63G-2-206. Sharing records.
784 (1) A governmental entity may provide a record that is private, controlled, or protected
785 to another governmental entity, a government-managed corporation, a political subdivision, the
786 federal government, or another state if the requesting entity:
787 (a) serves as a repository or archives for purposes of historical preservation,
788 administrative maintenance, or destruction;
789 (b) enforces, litigates, or investigates civil, criminal, or administrative law, and the
790 record is necessary to a proceeding or investigation;
791 (c) is authorized by state statute to conduct an audit and the record is needed for that
792 purpose;
793 (d) is one that collects information for presentence, probationary, or parole purposes; or
794 (e) (i) is:
795 (A) the Legislature;
796 (B) a legislative committee;
797 (C) a member of the Legislature; or
798 (D) a legislative staff member acting at the request of the Legislature, a legislative
799 committee, or a member of the Legislature; and
800 (ii) requests the record in relation to the Legislature's duties including:
801
802 (B) appropriations; or
803 (C) an investigation or review conducted by the Legislature or a legislative committee.
804 (2) (a) A governmental entity may provide a private, controlled, or protected record or
805 record series to another governmental entity, a political subdivision, a government-managed
806 corporation, the federal government, or another state if the requesting entity provides written
807 assurance:
808 (i) that the record or record series is necessary to the performance of the governmental
809 entity's duties and functions;
810 (ii) that the record or record series will be used for a purpose similar to the purpose for
811 which the information in the record or record series was collected or obtained; and
812 (iii) that the use of the record or record series produces a public benefit that outweighs
813 the individual privacy right that protects the record or record series.
814 (b) A governmental entity may provide a private, controlled, or protected record or
815 record series to a contractor or a private provider according to the requirements of Subsection
816 (6)(b).
817 (3) (a) A governmental entity shall provide a private, controlled, or protected record to
818 another governmental entity, a political subdivision, a government-managed corporation, the
819 federal government, or another state if the requesting entity:
820 (i) is entitled by law to inspect the record;
821 (ii) is required to inspect the record as a condition of participating in a state or federal
822 program or for receiving state or federal funds; or
823 (iii) is an entity described in Subsection (1)(a), (b), (c), (d), or (e).
824 (b) Subsection (3)(a)(iii) applies only if the record is a record described in Subsection
825 63G-2-305 (4).
826 (4) Before disclosing a record or record series under this section to another
827 governmental entity, another state, the United States, a foreign government, or to a contractor
828 or private provider, the originating governmental entity shall:
829 (a) inform the recipient of the record's classification and the accompanying restrictions
830 on access; and
831 (b) if the recipient is not a governmental entity to which this chapter applies, obtain the
832
833 will abide by those restrictions on access unless a statute, federal regulation, or interstate
834 agreement otherwise governs the sharing of the record or record series.
835 (5) A governmental entity may disclose a record to another state, the United States, or a
836 foreign government for the reasons listed in Subsections (1) and (2) without complying with
837 the procedures of Subsection (2) or (4) if disclosure is authorized by executive agreement,
838 treaty, federal statute, compact, federal regulation, or state statute.
839 (6) (a) Subject to Subsections (6)(b) and (c), an entity receiving a record under this
840 section is subject to the same restrictions on disclosure of the record as the originating entity.
841 (b) A contractor or a private provider may receive information under this section only
842 if:
843 (i) the contractor or private provider's use of the record or record series produces a
844 public benefit that outweighs the individual privacy right that protects the record or record
845 series;
846 (ii) the record or record series it requests:
847 (A) is necessary for the performance of a contract with a governmental entity;
848 (B) will only be used for the performance of the contract with the governmental entity;
849 (C) will not be disclosed to any other person; and
850 (D) will not be used for advertising or solicitation purposes; and
851 (iii) the contractor or private provider gives written assurance to the governmental
852 entity that is providing the record or record series that it will adhere to the restrictions of this
853 Subsection (6)(b).
854 (c) The classification of a record already held by a governmental entity and the
855 applicable restrictions on disclosure of that record are not affected by the governmental entity's
856 receipt under this section of a record with a different classification that contains information
857 that is also included in the previously held record.
858 (7) Notwithstanding any other provision of this section, if a more specific court rule or
859 order, state statute, federal statute, or federal regulation prohibits or requires sharing
860 information, that rule, order, statute, or federal regulation controls.
861 (8) The following records may not be shared under this section:
862 (a) records held by the Division of Oil, Gas, and Mining that pertain to any person and
863
864 Mining; [
865 (b) records of publicly funded libraries as described in Subsection 63G-2-302 (1)(c)[
866 and
867 (c) subject to Section 53-16-302 , a record created under Title 53, Chapter 16, Utah
868 Pilot Accountability Permit Program Act.
869 (9) Records that may evidence or relate to a violation of law may be disclosed to a
870 government prosecutor, peace officer, or auditor.
871 Section 31. Section 63G-2-302 is amended to read:
872 63G-2-302. Private records.
