DAR File No. 28250

Public Safety, Criminal Investigations and Technical Services, Criminal Identification

R722-300

Concealed Firearm Permit Rule

NOTICE OF PROPOSED RULE

DAR File No.: 28250
Filed: 09/20/2005, 10:58
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to set forth the process whereby the Criminal Investigations and Technical Services Division administers the Concealed Weapons Act in accordance with Title 53, Chapter 5, Part 7. The Concealed Weapon Review Board passed several resolutions requesting the changes in order to clarify statute and aid in the appeal process.

Summary of the rule or change:

In Section R722-300-3, this change corrects administrative rule references, explicitly provides a definition for "crimes of violence", adds types of criminal conduct to the definition of "moral turpitude", and adds an offense to the definition of "offenses involving the use of alcohol. The changes in Section R722-300-4 reflect statutory changes for employment and residential which were removed, as is the requirement for two letters of character reference, the criminal history check is expanded, payment amounts are increased for renewal applications, the exemptions for retired law enforcement officers is modified. Sections R722-300-6 and R722-300-7 are removed and replaced by a new Section R722-300-6 dealing with non-resident and non-U.S. citizen applicants; subsequent sections are renumbered. Section R722-300-12 (to become Section R722-300-11) now includes instructor certification in the list of permits or licenses that can be denied, suspended, or revoked. In Section R722-300-14 (to become Section R722-300-13), a statutory reference is altered, the mode of payment for a concealed firearm permit instructor applicant is changed and the applicant is now required to provide the division with a current National Rifle Association (NRA) certification certificate. In Section R722-300-16 (to become Section R722-300-17), a statutory reference is corrected.

State statutory or constitutional authorization for this rule:

Section 53-5-701 et seq.

Anticipated cost or savings to:

the state budget:

There are no anticipated cost or savings to the state budget as these are technical changes.

local governments:

There are no anticipated cost or savings to local government as these are technical changes.

other persons:

There are no anticipated cost or savings to other persons as these are technical changes.

Compliance costs for affected persons:

No anticipated cost. The change in fees from $5 to $10 was enacted by legislation in 1999 (H.B. 237), but the rule was never updated. Therefore there should not be any additional compliance costs for affected persons. (DAR NOTE: H.B. 237 (1999) is found at UT L 1999 Ch 227, and was effective 07/01/1999.)

Comments by the department head on the fiscal impact the rule may have on businesses:

As the Commissioner of the Utah Department of Public Safety, I have reviewed the changes to this Utah Administrative Rule. I hereby approve the changes and this rulemaking action bares no cost, i.e. has "no impact." The increase in registration fees from $5 to $10 simply reflects the statutory change enacted by Utah's "Concealed Weapons Act" (Sections 53-5-701 through 53-5-711) and this amendment simply updates the rule with current law. Robert Flowers, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Joyce Carter at the above address, by phone at 801-965-4576, by FAX at 801-965-4944, or by Internet E-mail at joycecarter@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/01/2005

This rule may become effective on:

01/03/2006

Authorized by:

Ed McConkie, Bureau Chief

RULE TEXT

R722. Public Safety, Criminal Investigations and Technical Services, Criminal Identification.

R722-300. Concealed Firearm Permit Rule.

R722-300-1. Purpose.

The purpose of this rule is to set forth the process whereby the Criminal Investigations and Technical Services Division administers the Concealed Weapons Act in accordance with Title 53, Chapter 5, Part 7.

R722-300-2. Authority.

This rule is authorized by Subsection 53-5-704(17).

R722-300-3. Definitions.

Terms used in this rule shall be defined as follows:

A. "Affidavit" means a written statement made under oath before a notary public.

B. "Approved firearms instructor" means a person approved by the Division who can certify that an applicant meets the general firearm familiarity requirement of Subsection 53-5-704(8)(a) and is an instructor who is certified pursuant to Section [R724-4-14]R722-300-13.

C. "Board" means the Concealed Weapons Review Board referred to in Section 53-5-703.

D. "Concealed" means that which is covered, hidden, or secreted in a manner that the public would not be aware of its presence and is readily accessible for immediate use.

E. "Crime of violence" [means any crime defined as such in Subsection 76-10-501(2)(b).]means any crime involving: interference with police officer; fleeing; resisting arrest; failure to obey police officer; obstruction of justice;

F. "Division" means the Criminal Investigations and Technical Services Division of the Utah Department of Public Safety.

G. "Domestic violence" means any of the crimes listed in Subsection 77-36-1(2) when committed by one [co-habitant]intimate partner against another.

H. "Equivalent experience with a firearm through participation in law enforcement" means experience showing that the applicant has within the last five years met the firearms requirement of his/her department as evidenced by verifiable documentation from his/her department.

