COMMERCIAL SPRAYERS AND DUSTERS ‑- PERSONS REQUIRED TO BE LICENSED

COMMERCIAL SPRAYERS AND DUSTERS ‑- PERSONS REQUIRED TO BE LICENSED

Where a partnership is engaged in commercial spraying and dusting a license may be issued to the partnership to cover all partners but a license issued to one partner alone does not cover other partners or the partnership; such licenses are not transferable.

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                                                               November 15, 1955

Honorable Patrick D. Sutherland
State Senator, 37th District
1526 38th Avenue
Seattle, Washington                                                                                                              Cite as:  AGO 55-57 No. 162

Dear Sir:

            You have asked our opinion on the following questions:

            "(1.) Where a partnership is engaged in commercial spraying and dusting underRCW Chapter 17.20 as amended and the partners share equally in the control, management and profits of the company, both doing actual spraying

            "(a) must both partners be licensed;

            "(b) may a license be granted to the partnership to cover all partners;

            "(c) may a license that has been granted to one partner alone cover either the partnership or the other partner?

             [[Orig. Op. Page 2]]

            "(2.) May a licensed, commercial applicator furnish the equipment and the use of his license to an independent contractor who furnishes the truck and does the actual spraying, the proceeds being divided on a percentage basis?

            "(3.) What if the relationship in question '(2.)' were that of principal and agent or joint venture?"

                                                                     ANALYSIS

            Our conclusions are as follows:

            (1) (a) "No."

            (1) (b) "Yes."

            (1) (c) "No."

            (2) "No," the license may not be transferred.

            (3) Same as (2) above.

            (1) RCW 17.20.040 (1953 Supp.) reads as follows:

            "Commercial applicators shall procure from the director an annual license, and pay therefor a fee of not more than twenty dollars, the proceeds of which shall be used exclusively for the enforcement of this chapter.

            "Licenses shall expire on December 31st following issuance, unless sooner revoked for cause,and shall not be transferable.  The director may refuse to issue a license if the applicant does not have equipment capable of applying chemicals or chemically treated materials without injuring the crops, lands, bees or livestock of others:  Provided, That applicators who, in the discretion of the director,  [[Orig. Op. Page 3]] engage in applying chemicals or chemically treated materials for the control of insects, pests, weeds or diseases to lands or crops, infrequently or in nonsubstantial amounts for others, shall not be considered commercial applicators."  (Emphasis supplied)

            Under RCW 17.20.010 (1953 Supp.) a commercial applicator is defined as follows:

            "* * *

            "'Commercial applicator' is one who applies chemicals or chemically treated materials for the control of insects, pests, weeds or diseases to lands or crops other than his own."

            The foregoing definition is ambiguous in that the term "one" may reasonably be interpreted in different ways.  Resort must therefore be made to general rules of statutory construction.  The first such general rule relating to the problem here presented is to be found in 53 C.J.S. 495, Licenses, § 13 (b) which states:

            "Statutes and ordinances imposing licenses and business taxes are generally to be construed liberally in favor of the citizen and strictly against the government, whether state or municipal, especially where they provide penalties for their violation. Accordingly, if the enactment is not clear and positive in its terms, or if it is reasonably open to different interpretations through the indefiniteness of its provisions, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied."

            RCW 17.20.060 provides that a violation of any provision of this chapter or any lawful regulation issued hereunder shall be a misdemeanor.  Since the act carries criminal sanctions it must be strictly construed.  State v. Anderson, 61 Wash. 674.

             [[Orig. Op. Page 4]]

            We are advised that the Department of Agriculture has consistently construed the word "one" in the statute in question as applying to each person, partnership, company, corporation, or association licensed under the act.  In other words, a partnership has been construed as an entity for the purposes of licensing.  This is borne out by the orders, rules, and regulations issued by the director of agriculture under the authority granted by the act which commences with the phrase "each person, partnership, company, corporation or association."  Order No. 535 issued in March, 1949, contains this language as does each superseding order including the present Order No. 685.  InState ex rel. Pirak v. Schoettler, 45 Wn.2d 367, at page 371, the court stated:

            "When a statute is ambiguous, the construction placed upon it by the officer or department charged with its administration, while not binding on the courts, is entitled to considerable weight in determining the intention of the legislature."1 See, also,Smith v. Northern Pac. R. Co., 7 Wn.2d 652.

            In 82 C.J.S. 761-769, Statutes, § 359, the rule is stated as follows:

            "The contemporaneous construction placed on an ambiguous statute by the officers or departments charged with its enforcement and administration is to be considered and given weight in construing the statute, especially if such construction has been uniform and consistent and, has been observed and acted on and acquiesced in for a long time.

            "* * * The consideration to be accorded executive construction is also especially weighty in the case of statutes prescribing penalties, or levying impositions, where the executive construction has been in favor of the persons affected.

            "* * * Executive construction is entitled to additional weight where it has been impliedly indorsed  [[Orig. Op. Page 5]] by the legislature, as by the reenactment of the statute, or the passage of a similar one, in the same or substantially the same terms, * * *"

            In our opinion the construction placed on the act by the director of agriculture is in accord with the general rules hereinbefore set forth and is determinative of the problem presented.  You are therefore advised in response to your first question as follows:

            (a) Both partners need not be licensed; (b) a license may be granted to the partnership to cover all partners; and (c) under the specific terms of RCW 17.20.040 (1953 Supp.) a license is not transferable.  As a general rule a license being a personal privilege cannot be communicated or assigned to another.  See 33 Am.Jur. 330, Licenses, § 6.

            Accordingly we advise that a license issued to an individual will not cover either the partnership of which he is a member or the other partners.

            2. A commercial applicator may not furnish the use of his license to anyone.  A license generally is regarded as a specific privilege or personal trust and confidence which cannot be assigned or transferred without the consent of the licensing authority.  See 53 C.J.S. 657, Licenses, § 45.  Our reading of the statute convinces us that the legislature was more concerned with fixing responsibility for careless or incompetent work in this field than in attempting to prescribe qualifications for licensees.  There is nothing in the statute which would prevent anyone from loaning his equipment, but as indicated above, the license itself may not be loaned or transferred.

            3. In our opinion it would make no difference whether the relationship be that of principal and agent or joint venture.  In either event the license itself may not be loaned or transferred.  We do not mean to infer that every person engaged in the work of commercial spraying and dusting must be licensed.  As we read the statute, however, every contract under which commercial spraying and dusting is performed must be done under the supervision or direction of a licensed commercial applicator who will be in such a legal relationship to the person actually doing the work that he will be responsible for any damages occasioned as a result of careless or incompetent  [[Orig. Op. Page 6]] spraying and dusting.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

ANDY G. ENGEBRETSEN
Assistant Attorney General