873 (1) The following records are private:
874 (a) records concerning an individual's eligibility for unemployment insurance benefits,
875 social services, welfare benefits, or the determination of benefit levels;
876 (b) records containing data on individuals describing medical history, diagnosis,
877 condition, treatment, evaluation, or similar medical data;
878 (c) records of publicly funded libraries that when examined alone or with other records
879 identify a patron;
880 (d) records received by or generated by or for:
881 (i) the Independent Legislative Ethics Commission, except for:
882 (A) the commission's summary data report that is required under legislative rule; and
883 (B) any other document that is classified as public under legislative rule; or
884 (ii) a Senate or House Ethics Committee in relation to the review of ethics complaints,
885 unless the record is classified as public under legislative rule;
886 (e) records received or generated for a Senate confirmation committee concerning
887 character, professional competence, or physical or mental health of an individual:
888 (i) if prior to the meeting, the chair of the committee determines release of the records:
889 (A) reasonably could be expected to interfere with the investigation undertaken by the
890 committee; or
891 (B) would create a danger of depriving a person of a right to a fair proceeding or
892 impartial hearing; and
893 (ii) after the meeting, if the meeting was closed to the public;
894
895 employment with, a governmental entity that would disclose that individual's home address,
896 home telephone number, Social Security number, insurance coverage, marital status, or payroll
897 deductions;
898 (g) records or parts of records under Section 63G-2-303 that a current or former
899 employee identifies as private according to the requirements of that section;
900 (h) that part of a record indicating a person's Social Security number, individual
901 taxpayer identification number, or federal employer identification number if provided under
902 Section 31A-23a-104 , 31A-25-202 , 31A-26-202 , 53-16-302, 58-1-301 , 61-1-4 , or 61-2f-203 ;
903 (i) that part of a voter registration record identifying a voter's driver license or
904 identification card number, Social Security number, or last four digits of the Social Security
905 number;
906 (j) a record that:
907 (i) contains information about an individual;
908 (ii) is voluntarily provided by the individual; and
909 (iii) goes into an electronic database that:
910 (A) is designated by and administered under the authority of the Chief Information
911 Officer; and
912 (B) acts as a repository of information about the individual that can be electronically
913 retrieved and used to facilitate the individual's online interaction with a state agency;
914 (k) information provided to the Commissioner of Insurance under:
915 (i) Subsection 31A-23a-115 (2)(a);
916 (ii) Subsection 31A-23a-302 (3); or
917 (iii) Subsection 31A-26-210 (3);
918 (l) information obtained through a criminal background check under Title 11, Chapter
919 40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
920 (m) information provided by an offender that is:
921 (i) required by the registration requirements of Section 77-27-21.5 ; and
922 (ii) not required to be made available to the public under Subsection 77-27-21.5 (27);
923 and
924 (n) a statement and any supporting documentation filed with the attorney general in
925
926 homeland security.
927 (2) The following records are private if properly classified by a governmental entity:
928 (a) records concerning a current or former employee of, or applicant for employment
929 with a governmental entity, including performance evaluations and personal status information
930 such as race, religion, or disabilities, but not including records that are public under Subsection
931 63G-2-301 (2)(b) or 63G-2-301 (3)(o), or private under Subsection (1)(b);
932 (b) records describing an individual's finances, except that the following are public:
933 (i) records described in Subsection 63G-2-301 (2);
934 (ii) information provided to the governmental entity for the purpose of complying with
935 a financial assurance requirement; or
936 (iii) records that must be disclosed in accordance with another statute;
937 (c) records of independent state agencies if the disclosure of those records would
938 conflict with the fiduciary obligations of the agency;
939 (d) other records containing data on individuals the disclosure of which constitutes a
940 clearly unwarranted invasion of personal privacy;
941 (e) records provided by the United States or by a government entity outside the state
942 that are given with the requirement that the records be managed as private records, if the
943 providing entity states in writing that the record would not be subject to public disclosure if
944 retained by it; and
945 (f) any portion of a record in the custody of the Division of Aging and Adult Services,
946 created in Section 62A-3-102 , that may disclose, or lead to the discovery of, the identity of a
947 person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult.
948 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
949 records, statements, history, diagnosis, condition, treatment, and evaluation.
950 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
951 doctors, or affiliated entities are not private records or controlled records under Section
952 63G-2-304 when the records are sought:
953 (i) in connection with any legal or administrative proceeding in which the patient's
954 physical, mental, or emotional condition is an element of any claim or defense; or
955 (ii) after a patient's death, in any legal or administrative proceeding in which any party
956
957 (c) Medical records are subject to production in a legal or administrative proceeding
958 according to state or federal statutes or rules of procedure and evidence as if the medical
959 records were in the possession of a nongovernmental medical care provider.
960 Section 32. Section 63G-2-305 is amended to read:
961 63G-2-305. Protected records.
962 The following records are protected if properly classified by a governmental entity:
963 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
964 has provided the governmental entity with the information specified in Section 63G-2-309 ;
965 (2) commercial information or nonindividual financial information obtained from a
966 person if:
967 (a) disclosure of the information could reasonably be expected to result in unfair
968 competitive injury to the person submitting the information or would impair the ability of the
969 governmental entity to obtain necessary information in the future;
970 (b) the person submitting the information has a greater interest in prohibiting access
971 than the public in obtaining access; and
972 (c) the person submitting the information has provided the governmental entity with
973 the information specified in Section 63G-2-309 ;
974 (3) commercial or financial information acquired or prepared by a governmental entity
975 to the extent that disclosure would lead to financial speculations in currencies, securities, or
976 commodities that will interfere with a planned transaction by the governmental entity or cause
977 substantial financial injury to the governmental entity or state economy;
978 (4) records the disclosure of which could cause commercial injury to, or confer a
979 competitive advantage upon a potential or actual competitor of, a commercial project entity as
980 defined in Subsection 11-13-103 (4);
981 (5) test questions and answers to be used in future license, certification, registration,
982 employment, or academic examinations;
983 (6) records the disclosure of which would impair governmental procurement
984 proceedings or give an unfair advantage to any person proposing to enter into a contract or
985 agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
986 Subsection (6) does not restrict the right of a person to have access to, once the contract or
987
988 entity in response to:
989 (a) a request for bids;
990 (b) a request for proposals;
991 (c) a grant; or
992 (d) other similar document;
993 (7) records that would identify real property or the appraisal or estimated value of real
994 or personal property, including intellectual property, under consideration for public acquisition
995 before any rights to the property are acquired unless:
996 (a) public interest in obtaining access to the information outweighs the governmental
997 entity's need to acquire the property on the best terms possible;
998 (b) the information has already been disclosed to persons not employed by or under a
