Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

FEE FOR LICENSE ISSUED PURSUANT TO RCW 70.98.080.

AGLO 1982 No. 14 -
Attorney General Ken Eikenberry

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF SOCIAL AND HEALTH SERVICES ‑- LICENSES ‑- FEES ‑- FEE FOR LICENSE ISSUED PURSUANT TO RCW 70.98.080.

The Department of Social and Health Services, in its capacity as the state radiation control agency under chapter 70.98 RCW, is authorized by § 2, chapter 201, Laws of 1982 to establish and impose license fees in connection with licenses issued pursuant to RCW 70.98.080.

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                                                                    June 7, 1982

Honorable Alan J. Gibbs
Secretary
Department of Social and Health
  Services
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1982 No. 14

Dear Sir:

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows:

            Does § 2, chapter 201, Laws of 1982 effectively authorize the Department of Social and Health Services, in its capacity as the state radiation control agency under chapter 70.98 RCW, to establish and impose license fees in connection with licenses issued pursuant to RCW 70.98.080?

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

                                                                     ANALYSIS

            By its enactment of § 2, chapter 201, Laws of 1982 the legislature added the following new section to chapter 43.20A RCW:

            "There is added to chapter 43.20A a new section to read as follows:

            "(1) The term 'license' means that exercise of regulatory authority by the secretary to grant permission,  [[Orig. Op. Page 2]] authority, or liberty to do or to forbear certain activities.  The term includes licenses, permits, certifications, registrations, and other similar terms.

            "(2) The secretary shall charge fees to the licensee for obtaining a license.  Municipal corporations providing emergency medical care and transportation services pursuant to chapter 18.73 RCW shall be exempt from such fees, provided that such other emergency services shall only be charged for their pro rata share of the cost of licensure and inspection, if appropriate.  The secretary may waive the fees when, in the discretion of the secretary, the fees would not be in the best interest of public health and safety, or when the fees would be to the financial disadvantage of the state.

            "(3) Fees charged shall be based on, but shall not exceed, the cost to the department for the licensure of the activity or class of activities and may include costs of necessary inspection.

            "(4) Department of social and health services advisory committees may review fees established by the secretary for licenses and comment upon the appropriateness of the level of such fees."

            The "secretary," to whom reference is thus made, is the Secretary of the Department of Social and Health Services.  See, RCW 43.20A.020.  It is also to be noted, however, that this new law, itself, does not represent the source of the secretary's authority to regulate through the issuance of licenses.  Instead, that authority already existed, prior to the enactment of chapter 201,supra, by reason of number of preexisting laws including RCW 70.98.080 relating to nuclear energy and radiation.  Thus, the function of chapter 201,supra, (in the respect here material) is simply to authorize the imposition of license fees in such amounts as the secretary determines to be appropriate.1/

             It is further to be noted that in some instances, the prior  [[Orig. Op. Page 3]] licensing statutes also contained authorizations to impose fees in amounts fixed, within the statutes themselves, by the legislature.  See,e.g., RCW 18.20.050 relating to boarding homes; RCW 18.46.030 and .040, regarding maternity homes; RCW 17.41.100 and .110 regarding hospitals; RCW 70.62.220 and .230 relating to transient accommodations; RCW 71.19.100 regarding public water supply systems; and RCW 71.12.470 relating to private establishments for the mentally ill, mentally incompetent or alcoholics.  Conversely, in the case of RCW 70.98.080, supra, there was no such prior fee authorization provision.

            With the foregoing in mind we turn, next, to the remainder of chapter 201,supra, insofar as it relates to license fees.  In those instances in which fees were previously authorized, and fixed, by the legislature itself the subject statutes were each expressly amended to substitute the phrase "as established . . . under § 2 of this act . . ." for the previous monetary amount.  For example, and by way of illustration, § 4 of the act amended RCW 18.20.050, relating to boarding homes, to read in material part as follows:

            "Upon receipt of an application for license, if the applicant and the boarding home facilities meet the requirements established under this chapter, the department or the department and the authorized health department jointly, shall issue a license. If there is a failure to comply with the provisions of this chapter or the standards, rules, and regulations promulgated pursuant thereto, the department, or the department and authorized health department, may in its discretion issue to an applicant for a license, or for the renewal of a license, a provisional license which will permit the operation of the boarding home for a period to be determined by the department, or the department and authorized health department, but not to exceed twelve months, which provisional license shall not be subject to renewal.  At the time of the ((issuance)) application for or renewal of a license or provisional license the licensee shall pay a licensee fee ((of ten dollars plus one dollar per bed capacity per year, but in no event shall the total exceed fifty dollars)) as established by the department under section 2 of this 1982 act. . . ."

