April 13, 1993
The Honorable Richard Morgan Representative North Carolina General Assembly Legislative Office Building Raleigh, North Carolina
Re: Advisory Opinion; Representative Richard Morgan; Extent of the State Board of Cosmetic Art Examiners’ rulemaking authority; G.S. 150B-19, 88-4, 88-23 and Chapter 88 of the General Statutes generally
Dear Representative Morgan: I have received your letter of March 30, 1993 regarding the rulemaking authority of the North Carolina State Board of Cosmetic Art Examiners (Board). As you state in your letter, the Board recently proposed and then decided not to adopt a rule that would have defined rented cosmetology booths as cosmetic art shops. You note that the Board may be petitioned to revisit the issue, and you are therefore inquiring about the extent of the Board’s rulemaking authority in this matter.
A rule adopted by a State agency pursuant to Chapter 150B of the General Statutes may not implement or interpret a law unless that law or another law specifically authorizes the agency to do so. N.C.Gen. Stat. § 150B-19(1) (1991). An administrative agency’s authority may be expressly granted in a statute or implied from a general grant of authority where necessary for the agency to function properly. See General Motors Corp. v. Kinlaw, 78 N.C.App. 521, 338 S.E.2d 114 (1985). Any rule adopted must be reasonably necessary to fulfill a duty delegated to the agency by the General Assembly. See N.C.Gen. Stat. § 150B-21.9 (1991). The Board has explicit statutory authority to adopt reasonable rules for the sanitary management of cosmetic art shops, N.C.Gen.Stat. § 88-23 (1990); it is also generally given the duty to license and inspect such shops and to enforce its rules and the provisions of Chapter 88 of the General Statutes. The Board therefore has the responsibility of applying the statutory definition of "cosmetic art shop" to given fact situations and arguably might, by rule, define a particular situation to be a "cosmetic art shop" if necessary. If the Board could show, based on existing facts and circumstances, that defining "cosmetic art shop" to include rented cosmetology booths was reasonably necessary for the Board to function properly, the Board would arguably have implied authority to adopt such a rule. General Motors Corp. v. Kinlaw, 78 N.C.App. 521, 338 S.E.2d 114. Nothing in the statutes as of the date of this letter would prohibit such an action. I am informed that in deciding not to adopt the proposed rule, the Board concluded that at least at this time no facts or circumstances exist that would support such a showing.
If this office can be of any further assistance in this matter, please do not hesitate to contact us.
Ann Reed Senior Deputy Attorney General
P. Bly Hall Assistant Attorney General