BEAUTY CULTURE ‑- DEFINING QUALIFICATIONS OF AN 'INSTRUCTOR OPERATOR' ‑- CONSTRUING RCW 18.80.010, PARAGRAPH 12

BEAUTY CULTURE ‑- DEFINING QUALIFICATIONS OF AN "INSTRUCTOR OPERATOR" ‑- CONSTRUING RCW 18.80.010, PARAGRAPH 12

An instructor operator is a person who is qualified and secured a license as a beauty operator and who has had one year's practice in a beauty culture shop under the supervision of either a manager or owner operator and has passed an instructor's examination.

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                                                              September 18, 1956

Honorable Della Urquhart
Director of Licenses
General Administration Building
Olympia, Washington

                                                                                                              Cite as:  AGO 55-57 No. 317

Dear Mrs. Urquhart:

            By letter dated August 2, 1956, submitted by General Dohm, you have requested an official opinion interpreting certain provisions of chapter 313, Laws of 1955.  The delay in rendering the opinion has been due partly to the fact that we have indulged in considerable conferences with General Dohm concerning the interpretation of this statute and it has required considerable amount of research.

            To General Dohm's letter there is attached a letter from Edward Starin of Preston, Thorgrimson and Horowitz, in which they take the position that the one‑year qualification should not apply to an instructor operator.  We gather from General Dohm's letter and the letter from the attorneys, that three paragraphs of section 1, chapter 313, Laws of 1955 (RCW 18.18.010, 1955 Supp.) are involved.  Paragraph 7 of the section just cited defines manager operator as follows:

            "A 'manager operator' is any person having practiced as an operator under the supervision of a manager operator or an owner operator for at least one year;"

            and paragraph 9 defines owner operator as follows:

             [[Orig. Op. Page 2]]

            "An 'owner operator' is any person owning a hairdressing and beauty culture shop and having practiced as an operator under the supervision of a manager operator or an owner operator for at least one year;"

            and paragraph 12 of said section reads as follows:

            "An 'instructor operator' is a person who gives instruction in the practice of hairdressing and beauty culture in a school or who has the qualifications of a manager operator or an owner operator and who has passed an instructor examination: * * *"

            Apparently General Dohm has interpreted the last paragraph 12 as though the conjunctive "and" instead of the disjunctive "or" was used following the word "school," while Mr. Starin assumes that the disjunctive separates the paragraph so that there are in fact three types of instructor operators that may qualify.

            The answer to the question thus prescribed is supplied in the analysis.

                                                                     ANALYSIS

            Taking the first part of the paragraph, to wit, an "instructor operator" is a person who gives instruction in the practice of hairdressing and beauty culture in a school if this is a complete requirement in itself, it would in our opinion render the paragraph meaningless.  And if the legislature intended the use of the word "or" as a disjunctive it would, in our opinion, mean (1) that a person could qualify for a license as an instructor operator if such person were giving instruction in the practice of hairdressing and beauty culture in a school; or (2) that a person who has the qualifications of a manager operator as provided in paragraph 7, would likewise be qualified and that neither one of the two categories described would be required to take an instructor examination.  That the third category would be an owner operator and to that is added the conjunctive "and" who has passed an instructor's examination.  Of the three types then that might qualify for an "instructor operator" license, only the third type, to wit, the owner operator, would be required to take an instructor's examination.  Such a garbled interpretation of this paragraph, we repeat, would render it absolutely meaningless.

            RCW 18.18.030 provides:

             [[Orig. Op. Page 3]]

            "It shall be unlawful for any person, firm or corporation to engage in the practice of hairdressing and beauty culture for compensation, * * * or give instruction in a hairdressing and beauty culture shop or school, unless licensed so to do as provided in this chapter."

            When we construe these two provisions of the law together, no one could possibly qualify as an instructor operator under the first provision of paragraph 12.  Since in order to qualify for a license such person would have to be an instructor in the practice of hairdressing and beauty culture in a school.  Yet, without a license no one could be such an instructor without violating the provisions of RCW 18.18.030.

            Our supreme court has repeatedly held that where a statute is ambiguous, it must be given a construction that makes sense and avoids absurd consequences.  This rule is stated inState ex rel. Thorpe v. Devin, 26 Wn. (2d) 333, where reading from page 345, our court said:

            "The general purpose or spirit of a legislative act must always be held in view, and absurd consequences avoided as far as possible.  Dennis v. Moses, 18 Wash. 537, 52 Pac. 333, 40 L.R.A. 302; State v. Asotin County, 79 Wash. 634, 140 Pac. 914;In re Horse Heaven Irr, Dist., 11 Wn. (2d) 218, 118 P. (2d) 972; Martin v. Department of Social Security, 12 Wn. (2d) 329, 121 P. (2d) 394.  A thing which is within the object, spirit, and meaning of a legislative act is as much within the act as if it were within the letter.  State ex rel. Spokane United Rys. v. Department of Public Service, 191 Wash. 595, 71 P. (2d) 661; 2 Lewis' Sutherland Statutory Construction (2d ed.), §§ 369, 379."

            In the case cited by Mr. Starin, State v. Tiffany, 44 Wash. 602, in an opinion by Judge Rudkin, it is stated that "or" is construed to mean "and" only when any other construction would make the statute meaningless.

            Before we however can construe the intention of the legislature as having inadvertently used "or" when it meant to use "and", we must have a situation where the purpose and intent of the statute itself clearly indicates that the use of the word "or" must have been inadvertent.  Citing from theTiffany opinion at page 604, Judge Rudkin said:

             [[Orig. Op. Page 4]]

            "But the plain language of a statute can only be disregarded, and this exceptional rule of construction can only be resorted to, where the act itself furnishes cogent proof of the legislative error."

            It is our opinion that paragraph 12 of RCW 18.18.010 presents such a situation, and that paragraph 12 should be, and we do interpret it to mean, that an "instructor operator" is a person who has qualified and secured a license as a beauty operator and who has had one year's practice in a beauty culture shop under the supervision of either a manager or owner operator, and has passed an instructor's examination.  All of these qualifications are necessary in order to qualify for a license as an "instructor operator".

            We must confess that the statute, by the manner of its wording has been made about as ambiguous and confused as it is possible to make a statute, and the matter should be called to the attention of the next legislature for correction and amendment.

Very truly yours,

DON EASTVOLD
Attorney General

ROY C. FOX
Assistant Attorney General