The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6703 October 16, 1991 BOARD OF MARRIAGE COUNSELORS: Lack of authority to require written examination OCCUPATIONAL CODE: Lack of authority to require written examination The Board of Marriage Counselors may not require an applicant for a certificate of registration as a marriage counselor to take a written examination. Robert E. Lee, Ph.D., ABPP Chairperson--Michigan State Board of Marriage Counselors 28336 Franklin Road Southfield, MI 48034 You have asked if the Board of Marriage Counselors may require an applicant for a certificate of registration as a marriage counselor to take a written examination. The Board of Marriage Counselors was originally created in section 7 of 1966 PA 292, the Marriage Counseling Certification Act. Subsequently, the Board of Marriage Counselors adopted the following rule which took effect November 14, 1968: The board may require the personal appearance of the applicant before the board or may require the applicant to take such examination as may be prepared or designated by the board. 1979 AC, R 338.1823. The Marriage Counseling Certification Act was repealed by section 2601 of 1980 PA 299, the Occupational Code, MCL 339.101 et seq; MSA 18.425(101) et seq. The Occupational Code is entitled, in pertinent part, as follows: An act to revise, consolidate, and classify the laws of this state regarding the regulation of certain occupations; to create a board for each of those occupations; to establish the powers and duties of the department of licensing and regulation and the boards of each occupation; to provide for the promulgation of rules; ... and to repeal certain acts and parts of acts. The Board of Marriage Counselors, now provided for in section 1502 of the Occupational Code, repealed 1979 AC, R 338.1823 effective November 14, 1990, in 1990 MR 10 at p 23. This office has been advised that the Board of Marriage Counselors never implemented the examination feature of the foregoing rule. Your question contemplates the promulgation of a similar rule under the Occupational Code. It is axiomatic that an administrative agency possesses only those powers authorized expressly or by necessary implication in the statutes enacted by the Legislature. Coffman v. State Board of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951); Sutherland Stat Const Sec. 31.02 (4th Ed), p 521. Currently, section 308 of the Occupational Code contains rule-making authority as follows: (1) A board shall promulgate rules as required in the article in which it is created as are necessary and appropriate to fulfill its role. (2) A board may promulgate rules to set the minimal standards of acceptable practice for an occupation for which the board is created. [Emphasis added.] MCL 339.308; MSA 18.425(308). Section 316(1) of the Occupational Code provides: Unless otherwise provided in an article, a board and the department shall develop an examination or test required by an article. [Emphasis added.] MCL 339.316; MSA 18.425(316). It is clear from the foregoing that under section 308(1) of the Occupational Code, the Board of Marriage Counselors does not possess the authority to adopt an administrative rule requiring a written examination unless the rule is required by article 15 of the Occupational Code dealing with the registration of marriage counselors. A review of article 15 reveals no language which either requires or authorizes the use of a written or oral examination in registering marriage counselors. Proper construction of article 15, as it relates to the authority of the Board to implement a written examination, requires reference to the entire act. Argo Oil Corp v. Atwood, 274 Mich 47, 53; 264 NW 285 (1935). The absence of express language authorizing imposition of a written or oral examination in article 15, when coupled with the existence of express language authorizing examinations, written or oral, in articles 7, 9-14, 18-20 and 22-25 of the Occupational Code, demonstrates clearly that the Legislature did not intend to grant this written examination authority to the Board of Marriage Counselors. Section 308(2) of the Occupational Code, quoted above, authorizes boards to promulgate rules establishing acceptable practice standards for their respective professions or occupations. However, article 15 of the Occupational Code is not a practice statute. Rather, it is merely a registration law. The distinction between the two is that a practice statute is one in which the practice of the profession or occupation being regulated is prohibited absent the attainment of certain licenses or certificates authorizing a person to engage in the profession or occupation. A registration statute, on the other hand, is one in which the person is merely prohibited from advertising that he or she is offering certain services without first obtaining an appropriate certificate from the state. Section 3 of the now repealed Marriage Counselors Certification Act and section 1503(2) of the Occupational Code illustrate clearly the pertinent distinction between the two kinds of statutes. Section 3 of the repealed statute provided: After January 1, 1967, no person shall engage in counseling on marriage and family problems or advertise the performance of that service without having a certification that is provided in this Act. [Emphasis added.] Section 1503(2) of the Occupational Code provides: Except as otherwise specifically provided in this article, only a person registered under this article shall advertise that the person is offering marriage or family counseling service or advice ...; or service of a similar import or effect. MCL 339.1503(2); MSA 18.425(1503)(2). Manifestly, the provisions of article 15 of the Occupational Code dealing with marriage counselors regulate the advertising of certain services rather than the practice of those services. It is my opinion, therefore, that the Board of Marriage Counselors may not require an applicant for a certificate of registration as a marriage counselor to take a written examination. Frank J. Kelley Attorney General