OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF LICENSES ‑- DIRECTOR ‑- RULES AND REGULATIONS UNDER RCW 46.80.140 ‑- VIOLATION

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF LICENSES ‑- DIRECTOR ‑- RULES AND REGULATIONS UNDER RCW 46.80.140 ‑- VIOLATION.

Any violation of the rules and regulations promulgated by the director of licenses for motor vehicle wreckers pursuant to the authority vested in said director by RCW 46.80.140 does not constitute a crime.

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                                                              September 19, 1962

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane 1, Washington

                                                                                                              Cite as:  AGO 61-62 No. 165

Dear Sir:

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

            Does a violation of the rules and regulations promulgated by the director of licenses pursuant to RCW 46.80.140 constitute a crime?

            We answer your question in the negative.

                                                                     ANALYSIS

            Section 46.80.140, chapter 12, Laws of 1961 reads:

            "The director of licenses is hereby authorized to promulgate and adopt reasonable rules and regulations not in conflict with provisions hereof for the proper operation and enforcement of this chapter."

            It is well settled in this state that the legislature has the power to delegate administrative power.  SeeKeeting v. P.U.D. No. 1, 49 Wn. (2d) 761, 767, 306 P. (2d) 762 (1957) and cases cited therein; Yelle v. Bishop, 55 Wn. (2d) 286, 301, 347 P. (2d) 1081 (1959); andSenior Citizens League v. Dept. of Social Security, 38 Wn. (2d) 142, 228 P. (2d) 478 (1951).  See also annotations in 79 L.Ed. 474 at page 490.

            Rules and regulations promulgated pursuant to a delegation of administrative power have the force and effect of law.  1 Davis,  [[Orig. Op. Page 2]] Administrative Law Treatise, 299, § 503:

            "A legislative rule is the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body.  In the clearest case of a legislative rule, a statute has conferred power upon the agency to issue the rule and the statute provides that the rule, if within the granted power, shall have the force of law.  But a legislative rule may rest upon an implied or an unclear grant of power as well as upon an express and clear grant of power. . . ."

            As indicated in your letter no specific sanction for the violation of the rules and regulations promulgated under RCW 46.80.140 is provided.  Rather, the chapter under its penalty section, RCW 46.80.120, provides inter alia:

            ". . . Any motor vehicle wrecker who shall fail, neglect or refuse to complywith all of the provisions of this chapter before offering for sale and selling used parts, shall be guilty of a gross misdemeanor . . ."  (Emphasis supplied.)

            There seems to be no rule in Washington forbidding the imposition of a criminal penalty for a violation of an administrative rule or regulation.  SeeState v. Miles, 5 Wn. (2d) 322, 105 P. (2d) 51 (1940), where the court states at page 326:

            "When a situation involves a prosecution for the alleged violation of an administrative order, it calls for a scrutiny of such order with especial care, and in such instances, more so than in other cases, it must clearly appear that the order is one which falls within the scope of the authority conferred.  State v. Retowski, 6 W. W. Harr. (Del.) 330, 175 Atl. 325; Cerritos Gun Club v. Hall, (C.C.A., 9th), 96 F. (2d) 620."

            However, the general rule of statutory construction that

            "Where statutes provide that violation of a rule or regulation of an administrative agency shall be a misdemeanor, if the rule or  [[Orig. Op. Page 3]] regulation is reasonable, the enforcement of the penalty for its violation is sustained by the courts, for the legislature and not the administrative agency made the action penal. . . ." 1 Sutherland Statutory Construction, 3rd ed., p. 92, § 323.

            See also annotation in 79 L. Ed. 474 at page 491.  In substance the violation of an administrative rule to be criminal must be set forth in the statute itself.  This is not the case with RCW 46.80.140.  There is no provision that a violation of a rule or regulation is a crime.

            A distinction in legislative delegation is apparently recognized by the legislature because Washington statutes, in other instances, provide that agencies may make rules and regulations, the violation of which shall be a crime.  RCW 75.08.260 relating to fisheries and RCW 14.04.240 concerning the aeronautics commission, are but two of the instances where the legislature has specifically provided that violation of an agency rule or regulation shall constitute a criminal act.

            Being guided by the foregoing, it is our opinion that any disobedience to rules and regulations duly adopted under RCW 46.80.140 cannot be prosecuted as a criminal act.  Rules and regulations so passed are powerless to accomplish that purported result.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EARL E. YATES
Assistant Attorney General