September 5, 1979

Mr. Bob D. Voeltz, Administrator 
South Dakota State Electrical Board 
125 West Capitol Avenue 
Pierre, South Dakota 57501

Official Opinion No. 79-31

Licensing of electricians

Dear Mr. Voeltz:

You have requested an official opinion from this office in regard to the following questions:

QUESTIONS: 

1.  Does SDCL 36-16-24 mean that the proof must cover that specific area of September 13, 1962 to March 13, 1963, or does it mean anytime prior to March 13, 1963? 

2.  In regard to SDCL 36-16-24, what, in your opinion, would offer such proof that any person who was a legal resident of South Dakota was engaged as an electrical contractor, etc.? 

3.  Can the State Electrical Board by its vested rule-making powers establish a cut-off date for this provision?

IN RE QUESTION NO. 1:

SDCL 36-16-24 provides: 

Any person who was a legal resident of South Dakota engaged as an electrical contractor, a journeyman electrician, Class B electrician, apprentice electrician, electrical inspector or Class B electrical inspector as defined in this chapter, six months prior to March 13, 1963, is qualified in his classification and shall be issued a permit upon payment of the annual fee.  If the holder of such permit fails to renew his permit for a period of two years or more after its expiration, he may be required to pass such examinations as shall be required by the State Electrical Board.

In my view, the six-month provision of the above-cited statute means that persons attempting to qualify under that grandfather clause would need to show that during the period of September 13, 1962 to March 13, 1963 he or she was involved in any of the specified practices.  In my opinion, it is not sufficient that the individual show that he or she was involved in these practices at “anytime” prior to March 13, 1963.  Clearly, the language of the statute does not contemplate the latter approach.

IN RE QUESTION NO. 2:

It is my view that the individual attempting to qualify under this provision of law would need to establish that he or she was a legal resident, that he or she was in fact engaged in the specified practices, and that he or she was engaged in these practices during the time from September 13, 1962 to March 13, 1963.  This would in my opinion entail providing affidavits from other individuals for whom they did work as well as establishing through some documentation that they were legal residents of South Dakota during this period of time.  I believe that there is a considerable area of discretion here in the Electrical Board in terms of deciding what sorts of “proof” are sufficient and required.  It appears to me, however, that merely submitting an affidavit or statement by the applicant that in fact he or she meets these statutory requirements would not be a sufficient showing.

IN RE QUESTION NO. 3:

In view of the last sentence of the above-cited statute, where the holder of the permit who would fail to renew for two years or more would be required to pass an examination, it appears to me that the Board is in a position to require people now attempting to qualify under this section to take the required examination.  This statute has been on the books since 1963, and as of that time the persons specified in §  24 were entitled to a permit upon the payment of the annual fee.  By not getting this permit and by failing to renew that permit, for a period of two years after this law was passed, it appears to me that the individual would now be required to pass an examination as is required by the State Electrical Board.

To further answer your third question specifically, I believe that there is no authority in the Electrical Board to establish a cut-off date by rule which would limit a statutory provision such as this.  Any limitations on this matter would need to be spelled out by the Legislature.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DOC:esp