999 duty of confidentiality to the entity;
1000 (c) in the case of records that would identify property, potential sellers of the described
1001 property have already learned of the governmental entity's plans to acquire the property;
1002 (d) in the case of records that would identify the appraisal or estimated value of
1003 property, the potential sellers have already learned of the governmental entity's estimated value
1004 of the property; or
1005 (e) the property under consideration for public acquisition is a single family residence
1006 and the governmental entity seeking to acquire the property has initiated negotiations to acquire
1007 the property as required under Section 78B-6-505 ;
1008 (8) records prepared in contemplation of sale, exchange, lease, rental, or other
1009 compensated transaction of real or personal property including intellectual property, which, if
1010 disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
1011 of the subject property, unless:
1012 (a) the public interest in access outweighs the interests in restricting access, including
1013 the governmental entity's interest in maximizing the financial benefit of the transaction; or
1014 (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
1015 the value of the subject property have already been disclosed to persons not employed by or
1016 under a duty of confidentiality to the entity;
1017 (9) records created or maintained for civil, criminal, or administrative enforcement
1018
1019 release of the records:
1020 (a) reasonably could be expected to interfere with investigations undertaken for
1021 enforcement, discipline, licensing, certification, or registration purposes;
1022 (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
1023 proceedings;
1024 (c) would create a danger of depriving a person of a right to a fair trial or impartial
1025 hearing;
1026 (d) reasonably could be expected to disclose the identity of a source who is not
1027 generally known outside of government and, in the case of a record compiled in the course of
1028 an investigation, disclose information furnished by a source not generally known outside of
1029 government if disclosure would compromise the source; or
1030 (e) reasonably could be expected to disclose investigative or audit techniques,
1031 procedures, policies, or orders not generally known outside of government if disclosure would
1032 interfere with enforcement or audit efforts;
1033 (10) records the disclosure of which would jeopardize the life or safety of an
1034 individual;
1035 (11) records the disclosure of which would jeopardize the security of governmental
1036 property, governmental programs, or governmental recordkeeping systems from damage, theft,
1037 or other appropriation or use contrary to law or public policy;
1038 (12) records that, if disclosed, would jeopardize the security or safety of a correctional
1039 facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
1040 with the control and supervision of an offender's incarceration, treatment, probation, or parole;
1041 (13) records that, if disclosed, would reveal recommendations made to the Board of
1042 Pardons and Parole by an employee of or contractor for the Department of Corrections, the
1043 Board of Pardons and Parole, or the Department of Human Services that are based on the
1044 employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
1045 jurisdiction;
1046 (14) records and audit workpapers that identify audit, collection, and operational
1047 procedures and methods used by the State Tax Commission, if disclosure would interfere with
1048 audits or collections;
1049
1050 until the final audit is released;
1051 (16) records prepared by or on behalf of a governmental entity solely in anticipation of
1052 litigation that are not available under the rules of discovery;
1053 (17) records disclosing an attorney's work product, including the mental impressions or
1054 legal theories of an attorney or other representative of a governmental entity concerning
1055 litigation;
1056 (18) records of communications between a governmental entity and an attorney
1057 representing, retained, or employed by the governmental entity if the communications would be
1058 privileged as provided in Section 78B-1-137 ;
1059 (19) (a) (i) personal files of a state legislator, including personal correspondence to or
1060 from a member of the Legislature; and
1061 (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
1062 legislative action or policy may not be classified as protected under this section; and
1063 (b) (i) an internal communication that is part of the deliberative process in connection
1064 with the preparation of legislation between:
1065 (A) members of a legislative body;
1066 (B) a member of a legislative body and a member of the legislative body's staff; or
1067 (C) members of a legislative body's staff; and
1068 (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
1069 legislative action or policy may not be classified as protected under this section;
1070 (20) (a) records in the custody or control of the Office of Legislative Research and
1071 General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
1072 legislation or contemplated course of action before the legislator has elected to support the
1073 legislation or course of action, or made the legislation or course of action public; and
1074 (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
1075 Office of Legislative Research and General Counsel is a public document unless a legislator
1076 asks that the records requesting the legislation be maintained as protected records until such
1077 time as the legislator elects to make the legislation or course of action public;
1078 (21) research requests from legislators to the Office of Legislative Research and
1079 General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
1080
1081 (22) drafts, unless otherwise classified as public;
1082 (23) records concerning a governmental entity's strategy about collective bargaining or
1083 pending litigation;
1084 (24) records of investigations of loss occurrences and analyses of loss occurrences that
1085 may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
1086 Uninsured Employers' Fund, or similar divisions in other governmental entities;
1087 (25) records, other than personnel evaluations, that contain a personal recommendation
1088 concerning an individual if disclosure would constitute a clearly unwarranted invasion of
1089 personal privacy, or disclosure is not in the public interest;
1090 (26) records that reveal the location of historic, prehistoric, paleontological, or
1091 biological resources that if known would jeopardize the security of those resources or of
1092 valuable historic, scientific, educational, or cultural information;
1093 (27) records of independent state agencies if the disclosure of the records would
1094 conflict with the fiduciary obligations of the agency;
1095 (28) records of an institution within the state system of higher education defined in
1096 Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
1097 retention decisions, and promotions, which could be properly discussed in a meeting closed in
1098 accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
1099 the final decisions about tenure, appointments, retention, promotions, or those students
1100 admitted, may not be classified as protected under this section;
1101 (29) records of the governor's office, including budget recommendations, legislative
1102 proposals, and policy statements, that if disclosed would reveal the governor's contemplated
1103 policies or contemplated courses of action before the governor has implemented or rejected
1104 those policies or courses of action or made them public;
1105 (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
1106 revenue estimates, and fiscal notes of proposed legislation before issuance of the final
1107 recommendations in these areas;
1108 (31) records provided by the United States or by a government entity outside the state
1109 that are given to the governmental entity with a requirement that they be managed as protected
1110 records if the providing entity certifies that the record would not be subject to public disclosure
1111
1112 (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
1113 except as provided in Section 52-4-206 ;
1114 (33) records that would reveal the contents of settlement negotiations but not including
1115 final settlements or empirical data to the extent that they are not otherwise exempt from
1116 disclosure;
1117 (34) memoranda prepared by staff and used in the decision-making process by an
