1     
FORMER OFFENDER EMPLOYMENT AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marsha Judkins

5     
Senate Sponsor: Michael S. Kennedy

6     

7     LONG TITLE
8     General Description:
9          This bill addresses employment and licensing of a former offender as a mental health
10     professional.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates and modifies definitions;
14          ▸     when hiring a mental health professional, prohibits a public or private employer
15     from:
16               •     considering certain arrests or criminal convictions;
17               •     denying employment based on certain criminal convictions; and
18               •     denying certain employment based on the mental health professional's
19     participation in substance use treatment;
20          ▸     prohibits the Division of Occupational and Professional Licensing from:
21               •     considering certain criminal convictions when taking certain actions regarding a
22     mental health professional's license; and
23               •     refusing certain mental health professionals' licenses based on participation in
24     substance use treatment; and
25          ▸     makes technical and conforming changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
32          34-52-102, as last amended by Laws of Utah 2019, Chapter 371
33          34-52-201, as last amended by Laws of Utah 2019, Chapters 371 and 479
34          58-1-401, as last amended by Laws of Utah 2021, Chapter 404
35          58-1-501, as last amended by Laws of Utah 2020, Chapters 289 and 339
36          58-60-108, as last amended by Laws of Utah 2021, Chapter 404
37          58-60-110, as last amended by Laws of Utah 2019, Chapter 419
38     ENACTS:
39          34-52-302, Utah Code Annotated 1953
40     

41     Be it enacted by the Legislature of the state of Utah:
42          Section 1. Section 34-52-102 is amended to read:
43          34-52-102. Definitions.
44          As used in this chapter:
45          (1) "Applicant" means an individual who provides information to a public employer or
46     private employer for the purpose of obtaining employment.
47          (2) (a) "Criminal conviction" means a verdict or finding of guilt after a criminal trial or
48     a plea of guilty or nolo contendere to a criminal charge.
49          (b) "Criminal conviction" does not include an expunged criminal conviction.
50          (3) "Juvenile adjudication" means:
51          (a) a finding by a court that the facts in a petition or criminal information alleging an
52     individual committed an offense when the individual was younger than 18 years old have been
53     proved; or
54          (b) an admission or plea of no contest under Section 80-6-306.
55          (4) "Mental health professional applicant" means an individual who:
56          (a) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
57          (b) provides information to a public employer or private employer for the purpose of
58     obtaining employment that requires a license under Title 58, Chapter 60, Mental Health
59     Professional Practice Act.
60          [(3)] (5) (a) "Private employer" means a person who has one or more employees
61     employed in the same business, or in or about the same establishment, under any contract of
62     hire, express or implied, oral or written.
63          (b) "Private employer" does not include a public employer.
64          [(4)] (6) "Public employer" means an employer that is:
65          (a) the state or any administrative subunit of the state, including a department, division,
66     board, council, committee, institution, office, bureau, or other similar administrative unit of
67     state government;
68          (b) a state institution of higher education; or
69          (c) a municipal corporation, county, municipality, school district, local district, special
70     service district, or other political subdivision of the state.
71          Section 2. Section 34-52-201 is amended to read:
72          34-52-201. Public employer requirements -- Exceptions for hiring a mental health
73     professional.
74          (1) [A] Except as provided in Subsections (3) and (6), a public employer may not:
75          (a) exclude an applicant from an initial interview because of a past criminal
76     conviction[.], or, if the applicant is a mental health professional applicant, because of a past
77     juvenile adjudication or an arrest that occurred when the mental health professional applicant
78     was younger than 18 years old;
79          (b) make an inquiry related to an applicant's expunged criminal history;
80          (c) when making a hiring decision regarding a mental health professional applicant,
81     consider:
82          (i) an arrest described in Subsection (1)(a);
83          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
84          (iii) a juvenile adjudication;
85          (iv) a past criminal conviction for which the mental health professional applicant's
86     incarceration ended more than three years before the day on which the mental health
87     professional applies for employment with the public employer; or
88          (v) a past criminal conviction for which the mental health professional applicant was
89     not incarcerated that occurred more than three years before the day on which the mental health
90     professional applicant applies for employment with the public employer; or
91          (d) deny a mental health professional applicant employment based on a past criminal
92     conviction that does not bear a direct relationship to the mental health professional applicant's
93     ability to safely or competently perform the duties of employment.
