STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 3, 1975

Mr. William R. Marshall, Director
Office of the Secretary
Department of Education and Cultural Affairs
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-143

Regulation of solicitation of students

Dear Mr. Marshall:

You have asked several questions regarding provisions of SDCL 13-48 as amended by Senate Bill 271 (1975).

The provisions you have cited read as follows:

13-48-3. Sections 13-48-1 to 13-48-21, inclusive, shall not apply to any course:

(1) - (4) .....

(5) Offered by a post-secondary institution located in South Dakota which is accredited by a nationally recognized accrediting agency or association listed by the commissioner of the United States office of education.

(6) Offered by an out-of-state post-secondary institution which complies with rules established by the secretary.

13-48-8. No person representing a school or other organization offering courses, which school or other organization is located outside this state, shall sell any course or solicit students therefor in this state for consideration or remuneration unless he first secures a permit from the secretary in the manner and on the terms provided in §§ 13-48-7 and 13-48-9.

13-48-12. A permit shall be valid for one year from the date on which it was issued. Upon approval for a permit the secretary shall issue a pocket card to the person whose name appears, giving his name and address, the name and address of his employing school and certifying that the person whose name appears on the card is an authorized agent of the school.

Your specific questions are:

1. Does SDCL 13-48-3(5) refer to only those institutions whose home base of operations is located in South Dakota or does it also include those institutions who come into South Dakota from another state and set up a school?

2. Is SDCL 13-48-3(6) valid? This subdivision seems to be self-defeating in that out-of-state institutions which comply with the rules are exempt from the law which requires them to comply.

3. Are out-of-state institutions soliciting in South Dakota but not operating a course of instruction in South Dakota required to comply with rules promulgated by the secretary?

4. May solicitors who hold valid permits issued prior to July 1, 1975, continue to operate until the expiration date of their permits?

The term "located" as used in SDCL 13-48-3(5) and elsewhere in SDCL 13-48 must be interpreted in its ordinary sense. SDCL 2-14-1. "Locate" is defined in Webster's Collegiate Dictionary, Seventh Edition, as "to establish in a particular spot or position or to refer to a place as its proper seat or origin." Thus, a post-secondary institution for purposes of this statute should be considered located at the place in which it was originally established and not at every location at which a branch school has been set up. Only those institutions whose "home base of operations," as you state in your question, is located in South Dakota may have courses of instruction exempt from regulation under SDCL 13-48-3(5).

Your question number 2 cannot be answered without examination of certain other provisions of SDCL 13-48. Legislative acts are to be interpreted whenever possible to bring all of its parts into harmony. Glenham Independent School Dist. No. 12, Walworth County v. Walworth County Board of Education, 98 N.W.2d 348, 78 S.D. 63. Therefore, any apparent "self-defeating" features of SDCL 13-48-3(6) must be considered together with related statutes in an attempt to reconcile any conflicts.

SDCL 13-48-3 provides generally that certain courses under specified conditions are exempt from regulation. Subdivision (6) of this section exempts courses offered by out-of-state post-secondary institutions which comply with rules established by the Secretary of the Department of Education and Cultural Affairs.

SDCL 13-48-7.1 then provides that no post-secondary institution (which would include out-of-state institutions), unless exempt under SDCL 13-48-3, shall offer courses in this state unless it complies with rules established by the Secretary concerning quality of education, ethical and business practices, health and safety, fiscal responsibility, and to protect against substandard, transient, unethical, deceptive or fraudulent institutions and practices.

It is my opinion that SDCL 13-48-3(6) is not self-defeating when considered together with SDCL 13-48-7.1. Rather, SDCL 13-48-3(6) reinforces the general requirement of SDCL 13-48-7.1 that post-secondary institutions and courses be regulated, and specifies that such out-of-state institutions are included. The guidelines for adopting rules are found in SDCL 13-48-7.1 and rules established pursuant to SDCL 13-48-3(6) should conform to that criteria. Thus, although the two provisions in question may be somewhat repetitious they are intended to achieve the same result. The answer to your question number 2 is YES.

The answer to your question number 3 is found in several statutes. SDCL 13-48-7, 7.1 and 8 all contain the language "offer courses or programs of instruction in this state", or "sell any course or solicit students therefor in this state." The purpose of the solicitation law, as set forth in SDCL 13-48-1 is to insure that prospective students receive adequate protection against unfair and fraudulent practice. Therefore, the regulations are intended to extend basically to the act of solicitation and selling of courses by an agent of an institution. It is my opinion that the Secretary has authority pursuant to SDCL 13-48-18 to adopt rules which require compliance by out-of-state institutions, not otherwise exempt, with the provisions of SDCL 13-48. The answer to your question number 3 is YES.

With regard to your question number 4, SDCL 2-14-21 states:

2-14-21. No part of the code of laws enacted by § 2-16-13 shall be construed as retroactive unless such intention plainly appears.

The South Dakota Supreme Court has upheld the presumption that legislative acts, unless clearly stated to the contrary, are to be given prospective effect. In re Scotts Estate, 81 S.D. 231, 133 N.W. 2d (1965).1 find nothing in Senate Bill 271 which plainly indicates the act should have retroactive application. I therefore answer your question number 4 in the affirmative. Solicitor's permits are valid until the stated expiration date unless earlier revoked for valid cause pursuant to SDCL 13-48-15.

Respectfully submitted,

William Janklow
Attorney General

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