1118 administrative law judge, a member of the Board of Pardons and Parole, or a member of any
1119 other body charged by law with performing a quasi-judicial function;
1120 (35) records that would reveal negotiations regarding assistance or incentives offered
1121 by or requested from a governmental entity for the purpose of encouraging a person to expand
1122 or locate a business in Utah, but only if disclosure would result in actual economic harm to the
1123 person or place the governmental entity at a competitive disadvantage, but this section may not
1124 be used to restrict access to a record evidencing a final contract;
1125 (36) materials to which access must be limited for purposes of securing or maintaining
1126 the governmental entity's proprietary protection of intellectual property rights including patents,
1127 copyrights, and trade secrets;
1128 (37) the name of a donor or a prospective donor to a governmental entity, including an
1129 institution within the state system of higher education defined in Section 53B-1-102 , and other
1130 information concerning the donation that could reasonably be expected to reveal the identity of
1131 the donor, provided that:
1132 (a) the donor requests anonymity in writing;
1133 (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
1134 classified protected by the governmental entity under this Subsection (37); and
1135 (c) except for an institution within the state system of higher education defined in
1136 Section 53B-1-102 , the governmental unit to which the donation is made is primarily engaged
1137 in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
1138 over the donor, a member of the donor's immediate family, or any entity owned or controlled
1139 by the donor or the donor's immediate family;
1140 (38) accident reports, except as provided in Sections 41-6a-404 , 41-12a-202 , and
1141 73-18-13 ;
1142
1143 34A-2-205 ;
1144 (40) (a) the following records of an institution within the state system of higher
1145 education defined in Section 53B-1-102 , which have been developed, discovered, disclosed to,
1146 or received by or on behalf of faculty, staff, employees, or students of the institution:
1147 (i) unpublished lecture notes;
1148 (ii) unpublished notes, data, and information:
1149 (A) relating to research; and
1150 (B) of:
1151 (I) the institution within the state system of higher education defined in Section
1152 53B-1-102 ; or
1153 (II) a sponsor of sponsored research;
1154 (iii) unpublished manuscripts;
1155 (iv) creative works in process;
1156 (v) scholarly correspondence; and
1157 (vi) confidential information contained in research proposals;
1158 (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
1159 information required pursuant to Subsection 53B-16-302 (2)(a) or (b); and
1160 (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
1161 (41) (a) records in the custody or control of the Office of Legislative Auditor General
1162 that would reveal the name of a particular legislator who requests a legislative audit prior to the
1163 date that audit is completed and made public; and
1164 (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
1165 Office of the Legislative Auditor General is a public document unless the legislator asks that
1166 the records in the custody or control of the Office of Legislative Auditor General that would
1167 reveal the name of a particular legislator who requests a legislative audit be maintained as
1168 protected records until the audit is completed and made public;
1169 (42) records that provide detail as to the location of an explosive, including a map or
1170 other document that indicates the location of:
1171 (a) a production facility; or
1172 (b) a magazine;
1173
1174 (a) contained in the statewide database of the Division of Aging and Adult Services
1175 created by Section 62A-3-311.1 ; or
1176 (b) received or maintained in relation to the Identity Theft Reporting Information
1177 System (IRIS) established under Section 67-5-22 ;
1178 (44) information contained in the Management Information System and Licensing
1179 Information System described in Title 62A, Chapter 4a, Child and Family Services;
1180 (45) information regarding National Guard operations or activities in support of the
1181 National Guard's federal mission;
1182 (46) records provided by any pawn or secondhand business to a law enforcement
1183 agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
1184 Secondhand Merchandise Transaction Information Act;
1185 (47) information regarding food security, risk, and vulnerability assessments performed
1186 by the Department of Agriculture and Food;
1187 (48) except to the extent that the record is exempt from this chapter pursuant to Section
1188 63G-2-106 , records related to an emergency plan or program prepared or maintained by the
1189 Division of Homeland Security the disclosure of which would jeopardize:
1190 (a) the safety of the general public; or
1191 (b) the security of:
1192 (i) governmental property;
1193 (ii) governmental programs; or
1194 (iii) the property of a private person who provides the Division of Homeland Security
1195 information;
1196 (49) records of the Department of Agriculture and Food relating to the National
1197 Animal Identification System or any other program that provides for the identification, tracing,
1198 or control of livestock diseases, including any program established under Title 4, Chapter 24,
1199 Utah Livestock Brand and Anti-theft Act or Title 4, Chapter 31, Livestock Inspection and
1200 Quarantine;
1201 (50) as provided in Section 26-39-501 :
1202 (a) information or records held by the Department of Health related to a complaint
1203 regarding a child care program or residential child care which the department is unable to
1204
1205 (b) information or records related to a complaint received by the Department of Health
1206 from an anonymous complainant regarding a child care program or residential child care;
1207 (51) unless otherwise classified as public under Section 63G-2-301 and except as
1208 provided under Section 41-1a-116 , an individual's home address, home telephone number, or
1209 personal mobile phone number, if:
1210 (a) the individual is required to provide the information in order to comply with a law,
1211 ordinance, rule, or order of a government entity; and
1212 (b) the subject of the record has a reasonable expectation that this information will be
1213 kept confidential due to:
1214 (i) the nature of the law, ordinance, rule, or order; and
1215 (ii) the individual complying with the law, ordinance, rule, or order;
1216 (52) the name, home address, work addresses, and telephone numbers of an individual
1217 that is engaged in, or that provides goods or services for, medical or scientific research that is:
1218 (a) conducted within the state system of higher education, as defined in Section
1219 53B-1-102 ; and
1220 (b) conducted using animals;
1221 (53) an initial proposal under Title 63M, Chapter 1, Part 26, Government Procurement
1222 Private Proposal Program, to the extent not made public by rules made under that chapter;
1223 (54) information collected and a report prepared by the Judicial Performance
1224 Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
1225 12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
1226 the information or report;
1227 (55) (a) records of the Utah Educational Savings Plan created under Section
1228 53B-8a-103 if the disclosure of the records would conflict with its fiduciary obligations;
1229 (b) proposals submitted to the Utah Educational Savings Plan; and
1230 (c) contracts entered into by the Utah Educational Savings Plan and the related
1231 payments;
1232 (56) records contained in the Management Information System created in Section
1233 62A-4a-1003 ;
1234 (57) records provided or received by the Public Lands Policy Coordinating Office in
1235
1236 (58) information requested by and provided to the Utah State 911 Committee under
1237 Section 53-10-602 ;
1238 (59) recorded Children's Justice Center investigative interviews, both video and audio,
1239 the release of which are governed by Section 77-37-4 ; [
1240 (60) in accordance with Section 73-10-33 :
1241 (a) a management plan for a water conveyance facility in the possession of the Division
1242 of Water Resources or the Board of Water Resources; or
1243 (b) an outline of an emergency response plan in possession of the state or a county or
1244 municipality[
1245 (61) subject to Section 53-16-302 , a record created under Title 53, Chapter 16, Utah
1246 Pilot Accountability Permit Program Act; and
1247 (62) subject to Section 76-8-1505 , the database created in Section 76-8-1504 .
