The majority decision of this court in this case is based upon the premise that the Code of Ethics of the American Association of Marriage and Family Counselors, as set forth in the appendix to the Rules and Regulations adopted by the Committee of Marriage and Family Counselors, is a valid part of the said Rules and Regulations and thus lawfully controls the conduct of marriage and family counselors licensed to practice in the State of Utah relative to advertising. But the validity of this premise must in turn depend upon a determination of the constitutionality of Section 3910(4) of those rules and regulations which section reads as follows:
3910. For the purposes of Section 58-39-3(2), Utah Code Annotated, 1953, as amended, improper advertising in connection with the practice of marriage, family and child counseling shall include, among other things, the following:
* * * * * *
(4) Advertising contrary to the code of ethics of the American Association of Marriage and Family Counselors. (See attached Appendix). [Hereafter AAMFC]
The "attached appendix" sets forth that association's advertising standard which defines what is permissible with regards to telephone directory listing for members of that association. It is by this reference that the majority decision finds appellant's method of advertising in the yellow pages of the telephone directory as being contrary to the law. If this form of establishing a rule and regulation by a state administrative agency meets constitutional standards, then I would concur with the majority decision, at least insofar as that decision finds appellant's advertising as a "center" is misleading and contrary to law.
But the difficulty I have in accepting subsection (4) of 3910 as being constitutionally valid is that it, by its very wording, permits the AAMFC to determine what is or is not permissible advertising by counselors under the law of the State of Utah. In 73 C.J.S. Public Administrative Bodies and Procedure, § 100, p. 418, it is stated that:
A rule or regulation of a public administrative body or officer should be definite and certain and should lay down adequate legislative standards, and should not violate constitutional provisions relative to form.
In 1 Am.Jur.2d 938, Sec. 128, the following is stated:
Where the statutory scheme does not confine the participation of private groups to merely being heard in the matter of enactment of administrative rules and regulations, but empowers them to initiate or approve administrative legislation, or even to determine its substance, a serious question arises as to whether such statute is not invalid as an improper delegation of legislative power.1 [Emphasis added.]
In Revne v. Trade Commission, 113 Utah 155, 192 P.2d 563, 3 A.L.R.2d 169, the Supreme Court of Utah had before it a question as to the constitutionality of a statute fixing procedures for the establishment of working hours and prices to be followed by barbers. While I recognize that the legislation there in question went beyond what is here involved with respect to what role a private group may have in establishing rules and regulations, I note the following comment by this court in that case:
. . . If, then, the question as to whether or not a given locality shall have such law promulgated or, modified, or rescinded if already in existence, is left to the whim of this group, it is hard to escape the conclusion that legislative authority has been improperly delegated or surrendered to that class.
It is my opinion that subsection (4) of 3910, quoted supra, in effect does just that. As worded, it allows the AAMFC, a private association, to fix advertising standards for marriage or family counselors who are licensed to practice as such counselors under *Page 1112 this state's "Marriage and Family Counselor Licensing Act",2 but who are not, and need not be, members of the AAMFC. That association may alter its code of ethics with respect to advertising without the knowledge of or notice to this state's committee of marriage and family counselors created by Section 58-39-8 of the Act. If it does so, does it not then change the rules and regulations and thus the law, as to the manner of advertising that must then be followed by such counselors licensed in this state?
The purpose of the Act3 is to establish the manner in which the practices of marriage and family counseling shall be regulated and controlled in order to protect the public from the improper, unprofessional, or unqualified practices or conduct of persons purporting to act as marriage or family counseling. The Act provides for the licensing of such persons;4 sets forth the requirements for licensing;5 exempts certain persons who do such counseling;6 and authorizes the issuance of licenses to certain professional persons falling in stated categories who do not otherwise meet the requirements of Sec. 58-39-6(1).7 In none of these statutes is membership in the AAMFC a requirement for licensing. The only mention of that association in the Act is one which requires that three of the five initial members of the committee of marriage and family counselors created by the Act be members of that association, but once initially appointed, thereafter any licensed counselor may be appointed to that committee.8 This may well account for the language chosen by the committee in Section 3910(4) of its rules and regulations.
It is important to note that the only restriction in the legislative Act with respect to advertising is that no person shall advertise the performance of marriage or family counseling without first having secured a license under the Act.9 Any advertising in violation of the Act is a misdemeanor.10 The definition of the term "advertise" as used in the Act fixes no standards of advertising.11 It is the advertising without a license that is prohibited, not the advertising in a particular manner.
While I have no doubt that the committee under its statutory grant of rule making power12 has the authority to establish, as it did, rules and regulations with respect to advertising. I deem the language of 3910(4) to constitute an unconstitutional delegation of rule making powers to the AAMFC. The words of reference "See attached Appendix" parenthetically added to 3910(4) does not, in my opinion, by such reference constitute an adoption by the rule making committee of the standards set forth in that appendix as being the rules and regulations of the committee. The committee could have, with or without reference to the code of ethics of the AAMFC, set forth as its own rules and regulations the provisions relating to telephone directory listings as contained in that appendix. But this the committee did not do. Rather, it adopted as improper advertising any "advertising contrary to the code of ethics" of the AAMFC, thereby leaving it to a private group to determine the substance of this state's rules and regulations to be followed by licensees in this particular profession.
I note also that Sec. 3909(5) of the rules and regulations provides that "a counsel shall advertise only in a professional manner and with proper decorum." This rule hardly meets the requirement that rules of administrative bodies should be definite and *Page 1113 certain,13 and thus renders it all the more necessary to look to Sec. 3910 for guidelines as to what the standards for advertising are that must be followed.
In 2 Am.Jur.2d 1301, Sec. 301, it is stated that an administrative agency may not enlarge the causes for which a license may be revoked or suspended. By Sec. 3910(4) the administrative agency allows the AAMFC to do so.
I therefore respectfully dissent, doing so in the belief that Sec. 3910(4) of the rules and regulations is unconstitutional in its form for the reasons stated.
WILKINS, J., concurs in the dissenting opinion of CROFT, District Judge.
MAUGHAN, J., does not participate herein.