July 19, 1991
Michael A. Jackley
Meade County State's Attorney
1425 Sherman Street
Sturgis, SD 57785
OFFICIAL OPINION NO. 91-13
County licensing of temporary campgrounds
Dear Mr. Jackley:
You have requested an official opinion from this office with regard to the following factual situation.
FACTS:
Meade County is the site of the Black Hills Motorcycle Classic and a large number of campgrounds exist in the county. Several of the campgrounds are licensed by the South Dakota Department of Health under SDCL ch. 34-18. In 1991, the South Dakota Legislature enacted SDCL 7-18-21, which provides for the licensing of temporary campgrounds by counties.
Based upon the foregoing, you have asked the following question:
QUESTION:
Is a campground required to obtain a county temporary campground permit if the campground has obtained a campground license from the state of South Dakota?
Under the provisions of SDCL ch. 34-18, Health Regulation of Lodging and Food Service Establishments and Campgrounds, every campground owner is required annually to secure a license from the South Dakota Department of Health (Department) prior to maintaining, conducting, or operating a campground in this state. See SDCL 34-18-9, 34-18-10. An annual license fee, in an amount established by the Department, is also required. See SDCL 34-18-10, 34-18-11.1.
The crux of your question is whether a county has the authority to require a campground owner to obtain a temporary campground license from the county, if the owner already possesses a valid license issued by the Department under SDCL ch. 34-18. It is a well-established principle that:
A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied by those expressly granted.
State v. Hansen, 68 N.W.2d 480, 481 (S.D. 1955). Since a county has no inherent licensing powers, any requirement that a campground operator obtain a temporary license from the county must be expressly authorized. Such authorization was recently granted by the South Dakota legislature, through its enactment of SDCL 7-18-21, effective July 1, 1991. The new law states that:
The provisions of chapter 34-18 notwithstanding, a county may require that the owners or operators of temporary campgrounds secure a permit from the county before operating as a temporary campground within the county. For the purposes of this section, a temporary campground is any campground which operates at a fixed location for a temporary period of time in connection with a fair, carnival, public exhibition or similar gathering. The owner or operator of a temporary campground shall apply to the county treasurer upon forms provided by the county treasurer for a permit required by this section. The board of county commissioners may by resolution establish fees for a temporary campground permit.
When interpreting a statute, one must give the language its plain, ordinary and popular meaning. American Rim and Brake, Inc. v. Zoellner, 382 N.W.2d 421, 424 (S.D. 1986). The ordinary and popular meaning of the word "notwithstanding" is "without obstruction from" or "in spite of." Williamson v. Schmid, 229 S.E.2d 400, 402 (Ga. 1976) (citing Webster's Third New International Dictionary (unabridged) (1971)).
In light of this definition, the phrase "[t]he provision of chapter 34-18 notwithstanding" means that the Department's power to license campgrounds under SDCL ch. 34-18 is not exclusive. See Williamson, 229 S.E.2d at 402. Rather, SDCL 7-18-21 grants to the counties the power to license temporary campgrounds despite the existence of any separate licensing authority already held by the Department under SDCL ch. 34-18. Thus, the county's authority to the extent it is exercised in the licensing of temporary campgrounds within the county, is concurrent with that of the Department. See Billings Associated Plumbing, Heating and Cooling Contractors v. State Board of Plumbers, 602 P.2d 597, 600 (Mont. 1979).
Such dual licensing of an activity in the exercise of the police power of the state and a county is not prohibited, as long as the county regulation does not conflict with the state regulation. Id. at 599. Indeed, there is "nothing inherently obnoxious in the requirement that persons engaging in such business shall have two licenses, one issued by the state and another by a political subdivision or public corporation." Medias v. City of Indianapolis, 23 N.E.2d 590, 594 (Ind. 1939).
A county may, therefore, pass an ordinance providing for the licensing of temporary campgrounds within the county, and establish license fees by resolution. Of course, the language of the particular ordinance should be carefully worded to comply with general principles of licensing law. This ordinance, and the license requirements thereunder, would apply to an operator of a temporary campground within the county, despite the fact the operator may already possess a valid campground license from the Department.
Because my answer to your first question is "yes," it is unnecessary for me to address the remainder of your questions.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
MB:PC:do
