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AGLO 1971 No. 038 - March 11, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                                  March 11, 1971
 
 
 
Honorable August P. Mardesich
State Senator, 38th District
Legislative Building
Olympia, Washington 98501
                                                                                            Cite as:  AGLO 1971 No. 38 (not official)
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question regarding a proposed amendment to Senate Bill No. 170, relating to the regulation of hotels and motels by the state department of social and health services.1/  The amendment to which you have referred would call for the state board of health2/to
 
            ". . . promulgate such rules and regulations, to be effective no sooner than February 1, 1972, as may be necessary to assure that each transient accommodation will be operated and maintained in a manner consistent with the health and welfare of the members of the public  [[Orig. Op. Page 2]] using such facilities.  Such rules and regulations shall provide for adequate light, heat, ventilation, cleanliness, and sanitation and shall include provisions to assure adequate maintenance.  All rules and regulations and amendments thereto shall be adopted in conformance with the provisions of chapter 34.04 RCW."
 
                                                                     ANALYSIS
 
            Although you have expressed your question regarding the "adequacy of the standards" set forth in this section in terms of compliance or noncompliance with the state administrative procedures act, chapter 34.04 RCW, we doubt that this is the point of reference which you actually had in mind.  The administrative procedures act, of course, merely establishes certain procedural requirements for the adoption of agency rules,3/ and does not bear upon the mere basic question of the constitutional validity of the substantive legislation under which authority to adopt certain rules has been granted to the agency by the legislature.
 
            Therefore, we surmise the real essence of your inquiry goes to the issue of whether the proposed amendatory section, as above quoted, would contain "adequate standards" as required by Article II, § 1 of our state Constitution whenever some aspect of legislative power is delegated to an administrative agency.  In other words, would this section constitute an unconstitutional delegation of legislative authority?
 
            We think not.  The basic test to be applied in such a case has been spelled out by our court on many occasions ‑ most recently, in Markham Advertising Co. v. State, 73 Wn.2d 405, 429, 439 P.2d 248 (1968), as follows:
 
            ". . .  A legislative delegation is tested by the standards we set forth in Miller v. Tacoma, 61 Wn.2d 374, 378 P.2d 464 (1963), at 388, 389:
 
            "The rule is succinctly stated in Keeting v.  [[Orig. Op. Page 3]] Public Util. Dist. No. 1, 49 Wn.2d 761, 767, 306 P.2d 762 (1957).
 
            "'It is unconstitutional for the legislature to abdicate or transfer to others its legislative function.  It is not unconstitutional for the legislature to delegate administrative power.  In so doing, the legislature must define (a) what is to be done, (b) the instrumentality which is to accomplish it, and (c) the scope of the instrumentality's authority in so doing, by prescribing reasonable administrative standards.'"
 
            Other recent cases in which this same concept has been expressed by the court, and then applied to determine the sufficiency or insufficiency of legislatively prescribed standards in a given situation, include:  Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 418 P.2d 443 (1966); State ex rel. Pruzan v. Redman, 60 Wn.2d 521, 374 P.2d 1002 (1962); Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959); Senior Cit. L. v. Dept. Soc. Sec., 38 Wn.2d 142, 228 P.2d 478 (1951); United States Steel Corp. v. State, 65 Wn.2d 385, 397 P.2d 440 (1964); and Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127 (1960).  Notably, however, only the last two of these numerous cases (in order of citation) represent instances in which the court has invalidated a legislative delegation because of the absence of "adequate standards" ‑ and in these two cases, it is readily apparent from a reading of the acts involved that the legislature had set forth no real standards at all.
 
            By way of contrast, the proposed amendment to Senate Bill No. 170, as quoted above, would very definitely contain an expression of rather specific standards with which the state board of health would have to comply, and by which it would necessarily be guided, in promulgating the rules and regulations contemplated by the bill.  First, such rules would have to be such as are
 
            ". . . necessary to assure that each transient accommodation will be operated and maintained in a manner consistent with the health and welfare of the members of the public using such facilities.  . . ."
 
             [[Orig. Op. Page 4]]
            And secondly, an even greater specificity of standards would be spelled out by the ensuing sentence, requiring that
 


            ". . . such rules and regulations shall provide for adequate light, heat, ventilation, cleanliness, and sanitation and shall include provisions to assure adequate maintenance.  . . ."
 
            Accordingly, it is our opinion that the provisions of Senate Bill No. 170, amended in accordance with the pending proposal above described, would not result in an unconstitutional delegation of legislative powers to the state board of health if enacted in this form.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/The basic purpose of the bill in question is expressed in § 1 thereof as follows:
 
            "The purpose of this 1971 amendatory act is to provide for the development, establishment, and enforcement of standards for the maintenance and operation of hotels and motels through a licensing program to promote the protection of the health and welfare of individuals using such accommodations in this state."
 
2/I.e., the "board," as defined in § 2 (4).
 
3/With which, notably, the board would expressly be required to comply under the last sentence of the proposed amendatory section.
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