1248 Section 33. Section 63G-11-102 is amended to read:
1249 63G-11-102. Creation of identity documents -- Issuance to citizens, nationals, and
1250 legal permanent resident aliens -- Exceptions.
1251 (1) The following entities may create, publish, or otherwise manufacture an
1252 identification document, identification card, or identification certificate and possess an
1253 engraved plate or other device for the printing of an identification document:
1254 (a) a federal, state, or local government agency for employee identification, which is
1255 designed to identify the bearer as an employee;
1256 (b) a federal, state, or local government agency for purposes authorized or required by
1257 law or a legitimate purpose consistent with the duties of the agency, including such documents
1258 as voter identification cards, identification cards, passports, birth certificates, and Social
1259 Security cards; and
1260 (c) a public school or state or private educational institution to identify the bearer as an
1261 administrator, faculty member, student, or employee.
1262 (2) The name of the issuing entity shall be clearly printed upon the face of the
1263 identification document.
1264 (3) Except as otherwise provided in Subsections (4) and (5) or by federal law, an entity
1265 providing an identity document, card, or certificate under Subsection (1)(b) or (c) shall issue
1266
1267 (a) a United States citizen;
1268 (b) a national; or
1269 (c) a legal permanent resident alien.
1270 (4) (a) Subsection (3) does not apply to an applicant for an identification document
1271 who presents, in person, valid documentary evidence of the applicant's:
1272 (i) unexpired immigrant or nonimmigrant visa status for admission into the United
1273 States;
1274 (ii) pending or approved application for asylum in the United States;
1275 (iii) admission into the United States as a refugee;
1276 (iv) pending or approved application for temporary protected status in the United
1277 States;
1278 (v) approved deferred action status; or
1279 (vi) pending application for adjustment of status to legal permanent resident or
1280 conditional resident.
1281 (b) (i) An entity listed in Subsection (1)(b) or (c) may issue a Subsection (1)(b) or (c)
1282 identification document to an applicant who satisfies the requirements of Subsection (4)(a).
1283 (ii) Except as otherwise provided by federal law, the document is valid only:
1284 (A) during the period of time of the individual's authorized stay in the United States; or
1285 (B) for one year from the date of issuance if there is no definite end to the individual's
1286 period of authorized stay.
1287 (iii) An entity issuing an identification document under this Subsection (4) shall clearly
1288 indicate on the document:
1289 (A) that it is temporary; and
1290 (B) its expiration date.
1291 (c) An individual may renew a document issued under this Subsection (4) only upon
1292 presentation of valid documentary evidence that the status by which the individual originally
1293 qualified for the identification document has been extended by the United States Citizenship
1294 and Immigration Services or other authorized agency of the United States Department of
1295 Homeland Security.
1296 (5) (a) Subsection (3) does not apply to an identification document issued under
1297
1298 (i) is only valid for use on the educational institution's campus or facility; and
1299 (ii) includes a statement of the restricted use conspicuously printed upon the face of the
1300 identification document.
1301 (b) Subsection (3) does not apply to:
1302 (i) a license certificate, driving privilege card, or identification card issued or renewed
1303 under Title 53, Chapter 3, Uniform Driver License Act[
1304 (ii) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
1305 Accountability Permit Program Act.
1306 (c) Subsection (3) does not apply to a public transit pass issued by a public transit
1307 district as defined in Title 17B, Chapter 2a, Part 8, Public Transit District Act, that:
1308 (i) is only valid for use on the public transit system; and
1309 (ii) includes a statement of the restricted use conspicuously printed on the face of the
1310 public transit pass.
1311 (6) This section shall be enforced without regard to race, religion, gender, ethnicity, or
1312 national origin.
1313 Section 34. Section 63J-1-602.3 is amended to read:
1314 63J-1-602.3. List of nonlapsing funds and accounts -- Title 46 through Title 60.
1315 (1) Certain funds associated with the Law Enforcement Operations Account, as
1316 provided in Section 51-9-411 .
1317 (2) The Public Safety Honoring Heroes Restricted Account created in Section
1318 53-1-118 .
1319 (3) Funding for the Search and Rescue Financial Assistance Program, as provided in
1320 Section 53-2-107 .
1321 (4) Appropriations made to the Department of Public Safety from the Department of
1322 Public Safety Restricted Account, as provided in Section 53-3-106 .
1323 (5) Appropriations to the Motorcycle Rider Education Program, as provided in Section
1324 53-3-905 .
1325 (6) The DNA Specimen Restricted Account created in Section 53-10-407 .
1326 (7) The Pilot Accountability Permit Program Restricted Account created in Section
1327 53-16-203 .
1328
1329 53A-17a-105 .
