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
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
FISH AND GAME:
LICENSES AND PERMITS:
NATURAL RESOURCES, DEPARTMENT OF:
Fees chargeable by authorized agents selling hunting and fishing licenses
An authorized agent who sells Michigan hunting and fishing licenses may not charge an amount in excess of the fee printed on the license when the purchaser pays with a credit card, a check or with foreign currency.
Opinion No. 7031
August 31, 1999
Honorable Scott Shackleton
You have asked whether an authorized agent who sells Michigan hunting and fishing licenses may charge an amount in excess of the fee printed on the license when the purchaser pays with a credit card, a check or with foreign currency.
The Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.101 et seq; MSA 13A.101 et seq, consolidates and classifies laws relating to the natural resources of the state. Subchapter 2, Part 435 governs hunting and fishing licensing. An agent authorized by the Department of Natural Resources (DNR) to sell Michigan hunting and fishing licenses may retain, as a sales commission, a specified percent of the fees received for each license sold. Section 43541(1).1 Section 43548(3), which limits the amount chargeable by an agent selling hunting and fishing licenses, provides:
A person shall not charge a fee for a sportcard or a license in an amount that is more than the license and transaction fee printed on the sportcard or license by the department.
An agent who violates the above fee proscription forfeits the right to sell licenses and forfeits the right to retain any percentage of the license fee. Section 43549.
Where a statute is clear and unambiguous, its plain meaning controls. Regents of the University of Michigan v Washtenaw County Coalition Against Apartheid, 97 Mich App 532, 539; 296 NW2d 94 (1980). The plain meaning of section 43548(3) is that the fee imposed by an agent selling a hunting or fishing license shall not exceed the fee printed on the license by the DNR. No provision in the NREPA authorizes an agent who sells hunting or fishing licenses to impose additional charges for license sales involving credit cards, checks, or foreign currency.
The Legislature has not obligated agents to accept credit cards as payment for hunting and fishing licenses. Accepting a credit card in lieu of cash is a business decision made by each agent. A credit card transaction involves three independent agreements: (1) the underlying sale contract between the agent and the cardholder; (2) the agreement between the agent and a network of banks that market the cards and adjust account balances; and (3) the agreement between the credit cardholder and the card issuer.2 By its terms, section 43548(3) relates only to the underlying sale transaction between the selling agent and the license purchaser. It prohibits the agent from charging the purchaser an amount that exceeds the DNR-imposed license and transaction fee. This section has no application to any separate agreement between the agent and its bank network, nor does it apply to any separate agreement between the credit cardholder and the card issuer.
Agents are not obligated by section 43548(3) to accept checks in lieu of cash as payment for a license fee. As with credit cards, accepting a check in lieu of cash for a license fee is the agent's business decision. An agent who accepts a check receives a promise of payment in lawful money of the amount for which the check is written, when the check is later presented for payment.3 Section 43548(3), in essence, prohibits an agent from requiring a purchaser, as payment for a license fee, to write a check in an amount that exceeds the DNR-imposed license and transaction fee. By its terms, the section applies to the fee charged for the sale of a hunting or fishing license. If, however, a license purchaser's check is later returned for nonsufficient funds (NSF), the assessment of an NSF fee after the sale does not constitute a prohibited surcharge.
You indicate that when a selling agent accepts Canadian currency as payment for a hunting or fishing license, the agent may wish to charge more in Canadian funds because of the difference in the money exchange rate. Foreign currency, however, is not legal tender4 and, therefore, need not be accepted by agents as payment for hunting and fishing licenses. Where the agent and the purchaser agree to use foreign currency as the medium of exchange, there are effectively two transactions. First, there is the underlying purchase agreement with the hunting or fishing license fee calculated in U.S. dollars. Second, there is an agreement on the rate of exchange of Canadian for U.S. dollars.5 The section 43548(3) cap on chargeable license fees applies only to the underlying purchase agreement and prohibits an agent from charging a fee in excess of the DNR-imposed license fee. It has no application to the parties' separate agreement, if any, as to the currency exchange.
You suggest that since the DNR imposes certain charges in excess of the amount printed on hunting and fishing licenses where one applies to the DNR by mail, e-mail, or telephone, an authorized agent should likewise be allowed to impose additional charges on its sale of these licenses. The DNR, however, is expressly authorized by the NREPA6 to collect a service fee for these specific transactions. No comparable authority is conferred upon agents who sell hunting and fishing licenses. The Legislature may, if it so desires, amend the NREPA to authorize additional charges to be imposed by agents selling licenses, or it may increase the selling agent's commission beyond the rates established by section 43541. As currently written, however, section 43548(3) of the NREPA prohibits a selling agent from charging amounts in excess of the license and transaction fee printed on Michigan hunting and fishing licenses.
It is my opinion, therefore, that an authorized agent who sells Michigan hunting and fishing licenses may not charge an amount in excess of the fee printed on the license when the purchaser pays with a credit card, a check or with foreign currency.
JENNIFER M. GRANHOLM
STATE OF MICHIGAN
1 The commission rate for an agent who achieved authorized status as of March 15, 1993, is 7.5%. For an agent who achieves authorized status after March 15, 1993, or who is operating at a location established after that date, the commission rate is 5%.
2 20 Am Jur 2d, Credit Cards and Charge Accounts, §§ 3 and 4, pp 722-723. Usually, the second agreement between the merchant and the network of banks provides that sales slips will be discounted before payment is made to the merchant. In turn, the card issuer has the right to collect full payment from the cardholder on an installment or other basis.
3 Cade v Montgomery County, 83 Md App 419; 575 A2d 744, 749-750 (1990).
4 1842 PA 20, MCL 21.153; MSA 3.661, recognizes "gold or silver coin of the United States, United States treasury notes, gold certificates, silver certificates or federal reserve bank notes" as legal tender for payment of an obligation due the state.
5 53A Am Jur 2d, Money, §§ 67 and 72, pp 705, 707.
6 NREPA, section 43540.