94          (2) A public employer excludes an applicant from an initial interview under Subsection
95     (1)(a) if the public employer:
96          (a) requires an applicant to disclose, on an employment application, a criminal
97     conviction, or, if the applicant is a mental health professional applicant, a juvenile adjudication
98     or an arrest described in Subsection (1)(a);
99          (b) requires an applicant to disclose, before an initial interview, a criminal conviction,
100     or, if the applicant is a mental health professional applicant, a juvenile adjudication or an arrest
101     described in Subsection (1)(a); or
102          (c) if no interview is conducted, requires an applicant to disclose, before making a
103     conditional offer of employment, a criminal conviction[.], or, if the applicant is a mental health
104     professional, a juvenile adjudication or an arrest described in Subsection (1)(a).
105          (3) Notwithstanding Subsection (1)(d), a public employer may not deny a mental health
106     professional applicant employment that requires the mental health professional applicant to
107     provide substance use treatment based on:
108          (a) the mental health professional applicant's participation in substance use treatment;
109          (b) a past criminal conviction for a nonviolent drug offense for which the mental health
110     professional applicant's incarceration ended more than three years before the day on which the
111     mental health professional applies for employment with the public employer; or
112          (c) a past criminal conviction for a nonviolent drug offense for which the mental health
113     professional applicant was not incarcerated that occurred more than three years before the day
114     on which the mental health professional applicant applies for employment with the public
115     employer.
116          [(3) (a) A public employer may not make any inquiry related to an applicant's
117     expunged criminal history.]
118          [(b)] (4) An applicant seeking employment from a public employer may answer a
119     question related to an expunged criminal record as though the action underlying the expunged
120     criminal record never occurred.
121          [(4) Subject to] (5) Except as provided in Subsections (1) through (3), [nothing in this
122     section prevents] this section does not prevent a public employer from:
123          (a) asking an applicant for information about an applicant's criminal conviction history
124     during an initial interview or after an initial interview; or
125          (b) considering an applicant's criminal conviction history when making a hiring
126     decision.
127          [(5)] (6) (a) Subsections (1) through [(3)] (4) do not apply:
128          [(a)] (i) if federal, state, or local law, including corresponding administrative rules,
129     requires the consideration of an applicant's criminal conviction history;
130          [(b)] (ii) to a public employer that is a law enforcement agency;
131          [(c)] (iii) to a public employer that is part of the criminal or juvenile justice system;
132          [(d)] (iv) to a public employer seeking a nonemployee volunteer;
133          [(e)] (v) to a public employer that works with children or vulnerable adults;
134          [(f)] (vi) to the Department of Alcoholic Beverage Control created in Section
135     32B-2-203;
136          [(g)] (vii) to the State Tax Commission;
137          [(h)] (viii) to a public employer whose primary purpose is performing financial or
138     fiduciary functions; [and] or
139          [(i)] (ix) to a public transit district hiring or promoting an individual for a safety
140     sensitive position described in Section 17B-2a-825.
141          (b) Subsections (1)(c)(iv), (1)(c)(v), and (1)(d) do not apply to a criminal conviction
142     for:
143          (i) a violent felony as defined in Section 76-3-203.5; or
144          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
145     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
146          Section 3. Section 34-52-302 is enacted to read:
147          34-52-302. Private employer requirements when hiring a mental health
148     professional.
