STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 10, 1968

G. J. VanHeuvelen, M. D.
Department of Health
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-35

Department of Health may obtain court order to close Homes for the Aged and other related institutions

Dear Doctor VanHeuvelen:

You have asked for an official opinion relative to the following situation:

"South Dakota Code Supp. 27.1207 and penalty clause 27.9946 provide generally that the State Department of Health is authorized to suspend or revoke a license under the provisions of that chapter. Our question is, if the State Department of Health does revoke or suspend such a license, after complying with the due process safeguards as provided in said section, does the State Department of Health have authority to obtain a court order to close such Home, in the event that the proprietor thereof continues to operate as such without a duly issued license?"

In my opinion, the answer to your question is YES.

Section 27.1207 provides in part:

"The State Department of Health is hereby authorized to issue licenses to operate hospitals, maternity homes, homes for the aged or related institutions as herein defined which, after application and inspection, are found to comply with the provisions of this chapter, and the rules and regulations adopted by the State Department of Health.

***

"The State Department of Health is hereby authorized to suspend or revoke a license issued hereunder on any of the following reasons:

"(1) Violation of any of the provisions of this chapter or the rules and regulations issued pursuant thereto.

"(2) Permitting, aiding or abetting the commission of any unlawful act in such institution.

"(3) Conduct of practices detrimental to the welfare of the patient. . . "

The penalty provision, Section 27.9936 provides:

"Any person, partnership, association or corporation establishing, conducting, managing, or operating any hospital, maternity home, home for the aged or related institution within the meaning of SDC 1960 Supp. 27.12, without first obtaining a license therefor as herein provided, or who shall violate any of the provisions of SDC 1960 Supp. 27.12 or regulations, thereunder, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not to exceed one hundred dollars or a sentence of not to exceed ninety days in the county jail."

There is nothing in the above penalty clause that makes the fine and sentence therein the exclusive remedy available to the Department of Health. Probably the most used alternative or conjunctive remedy used in place of or with the penalty would be an injunction to close the institution until whatever fault prevented the original licensing was corrected. I can find nothing in the chapter covering injunctions (SDC 37.43) that would prohibit its use in such a case.

An injunction is available where there is an inadequacy of a remedy at law. Hold Craft v. Murphy, 66 SD 388, 283 NW 860. I am sure that punishing the proprietor of such an institution is not an adequate remedy if they can still persist in unhealthful, unsafe, or unlawful practices that are actually or potentially dangerous to the patients in their custody.

Respectfully submitted,

Frank L. Farrar
Attorney General