20-38-105. Disqualification from employment — Denial or revocation — Penalties.

20-38-105. Disqualification from employment — Denial or revocation — Penalties. (a)(1) Except as provided in subsection (d) of this section, the licensing or certifying agency shall issue a determination that a person is disqualified as a service provider, operator, or from employment with a service provider if the person has pleaded guilty or nolo contendere to or has been found guilty of: (A) Any of the offenses listed in subsection (b) of this section by any court in the State of Arkansas; (B) Any similar offense by a court in another state; or (C) Any similar offense by a federal court. (2) Except as provided in subsection (d) of this section, a service provider shall not knowingly employ a person and the licensing or certifying agency shall not knowingly contract with, license, exempt from licensure, certify, or otherwise authorize a person to be a service provider if the person has pleaded guilty or nolo contendere to or has been found guilty of: (A) Any of the offenses listed in subsection (b) of this section by any court in the State of Arkansas; (B) Any similar offense by a court in another state; or (C) Any similar offense by a federal court. (b) As used in this section, the following criminal offenses apply to this section unless the record of the offense is expunged, pardoned, or otherwise sealed: (1) Criminal attempt, § 5-3-201, criminal complicity, § 5-3-202, criminal solicitation, § 5-3-301, or criminal conspiracy, § 5-3-401, to commit any of the offenses in this subsection; (2) Capital murder, § 5-10-101; (3) Murder, §§ 5-10-102 and 5-10-103; (4) Manslaughter, § 5-10-104; (5) Negligent homicide, § 5-10-105; (6) Kidnapping, § 5-11-102; (7) False imprisonment, §§ 5-11-103 and 5-11-104; (8) Permanent detention or restraint, § 5-11-106; (9) Robbery, §§ 5-12-102 and 5-12-103; (10) Battery, §§ 5-13-201 — 5-13-203; (11) Assault, §§ 5-13-204 — 5-13-207; (12) Coercion, § 5-13-208; (13) Introduction of a controlled substance into the body of another person, § 5-13-210; (14) Terroristic threatening, § 5-13-301; (15) Terroristic act, § 5-13-310; (16) Any sexual offense, § 5-14-101 et seq.; (17) Voyeurism, § 5-16-102; (18) Death threats concerning a school employee or student, § 5-17-101; (19) Incest, § 5-26-202; (20) Domestic battery, §§ 5-26-303 — 5-26-306; (21) Interference with visitation, § 5-26-501; (22) Interference with court-ordered custody, § 5-26-502; (23) Endangering the welfare of an incompetent person, §§ 5-27-201 and 5-27-202; (24) Endangering the welfare of a minor, §§ 5-27-205 and 5-27-206; (25) Contributing to the delinquency of a minor, § 5-27-209; (26) Contributing to the delinquency of a juvenile, § 5-27-220; (27) Permitting abuse of a minor, § 5-27-221; (28) Soliciting money or property from incompetent persons, § 5-27-229; (29) Engaging children in sexually explicit conduct for use in visual or print media, § 5-27-303; (30) Pandering or possessing a visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304; (31) Transportation of minors for prohibited sexual conduct, § 5-27-305; (32) Employing or consenting to the use of a child in a sexual performance, § 5-27-402; (33) Producing, directing, or promoting a sexual performance by a child, § 5-27-403; (34) Computer crimes against minors, § 5-27-601 et seq.; (35) Felony abuse of an endangered or impaired person, § 5-28-103; (36) Theft of property, § 5-36-103; (37) Theft of services, § 5-36-104; (38) Theft by receiving, § 5-36-106; (39) Forgery, § 5-37-201; (40) Criminal impersonation, § 5-37-208; (41) Financial identity fraud, § 5-37-227; (42) Arson, § 5-38-301; (43) Burglary, §§ 5-39-201 and 5-39-204; (44) Breaking or entering, § 5-39-202; (45) Resisting arrest, § 5-54-103; (46) Felony interference with a law enforcement officer, § 5-54-104; (47) Cruelty to animals, §§ 5-62-103 and 5-62-104; (48) Felony violation of the Uniform Controlled Substances Act, § 5-64-101 et seq.; (49) Public display of obscenity, § 5-68-205; (50) Promoting obscene materials, § 5-68-303; (51) Promoting obscene performance, § 5-68-304; (52) Obscene performance at a live public show, § 5-68-305; (53) Prostitution, § 5-70-102; (54) Patronizing a prostitute, § 5-70-103; (55) Promotion of prostitution, §§ 5-70-104 — 5-70-106; (56) Stalking, § 5-71-229; (57) Criminal use of a prohibited weapon, § 5-73-104; (58) Simultaneous possession of drugs and firearms, § 5-74-106; (59) Unlawful discharge of a firearm from a vehicle, § 5-74-107; (60) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; and (61) Sexual extortion, § 5-14-113. (c)(1) The provisions of this subsection shall not be waived by the licensing or certifying agency. (2) Because of the serious nature of the offenses and the close relationship to the type of work that is to be performed, a conviction or plea of guilty or nolo contendere for any of the offenses listed in this subsection, whether or not the record of the offense is expunged, pardoned, or otherwise sealed, shall result in permanent disqualification from employment with a service provider or licensure, exemption from licensure, certification, or other operating authority as a service provider and is not subject to subsection (d) of this section: (A) Any of the following offenses by any court in the State of Arkansas: (i) Capital murder, § 5-10-101; (ii) Murder in the first degree, § 5-10-102; (iii) Murder in the second degree, § 5-10-103; (iv) Kidnapping, § 5-11-102; (v) Rape, § 5-14-103; (vi) Sexual assault in the