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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)



Opinion No. 6073

June 10, 1982


Delegation of governmental power to a private body or organization


Certification of opticians, ophthalmic dispensers and optical technicians by private body

A grant of governmental power to a private body or organization to certify or register persons so that they may use the title of optician, ophtalmic dispenser, or optical technician would be an unconstitutional delegation of a governmental function.

Ms. Silverenia Q. Kanoyton


Department of Licensing and Regulation

P.O. Box 30018

Lansing, Michigan 48909

You have requested my opinion whether 1981 Senate Bill 467 would cause an unconstitutional delegation to a non-governmental agency.

The purpose of the bill is declared in its title: 'A bill to regulate the certification and registration of opticians, ophthalmic dispensers, and optical technicians; . . .'

Under the bill, no person may use the title, advertise or hold oneself out as an optician, ophthalmic dispenser or optical technician unless that person qualifies under one of three separate exemptions. Pertinent to your inquiry, the second exemption provides as follows:

'A person certified or registered by an organization or testing institute as an optician, ophthalmic dispenser, or optical technician, if the department of licensing and regulation determines the organization or testing institute is nationally recognized for that purpose. . . .' 1981 Senate Bill 467, Sec. 2(b).

Thus, if the Department of Licensing and Regulation determines that an organization is nationally recognized, all persons certified or registered by the non-governmental entity are automatically permitted to operate as an optician, ophthalmic dispenser or optical technician.

The regulation and certification of professions is a proper use of the police powers which may be delegated to a state administrative agency pursuant to legislatively prescribed standards. Fowler v Board of Registration in Chiropody, 374 Mich 254; 132 NW2d 82 (1965). However, such governmental powers may not be conferred upon a private person or body. Coffman v State Board of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951); OAG, 1977-1978, No 4795, p 190 (August 11, 1977). 1 OAG, 1955, No 2255, p 494 (October 3, 1955), concluded that a proposed plan under which a private committee would certify graduates of foreign medical schools for licensure in the various states would constitute an unlawful delegation of authority to a non-governmental agency.

Therefore, it is my opinion that the delegation to a private body of the power to permit persons to practice as opticians, ophthalmic dispensers or optical technicians through private certification or registration would be an unconstitutional delegation of a governmental function.

Frank J. Kelley

Attorney General

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