STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5253

January 16, 1978

LICENSES AND PERMITS:

Time limit for renewing expired license.

NURSING HOME ADMINISTRATOR ACT:

Time limit for renewing expired license.

ADMINISTRATIVE LAW AND PROCEDURE:

Lack of standards as guide for exercise of administrative discretion.

Where the nursing home administrator act provides that the Director may reinstate an expired license if the application for reinstatement is accompanied with an additional fee and does not state any time limit within which the application for reinstatement must be filed, there is no time limit within which the expired license may be reinstated.

Where the nursing home administrator act permits reinstatement of an expired license and makes no reference to the manner by which the license was originally obtained, the Director may reinstate the license regardless of whether it was obtained by examination or by operation of a grandfather clause.

Where the nursing home administrator act provides that the Director may reinstate an expired license when the applicant demonstrates 'good and sufficient reason for his delay', this standard is an invalid attempt to confer arbitrary powers upon an administrator and the section is to be applied with the phrase deleted.

Mr. William S. Ballenger, III

Director

Department of Licensing and Regulation

1033 South Washington Avenue

Lansing, Michigan 48926

You have requested my opinion with respect to the renewal of licenses issued pursuant to the nursing home administrator act, 1969 PA 166; MCLA 338.1181 et seq; MSA 14.1300(1) et seq. Your questions are:

Section 7 of the nursing home administrator act, 1969 PA 166, supra, Sec. 7, provides:

Before addressing your questions, it is necessary to consider whether, in determining whether to reinstate a license, the standard of 'good and sufficient reason for his delay' is a valid guide for the exercise of discretion by the Director. It is a basic tenet of law that the legislature cannot confer arbitrary powers upon an administrative agency. This principle was discussed in OAG, 1971-1972, No 4745, p 87 (April 21, 1972), in which, relying upon Devereaux Township Board of Genesee Township, 211 Mich 38; 177 NW 967 (1920); Hoyt Brothers, Inc v City of Grand Rapids, 260 Mich 447; 245 NW 509 (1932); Blumlo v Hampton Township Board, 309 Mich 452; 15 NW2d 705 (1944); and O'Brien v State Highway Commissioner, 375 Mich 545; 134 NW2d 700 (1965), it was held that a provision in the Nursing Practice Act of 1967, 1967 PA 149, Sec. 18(3); MCLA 338.1168(3); MSA 14.694(18)(3), which authorized the Nursing Board to reinstate a lapsed license 'upon satisfactory explanation for the failure to renew' is unconstitutionally vague and may not be applied. The opinion also held, however, that the balance of the section should be applied with the offending phrase deleted and the same principle applies to the statute under discussion.

Turning now to your specific questions, the legislative language is clear and requires no interpretation. Dussia v Monroe County Employees Retirement System, 27 Mich App 398; 183 NW2d 583 (1970), as aff'd, 386 Mich 244; 191 NW2d 307 (1971). It clearly states that a license shall be renewed annually on or before October 31 upon application and payment of a fee of $50.00. After October 31 but before November 30, the applicant must pay an additional $5.00 fee. If the application is not filed and the fee not paid before November 30, the license expires but the applicant may reinstate it if the application is accompanied by an additional fee of $10.00. There is no distinction in the statute between persons who initially obtained their license on the basis of examination and those who obtained their license on the basis of a grandfather clause. ⁽¹⁾

It is, therefore, my opinion that a nursing home administrator license which has expired because of the licensee's failure to renew it before November 30 may be reinstated at any time. It is my further opinion that the license may be reinstated regardless of whether the person has obtained his or her original license by examination or by operation of the grandfather clause.

Frank J. Kelley

1969 PA 166, supra, Sec. 4 originally provided in pertinent part: