44 : 90 : 03 : 16 . Department awarding of registration certificate -- Tiebreaking procedures -- Notice to unsuccessful applicants. The department shall award a registration certifica te as follows:

1. (1) If more establishments apply than are allowed by a local government, the department must award the establishment with the highest score pursuant to § 44:90:03:15 a registration certificate;
2. (2) If the local government has enacted an overall limit on the number of establishments, the department must award registration certificates, in order of final score beginning with the highest score attained pursuant to § 44:90:03:15, until the limit is reached;
3. (3) If the local government has enacted a limit on establishments by establishment type, the department must award registration certificates, in order of final score beginning with the highest score attained pursuant to § 44:90:03:15, until the limit is reached for each establishment type;

4. (4) If applicants are tied for one or more openings in a locality, the affected applicants and interested members of the public must have the opportunity to view, in person or via videoconference, a random lottery to determine the successful applicants. The department shall rank each applicant via the lottery system to establish the order and a waiting list.

   Any establishment issued a registration certificate pursuant to this section must become operational within one year, defined as three hundred sixty-five days, or, if a leap year, three hundred sixty-six days, of the date of issue or the certificate is deemed void and must be awarded to the next applicant on the waiting list. If the establishment granted a certificate pursuant to this section cannot become operational within one year, the establishment may submit to the department, at least two weeks prior to the expiration of the certificate, written documentation of the efforts made by the establishment to meet the deadline. The written documentation must include the action taken by the establishment to secure equipment and services necessary to become operational, and the reason why the establishment is unable to meet the deadline. Upon a finding by the department that, despite the establishment's documented timely efforts to secure all equipment and services necessary to become operational, the establishment is unable to become operational by the certificate expiration date, the department may grant the establishment an extension of time by which the establishment must become operational. The department may only grant an extension for up to an additional year from the date of expiration of the certificate based upon the amount of time reasonably necessary for the establishment to become operational. No further extensions may be granted. Establishments must comply with the requirements for renewal in § 44:90:03:02 regardless of the extension.

   The notification of any unsuccessful applicants must identify the department’s decision as a final department action subject to the contested case procedures pursuant to SDCL chapter 1-26.

Source: 48 SDR 40, effective October 5, 2021; 49 SDR 47, effective November 22, 2022; 50 SDR 62, effective November 27, 2023.

General Authority: SDCL 34-20G-72 ( 2 ).

Law Implemented: SDCL 34-20G-56 , 34-20G-72 ( 2 ) , 34-20G-72 (4)(a) .

Prior versions effective: 2022-11-22, 2021-10-05.