1     
OCCUPATIONAL LICENSING MODIFICATIONS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Eric K. Hutchings

5     
Senate Sponsor: Karen Mayne

6     Cosponsors:
7     Walt Brooks
8     Brad M. Daw
9     Sandra Hollins
Lee B. Perry
Adam Robertson
Christine F. Watkins
Mark A. Wheatley
Mike Winder

10     

11     LONG TITLE
12     General Description:
13          This bill modifies the Division of Occupational and Professional Licensing (DOPL)
14     Act.
15     Highlighted Provisions:
16          This bill:
17          ▸     provides for an individual with a criminal conviction to apply to the Division of
18     Occupational and Professional Licensing for a determination of whether the
19     individual's criminal history would disqualify the individual from receiving a
20     specific occupational or professional license if all other requirements were met;
21          ▸     describes the contents of such an application;
22          ▸     describes DOPL's responsibilities in responding to such an application; and
23          ▸     modifies the definition of "unprofessional conduct."
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None

28     Utah Code Sections Affected:
29     AMENDS:
30          58-1-501, as last amended by Laws of Utah 2018, Chapter 318
31     ENACTS:
32          58-1-310, Utah Code Annotated 1953
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 58-1-310 is enacted to read:
36          58-1-310. Application for division determination regarding criminal conviction.
37          (1) An individual with a criminal record may apply to the division at any time for a
38     determination of whether the individual's criminal record would disqualify the individual from
39     obtaining a license in an occupation or profession regulated by this title if the individual has
40     completed or were to complete all other licensing requirements for the occupation or
41     profession.
42          (2) To receive a determination, the individual shall submit the application described in
43     this section in a form prescribed by the division and shall include information regarding:
44          (a) the individual's complete criminal conviction history;
45          (b) what occupational or professional license the individual is interested in seeking;
46          (c) what licensing requirements have been met by the individual;
47          (d) what licensing requirements have not yet been met by the individual; and
48          (e) any other information required by the division as established by division rule made
49     in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
50          (3) The division may charge the individual a fee, established in accordance with
51     Section 63J-1-504, to submit an application under this section.
52          (4) Within 30 days of the day on which the division receives a completed application
53     from an individual for a determination under this section, based on the statutory authority and
54     administrative rules governing the occupation or profession at the time of the application, the

55     division shall provide a written determination to the individual of whether the individual's
56     criminal record would disqualify the individual from obtaining a license in an occupation or
57     profession regulated by this title if the individual were to complete all other licensing
58     requirements.
59          (5) If the individual's criminal record would disqualify the individual from obtaining a
60     license in an occupation or profession regulated by this title, the written determination
61     described in Subsection (4) may also include information regarding additional steps the
62     individual could take to qualify for licensure.
63          Section 2. Section 58-1-501 is amended to read:
64          58-1-501. Unlawful and unprofessional conduct.
65          (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
66     under this title and includes:
67          (a) practicing or engaging in, representing oneself to be practicing or engaging in, or
68     attempting to practice or engage in any occupation or profession requiring licensure under this
69     title if the person is:
70          (i) not licensed to do so or not exempted from licensure under this title; or
71          (ii) restricted from doing so by a suspended, revoked, restricted, temporary,
72     probationary, or inactive license;
73          (b) (i) impersonating another licensee or practicing an occupation or profession under a
74     false or assumed name, except as permitted by law; or
75          (ii) for a licensee who has had a license under this title reinstated following disciplinary
76     action, practicing the same occupation or profession using a different name than the name used
77     before the disciplinary action, except as permitted by law and after notice to, and approval by,
78     the division;
79          (c) knowingly employing any other person to practice or engage in or attempt to
80     practice or engage in any occupation or profession licensed under this title if the employee is
81     not licensed to do so under this title;

