concurring in part and dissenting in part.
Two provisions of the Outfitters and Guides Act (Act) provide that registrants like Sears who lose an administrative proceeding “pay for the costs incurred in bringing and conducting such administrative proceedings.” Section 12-55.5-107(1.5), C.R.S. (1991 Repl. Vol 5B); § 12-55.5-106(2), C.R.S. (1995 Cum.Supp.) (emphasis added).
At issue here is whether the costs of “conducting” a disciplinary proceeding under the Act include the actual cost of the Administrative Law Judge (ALJ) and of the ALJ’s legal assistant. Because I conclude that they do not and that the Office of Outfitter Registration (OOR) director erred in interpreting the statutory language otherwise, I respectfully dissent. I concur with the majority’s disposition of all other issues.
In construing a statute, our central purpose is to ascertain and give effect to the intent of the legislature. A statute must be read and considered as a whole and should be interpreted so as to give consistent, harmonious, and sensible effect to all its parts. McCarty v. People, 874 P.2d 394 (Colo.1994).
Neither the Act nor the rules and regulations of the OOR offer any specific definition of the costs of conducting a disciplinary proceeding. And, on this record, it is not at all clear on what basis the director defined costs under the statute. In my view, construction must be guided by § 13-16-122, C.R.S. (1987 Repl.Vol. 6A).
The idea of charging costs to a losing party in a civil or administrative action is not new. Section 13-16-122 describes items includable as costs in civil actions, but its list of chargeable items does not include the pro rata salary of judges and their legal assistants. However, the enumeration of certain items in the statute is not meant to be exhaustive, Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805 (Colo.1993), and merely because the actual costs of hiring an ALJ and assistant are not mentioned in the statute does not preclude the director from seeking to recover those costs from losing parties. Nevertheless, the statutory scheme of § 13-16-122 convinces me that the General Assembly did not intend for such costs to be awarded.
Section 13-16-122 enumerates costs that generally fall into two categories: (1) those incidental to litigation such as witness fees, copying fees, deposition costs, and certain attorney fees when authorized by statute or court rule; and (2) those arising from the structural costs of maintaining a judicial system such as docket fees, court reporter fees, and designated jury fees including the cost of the jurors’ meals during deliberations.
I am unaware of any decisional law that has expanded the definition of costs to include the pro rata costs of maintaining the *753courthouse building, its staff, and the judge’s salary. See § 13-32-101, C.R.S. (1995 Cum. Supp.) (flat docket fees much lower than the actual costs of running the judicial system). For example, while losing parties have been assessed designated jury fees, they are not assessed the actual costs of reimbursing or sequestering the jury. See §§ 13-71-126, 13-71-129, 13-71-144, and 13-71-145, C.R.S. (1995 Cum.Supp.) (authorizing reimbursement of $50 per day per juror and authorizing court to pay sequestration expenses).
This is because a smooth-running and accessible judicial system is an integral part of our society from which everyone benefits. Since everyone benefits from the rule of law, everyone contributes to its operation. This is the legislative intent behind the cost statute.
In the case of regulatory agencies, the director of the Department of Regulatory Agencies has the power to institute uniform cost charging policies for disciplinary proceedings involving licensees. Section 24~34r-103, C.R.S. (1988 Repl.Vol. 10A). However, § 24-34-105(2)(b), C.R.S. (1995 Cum.Supp.) directs each board or commission to “adjust its fees so that the revenue generated from said fees approximates its direct and indirect costs.” This strongly suggests that all licensees should contribute equally to the funding of their respective regulatory agencies through the payment of licensing fees. This funding by all licensees should pay the costs of the factfinder at a disciplinary hearing.
Nor am I persuaded by the fact that statutes applicable to two other agencies also may be construed to sanction a similar approach to costs. See § 12-8-127(3), C.R.S. (1991 Repl.Vol.) (Barbers and Cosmetologists Act contains same fee provision as Outfitters and Guides Act); § 12-43-204(3.5), C.R.S. (1995 Cum. Supp) (Mental Health Act requires unlicensed psychotherapists to pay a fee reflecting the direct and indirect costs of grievance activities). No previous Colorado appellate decisions have approved the expansion of costs that has occurred here and most, if not all, other agencies apparently have followed the general rule that they should fund their prosecutorial functions from their licensing and registration fees.
See § 24-34-105, C.R.S. (1988 Repl.Vol. 10A).
I also am concerned about the arbitrariness of assessing such items as costs. Here, the record reflects that the OOR has collected similar costs in two previous cases. In one case, the actual cost of the ALJ and legal assistant was $148. In the other, however, it was $2279.75. This wide disparity suggests that the complexity of the case and the existence of evidentiary issues govern the amount assessed, rather than the gravity of the offense. Ironically, blatant violators with clearcut violations likely would pay the least in costs, whereas those outfitters whose cases are close or complex could be assessed large bills for time and research by the judge and the judge’s assistant or clerk. Imposing costs in such a manner thus seems arbitrary and capricious.
Therefore, I would hold that the OOR director’s interpretation of costs under the Outfitter Registration statute must be guided by § 13-16-122. Applying that standard, I conclude that the director erred in imposing upon Sears the actual costs of employing the ALJ and assistant because it is tantamount to impermissibly charging him with the structural costs of maintaining the administrative judiciary.
Given my conclusion that the Outfitter Registration costs statute has been erroneously applied by the agency, I do not address Sears’ additional contention that the practice of charging the actual costs of hiring an ALJ and assistant violates his right to equal protection.