CITIES AND TOWNS ‑- LEGISLATIVE AUTHORITY ‑- ORDINANCE ‑- LICENSES ‑- INSURANCE AGENTS

CITIES AND TOWNS ‑- LEGISLATIVE AUTHORITY ‑- ORDINANCE ‑- LICENSES ‑- INSURANCE AGENTS.

A city or town may enact an ordinance requiring an insurance agent licensed by the state insurance commissioner to obtain a local license prior to soliciting door-to-door within its territorial limits.

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                                                                    July 27, 1966

Honorable Lee I. Kueckelhan
Insurance Commissioner
Insurance Building
Olympia, Washington

                                                                                                              Cite as:  AGO 65-66 No. 100

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:

            Can a city or town enact an ordinance requiring an insurance agent licensed by the insurance commissioner of the state of Washington to obtain a local license prior to soliciting door-to-door within its territorial limits?

            We answer this question in the affirmative for the reasons stated in our analysis.

                                                                     ANALYSIS

            We note at the outset that the licensing of door-to-door salesmen is a common subject of regulatory ordinances in cities and towns in Washington.  Such ordinances, generally referred to as "Green River Ordinances," require a municipal license prior to soliciting or peddling from door-to-door.  In this opinion, we are not passing upon the question of whether a typical "Green River Ordinance" applies to insurance agents and solicitors.  To render such advice we would have to have reference to a specific ordinance.  No specific ordinance has been submitted to us.  The scope of this opinion, then, is limited to the question of whether a city or town, desiring to do so, can by specific ordinance require an insurance agent licensed by the state insurance commissioner to purchase a local license prior  [[Orig. Op. Page 2]] to solicitations door-to-door within such city or town.

            Cities and towns have been granted authority to enact and enforce "police power" ordinances by Article XI, § 11 of the state constitution, which provides as follows:

            "Any county, city, town or township may make and enforce within its limits all suchlocal police, sanitary and other regulations as are not in conflict with general laws."  (Emphasis supplied.)

            In determining the validity of an ordinance enacted under this provision, the primary question is whether or not it conflicts with the general laws of the state.1/   The basic test to be applied is whether or not the ordinance permits and licenses that which the statute forbids and prohibits, or vice versa.  Bellingham v. Schampera, 57 Wn.2d 106, 111, 356 P.2d 292 (1960).  In addition, if no direct conflict exists it must nevertheless be apparent that there has been no expression of intent on the part of the legislature to preempt the particular field of regulation.  City of Union Gap v. Carey, 64 Wn.2d 43, 47, 390 P.2d 674 (1964).

            The legislature, by the enactment of the insurance code of the state of Washington (Title 48 RCW), has passed legislation regarding the licensing of insurance agents.  In particular, RCW 48.17.060 requires that persons acting as insurance agents must first be licensed by the insurance commissioner of the state of Washington.  This statute provides:

            "(1) No person shall in this state, act as or hold himself out to be an agent, broker, solicitor, or adjuster unless then licensed therefor by this state.

             [[Orig. Op. Page 3]]

            "(2) No agent, solicitor, or broker shall solicit or take applications for, procure, or place for others any kind of insurance for which he is not then licensed.

            "(3) This section shall not apply with respect to any person securing and forwarding information required for the purposes of group insurance covering the unpaid balance, or remaining payments proposed to be made, in connection with the purchase of merchandise or securities, and where no commission or other compensation is payable on account of such insurance to such person.

            "(4) Any person violating this section shall be liable to a fine of not to exceed five hundred dollars and imprisonment for not to exceed six months for each instance of such violation."

            However, the fact that a municipal ordinance enlarges upon the provisions of a statute by requiring more than the statute requires does not create a conflict unless the statute expressly limits the requirements.  State ex rel. Isham v. Spokane, 2 Wn.2d 392, 98 P.2d 306 (1940).  In our opinion the requirement of a local license by a city or town does not conflict with the state insurance licensing regulation, but merely adds to it.

            Accordingly, the only point remaining to be considered is whether the legislature, by enactment of the insurance code, intended that the state's licensing of insurance agents and solicitors is to be exclusive.  A perusal of the insurance code discloses no express statement on the part of the legislature that it intended to preempt the field with respect to the licensing of insurance agents.2/   The Washington supreme  [[Orig. Op. Page 4]] court in Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964), described the test that is applicable where no express intention or preemption exists, as follows:

            "Whether there be room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved.  In re Iverson, 199 Cal. 582, 250 Pac. 681; 1 Antieau, Municipal Corporation Law § 5.22, p. 287.  If the legislature is silent as to its intent to occupy a given field, resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate.  If, however, the legislature affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt."

            It is true that chapter 48.17 RCW contains numerous provisions pertaining to the licensing of insurance agents and their activities under their licenses.  Among these requirements are:  A requirement of a license issued by the insurance commissioner ‑ RCW 48.17.060; a determination of the qualifications of an agent by the insurance commissioner ‑ RCW 48.17.060, 48.17.150 and 48.17.280; a requirement that an individual must pass an examination prior to becoming an agent ‑ RCW 48.17.110; a statement of the grounds for disciplinary action by the insurance commissioner against such licensee ‑ RCW 48.17.530.

            However, all the foregoing requirements and the other requirements in chapter 48.17 RCW refer to the field of insurance generally.  There is no provision in the code specifically relating to door-to-door selling, nor do we find any language in the code that would tend to indicate that the legislature meant such licensing to be exclusive.3/   Accordingly, we conclude that the legislature did not preempt the field with respect to the licensing of insurance agents.

             [[Orig. Op. Page 5]]

            In view of the foregoing, we are of the opinion that a city or town may, by ordinance, require an insurance agent licensed by the insurance commissioner of the state of Washington to obtain a local license prior to soliciting from door-to-door within its territorial limits.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General