149          (1) Except as provided in Subsections (3) and (5), a private employer may not:
150          (a) exclude a mental health professional applicant from an initial interview because of
151     a past criminal conviction, juvenile adjudication, or an arrest that occurred when the mental
152     health professional applicant was younger than 18 years old;
153          (b) make an inquiry related to a mental health professional applicant's expunged
154     criminal history;
155          (c) when making a hiring decision regarding a mental health professional applicant,
156     consider:
157          (i) an arrest described in Subsection (1)(a);
158          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
159          (iii) a juvenile adjudication;
160          (iv) a past criminal conviction for which the mental health professional applicant's
161     incarceration ended more than three years before the day on which the mental health
162     professional applies for employment with the private employer; or
163          (v) a past criminal conviction for which the mental health professional applicant was
164     not incarcerated that occurred more than three years before the day on which the mental health
165     professional applicant applies for employment with the private employer; or
166          (d) deny a mental health professional applicant employment based on a past criminal
167     conviction that does not bear a direct relationship to the mental health professional applicant's
168     ability to safely or competently perform the employment requirements.
169          (2) A private employer excludes a mental health professional applicant from an initial
170     interview under Subsection (1)(a) if the private employer:
171          (a) requires the mental health professional applicant to disclose, on an employment
172     application, a criminal conviction, a juvenile adjudication, or an arrest described in Subsection
173     (1)(a);
174          (b) requires the mental health professional applicant to disclose, before an initial
175     interview, a criminal conviction, a juvenile adjudication, or an arrest described in Subsection
176     (1)(a); or
177          (c) if no interview is conducted, requires the mental health professional applicant to
178     disclose, before making a conditional offer of employment, a criminal conviction, a juvenile
179     adjudication, or an arrest described in Subsection (1)(a).
180          (3) Notwithstanding Subsection (1)(d), a private employer may not deny a mental
181     health professional applicant employment that requires the mental health professional applicant
182     to provide substance use treatment based on:
183          (a) the mental health professional applicant's participation in substance use treatment;
184     or
185          (b) a past criminal conviction for a nonviolent drug offense for which the mental health
186     professional applicant's incarceration ended more than three years before the day on which the
187     mental health professional applies for employment with the private employer; or
188          (c) a past criminal conviction for a nonviolent drug offense for which the mental health
189     professional applicant was not incarcerated that occurred more than three years before the day
190     on which the mental health professional applicant applies for employment with the private
191     employer.
192          (4) Except as provided in Subsections (1) through (3), this section does not prevent a
193     private employer from:
194          (a) asking a mental health professional applicant for information about the mental
195     health professional applicant's criminal conviction history during an initial interview or after an
196     initial interview; or
197          (b) considering a mental health professional applicant's criminal conviction history
198     when making a hiring decision.
199          (5) (a) Subsections (1) through (3) do not apply:
200          (i) if federal, state, or local law, including corresponding administrative rules, requires
201     the consideration of an applicant's criminal conviction history;
202          (ii) to a private employer that is part of the criminal or juvenile justice system;
203          (iii) to a private employer seeking a nonemployee volunteer;
204          (iv) to a private employer that works with children or vulnerable adults; or
205          (v) to a private employer whose primary purpose is performing financial or fiduciary
206     functions.
207          (b) Subsections (1)(c)(iv), (1)(c)(v), and (1)(d) do not apply to a criminal conviction
208     for:
209          (i) a violent felony as defined in Section 76-3-203.5; or
210          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
211     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
212          Section 4. Section 58-1-401 is amended to read:
213          58-1-401. Grounds for denial of license -- Disciplinary proceedings -- Time
214     limitations -- Sanctions.
215          (1) The division shall refuse to issue a license to an applicant and shall refuse to renew
216     or shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a
217     licensee who does not meet the qualifications for licensure under this title.
218          (2) The division may refuse to issue a license to an applicant and may refuse to renew
219     or may revoke, suspend, restrict, place on probation, issue a public reprimand to, or otherwise
220     act upon the license of a licensee for the following reasons:
221          (a) subject to [the provisions of] Subsection (7), the applicant or licensee has engaged
222     in unprofessional conduct, as defined by statute or rule under this title;
223          (b) the applicant or licensee has engaged in unlawful conduct as defined by statute
224     under this title;
225          (c) the applicant or licensee has been determined to be mentally incompetent by a court
226     of competent jurisdiction; or
227          (d) subject to Subsections 58-31b-401(7), 58-60-108(2), 58-61-401(2), 58-67-401(2),
228     58-68-401(2), 58-70a-401(2), and Section 58-81-105, the applicant or licensee is unable to
229     practice the occupation or profession with reasonable skill and safety because of illness,
230     drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a
231     result of a mental or physical condition, when the condition demonstrates a threat or potential
232     threat to the public health, safety, or welfare.