1330 [
1331 of Education for new teacher bonus and performance-based compensation plans, as provided in
1332 Section 53A-17a-148 .
1333 [
1334 of Education for implementation of proposals to improve mathematics achievement test scores,
1335 as provided in Section 53A-17a-152 .
1336 [
1337 [
1338 products or services, as provided in Section 53A-24-105 .
1339 [
1340 [
1341 Regents for teacher preparation programs, as provided in Section 53B-6-104 .
1342 [
1343 School Institutional Trust Lands Management Act, as provided under Section 53C-3-202 .
1344 [
1345 lines imposed by the Public Service Commission, as provided in Section 54-8b-10 .
1346 [
1347 Licensing for violation of unlawful or unprofessional conduct that are used for education and
1348 enforcement purposes, as provided in Section 58-17b-505 .
1349 [
1350 58-31b-103 .
1351 [
1352 in Section 58-44a-103 .
1353 [
1354 Licensing for use in education and enforcement of the Security Personnel Licensing Act, as
1355 provided in Section 58-63-103 .
1356 [
1357 Section 58-76-103 .
1358 [
Senate Committee Amendments 2-24-2011 rd/po
1359
Fund, as provided in Section
59-12-103
.1359
1360 Section 35. Section 76-8-1501 is enacted to read:
1360a S. INSERT SECTION HERE .S
1361
1362 76-8-1501. Title.
1363 This part is known as the "Identity Enforcement Act."
1364 Section 36. Section 76-8-1502 is enacted to read:
1365 76-8-1502. Definitions.
1366 As used in this part:
1367 (1) "Database" means the identity database created in Section 76-8-1504 .
1368 (2) "Department" means the Department of Public Safety.
1369 (3) "Law enforcement agency" means an entity of the federal government, a state, or a
1370 political subdivision of a state, including a state institution of higher education, that exists
1371 primarily to prevent and detect crime and enforce criminal laws, statutes, and ordinances.
1372 (4) "Law enforcement officer" has the same meaning as in Section 53-13-103 .
1373 (5) (a) "Photographic document" means a document that is:
1374 (i) a form of positive identification that:
1375 (A) is issued by a federal, state, or tribal government entity; and
1376 (B) contains a numerical identifier and a photograph of the person identified; or
1377 (ii) (A) a driving privilege card issued in accordance with Section 53-3-207 ; or
1378 (B) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
1379 Accountability Permit Program Act.
1380 (b) "Photographic document" includes:
1381 (i) an identification card issued by the state;
1382 (ii) an identification card issued by another state that is similar to an identification card
1383 issued by this state;
1384 (iii) a driver license issued by any state;
1385 (iv) a United States military identification card; or
1386 (v) one of the following if it contains a photograph of the individual:
1387 (A) a valid tribal identification card;
1388 (B) a Bureau of Indian Affairs card; or
1389 (C) a tribal treaty card.
1389a S. Section 37. Section 67-5-22.7 is amended to read:
1389b 67-5-22.7. Multi-agency strike force to combat violent and other major felony crimes
1389c associated with illegal immigration and human trafficking -- Fraudulent Documents Identification .S
1389d
Senate Committee Amendments 2-24-2011 rd/po
S. Unit.
S. Unit.
1389e (1) The Office of the Attorney General is authorized to administer and coordinate the
1389f operation of a multi-agency strike force to combat violent and other major felony crimes committed
1389g within the state that are associated with illegal immigration and human trafficking.
1389h (2) The office shall invite officers of the U.S. Immigration and Customs Enforcement and state
1389i and local law enforcement personnel to participate in this mutually supportive, multi-agency strike
1389j force to more effectively utilize their combined skills, expertise, and resources.
1389k (3) The strike force shall focus its efforts on detecting, investigating, deterring, and eradicating
1389l violent and other major felony criminal activity related to illegal immigration and human trafficking.
1389m (4) In conjunction with the strike force and subject to available funding, the Office of the
1389n Attorney General shall establish a Fraudulent Documents Identification Unit:
1389o (a) for the primary purpose of investigating, apprehending, and prosecuting individuals or
1389p entities that participate in the sale or distribution of fraudulent documents used for identification
1389q purposes;
{
and
Text Box
}
}
1389r (b) to specialize in fraudulent identification documents created and prepared for individuals
1389s who are unlawfully residing within the state
{
.
Text Box
}
; and
}
; and
1389t (c) to administer the Identity Theft Victims Restricted Account created under Subsection (5).
1389u (5) (a) There is created a restricted account in the General Fund known as the "Identity Theft
1389v Victims Restricted Account."
1389w (b) The Identity Theft Victims Restricted Account shall consist of money appropriated to the
1389x Identity Theft Victims Restricted Account by the Legislature.
1389y (c) Subject to appropriations from the Legislature, the Fraudulent Documents Identification
1389z Unit may expend the money in the Identity Theft Victims Restricted Account to pay a claim as
1389aa provided in this Subsection (5) to a person who is a victim of identity theft prosecuted under Section
1389ab 76-6-1102 or 76-10-1801.
1389ac (d) To obtain restitution from the Identity Theft Victims Restricted Account, a person shall
1389ad file a claim with the Fraudulent Documents Identification Unit by no later than one year after the day
1389ae on which an individual is convicted, pleads guilty, pleads no contest to, pleads guilty in a similar
1389af manner to, or resolved by diversion or its equivalent an offense under Section 76-6-1102 or 76-10-1801
1389ag for the theft of the identity of the person filing the claim.
1389ah (e) A claim filed under this Subsection (5) shall include evidence satisfactory to the Fraudulent
1389ai Documents Identification Unit:
1389aj (i) that the person is the victim of identity theft described in Subsection (5)(d); and
1389ak (ii) of the actual damages experienced by the person as a result of the identity theft that are
1389al not recovered frome a public or private source.
