Zumwalt v. Jones County Board of Supervisors

19 So. 3d 672, 2009 Miss. LEXIS 421, 2009 WL 2883068
CourtMississippi Supreme Court
DecidedSeptember 10, 2009
DocketNo. 2008-CA-00778-SCT
StatusPublished
Cited by43 cases

This text of 19 So. 3d 672 (Zumwalt v. Jones County Board of Supervisors) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zumwalt v. Jones County Board of Supervisors, 19 So. 3d 672, 2009 Miss. LEXIS 421, 2009 WL 2883068 (Mich. 2009).

Opinion

WALLER, Chief Justice,

for the Court.

¶ 1. This appeal arises from a decision of the Hinds County Chancery Court regarding which party “owns” a “historical certificate of need” as well as the right to operate the facility known as the Jones County Rest Home, and whether Zumwalt “owns” the nursing home license for the Jones County Rest Home. We affirm the chancery court’s denial of Zumwalt’s claims of ownership interests in the certificate of need, the license, and the facility.

APPLICABLE STATUTES, RULES, AND REGULATIONS

¶ 2. This Court is asked to address the Certificate of Need Laws of 1979; whether those laws confer ownership and/or operational rights for a facility within their scope of coverage; what, if any, ownership interest is conferred upon a nursing home licensee; and the “ownership” of the Jones County Rest Home. For the sake of clarity, we first set out some of the applicable statutes and agency regulations necessary to the analysis of this case.

¶ 3. By statute, nursing homes are required to be licensed before they are permitted to operate. Miss.Code Ann. § 43-11-5 (Rev.2004). The purpose of licensing nursing homes is set out by statute:

The purpose of this chapter is to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of institutions for the aged or infirm which will insure safe, sanitary and reasonably adequate care of individuals in such institutions.

Miss.Code Ann. § 43-11-3 (Rev.2004). Once issued, licenses are subject to suspension or revocation should conditions warrant and if the licensee is not fulfilling its obligations. Miss.Code Ann. § 43-11-11 (Rev.2004). Renewal of licenses is not automatic. Approval by the licensing agency is still required. Miss.Code Ann. § 43-11-9(1) (Rev.2004).

¶ 4. Since the Mississippi Department of Health is entrusted with the task of insuring the safe, sanitary, and reasonably adequate care of those usually unable through age or infirmity to care for themselves, the Department has been directed to enact rules and regulations to see that only those capable of properly caring for residents are issued licenses. Miss.Code Ann. § 43-11-13(1) (Rev.2004). The Department of Health licensing division has performed this rulemaking mandate, and those rules and regulations were included in the record.

¶ 5. Rule 102.4 defines a Change of Ownership to include, but not be limited to, inter vivos gifts, purchases, transfers, leases, cash and/or stock transactions or other comparable arrangements. Miss. Dep’t. of Health Rules, Regulations, and Minimum Standards for Institutions for the Aged or Infirm, 15-301-045 Miss.Code R., Rule 102.4 (2004), available at http://www.msdh. state.ms.us/msdhsite/_static/resources/119. pdf. (last visited Sept. 8, 2009). Thus, when the Department of Health notes that a change of ownership has occurred, it does not necessarily mean that any property actually has been sold.

¶ 6. “License” is defined as the document issued by the licensing agency and signed by the Department of Health constituting authority to receive residents and perform the services included within the scope of the rules, regulations, and minimum standards. Id. at Rule 102.13. A “licensee” is defined as the person to whom the license is issued and upon whom rests the responsibility for the operation of the institution in compliance with the rules, regulations, and minimum standards. Id. at Rule 102.16.

[676]*676¶ 7. Rule 104.01 requires each facility meeting the requirements to hold a license. Id. at Rule 104.01. Rule 106.02 requires that separate licenses for each institution be maintained on separate premises, even if they are under the same management. Id. at Rule 106.02. Mississippi Code Section 43-11-9(1) provides for annual renewals, and the Department of Health set March 31 as the end of any given licensure year under Rule 106.05. Miss.Code Ann. § 43-11-9 (Rev.2004); 15-301-045 Miss.Code R., Rule 106.05 (2004). Thus, licenses are valid for one year only, from April 1 of any given year to March 31 of the following year. Id.

¶ 8. Licenses are not transferable, and any proposed changes require a new application be made. Specifically, Rule 106.04 provides that:

106.04: License Not Transferable. The license for a facility is not transferable or assignable to any other person except by written approval of the licensing agency and shall be issued only for the premises named in the application. The license shall be surrendered to the licensing agency on change of ownership, licensee, name or location of the institution or in the event that the institution ceases to operate as a facility. In event [sic] of change of ownership, licensee, name or location of the facility, a new application shall be filed.

Id. at Rule 106.04. Additional authority is cited in the discussion below, where appropriate.

FACTS AND PROCEDURAL HISTORY

¶ 9. Since the 1940s, Jones County has operated a facility, on land owned by the county, known at various times as the Jones County Home for the Poor, the County Home, and the Jones County Home for Indigents (“the Home”). In 1952, the Jones County Board of Supervisors (“the Board” or “the Board of Supervisors”) determined that the old facility was inadequate and that, in the public interest, a new facility should be built. The Board of Supervisors issued public bonds and began accepting bids for its design and construction. The contract for building the new Home was awarded in August of 1952. The record is not clear as to the date of the actual construction, but there is no dispute that a new Home was built at the same location.

¶ 10. The Board of Supervisors employed Howard “H.A.” Smith as caretaker for the Home in January of 1952. Although the record is not clear as to which party initiated the transaction, the Board minutes show that in November of 1964, the Board of Supervisors considered and accepted a proposal to lease the Home to H.A. Smith. The Board meeting minutes read in relevant part:

There came on for consideration the matter of leasing certain property of the County on which heretofore has been operating the Jones County Home for the care and keeping of old, infirm, or indigent persons, and the Board finds that it is authorized by Section 2997-01, Miss.Code 1942, Recompiled, in its discretion to lease lands and buildings owned by the County which are being used, or intended to be used as a County Home, to any person for the purpose of using such land and buildings for the care and keeping of old, infirm, or indigent persons, and the Board finds that it would be in the best interest of the County for its County Home to be leased to an individual, and having determined that H.A.

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Bluebook (online)
19 So. 3d 672, 2009 Miss. LEXIS 421, 2009 WL 2883068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zumwalt-v-jones-county-board-of-supervisors-miss-2009.