233          (3) A licensee whose license to practice an occupation or profession regulated by this
234     title has been suspended, revoked, placed on probation, or restricted may apply for
235     reinstatement of the license at reasonable intervals and upon compliance with conditions
236     imposed upon the licensee by statute, rule, or terms of the license suspension, revocation,
237     probation, or restriction.
238          (4) The division may issue cease and desist orders to:
239          (a) a licensee or applicant who may be disciplined under Subsection (1) or (2);
240          (b) a person who engages in or represents that the person is engaged in an occupation
241     or profession regulated under this title; and
242          (c) a person who otherwise violates this title or a rule adopted under this title.
243          (5) The division may impose an administrative penalty in accordance with Section
244     58-1-502.
245          (6) (a) The division may not take disciplinary action against a person for
246     unprofessional or unlawful conduct under this title, unless the division enters into a stipulated
247     agreement or initiates an adjudicative proceeding regarding the conduct within four years after
248     the conduct is reported to the division, except under Subsection (6)(b).
249          (b) (i) The division may not take disciplinary action against a person for unprofessional
250     or unlawful conduct more than 10 years after the occurrence of the conduct, unless the
251     proceeding is in response to a civil or criminal judgment or settlement and the proceeding is
252     initiated within one year following the judgment or settlement.
253          (ii) Notwithstanding Subsection (6)(b)(i), the division may refuse to issue a license due
254     to unprofessional or unlawful conduct that occurred more than 10 years before a request or
255     application for licensure is made.
256          (7) When the division is determining whether to refuse to issue a license to an
257     applicant, or to refuse to renew the license of a licensee, based solely on the criminal
258     conviction of an applicant or licensee, the division shall:
259          (a) provide individualized consideration to the applicant or licensee;
260          (b) except as provided in Subsection 58-60-108(2), determine whether the criminal
261     conviction bears a substantial relationship to the applicant's or licensee's ability to safely or
262     competently practice the occupation or profession; and
263          (c) consider the applicant's or licensee's current circumstances, which may include any
264     of the following:
265          (i) the age of the applicant or licensee when the applicant or licensee committed the
266     offense;
267          (ii) the time that has elapsed since the applicant or licensee committed the offense;
268          (iii) whether the applicant or licensee has completed the applicant's or licensee's
269     criminal sentence;
270          (iv) whether the applicant has completed or is actively participating in rehabilitative
271     drug or alcohol treatment;
272          (v) any testimonials or recommendations from other individuals provided by the
273     applicant or licensee, including a progress report from the applicant's or licensee's probation or
274     parole officer;
275          (vi) other evidence of rehabilitation provided by the applicant or licensee;
276          (vii) the education and training of the applicant or licensee;
277          (viii) the employment history of the applicant or licensee; and
278          (ix) other relevant information provided by the applicant or licensee.
279          Section 5. Section 58-1-501 is amended to read:
280          58-1-501. Unlawful and unprofessional conduct.