1389am (f) The Fraudulent Documents Identification Unit shall pay a claim of restitution from the
1389an Identity Theft Victims Restricted Account: .S
1389ao S. (i) if the Fraudulent Documents Identification Unit determines that the person has
1389ap provided sufficient evidence to meet the requirements of Subsection (5)(e);
1389aq (ii) in the order that claims are filed with the Fraudulent Documents Identification Unit; and
1389ar (iii) to the extent that it there is money in the Identity Theft Victims Restricted Account.
1389as (g) If there is insufficient money in the Identity Theft Victims Restrict Account when a claim is
1389at filed under this Subsection (5) to pay the claim in full, the Fraudulent Documents Identification Unit
1389au may pay a claim when there is sufficient money in the account to pay the claim.
1389av [
1389aw the Legislature's Law Enforcement and Criminal Justice Interim Committee by December 1, together
1389ax with any proposed recommendations for modifications to this section. .S
1390
1391 76-8-1503. Providing photographic document -- Fingerprinting and
1392 photographing.
1393 (1) (a) Except as otherwise provided in this Subsection (1), on and after the day on
1394 which the Department of Public Safety may issue an accountability permit under Section
1395 53-16-301 , a law enforcement officer shall require an individual to provide the law
1396 enforcement officer at least one form of photographic document if the law enforcement officer
1397 conducts a lawful stop, detention, or arrest of the individual when acting in the enforcement of
1398 a state law or local ordinance.
1399 (b) If a law enforcement officer requires an individual to provide a photographic
1400 document under Subsection (1)(a) and the individual is a permit holder, as defined in Section
1401 53-16-102 , the individual shall provide the law enforcement officer the accountability permit
1402 issued to the individual in accordance with Title 53, Chapter 16, Utah Pilot Accountability
1403 Permit Program Act.
1404 (c) On a case-by-case basis, a law enforcement officer may elect not to request that the
1405 individual provide a photographic document as required under this Subsection (1) if the law
1406 enforcement officer determines that to require the photographic document could hinder or
1407 obstruct a criminal investigation.
1408 (2) If an individual fails to provide a law enforcement officer a photographic document
1409 as required under Subsection (1), the law enforcement officer shall:
1410 (a) make a record of the time and location where the lawful stop, detention, or arrest
1411 occurs;
1412 (b) fingerprint the individual; and
1413 (c) take a photograph of the individual.
1414 (3) (a) An individual is guilty of a class C misdemeanor if the individual violates
1415 Subsection (1), except that the fine is $1,000.
1416 (b) An individual is guilty of a class B misdemeanor if the individual refuses to allow a
1417 law enforcement officer to do the following as required by Subsection (2):
1418 (i) fingerprint the individual; or
1419 (ii) take a photograph of the individual.
1420 (4) An arrest made under this section shall be conducted in accordance with Section
1421
1422 (5) A law enforcement officer may not consider race, color, or national origin in
1423 implementing this section, except to the extent permitted by the constitutions of the United
1424 States and this state.
1425 Section 38. Section 76-8-1504 is enacted to read:
1426 76-8-1504. Identity database.
1427 (1) A law enforcement agency shall forward the information described in Subsection
1428 76-8-1503 (2) to the department in an electronic format.
1429 (2) The department shall maintain a database of the information provided to the
1430 department under Subsection (1).
1431 (3) The department shall develop and maintain the database to facilitate the disclosures
1432 required by Section 76-8-1505 .
1433 (4) The database created under this section is a protected record under Title 63G,
1434 Chapter 2, Government Records Access and Management Act.
1435 (5) The department shall maintain a record created as part of the database for at least
1436 three years from the day on which the record is created in the database.
1437 Section 39. Section 76-8-1505 is enacted to read:
1438 76-8-1505. Sharing of information with federal agencies.
1439 In accordance with a memorandum of understanding entered into by the state under
1440 Section 67-5-28 , the department shall share one or more records in the database with the
1441 United States Department of Justice or the United States Department of Homeland Security as
1442 provided in 8 U.S.C. Sec. 1357(g) for the enforcement of federal immigration and customs
1443 laws.
1444 Section 40. Section 76-10-526 is amended to read:
1445 76-10-526. Criminal background check prior to purchase of a firearm -- Fee --
1446 Exemption for concealed firearm permit holders.
1447 (1) For purposes of this section, "valid permit to carry a concealed firearm" does not
1448 include a temporary permit issued pursuant to Section 53-5-705 .
1449 (2) (a) To establish personal identification and residence in this state for purposes of
1450 this part, a dealer shall require an individual receiving a firearm to present one photo
1451 identification on a form issued by a governmental agency of the state.
1452
1453
1454 residence in this state as required under this Subsection (2)[
1455 (i) a driving privilege card issued in accordance with Section 53-3-207 ; or
1456 (ii) an accountability permit issued in accordance with Title 53, Chapter 16, Utah Pilot
1457 Accountability Permit Program Act.
1458 (3) A criminal history background check is required for the sale of a firearm by a
1459 licensed firearm dealer in the state.
1460 (4) (a) An individual, except a dealer, purchasing a firearm from a dealer shall consent
1461 in writing to a criminal background check, on a form provided by the bureau.
1462 (b) The form shall contain the following information:
1463 (i) the dealer identification number;
1464 (ii) the name and address of the individual receiving the firearm;
1465 (iii) the date of birth, height, weight, eye color, and hair color of the individual
1466 receiving the firearm; and
1467 (iv) the Social Security number or any other identification number of the individual
1468 receiving the firearm.
1469 (5) (a) The dealer shall send the form required by Subsection (4) to the bureau
1470 immediately upon its completion.
1471 (b) A dealer may not sell or transfer a firearm to an individual until the dealer has
1472 provided the bureau with the information in Subsection (4) and has received approval from the
1473 bureau under Subsection (7).
1474 (6) The dealer shall make a request for criminal history background information by
1475 telephone or other electronic means to the bureau and shall receive approval or denial of the
1476 inquiry by telephone or other electronic means.
