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. 6732

September 22, 1992

LICENSING AND REGULATION:

Examination fees for cosmetologists

COSMETOLOGISTS:

Examination fees for cosmetologists

A private firm under contract with the Department of Commerce to perform examination functions for the occupation of cosmetology may not charge fees in excess of those prescribed in section 25 of the State License Fee Act.

Kathleen M. Wilbur

Director

Bureau of Occupational and Professional Regulation

Department of Commerce

P.O. Box 30018

Lansing, MI 48909

You have asked whether a private firm under contract with the Department of Commerce to perform examination functions for the occupation of cosmetology may charge fees in excess of those prescribed in the State License Fee Act, 1979 PA 152, MCL 338.2201 et seq; MSA 3.30(1) et seq (hereinafter Fee Act). The Occupational Code, 1980 PA 299, MCL 339.101 et seq; MSA 18.425(101) et seq, contains several important provisions related to your question. Since these two statutes deal with the same general subject matter, regulating and licensing occupations, they are in pari materia and should be construed together to effectuate legislative intent. Bay County Executive v Bay County Bd of Commr's, 177 Mich App 560, 567-568; 443 NW2d 1968, lv den 433 Mich 920 (1989).

The examination fee for cosmetologists is set forth in section 25 of the Fee Act, MCL 338.2225; MSA 3.30(25), as follows:

Fees for a person licensed or seeking licensure as a cosmetologist ... are as follows:

 

(b) Examination fees:

(i) Complete examination for cosmetologist, manicurist, electrologist, or instructor ...... [$]25.00

(ii) Written portion only ............... 15.00

(iii) Practical portion only ............ 15.00

(iv) Examination review ................. 20.00

Section 401 of the Occupational Code speaks directly to the question you have raised:

The specific amounts to be charged for licenses, registrations, and other activities provided for in this act shall be as prescribed in the state license fee act.... [Emphasis added.]

A review of the Occupational Code reveals that the phrase "other activities provided for in this act" clearly includes the examination of applicants for licensure as cosmetologists which is provided for in section 1207 of that Code.

Pursuant to section 210 of the Occupational Code, the Department of Commerce may contract with third parties to implement the Code. In addition, section 403 of that Code provides:

(1) This act does not prohibit a person who has a contract with the department or any other person providing direct services from collecting fees directly from an applicant, registrant, or licensee.

(2) If the department terminates a contract with a person who has been administering a licensing or registration examination to applicants for licensure or registration in a specific profession, and the department itself begins to administer the examination, the department shall not charge an applicant a fee greater than the fee charged under the terminated contract unless the examination fee for that profession is increased under the state license fee act.... [Emphasis added.]

The above-quoted statutory provision contemplates, in the absence of any later enacted authorization such as in section 38 infra, that outside contractors will not be charging applicants an examination fee in excess of that prescribed in the Fee Act. The Department of Commerce may not charge more than the former contractor was charging and the department may not increase its fee unless the fee is increased under the Fee Act.

Finally, section 38 of the Fee Act, as added by 1990 PA 268, provides:

Fees for an individual licensed or seeking licensure as a state licensed real estate appraiser, state certified general real estate appraiser....

 

(b) Examination fees, if the department conducts its own examination:

(i) State certified real estate appraiser ........ $100.00

(ii) State licensed real estate appraiser ......... 100.00

[Emphasis added.]

The clear implication of the language of the Fee Act emphasized above is that an outside contractor may charge a different amount to administer an exam for real estate appraisers, pursuant to a contract with the Department of Commerce, than the amount which the department is authorized to charge. Since no similar language appears in section 25 of the Fee Act, which prescribes the examination fees for cosmetologists, there is no authority to permit by contract an examination fee in excess of that set forth in section 25 of the Fee Act for cosmetologists.

It is my opinion, therefore, that a private firm under contract with the Department of Commerce to perform examination functions for the occupation of cosmetology may not charge fees in excess of those prescribed in section 25 of the Fee Act.

Frank J. Kelley

Attorney General