281          (1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
282     under this title and includes:
283          (a) practicing or engaging in, representing oneself to be practicing or engaging in, or
284     attempting to practice or engage in any occupation or profession requiring licensure under this
285     title if the person is:
286          (i) not licensed to do so or not exempted from licensure under this title; or
287          (ii) restricted from doing so by a suspended, revoked, restricted, temporary,
288     probationary, or inactive license;
289          (b) (i) impersonating another licensee or practicing an occupation or profession under a
290     false or assumed name, except as permitted by law; or
291          (ii) for a licensee who has had a license under this title reinstated following disciplinary
292     action, practicing the same occupation or profession using a different name than the name used
293     before the disciplinary action, except as permitted by law and after notice to, and approval by,
294     the division;
295          (c) knowingly employing any other person to practice or engage in or attempt to
296     practice or engage in any occupation or profession licensed under this title if the employee is
297     not licensed to do so under this title;
298          (d) knowingly permitting the person's authority to practice or engage in any occupation
299     or profession licensed under this title to be used by another, except as permitted by law;
300          (e) obtaining a passing score on a licensure examination, applying for or obtaining a
301     license, or otherwise dealing with the division or a licensing board through the use of fraud,
302     forgery, or intentional deception, misrepresentation, misstatement, or omission;
303          (f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
304     drug or device to a person located in this state:
305          (A) without prescriptive authority conferred by a license issued under this title, or by
306     an exemption to licensure under this title; or
307          (B) with prescriptive authority conferred by an exception issued under this title or a
308     multistate practice privilege recognized under this title, if the prescription was issued without
309     first obtaining information, in the usual course of professional practice, that is sufficient to
310     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
311     proposed treatment; and
312          (ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
313     or cross coverage situation, provided that the person who issues the prescription has
314     prescriptive authority conferred by a license under this title, or is exempt from licensure under
315     this title; or
316          (g) aiding or abetting any other person to violate any statute, rule, or order regulating
317     an occupation or profession under this title.
318          (2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is defined
319     as unprofessional conduct under this title or under any rule adopted under this title and
320     includes:
321          (a) violating any statute, rule, or order regulating an occupation or profession under this
322     title;
323          (b) violating, or aiding or abetting any other person to violate, any generally accepted
324     professional or ethical standard applicable to an occupation or profession regulated under this
325     title;
326          (c) subject to [the provisions of Subsection (4),] Subsections (4) and 58-60-110(4),
327     engaging in conduct that results in conviction, a plea of nolo contendere, or a plea of guilty or
328     nolo contendere that is held in abeyance pending the successful completion of probation with
329     respect to a crime of moral turpitude or any other crime that, when considered with the
330     functions and duties of the occupation or profession for which the license was issued or is to be
331     issued, bears a substantial relationship to the licensee's or applicant's ability to safely or
332     competently practice the occupation or profession;
333          (d) engaging in conduct that results in disciplinary action, including reprimand,
334     censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
335     authority having jurisdiction over the licensee or applicant in the same occupation or profession
336     if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
337     proceedings under Section 58-1-401;
338          (e) engaging in conduct, including the use of intoxicants, drugs, narcotics, or similar
339     chemicals, to the extent that the conduct does, or might reasonably be considered to, impair the
340     ability of the licensee or applicant to safely engage in the occupation or profession;
341          (f) practicing or attempting to practice an occupation or profession regulated under this
342     title despite being physically or mentally unfit to do so;
343          (g) practicing or attempting to practice an occupation or profession regulated under this
344     title through gross incompetence, gross negligence, or a pattern of incompetency or negligence;
345          (h) practicing or attempting to practice an occupation or profession requiring licensure
346     under this title by any form of action or communication which is false, misleading, deceptive,
347     or fraudulent;
348          (i) practicing or attempting to practice an occupation or profession regulated under this
349     title beyond the scope of the licensee's competency, abilities, or education;
350          (j) practicing or attempting to practice an occupation or profession regulated under this
351     title beyond the scope of the licensee's license;
352          (k) verbally, physically, mentally, or sexually abusing or exploiting any person through
353     conduct connected with the licensee's practice under this title or otherwise facilitated by the
354     licensee's license;
355          (l) acting as a supervisor without meeting the qualification requirements for that
356     position that are defined by statute or rule;
357          (m) issuing, or aiding and abetting in the issuance of, an order or prescription for a
358     drug or device:
359          (i) without first obtaining information in the usual course of professional practice, that
360     is sufficient to establish a diagnosis, to identify conditions, and to identify contraindications to
361     the proposed treatment; or
362          (ii) with prescriptive authority conferred by an exception issued under this title, or a
363     multi-state practice privilege recognized under this title, if the prescription was issued without
364     first obtaining information, in the usual course of professional practice, that is sufficient to
365     establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
366     proposed treatment;
367          (n) violating a provision of Section 58-1-501.5; or
368          (o) violating the terms of an order governing a license.