             [[Orig. Op. Page 4]]

            In turn, by § § 5, 9, 10, 11, 13 and 14, the legislature in like manner expressly amended the previous fee imposition language of RCW 18.46.030, RCW 18.46.040, RCW 70.41.100, RCW 70.62.220, RCW 70.62.230, RCW 70.119.100 and RCW 71.12.470, supra.

            In the instance to which your question is specifically directed, however, the legislature made no such express amendment to the preexisting language of RCW 70.98.080,supra.  Why? Because it was not necessary to do so in order to bring that statute into conformity with the basic authorization set forth in § 2 of the new law‑-as above quoted.  There was, in the case of RCW 70.98.080, no previous fee authorization accompanied by a legislatively prescribed fee.  Therefore, there was no need for the legislature to amend that statute in order to bring it in line with § 2,supra.

            In construing chapter 201, Laws of 1982, supra, we are further guided by the rule of construction which tells us that the intent of the legislature, in any act, is to be derived from the language of the act taken as a whole, interpreted in terms of the general object and purpose of the legislation.  Strenge v. Clarke, 89 Wn.2d 23, 569 P.2d 60 (1977).  In our opinion, the general definition of "license" in § 2(1), supra, indicates that the legislature intended to authorize the secretary to establish and impose fees for all licensing activities under his jurisdiction‑-including those within the purview of chapter 70.98 RCW relating to nuclear energy and radiation.  This conclusion is also consistent with the rule of construction which requires that, when presented with two legislative enactments relating to the same subject matter which are not actually in conflict, some meaning is to be given to both if at all possible.  Davis v. King County, 77 Wn.2d 930, 468 P.2d 679 (1970).  And, for the reasons above explained, application of the fee requirement in § 2,supra, to all licenses issued by, or through, the secretary of the Department of Social and Health Services, will not conflict with anything in RCW 70.98.080.

            This leads us, finally, to a contention, alluded to in your request, that effect may not be given to this apparent expression of legislative intent‑-in the case of those licenses issued under RCW 70.98.080‑-because of Article II, § 37 of our state constitution which provides:

            "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."

             [[Orig. Op. Page 5]]

            We are, indeed, conscious of that provision and of the various recent cases in which it has been applied by the Washington Supreme Court to invalidate other legislative enactments.  See,e.g., Washington Education Association v. State, 93 Wn.2d 37, 604 P.2d 950 (1980) and Flanders v. Morris, 88 Wn.2d 183, 588 P.2d 769 (1977).  In this instance, however, Article II, § 37 does not apply for the simple reason that RCW 70.98.080 is not amended by chapter 201, Laws of 1982,supra.  Rather, by a separate enactment, the secretary has been authorized, henceforth, to impose a fee for any licenses issued thereunder.  There is, as above noted, no conflict between the statutes (RCW 70.98.080 and § 2 of chapter 201) in that respect.  Rather, they simply compliment each other.

            Moreover, we should also note in any event that it is not the prerogative of this office, in an advisory attorney general's opinion, to declare a statute unconstitutional.  In fact, as you may know, this office, over the years, has consistently followed a policy of presuming all duly enacted statutes to be constitutional until they are otherwise held invalid by a court of competent jurisdiction.  The basic reasons for this consistent policy have been frequently set forth in our prior opinions.  Perhaps the most succinct explanation of the policy appears in AGO 1945-46, page 269, as follows:

            ". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute.  A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

LEROY DREISBACH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/The title to chapter 201, Laws of 1982, supra, describes it as:

            "AN ACT Relating to financial responsibility for all services and licensing activities of the department of social and health services. . ."