first degree, § 5-14-124; (vii) Sexual assault in the second degree, § 5-14-125; (viii) Endangering the welfare of an incompetent person in the first degree, § 5-27-201; (ix) Abuse of an endangered or impaired person, § 5-28-103, if it is a felony; (x) Arson, § 5-38-301; (xi) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; and (xii) Sexual extortion, § 5-14-113; (B) Any similar offense by a court in another state; or (C) Any similar offense by a federal court. (3) For purposes of licensure as a childcare facility, exemption from licensure as a church-exempt childcare facility, or employment with a childcare facility or church-exempt childcare facility, a conviction or plea of guilty or nolo contendere for any offense that involves violence or a sexual act, whether or not the record of the offense is expunged, pardoned, or otherwise sealed, may result in permanent disqualification from licensure as a childcare facility, exemption from licensure as a church-exempt childcare facility, or employment with a childcare facility or church-exempt childcare facility and may not be subject to subsection (d) of this section. (d)(1) This section shall not disqualify a person from employment with a service provider or licensure, exemption from licensure, certification, or other operating authority as a service provider if: (A) The conviction or plea of guilty or nolo contendere was for a misdemeanor offense; (B) The date of the conviction or plea of guilty or nolo contendere is at least five (5) years from the date of the request for the criminal history records check; and (C) The person has no criminal convictions or pleas of guilty or nolo contendere of any type or nature during the five-year period preceding the criminal history records check request. (2) This section shall not disqualify a person from employment with a service provider or licensure, exemption from licensure, certification, or other operating authority as a service provider if: (A) The conviction or plea of guilty or nolo contendere was for a felony offense; (B) The date of the conviction or plea of guilty or nolo contendere is at least ten (10) years from the date of the background check request; and (C) The individual has no criminal convictions or pleas of guilty or nolo contendere during the ten-year period preceding the request for a criminal history records check. (3) This section does not disqualify a person from employment with a service provider if: (A) The conviction or plea of guilty or nolo contendere was for any of the nonviolent offenses listed below: (i) Theft by receiving, § 5-36-106; (ii) Forgery, § 5-37-201; (iii) Financial identity fraud, § 5-37-227; (iv) Resisting arrest, § 5-54-103; (v) Criminal impersonation in the second degree, § 5-37-208(b); (vi) Interference with visitation, § 5-26-501; (vii) Interference with court-ordered custody, § 5-26-502; (viii) Prostitution, § 5-70-102; and (ix) Patronizing a prostitute, § 5-70-103; (B) The service provider wants to employ the person; (C) The person remains in employment with the same service provider; (D) The person has completed probation or parole supervision, paid all court-ordered fees or fines, including restitution, and fully complied with all court orders pertaining to the conviction or plea; (E) The person will be employed by: (i) A long-term care facility licensed by the Office of Long-Term Care; (ii) An intermediate care or other facility, developmental day treatment clinic services provider, or group home licensed or certified by the Division of Developmental Disabilities Services; or (iii) A childcare facility or a church-exempt childcare facility licensed by the Division of Child Care and Early Childhood Education; (F) Subsequent to employment, the person does not plead guilty or nolo contendere to or is found guilty of any offense in subsection (b) of this section; and (G) The person does not have a true or founded report of child maltreatment or adult maltreatment in a central registry. (e) A person shall not be disqualified from employment with a service provider or licensure, exemption from licensure, certification, or other operating authority as a service provider if the person has been found guilty of or has pleaded guilty or nolo contendere to a misdemeanor offense not listed in subsection (b) of this section, a similar misdemeanor offense in another state, or a similar federal misdemeanor offense. (f) Even if the person would otherwise be disqualified under this section, a person shall not be disqualified from employment with a service provider or licensure, exemption from licensure, certification, or other operating authority as a service provider if the person: (1) Was not disqualified on August 31, 2009; and (2) Since August 31, 2009, has not been found guilty of or pleaded guilty or nolo contendere to: (A) An offense listed in subsection (b) of this section; (B) A similar offense in another state; or (C) A similar federal offense. (g) Notwithstanding any other provision of law, a person is not disqualified from employment if: (1) The person is employed as or being considered for employment as a peer support specialist or other similar position requiring that the person has personally received services within the behavioral health system; (2) The person works or is applying to work with individuals receiving substance abuse treatment; and (3) The only offense on the person's criminal background check that would disqualify him or her from employment is an offense that does not involve violence or a sexual act.