"The maintenance worker, Shaun Sorensen, was the son of the School's owner and had been convicted of two felonies in California before relocating to Utah and beginning his full-time employment at the School".
IV. Criminal History
In Sorenson's Ranch School v. Oram, 2001 UT App 354, 36 P.3d 528, the Court of Appeals affirmed the trial court's reversal of a determination by the State Department of Human Services that would have prohibited persons with past felony convictions from employment in licensed child-care facilities. Utah Code Ann. Section 62A-4a-413(1) requires that licensed child-care providers submit a list of all employees for criminal background screening; Utah Code Ann. Section 62A-4a-413(2) prohibits convicted felons from "provid[ing] child placing services, foster care, youth programs, substitute care, or institutionalized care for children in facilities of programs licensed by the [Department of Human Services]." The Department argued that net effect of these statutory mandates was to prohibit any person convicted of a felony from employment in any capacity whatsoever at a licensed child-care facility.
Sorensen's Ranch School challenged the Department's interpretation of Utah Code Ann. Section 62A-4a-413 after the Department threatened to revoke the School's license based on its maintenance worker's criminal history. The maintenance worker, Shaun Sorensen, was the son of the School's owner and had been convicted of two felonies in California before relocating to Utah and beginning his full-time employment at the School. The Court of Appeals agreed with the School, reasoning that Subsection (2)'s prohibition of certain enumerated services to children applied more narrowly than Subsection (1)'s screening requirement for all employees of licensed child-care facilities. The court held that so long as Sorensen did not engage in any of the enumerated activities listed in Subsection (2), he could continue his employment with the School without jeopardizing the School's licensure.
During its 2002 General Session, the Legislature repealed Utah Code Ann. section 62A-4a-413, effective May 6, 2002. However, the Utah Child Care Licensing Act (the "Act"), Utah Code Ann. subsection 26-39-101 to -110, contains a similar prohibition on the employment of convicted felons "to provide child care," as well as numerous other disqualifications from owning, operating, working with or volunteering for a licensed child care program. The Act defines "child care" as "continuous care and supervision of five of more children under 14 years of age, in lieu of care ordinarily provided by parents in their home, for less that 24 hours a day, for direct or indirect compensation," suggesting that the court's reasoning in Sorenson's Ranch School, supra, would apply to permit employment of a convicted felon at a licensed child care facility so long as s/he did not provide child care within the meaning of the Act.
