Change of Bed Category of Tieszen Memorial Home, Inc., Marion, Matter of, 14155-
| Decision Date | 18 January 1984 |
| Docket Number | No. 14155-,14155- |
| Citation | 343 N.W.2d 97 |
| Parties | In the Matter of the Application for CHANGE OF BED CATEGORY OF TIESZEN MEMORIAL HOME, INC., MARION, South Dakota. a-JF. |
| Court | South Dakota Supreme Court |
Mark Smith, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen., on brief, Pierre, for appellant South Dakota Dept. of Health.
John H. Zimmer of Zimmer, Richter & Duncan, Parker, for appellee Tieszen Memorial Home, Inc.
The South Dakota Department of Health (Department) appeals a circuit court determination that Tieszen Memorial Home, Inc. (Home) of Marion, South Dakota was not required to obtain a certificate of need. We affirm.
The Home is licensed to operate with thirty-three supervised and thirty-one intermediate personal care beds. It seeks permanent conversion of five supervised to five intermediate beds. The conversion would not require a capital expenditure.
On January 29, 1982, the Home applied for a certificate of need from the Department pursuant to SDCL ch. 34-7A. The application was denied with a finding that no need was shown for additional intermediate care beds in the Marion area. That determination was not appealed. On August 10, 1982, the Home applied for a new license which would permit the change in bed categories. The Department denied the request, stating that a certificate of need must precede a license change. The trial court reversed the Department.
It is the position of the Department that we must give its interpretation of SDCL 34-7A-33(3) great weight. We disagree. Construing a statute is a question of law. Therefore, the decisions of an administrative agency and the circuit court are both fully reviewable. Nash Finch Co. v. South Dakota Department of Revenue, 312 N.W.2d 470 (S.D.1981). We give great weight to agency interpretation of a statute only when the agency charged with its administration is given express statutory authority to interpret a statute necessary for its efficient administration. Accordingly, in Matter of Sales Tax or Use Tax, Etc., 290 N.W.2d 865 (S.D.1980), we gave great weight to the Commissioner of Revenue's construction of SDCL 10-46-1(6) because of the express statutory authorization for the Commissioner's interpretation. The certificate of need statutes do not give the Secretary of Health such authority.
At the time of the Home's request for change of license, SDCL 34-7A-33(3) stated, in pertinent part:
A certificate of need is required for any one or any combination of the following circumstances:
* * *
(3) A bed increase in licensed capacity or permanent change in bed categories, or a decrease in licensed capacity by ten beds or ten percent whichever is less, in any two year period and which results in a capital expenditure.
The parties give this ambiguous statute differing interpretations. The Department follows the punctuation and concludes that a certificate of need is required for any permanent change in bed categories, regardless whether it requires a capital expenditure. It reasons that the legislature would have placed a comma after "increase in licensed capacity" and deleted the following "or" or deleted the comma after "permanent change in bed categories" if it had intended to identify a series of proposed changes, any one of which would not require a certificate of need if the change would not result in a capital expenditure. The Home, on the other hand, disregards the punctuation and emphasizes that the spirit and purpose of the statute mandate an interpretation that the phrase "which results in a capital expenditure" modifies all elements of subsection three. By this reading, a permanent change in bed categories would not require a certificate of need if no capital expenditure were required to effect the change. We are persuaded by the latter view.
Punctuation shall not control or affect the construction of a statute when any construction based on such punctuation would not conform to the spirit and purpose of the statute. SDCL 2-14-8. "Punctuation" includes not only the use, but also absence or lack of punctuation. Lewis v. Annie Creek Mining Co.,...
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