369          (3) Unless otherwise specified by statute or administrative rule, in a civil or
370     administrative proceeding commenced by the division under this title, a person subject to any
371     of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
372     violation.
373          (4) The following are not evidence of engaging in unprofessional conduct under
374     Subsection (2)(c):
375          (a) an arrest not followed by a conviction; or
376          (b) a conviction for which an individual's incarceration has ended more than seven
377     years before the date of the division's consideration, unless:
378          (i) after the incarceration the individual has engaged in additional conduct that results
379     in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is
380     held in abeyance pending the successful completion of probation; or
381          (ii) the conviction was for:
382          (A) a violent felony as defined in Section 76-3-203.5;
383          (B) a felony related to a criminal sexual act [pursuant to] under Title 76, Chapter 5,
384     Part 4, Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or
385          (C) a felony related to criminal fraud or embezzlement, including a felony [pursuant to]
386     under Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft.
387          Section 6. Section 58-60-108 is amended to read:
388          58-60-108. Grounds for action regarding license -- Disciplinary proceedings.
389          (1) Subject to Subsection (2), the division's grounds for refusing to issue a license to an
390     applicant, for refusing to renew the license of a licensee, for revoking, suspending, restricting,
391     or placing on probation the license of a licensee, for issuing a public or private reprimand to a
392     licensee, and for issuing a cease and desist order are under Section 58-1-401.
393          (2) The division may not:
394          (a) refuse, revoke, suspend, or in any way restrict an [applicant] applicant's or
395     licensee's license under this chapter solely because the applicant or licensee seeks or
396     participates in mental health or substance abuse treatment[.];
397          (b) refuse an applicant's license under Part 5, Substance Use Disorder Counselor Act,
398     because the applicant was convicted of a nonviolent drug offense if:
399          (i) the applicant's incarceration for the offense ended more than three years before the
400     day on which the applicant sought licensure under Part 5, Substance Use Disorder Counselor
401     Act; or
402          (ii) in the case the applicant was not incarcerated for the offense, the conviction
403     occurred more than three years before the day on which the applicant sought licensure under
404     Part 5, Substance Use Disorder Counselor Act.
405          Section 7. Section 58-60-110 is amended to read:
406          58-60-110. Unprofessional conduct.
407          (1) As used in this chapter, "unprofessional conduct" includes:
408          (a) using or employing the services of any individual to assist a licensee in any manner
409     not in accordance with the generally recognized practices, standards, or ethics of the profession
410     for which the individual is licensed, or the laws of the state;
411          (b) failure to confine practice conduct to those acts or practices:
412          (i) in which the individual is competent by education, training, and experience within
413     limits of education, training, and experience; and
414          (ii) which are within applicable scope of practice laws of this chapter;
415          (c) disclosing or refusing to disclose any confidential communication under Section
416     58-60-114 or 58-60-509; and
417          (d) a pattern of failing to offer a patient the opportunity to waive the patient's privacy
418     rights under the Standards for Privacy of Individually Identifiable Health Information, 45
419     C.F.R., Parts 160 and 164.
420          (2) "Unprofessional conduct" under this chapter may be further defined by division
421     rule.
422          (3) Notwithstanding Section 58-1-401, the division may not act upon the license of a
423     licensee for unprofessional conduct under Subsection (1)(d).
424          (4) (a) Except as provided in Subsection (4)(b), the following are not evidence of
425     engaging in unprofessional conduct under Subsection 58-1-501(2)(c):
426          (i) a conviction for which an applicant's incarceration ended more than three years
427     before the date of the division's consideration; or
428          (ii) a conviction for which the applicant was not incarcerated that occurred more than
429     three years before the date of the division's consideration.
430          (b) Subsection (4)(a) does not apply to a conviction described in Subsection
431     58-1-501(4)(b)(ii).