A legislative probe of the state's child care industry has identified 47 convicted criminals - including sex offenders, drug users and child abusers - who between 2002 and 2004 worked or lived at fully licensed day care centers throughout Utah. Released Thursday, the audit revealed at least two of those offenders wound up physically or sexually abusing a client child.

Some of the centers, an even mix of commercial and in-home providers, have been closed. But health officials acknowledge most likely are still in operation, and they refuse to identify which centers employ criminals.

By policy, regulators only disclose the names of day care centers that have been hit with sanctions or stand to lose their license due to violating health and safety rules. Facilities targeted in the audit were granted illegal variances to those rules.

"This report is horrible. This should never happen . . . If I had my way, they would all come up for a hearing today and they would all be deprived of their variance," said Marc Babitz, a family physician who was hired last May to improve child care regulation. "But there is such a thing called due process and the right to privacy."

Under Utah law, anyone who has been convicted of a felony, sexual crime or violence against a family member may not operate or be associated with a day care. Misdemeanor crimes, such as theft or drug possession, can be overlooked with prior approval from the health department chief.

But audit supervisor James Behunin said regulators allowed improper licensing exclusions for 28 convicted felons, half of whom provide direct care to children. Staff also cleared 23 people who had misdemeanor convictions without getting approval from the department's head. "The reason we have these rules is the state has an interest in protecting children," said Behunin.

Babitz said the variances will each come up for review this year and he promised none will be renewed.

But that provides no consolation to the parents of a 5-year-old girl who was sexually abused by the spouse of a Utah woman who operated a day care business out of her home.

Convicted for violating a protective order, the man failed his criminal screening. But the licensor agreed to overlook his crimes on condition that he never be left alone with children under his wife's care.

Months later, the man sexually abused the 5-year-old. He later pled guilty to sexual assault, but even then, regulators failed to shut down the center.

Behunin said the owner later voluntarily surrendered her license, after she was cited for unrelated violations.

Ironically, lawmakers ordered the audit at the behest of day care owners who complain the state's health and safety standards are too strict and aggressively enforced.

Investigators found Utah's regulations to be reasonable and in line with other states. They found enforcement to be inconsistent, but not heavy-handed. The inconsistency led to "overly strict" and "overly lenient" regulation of some centers, states the audit report.

For example, one licensor surveyed issued an average of 10 citations each inspection, while another issued only 3.5 per visit, the audit said. It also found that licensors interpret rules differently.

The health department's Bureau of Child Care Licensing employs 25 licensors who oversee 2,741 child care operations statewide.

Charlene Catania, five-year owner of the Adventure Center in Salt Lake City, is among those who have complained that rules are arbitrarily enforced. She said she is mostly pleased by the findings, but wishes the report came down harder on overzealous licensors.

"How heavily rules are enforced depends on which licensor you get," said Catania.

Catania takes heart that auditors urged a rethinking of some potentially burdensome regulations on annual health assessments, playground cushioning, training hours, food handler permits, posting of daily activities and room temperature.

The audit also called "questionable" the health department's practice of telling centers who first made informal appeals that they had waived their right to a hearing before a judge.

The investigation failed to substantiate claims that the day care industry is being driven underground as commercial centers are held to higher standards than in-home providers and after-school programs.

kstewart@sltrib.com