82          (d) knowingly permitting the person's authority to practice or engage in any occupation
83     or profession licensed under this title to be used by another, except as permitted by law;
84          (e) obtaining a passing score on a licensure examination, applying for or obtaining a
85     license, or otherwise dealing with the division or a licensing board through the use of fraud,
86     forgery, or intentional deception, misrepresentation, misstatement, or omission; or
87          (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
88     drug or device to a person located in this state:
89          (A) without prescriptive authority conferred by a license issued under this title, or by
90     an exemption to licensure under this title; or
91          (B) with prescriptive authority conferred by an exception issued under this title or a
92     multistate practice privilege recognized under this title, if the prescription was issued without
93     first obtaining information, in the usual course of professional practice, that is sufficient to
94     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
95     proposed treatment; and
96          (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
97     or cross coverage situation, provided that the person who issues the prescription has
98     prescriptive authority conferred by a license under this title, or is exempt from licensure under
99     this title.
100          (2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is defined
101     as unprofessional conduct under this title or under any rule adopted under this title and
102     includes:
103          (a) violating, or aiding or abetting any other person to violate, any statute, rule, or order
104     regulating an occupation or profession under this title;
105          (b) violating, or aiding or abetting any other person to violate, any generally accepted
106     professional or ethical standard applicable to an occupation or profession regulated under this
107     title;
108          (c) engaging in conduct that results in conviction, a plea of nolo contendere, or a plea

109     of guilty or nolo contendere which is held in abeyance pending the successful completion of
110     probation with respect to a crime of moral turpitude or any other crime that, when considered
111     with the functions and duties of the occupation or profession for which the license was issued
112     or is to be issued, bears a [reasonable] substantial relationship to the licensee's or applicant's
113     ability to safely or competently practice the occupation or profession;
114          (d) engaging in conduct that results in disciplinary action, including reprimand,
115     censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
116     authority having jurisdiction over the licensee or applicant in the same occupation or profession
117     if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
118     proceedings under Section 58-1-401;
119          (e) engaging in conduct, including the use of intoxicants, drugs, narcotics, or similar
120     chemicals, to the extent that the conduct does, or might reasonably be considered to, impair the
121     ability of the licensee or applicant to safely engage in the occupation or profession;
122          (f) practicing or attempting to practice an occupation or profession regulated under this
123     title despite being physically or mentally unfit to do so;
124          (g) practicing or attempting to practice an occupation or profession regulated under this
125     title through gross incompetence, gross negligence, or a pattern of incompetency or negligence;
126          (h) practicing or attempting to practice an occupation or profession requiring licensure
127     under this title by any form of action or communication which is false, misleading, deceptive,
128     or fraudulent;
129          (i) practicing or attempting to practice an occupation or profession regulated under this
130     title beyond the scope of the licensee's competency, abilities, or education;
131          (j) practicing or attempting to practice an occupation or profession regulated under this
132     title beyond the scope of the licensee's license;
133          (k) verbally, physically, mentally, or sexually abusing or exploiting any person through
134     conduct connected with the licensee's practice under this title or otherwise facilitated by the
135     licensee's license;

136          (l) acting as a supervisor without meeting the qualification requirements for that
137     position that are defined by statute or rule;
138          (m) issuing, or aiding and abetting in the issuance of, an order or prescription for a
139     drug or device:
140          (i) without first obtaining information in the usual course of professional practice, that
141     is sufficient to establish a diagnosis, to identify conditions, and to identify contraindications to
142     the proposed treatment; or
143          (ii) with prescriptive authority conferred by an exception issued under this title, or a
144     multi-state practice privilege recognized under this title, if the prescription was issued without
145     first obtaining information, in the usual course of professional practice, that is sufficient to
146     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
147     proposed treatment;
148          (n) violating a provision of Section 58-1-501.5; or
149          (o) violating the terms of an order governing a license.
150          (3) Unless otherwise specified by statute or administrative rule, in a civil or
151     administrative proceeding commenced by the division under this title, a person subject to any
152     of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
153     violation.