1477 (7) When the dealer calls for or requests a criminal history background check, the
1478 bureau shall:
1479 (a) review the criminal history files, including juvenile court records, to determine if
1480 the individual is prohibited from purchasing, possessing, or transferring a firearm by state or
1481 federal law;
1482 (b) inform the dealer that:
1483
1484 (ii) the individual is approved for purchasing, possessing, or transferring a firearm;
1485 (c) provide the dealer with a unique transaction number for that inquiry; and
1486 (d) provide a response to the requesting dealer during the call for a criminal
1487 background, or by return call, or other electronic means, without delay, except in case of
1488 electronic failure or other circumstances beyond the control of the bureau, the bureau shall
1489 advise the dealer of the reason for the delay and give the dealer an estimate of the length of the
1490 delay.
1491 (8) (a) The bureau may not maintain any records of the criminal history background
1492 check longer than 20 days from the date of the dealer's request if the bureau determines that the
1493 individual receiving the gun is not prohibited from purchasing, possessing, or transferring the
1494 firearm under state or federal law.
1495 (b) However, the bureau shall maintain a log of requests containing the dealer's federal
1496 firearms number, the transaction number, and the transaction date for a period of 12 months.
1497 (9) If the criminal history background check discloses information indicating that the
1498 individual attempting to purchase the firearm is prohibited from purchasing, possessing, or
1499 transferring a firearm, the bureau shall inform the law enforcement agency in the jurisdiction
1500 where the person resides.
1501 (10) If an individual is denied the right to purchase a firearm under this section, the
1502 individual may review the individual's criminal history information and may challenge or
1503 amend the information as provided in Section 53-10-108 .
1504 (11) The bureau shall make rules as provided in Title 63G, Chapter 3, Utah
1505 Administrative Rulemaking Act, to ensure the identity, confidentiality, and security of all
1506 records provided by the division pursuant to this part are in conformance with the requirements
1507 of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993).
1508 (12) (a) (i) A dealer shall collect a criminal history background check fee related to the
1509 sale of a firearm under this section, which is $7.50.
1510 (ii) This fee remains in effect until changed by the bureau through the process under
1511 Section 63J-1-504 .
1512 (b) (i) The dealer shall forward at one time all fees collected for criminal history
1513 background checks performed during the month to the bureau by the last day of the month
1514
1515 (ii) The bureau shall deposit the fees in the General Fund as dedicated credits to cover
1516 the cost of administering and conducting the criminal history background check program.
1517 (13) An individual with a concealed firearm permit issued pursuant to Title 53, Chapter
1518 5, Part 7, Concealed Firearm Act, is exempt from the background check and corresponding fee
1519 required in this section for the purchase of a firearm if:
1520 (a) the individual presents the individual's concealed firearm permit to the dealer prior
1521 to purchase of the firearm; and
1522 (b) the dealer verifies with the division that the individual's concealed firearm permit is
1523 valid.
1524 Section 41. Effective date.
1525 (1) Except as provided in Subsection (2), this bill takes effect on May 10, 2011.
1526 (2) The amendments to the following sections take effect on July 1, 2011:
1527 (a) Section 32B-1-404 (Effective 07/01/11); and
1528 (b) Section 32B-1-406 (Effective 07/01/11).
Legislative Review Note
as of 2-15-11 2:55 PM
As required by legislative rule and practice, the Office of Legislative Research and General
Counsel provides the following legislative review note to assist the Legislature in making its
own determination as to the constitutionality of the bill. The note is based on an analysis of
relevant state and federal constitutional law as applied to the bill. The note is not written for
the
purpose of influencing whether the bill should become law, but is written to provide
information relevant to legislators' consideration of this bill. The note is not a substitute for the
judgment of the judiciary, which has authority to determine the constitutionality of a law in
the
context of a specific case.
The Constitution of the United States grants authority to the federal government to regulate
foreign commerce and to adopt a uniform rule of naturalization. The United States Supreme
Court has also found inherent federal authority to regulate immigration on the basis of federal
sovereignty and the power to engage in foreign affairs, this is sometimes referred to as the
"plenary power," which in more recent years has been made subject to certain constitutional
limits. See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001); Fong Yue Ting v. United States, 149
U.S. 698 (1893); Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2009). Federal
immigration law generally consists of both civil and criminal laws regarding admission of
foreign nationals, including the criteria and means for selection and the basis and procedure
for
removal; citizenship by birth or by naturalization; criminal actions, such as transporting or
harboring an alien; and related laws such as access to public benefits, employment of
unauthorized aliens, issuance of driver licenses, etc. The key federal statute is the Immigration
and Nationality Act (INA).
When a state regulates in the area of immigration, the issue arises of whether the state action is
preempted by federal law. To determine whether preemption exists, courts generally examine
whether the state regulation fails at least one of three tests: Is it preempted because of a
conflict with federal law? Is it preempted because federal law has so occupied the field that
states are not allowed to regulate in the area? Is there an express preemption of state action?
The bill addresses areas also addressed by federal law such as accessing and disclosing
immigration information. Significantly, this bill provides a means by which a person may
employ an unauthorized alien in this state if the unauthorized alien is issued a state permit,
and
the bill imposes state specific penalties for hiring an unauthorized alien without a permit.
Federal law, in 8 U.S.C. Sec. 1324a, makes it unlawful to hire, recruit ,or refer for a fee, an
alien for employment in the United States knowing that the alien is an unauthorized alien.
This
section further provides that "The provisions of this section preempt any State or local law
imposing civil or criminal sanctions (other than through licensing and similar laws) upon those
who employ, or recruit or refer for a fee for employment, unauthorized aliens."
The bill requires the governor to seek waivers that would authorize the state program.
Although
federal law contains measures to allow cooperation between the federal government and a
state,
the INA and related regulations do not have an express process to provide a waiver that grants
states authority to related to state laws in areas that are governed by federal law. In the
absence
of an effective waiver recognized as valid by the courts, under current law, there is a high
probability that a court would find that portions of this bill are preempted by federal law as
applied through the Supremacy Clause of the Constitution of the United States.