State lawmakers on Thursday said the Bureau of Criminal Identification (BCI) may have overstepped when it hiked the fee charged to first-time concealed weapons permit holders by $20 without seeking legislative approval.
Lawmakers, not state agencies, set fees and BCI’s decision violates both state law and the agency’s own rules, Rep. Brian Greene, R-Pleasant Grove, said.
“What we can’t allow is unilateral decisions by administrative action in lieu of appropriate action,” he said.
On Aug. 1, the cost of a first-time permit was raised to $57 for Utah residents and $67 for out-of-staters.
“We should not be here today. ... We should have been here in January before the Legislature.”<br>— Brian Judy, NRA legislative liaison
The agency was summoned to explain its decision to the Legislature’s Administrative Rules Review Committee after complaints that permit-seekers unwilling to pay the additional cost were told their applications could not be processed.
But from BCI’s perspective, the $20 increase is not a fee hike, Lt. Ryan Van Fleet, assistant division director, said. Instead, it is an add-on to cover the expense of running applicant fingerprints through a state database to check for criminal charges or convictions.
It’s a step the agency has to take in order to comply with policy changes implemented by the FBI in 2012 requiring electronic submission of fingerprints, Van Fleet said.
BCI hangs its authority to impose the fee on HB124, a state law passed in 2015, he said. Under the law, the $20 charge can be applied to any non-criminal entity or individual applicant whose activities or profession — from nurses and doctors to massage therapists — require some state-level background check in order for licensure.
BCI has collected the fee from license seekers for the past two years, but had overlooked concealed-weapons permit applicants until this year, he said.
“It was purely an oversight on BCI’s part,” Van Fleet said. “When the law went into effect in 2015 that allowed that collection, BCI didn’t catch it.”
“That is a subsidy from the citizens of the state of Utah to out-of-state concealed-permit people.”<br>— Sen. Jim Dabakis, D-Salt Lake City
Committee members questioned whether HB124, which sought to address problems with background checks for teachers and others working in education, can be so broadly applied.
“This was the guidance we received from our legal counsel and the governor’s office,” Van Fleet said, before walking lawmakers through the various references and cross references in Utah law that address background checks.
Simply stated: BCI contends that the term non-criminal individuals applies to concealed weapons-permit applicants.
Greene and other members of the committee, who listened to recordings from legislative hearings on HB124, disputed BCI’s reading of the law. Nothing in the bill addresses anything other than background checks for educators, they said.
Bureau employees and lawmakers volleyed back and forth on the interpretation of state laws and legislative intent.
Most committee members were clearly upset that BCI had acted without getting explicit legislative approval.
Lacking a quorum, the issue was tabled for a future meeting, with lawmakers asking for an accounting of the fees collected both before and after the passage of HB124, including information about which professions or groups might now be paying fees not previously assessed.
BCI was not without some support from Sen. Jim Dabakis, D-Salt Lake City. He commended the bureau for doing its job and said the state policy should be applied equally to anyone who needs a background check for licensure.
Allowing an exemption for gunowners — who are a powerful lobbying force in Utah — is not fair, he said, especially when 70 percent of concealed-carry permits are issued to people who live outside of Utah and have not paid the additional fee.
“That is a subsidy from the citizens of the state of Utah to out-of-state concealed-permit people,” Dabakis said.
Representatives from the National Rifle Association and the Utah Shooting Sports Council both spoke against BCI’s “unilateral imposition” of the fee, but were not opposed to idea that the agency might need more money to cover its costs. If that’s true, said Brian Judy, the NRA’s local legislative liaison, then the agency needs to bring that to lawmakers through the right process.
“We should not be here today,” said Judy. “We should have been here in January before the Legislature.”