Mississippi Administrative Code › Title 30 - Professions and Occupations › Part 2101 - Cosmetology, Board of › Chapter 1 - General › Rule 30-2101-1.15 - Declaratory Opinions

Current through June 25, 2024
A. These rules set
				forth the Board of Cosmetology's rules governing the form and content requests
				for declaratory opinions, and the Board's procedures regarding the requests, as
				required by Section 25-43-103 of the Mississippi Code of 1972 as amended. These
				rules are intended to supplement and be read in conjunction with the provisions
				of the Mississippi Administrative Procedures Law, which may contain additional
				information regarding the issuance of declaratory opinions. In the event of any
				conflict between these rules and the Mississippi Administrative Procedures Law,
				the latter shall govern.
1. Any person with a
				substantial interest in the subject matter may request a declaratory opinion
				from the Board by following the specified procedures. "Substantial interest in
				the subject matter" means an individual, business, group or other entity that
				is directly affected by the Board's administration of the laws within its
				primary jurisdiction. "Primary jurisdiction of the Board" means the Board has a
				constitutional or statutory grant of authority in the subject matter at
				issue.
2. The Board will issue
				declaratory opinions regarding the applicability to specified facts of :
a. A statute administered or enforceable by
				the Board, or
b. A rule promulgated
				by the Board.
The Board will not issue a declaratory opinion regarding a
				  statute or rule which is outside the primary jurisdiction of the Board.
3. The Board may, for
				good cause, refuse to issue a declaratory opinion. The circumstances in which
				declaratory opinions will not be issued include, but are not necessarily
				limited to:
a. Lack of clarity concerning the
				question presented;
b. There is
				pending or anticipated litigation, administrative action, or other adjudication
				which may either answer the question presented by the request or otherwise make
				an answer unnecessary;
c. The
				statute or rule on which a declaratory opinion is sought is clear and not in
				need of interpretation to answer the question presented by the
				request;
d. The facts presented in
				the request are sufficient to answer the question presented;
e. The request fails to contain information
				required by the rules or the requestor failed to follow the procedures set
				forth in these rules;
f. The
				request seeks to resolve issues which have become moot, or are abstract or
				hypothetical such that the requestor is not substantially affected by the
				statute or rule on which a declaratory opinion is sought;
g. No controversy exists concerning the issue
				as the requestor is not faced with existing fact or those certain to arise
				which raise a question concerning the application of the statute or
				rule;
h. The question presented by
				the request concern the legal validity of a statute or rule;
i. The request is not based upon facts
				calculated to aid in the planning of future conduct but is, instead, based on
				past conduct in an effort to establish the effect of that conduct;
j. No clear answer is determinable;
k. The question presented by the request
				involved the application of a criminal statute or a set of facts which may
				constitute a crime;
l. The answer
				to the question presented would require the disclosure of information which is
				privileged or otherwise protected by law from disclosure;
m. The question is currently the subject of
				an Attorney General's opinion request or has been answered by an Attorney
				General's opinion;
n. A similar
				request is pending before this Board or any other agency or a proceeding is
				pending on the same subject matter before any agency, administrative or
				judicial tribunal, or where such an opinion would constitute the unauthorized
				practice of law;
o. Where issuance
				of a declaratory opinion may adversely affect the interest of the State, the
				Board or any of their officers or employees in any litigation which is pending
				or may reasonably be expected to arise;
p. The question involves eligibility for a
				license, permit, certificate or other approval by the Board or some other
				agency, and there is a statutory or regulatory application process by which
				eligibility for said license, permit, certificate or other approval would be
				determined.
4. Each
				request must be printed or typewritten, or must be in legible handwriting. Each
				request must be submitted on standard business letter-size paper (8 ½ x
				11 inches). Request must be in the form of a letter addressed to the
				Board.
5. All requests must be
				mailed, delivered or transmitted via facsimile to the Board. The request shall
				clearly state that it is a request for a declaratory opinion. No oral,
				telephone request or email requests will be accepted for official
				opinion.
6. Each request must
				include the full name, telephone number and mailing address of the requestor.
				All requests shall be signed by the person filing the request, who shall attest
				that the request complies with the requirements set forth in these rules
				including but not limited to a full, complete and accurate statement of
				relevant facts and that there are no related proceedings pending before any
				other administrative or judicial tribunal.
7. Each request shall contain the following:
a. A clear and concise statement of all facts
				on which the opinion is requested;
b. A citation to the statute or rule at
				issue;
c. The question(s) sought to
				be answered in the opinion, stated clearly;
d. A suggested proposed opinion from the
				requestor, state the answers desired by the petitioner and a summary of the
				reasons in support of those answers;
e. The identity of all other known persons
				involved in or impacted by the desired factual situation, including their
				relationship to the facts, name, mailing address and telephone number;
				and
f. A statement to show that the
				person seeking the opinion has a substantial interest in the subject
				matter.
8. Within
				forty-five (45) days after receipt of a request for a declaratory opinion which
				complies with the requirements of these rules, the Board shall in writing:
a. Issue a declaratory opinion regarding the
				specified statute or rule as applied to the specified circumstances;
b. Decline to issue a declaratory opinion,
				stating the reasons for its action; or
c. Agree to issue a declaratory opinion by a
				specified time but not later than ninety (90) days after receipt of the written
				request.
The forty-five (45) day period shall begin running on the
				  first State of Mississippi business day on or after the request is received by
				  the Board, whichever is sooner.
9. A declaratory opinion shall not become
				final until the expiration of sixty (60) days after the issuance of the
				opinion. Prior to the expiration of sixty (60) says, the Board may, in its
				discretion, withdraw or amend the declaratory opinion for any reason which is
				not arbitrary or capricious. Reasons for withdrawing or amending an opinion
				include, but are not limited to, a determination that the request failed to
				meet the requirements of these rules and that the opinion issued contains a
				legal or factual error.