I. "Equivalent experience with a firearm through participation in the military" means experience showing that the applicant has within the last five years successfully met the firearms requirements of his/her military organization as evidenced by verifiable documentation from his/her military organization, provided that such training meets the requirements of Subsection 53-5-704(8)(a).

J. "Equivalent experience with a firearm through participation in an organized shooting competition" means experience showing that the applicant has within the last five years competed in an organized shooting competition as evidenced by verifiable documentation from the organization sanctioning or conducting the organized shooting competition, provided the organized shooting competition meets the requirements of Subsection 53-5-704(8)(a).

K. "Felony" means any criminal conduct other than those crimes defined as misdemeanors or infractions by the statutes of this state. It also includes any criminal conduct that is punishable by more than one year in prison by a federal statute, or by the statute of some other state.

L. "Mitigating circumstances" means circumstances which reduce culpability for purposes of assessing good character.

M. "Moral turpitude" means a conviction for criminal conduct under the statutes of this state or any other jurisdiction involving any of the following offenses:

1. theft;

2. fraud;

3. tax evasion;

4. issuing bad checks;

5. robbery; or aggravated robbery;

6. [aggravated robbery;]interference with police officer;

7. fleeing; resisting arrest; failure to obey police officer;

8. obstruction of justice;

[7]9. bribery;

[8]10. perjury;

[9]11. extortion;

[10]12. arson or aggravated arson;

[11]13. criminal mischief;

[12]14. falsifying government records;

[13]15. forgery;

[14]16. receiving stolen property;

[15]17. firearms violations;

[16]18. burglary or aggravated burglary;

[17]19. vandalism;

[18]20. kidnaping, aggravated kidnaping, or child kidnaping;

[19]21. crimes involving unlawful sexual conduct as described in Title 76, Chapter 5, Part 4, Chapter 5a, Chapter 7, Part 1, and Chapter 10, Part 13; Chapter 9, Part 702-702.5, indecent exposure or public urination may result in revocation, suspension or denial, and

[20]22. violations of the pornographic and harmful materials and performances act, as defined in Title 76, Chapter 10, Part 12.

N. "Offenses involving the use of alcohol" means any of the following offenses:

1. any violation of Sections 41-6-44 through 41-6-44.20; including alcohol related reckless driving,

2. violations of Title 32A, Chapter 12, Part 2 involving the illegal use or consumption of an alcoholic beverage; and

3. a violation of Section 76-10-528.

O. "Offenses involving the use of narcotics" means any offense involving the use, possession, manufacturing or distribution of any narcotic or drug as defined in Title 58, Chapter 37, 37a, 37b, 37c, 37d, and 37e or a violation of Section 76-10-528.

P. "Past pattern of behavior" means verifiable incidents, with or without an arrest or conviction, that would lead a reasonable person to believe that an individual has a violent nature and would be a danger to themselves or others.

R722-300-4. Application For a Concealed Firearm Permit.

A. Application for a permit to carry a concealed firearm shall be made in writing to the Division on forms provided by the Division. An application package shall include:

1. a completed application form;

2. proof that the applicant is 21 years of age or older at the time application is made;

3. evidence of general familiarity with the types of firearms to be concealed, verified by a signed certificate from an approved firearms instructor;[

4. a five-year employment history;

5. a five-year residential history;

6. two letters of character reference;]

[7]4. [two]one recent color photograph[s] of passport quality, [measuring 2"x 2"; ]and

[8]5. [two]one completed fingerprint card[s].

B. An applicant shall pay a non-refundable processing fee of $59.00 at the time the application is filed. This fee consists of $35.00 mandated by Section 53-5-707 and a $24.00 Federal Bureau of Investigation finger print processing fee. [Payment shall be in the form of cash, cashier's check, or money order.]Payment may be in the form of cash, check, money order, or credit card. The Division is not responsible for cash lost in the mail.

C. An applicant may request an interview prior to submitting the application. The Division may require an interview subsequent to the submission of the application.

D. A background investigation shall be conducted on all applicants to determine if they are of good character as required by Section 53-5-704. The background investigation shall consist of:

1. verifying the accuracy of the application information;

2. checking the applicant's criminal history through local, state and national computer files which include:

a. Utah computerized criminal history;

b. national crime information center;

c. Utah law enforcement information network;

d. drivers license information;

e. statewide warrants file;

f. criminal justice juvenile files;

g. criminal history expungement system;[ and]

h. national instant check system [(when available).]; and

i. immigration and naturalization service when applicable.

3. The fingerprint cards will be sent to the FBI for a review of the applicant's criminal history record pursuant to Sections 53-5-704 and 706.

