OFFICES AND OFFICERS ‑- STATE ‑- COUNCIL FOR POSTSECONDARY EDUCATION ‑- HIGHER EDUCATION ‑- SCOPE OF STATUTORY EXEMPTIONS
An "educational institution" as defined in RCW 28B.05.030(1) which provides educational services through workshops and seminars is not exempt from the Educational Services Registration Act solely on the basis that none of those workshops or seminars are of more than three calendar days in duration; nor is such an institution exempt because of the fact that, although it solicits from more than one business concern, it does not solicit the general public.
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April 23, 1981
Honorable Homer Halverson
Olympia, Washington 98504 Cite as: AGLO 1981 No. 11
By recent letter you requested our opinion on two questions relating to the Educational Services Registration Act, chapter 28B.05 RCW. We paraphrase those questions as follows:
(1) Assuming that an organization which provides educational services through workshops and seminars is otherwise covered by the Educational Services Registration Act and, thus, is required to comply with the provisions thereof, would such organization nevertheless be exempt because of the fact that none of those workshops or seminars are of more than three calendar days in duration?
(2) If question (1) is answered in the negative, would such an organization be exempt from the provisions of chapter 28B.05 RCW if, although it solicits from more than one business concern, it does not solicit the general public?
[[Orig. Op. Page 2]]
We answer both questions in the negative for the reasons set forth in our analysis.
The Educational Services Registration Act, chapter 28B.05 RCW, was enacted by the legislature as chapter 188, Laws of 1979, 1st Ex. Sess. For the purposes thereof, an "educational institution" is defined by RCW 28B.05.030(1) as follows:
"(1) 'Educational institution' includes, but is not limited to, an academic, vocational, technical, home study, business, professional, or other school, institution, college, or university, or other organization or person not exempted under RCW 28B.05.040, offering educational credentials, instruction, or services primarily to persons who have completed or terminated their secondary education, or who are beyond the age of compulsory high school attendance, for attainment of educational, professional, or vocational objectives."
Your first question assumes an organization which fits that definition. But, because it only provides educational services through workshops and seminars of not more than three calendar days in duration, it argues it should nevertheless be exempt from the regulatory provisions of the law.
We cannot, however, agree with such a contention. It is clear from the foregoing definition that the legislature intended to include all organizations providing educational services within the state except those specifically exempted. And, under RCW 28B.05.040, there is no exemption based solely on the length of time for which educational services are provided. We quote, for ease of reference, the full text of that section of the act as follows:
"The following education and institutions are exempted from the provisions of this chapter:
[[Orig. Op. Page 3]]
"(1) Education sponsored by bona fide trade, business, professional, or fraternal organizations primarily for that organization's membership or offered by that organization on a no-fee basis;
"(2) Education solely avocational or recreational in nature and institutions offering such education exclusively;
"(3) Education offered by charitable institutions, organizations, or agencies: PROVIDED, That such education is not advertised or promoted as leading toward educational credentials;
"(4) Institutions that are established, operated, and governed by this state or its political subdivisions under the provisions of Titles 28A, 28B and 28C RCW;
"(5) Institutions that have been accredited by any accrediting association recognized by the agency for the purposes of this act: PROVIDED, That an institution, branch, extension or facility operating within the state of Washington which is affiliated with an institution operating in another state must be a separately accredited member institution of any such accrediting association to qualify for this exemption.
"(6) Any other institution to the extent that it has been exempted from some or all of the provisions of this chapter in accordance with the hardship exemption procedure in RCW 28B.05.130.
"(7) Institutions not otherwise exempt that are of a religious character, but only as to those education programs exclusively devoted to religious or theological objectives, and that are represented in an accurate manner in institutional catalogs or other official publications.
[[Orig. Op. Page 4]]
"(8) Educational institutions that are certified by the Federal Aviation Administration under 14 CFR 141 and those educational institutions certified under 14 CFR 61 which offer instruction solely for avocational or recreational purposes."
When a statute such as this provides, expressly, for certain exceptions, no other exceptions will be assumed by implication. State v. Walker, 14 Wn.App. 348, 541 P.2d 1237 (1975); Jeanneret v. Rees, 82 Wn.2d 404, 571 P.2d 60 (1973). It therefore follows, in application of that principle here, that your first question, as above paraphrased, must be answered in the negative.
Repeated for ease of reference, your second question, as above paraphrased, asks:
If question (1) is answered in the negative, would such an organization be exempt from the provisions of chapter 28B.05 RCW if, although it solicits from more than one business concern, it does not solicit the general public?
Just as there is no stated exemption in the law for workshops or seminars of short duration, as such, there likewise is no exemption based on the manner in which the educational institution involved solicits business. And, accordingly, if this is the true thrust of your second question, we believe that it, also, must be answered in the negative. The mere fact that an educational institution, as defined in RCW 28B.05.030(1),supra, does not solicit the general public‑-although it may solicit from more than one business concern‑-does not, of itself, result in an exemption from the law.
In so concluding we have carefully considered the express exemption in RCW 28B.05.040(1),supra, of:
"Education sponsored by bona fide trade, business, professional, or fraternal organizations primarily for that organization's membership or offered by that organization on a no-fee basis;"
[[Orig. Op. Page 5]]
That exemption, however, covers only two situations. First, it covers educationsponsored by a bona fide trade, business, professional or fraternal organization primarily for its own membership; i.e., persons who are members of the sponsoring organization. And second, it applies to education sponsored by such an organization on a no-fee basis. But, since you have not asked us to assume, for purposes of this opinion, a no-fee situation, we need only discuss, further, the first aspect of the exemption.
It is well established that, in the absence of a specific statutory definition to the contrary, words used in an act of the legislature are to be given their usual and ordinary meaning. Pacific First Federal Savings and Loan Ass'n v. State, 92 Wn.2d 402, 598 P.2d 387 (1979) and cases cited therein. In this instance, neither the word "sponsored" nor the word "primarily" are specially defined for purposes of the law and thus this rule applies.
Webster's Third New International Dictionary defines a "sponsor," in part, as follows:
"1: one who binds himself to answer for another's default . . . 4: one who assumes responsibility for some other person or thing. . . ."
The same dictionary also defines "primarily" to mean:
". . . first of all; in the first place."
It is thus entirely possible for a given educational program to be sponsored by one organization but actually conducted by another. For example, the Washington State Bar Association might sponsor a one‑day legal seminar for lawyers (or at least, primarily, for lawyers) on forensic medicine and hire a particular educational institution to put on the program. And, in that case, the exemption would apply. But, notably, that would be true regardless of who was solicited to attend or how the solicitation was accomplished.
In short, then, the manner of solicitation is irrelevant in determining whether or not an institution is exempt. The exemptions provided for in RCW 28B.05.040, supra, apply solely to the type of education offered or a specific type [[Orig. Op. Page 6]] of institution. The determination of exemption, therefore, must be made on that basis.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
GARY E. ANDREWS
Assistant Attorney General