STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6073

June 10, 1982

CONSTITUTIONAL LAW:

Delegation of governmental power to a private body or organization

LICENSING AND REGULATION:

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

Director

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:

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