E. The Division will review all the above information and approve or deny the application.

1. Notice of approval may be given by telephone or in writing.

2. Notice of denial shall be given in writing and shall state the reasons for denial.

F. Renewal of a permit to carry a concealed firearm is required every [two]five years.

1. The renewal form is available from the Division or on the Bureau website.

2. A renewal applicant shall pay a non-refundable fee of $[5]10.00 as required by Section 53-5-707. [Payment shall be made in the form of cash, cashier's check or money order.]Payment shall be in the form of cash, check, money order, or credit card. The Division is not responsible for cash lost in the mail.

G. A [peace officer]law enforcement officer as defined under Section 53-13-103 who has honorably retired from full-time employment within five years of making application shall be exempt from the following requirements:

1. [two letters of character reference; and

2. two]one set[s] of fingerprints.

R722-300-5. Temporary Concealed Firearm Permit.

A. To be eligible to obtain a temporary permit to carry a concealed firearm, as provided for in Section 53-5-705, an applicant must:

1. apply for a permit under Section 53-5-704;

2. apply for a temporary permit under Section 53-5-705;

3. demonstrate good character; and

4. prove to the satisfaction of the Division extenuating circumstances justifying the need for a temporary permit.

B. Provisions regarding denial, suspension or revocation of a temporary permit are set forth in S[ubs]ection [R724-4-18(F)]R722-300-11.

R722-300-6. Non-Resident and Non-U.S. Citizen Concealed Firearm Permit Applicants.

A. Non-resident and Non-U.S. citizen applicants for a concealed firearm permit will be subject to the same application process as in-state applicants.

B. Non-U.S. citizen applicants must show proof of a hunting permit and or must meet standards of Federal Firearm Regulation.

[R722-300-6. Out-of-State Concealed Firearm Permit Applicants.

Out-of-state applicants for a concealed firearm permit will be subject to the same application process as in-state applicants.

R722-300-7. Out of State Concealed Firearm Permits.

A. In accordance with Subsection 76-10-523(2)(b) the Division will conduct research annually to determine which states have requirements for the issuance of a concealed firearm permit that meet or exceed the requirements for issuance of a concealed firearm permit in this state.

B. A list of the out of state permits that will be honored in this state will be maintained by the Division. The list will be available to the public upon request.

]R722-300-[8]7. Application for a Certificate of Qualification.

A. Application for a certificate of qualification shall be made in writing to the Division on forms provided by the Division and will be subject to the same application requirements as concealed firearm permit applicants set forth in Section [R724-4-4]R722-300-4. The applicant must also provide proof to the satisfaction of the Division that they are a law enforcement official or judge as defined in Section 53-5-711.

B. A certificate of qualification will act as identification to verify that the holder is exempt from weapons laws in accordance with Section 76-10-523.

R722-300-[9]8. Additional Training Requirements for Obtaining a Certificate of Qualification.

Training requirements for obtaining a certificate of qualification, as set forth in Subsection 53-5-711(2)(b), will be established by the commissioner. A copy of the training requirements will be available in the Division office upon request. The commissioner may make changes or additions to the training requirements as needed. It is the responsibility of the applicant to acquire the training through their agency.

R722-300-[10]9. Annual Requalification Requirement for Obtaining a Certificate of Qualification.

Proof of annual requalification must be submitted to the Division, in writing, no earlier than November 1 and no later than November 30 of each year. If an applicant has received an initial certificate of qualification after August 1, requalification will not be required until the following year. Failure to provide proof of annual requalification by November 30 of each year will result in revocation of the certificate of qualification.

R722-300-[11]10. Duty of Certificate of Qualification Holder to Notify the Division Upon Termination of Status as a Law Enforcement Official or Judge.

A certificate of qualification holder who resigns or is terminated from their position must notify the Division within six months after leaving their position. If the holder obtains other employment as a Law Enforcement Official or Judge within the six month period, the Division will allow the certificate of qualification to remain current provided the holder has not committed an offense that is grounds for revocation under Title 53 Chapter 5 Part 7. If a holder of a certificate of qualification has not obtained another position as a Law Enforcement Official or Judge, the certificate of qualification will be revoked and a concealed firearm permit will be issued provided the holder has not committed an offense that is grounds for revocation under Title 53 Chapter 5 Part 7.

R722-300-[12]11. Denial, Suspension, or Revocation of a Concealed Firearm Permit or Certificate of Qualification.

A concealed firearm permit or certificate of qualification may be denied, suspended or revoked for any of the reasons set forth in Subsections 53-5-704 (3)(a) and (c), or for failure to maintain good character as defined in Subsection 53-5-704(2).

R722-300-[13]12. Requirement to Notify Peace Officer When Stopped.

When a concealed firearm permit holder or certificate of qualification holder is stopped for questioning by a peace officer based on reasonable suspicion in accordance with Section 77-7-15 and the holder has a concealed firearm in his/her possession, the holder shall immediately advise the peace officer that he/she is a lawful holder and has a concealed firearm in his/her possession.

R722-300-[14]13. Concealed Firearm Permit Instructors.

A. The Division will certify concealed firearm permit instructors as provided for in S[ubs]ection 53-5-704[(8)(b)(ii)].

B. "Approved firearms instructor" means a person approved by the Division who can certify that an applicant meets the general firearm familiarity requirement of Subsection 53-5-704(8)(a) and is an instructor who is certified pursuant to Section R722-300-13.

[B]C. Application to become a concealed firearm permit instructor shall be made in writing to the Division on forms provided by the Division. The application shall include:

1. a completed application form;

2. evidence that the applicant has completed a firearms instructor training program sponsored by the National Rifle Association, or Peace Officer Standards and Training, or a program equivalent thereto; and

3. a notarized release of information form.

[C]D. A concealed firearm permit instructor applicant shall pay a non-refundable fee of $5.00. [Payment shall be made in the form of cash, cashier's check or money order.]Payment shall be in the form of cash, check, money order, or credit card. The Division is not responsible for cash lost in the mail.

E. A concealed firearm permit instructor shall provide the Division with a current NRA certification certificate every 3 years or as renewed by the NRA. NRA instructor certification must be current.

[D]F. The applicant must submit with the application a copy of a course of instruction that meets the course content requirements established by the Division as required by Subsection 53-5-704(8)(a).

[E]G. The applicant must meet the good character requirements set forth in Subsections 53-5-704(2)(a) through (h).

R722-300-[15]14. Certificate of Qualification Instructors.

A. The Division will certify certificate of qualification instructors as provided for in Subsection 53-5-711(4)(c). An applicant for a certificate of qualification instructor shall:

1. be certified as a firearms instructor by Peace Officer Standards and Training;

2. make a written request to the Division for approval;

3. meet the good character requirements set forth in Subsections 53-5-704(2)(a) through(h); and

4. demonstrate to the satisfaction of the Division that their approval would provide a benefit to the training program.

B. The number of certificate of qualification instructors approved by the Division will be limited to the needs of the program.

R722-300-[16]15. Denial, Suspension, or Revocation of Approval as a Concealed Firearm Permit Instructor or Certificate of Qualification Instructor.

A. Approval as a concealed firearm permit instructor or certificate of qualification instructor may be denied, suspended or revoked for any of the following reasons:

1. failing to meet the requirements of Sections [R724-4-14 or 15]R722-300-13 or 14;

2. failing to teach from an approved course of instruction;

3. failing to maintain records verifying that an applicant has passed a required course of instruction; or

4. knowingly and wilfully providing false information to the Division.

R722-300-[17]16. Records Access.

A. The purpose of this section is to define access to concealed firearm permit and certificate of qualification records in accordance with Title 63, Chapter 2, and Subsection 53-5-708(1).

B. Except as provided in Subsection 53-5-708(1), information supplied to the Division by an applicant shall be considered "private" in accordance with Subsection 63-2-302(2)(d).

C. Information gathered by the Division and placed in the applicant's file shall be considered "protected" in accordance with Subsections 63-2-304(8)and(9). However, if such information is used as the basis for denial of a concealed firearm permit or certificate of qualification, such information shall be considered "private" in accordance with Subsection 63-2-302(2)(d) and the applicant shall have access to it in accordance with Subsection 53-5-704(16)(c).

R722-300-[18]17. Adjudicative Procedures.

A. Any applicant denied a concealed firearm permit or certificate of qualification may request a hearing before the board by filing an appeal to the Division within 60 days from the date the notice of denial is issued. This appeal process also applies to a concealed firearm permit holder or certificate of qualification holder whose concealed firearm permit or certificate of qualification has been suspended or revoked.

B. Board hearings will be conducted informally in accordance with Section 63-46b-5.

C. Board decisions shall be issued within 30 days from the date of the hearing in accordance with Subsection [53-5-70416(e)]53-5-704(16)(e) and shall comply with the requirements of Subsection 63-46b-5(1)(i).

D. In accordance with Section 63-46b-11 the board may enter a default order against any party who fails to participate in a hearing.

E. Judicial review of all final actions resulting from informal adjudicative proceedings is available pursuant to Section 63-46b-15.

F. Denial, suspension, or revocation of a temporary permit is not appealable to the board.

G. A concealed firearm permit instructor or certificate of qualification instructor has the same appeal rights as set forth in this section for concealed firearm permit holders and certificate of qualification holders.

KEY: concealed firearm permit

[April 16, 1998]2005

Notice of Continuation January 28, 2003

53-5-704

63-46b

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Joyce Carter at the above address, by phone at 801-965-4576, by FAX at 801-965-4944, or by Internet E-mail at joycecarter@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.