71 Op. Att'y Gen. 112 (1982)

71 Op. Att'y Gen. 112, 112 (1982)
Foster Homes; Health And Social Services, Department Of; Licenses And Permits; Religion; A facility owned and operated by a religious organization is subject to licensure and regulation under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, unless the facility is a convent, monastery or similar place where residents are all members of a religious hierarchy living in seclusion and operating under a set of religious vows or rules. The Department of Health and Social Services can constitutionally license and regulate Community Based Residential Facilities (CBRFs) operated by religious organizations not exempt under sec. 50.01(1), Stats., or sec. 50.03(9), Stats. Application of CBRF licensure and regulatory requirements to certain facilities operated by the Salvation Army discussed. OAG 32-82

April 15, 1982.

71 Op. Att'y Gen. 112, 112 (1982)
DONALD E. PERCY, Secretary
  Department of Health and Social Services

71 Op. Att'y Gen. 112, 112 (1982)
  You ask two basic questions concerning the licensure of Community Based Residential Facilities (CBRFs) which are owned and operated by religious organizations. You also ask whether certain facilities owned and operated by the Salvation Army are subject to licensure and regulation under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code. Your two basic questions may be stated as follows:

71 Op. Att'y Gen. 112, 112 (1982)
  1.   When are facilities owned and operated by religious organizations exempt from licensure and regulation under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code because service is provided only to a religiously-oriented clientele?

71 Op. Att'y Gen. 112, 112 (1982)
  It is my opinion that licensure is required unless the facility is a convent, monastery or similar place where residents are all members of a religious hierarchy living in seclusion and operating under a set of religious vows or rules.

71 Op. Att'y Gen. 112, 112-113 (1982)
  2.   Can the Department of Health & Social Services constitutionally require facilities operated by religious organizations not exempt under sec. 50.01(1), Stats., or sec. 50.03(9), Stats., to be licensed and regulated under ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code?

71 Op. Att'y Gen. 112, 113 (1982)
  In my opinion, the answer is yes.

71 Op. Att'y Gen. 112, 113 (1982)
I

71 Op. Att'y Gen. 112, 113 (1982)
SCOPE OF STATUTORY EXEMPTION

71 Op. Att'y Gen. 112, 113 (1982)
  Under sec. 50.01(1), Stats., "[t]he reception and care or treatment of a person in a convent or facility owned or operated exclusively by and for members of a religious order shall not constitute the premises to be a 'community-based residential facility.'"

71 Op. Att'y Gen. 112, 113 (1982)
  Terms such as "convent" and "members of a religious order" are to be construed according to "common and approved usage." Sec. 990.01, Stats.; Midtown Church of Christ v. City of Racine, 83 Wis. 2d 72, 76, 264 N.W.2d 281 (1978).

71 Op. Att'y Gen. 112, 113 (1982)
  A "convent" is defined as "an association or community of recluses devoted to a religious life under a superior : a body of monks, friars or nuns constituting one local community -- now usu. restricted to a convent of nuns...." Webster's Third New International Dictionary 498 (1976). In Midtown, the court noted that the same dictionary at 1587 defines "order" as "a religious body, typically an aggregate of separate communities living under a distinctive rule, discipline, or constitution : a monastic brotherhood or society...." 83 Wis. 2d at 76. "Monastic," in turn, is defined as, "secluded from temporal concerns and devoted to religion." Webster's Third New International Dictionary 1457 (1976). Under statutes such as sec. 50.01(1), Stats., the term "members of a religious order" is not broad enough to encompass all employes or members of a particular religious organization. See Eighth Street Baptist Church, Inc. v. United States, 295 F. Supp. 1400 (D. Kan. 1969), aff'd on other grounds, 431 F.2d 1193 (10th Cir. 1970); Midtown.

71 Op. Att'y Gen. 112, 113-114 (1982)
  Because of the similarities in their respective dictionary definitions, the terms "convent" and "facility owned and operated exclusively by and for members of a religious order," should be construed in pari materia. I therefore conclude that the statutory exemption is limited to convents, monasteries and similar facilities where members of a religious hierarchy live in seclusion, operating under a set of religious vows or rules. When such an exemption is not available, licensure is required under sec. 50.03(1), Stats.

71 Op. Att'y Gen. 112, 114 (1982)
II

71 Op. Att'y Gen. 112, 114 (1982)
CONSTITUTIONAL ISSUES

71 Op. Att'y Gen. 112, 114 (1982)
  The first amendment to the United States Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This provision applies to the states by virtue of the due process clause of the fourteenth amendment. Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940). Wisconsin Constitution art. I, 18 provides:

71 Op. Att'y Gen. 112, 114 (1982)
  The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship....

71 Op. Att'y Gen. 112, 114 (1982)
These federal and state constitutional provisions carry the same impact. Both provisions "'"are intended and operate to serve the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion."'" State ex rel. Wis. Health Fac. Auth. v. Lindner, 91 Wis. 2d 145, 163, 280 N.W.2d 773 (1979).

71 Op. Att'y Gen. 112, 114 (1982)
  A constitutional analysis requires that every presumption be indulged to sustain a statute or rule when it is attacked. Wis. Bingo Sup. & Equip. Co. v. Bingo Control Bd., 88 Wis. 2d 293, 301, 276 N.W.2d 716, 719 (1979).

71 Op. Att'y Gen. 112, 114 (1982)
A. Free Exercise Of Religious Beliefs.

71 Op. Att'y Gen. 112, 114 (1982)
  Chapter 50, Stats., exempts care provided by facilities to residents who are religiously opposed to conventional medical treatment and entirely exempts those facilities in which members of a religious hierarchy have sincere religious beliefs in being cloistered from society. These two exemptions eliminate the possibility of free exercise issues in such situations.

71 Op. Att'y Gen. 112, 114-115 (1982)
  The free exercise of religion is not violated if (1) the statute does not deny the free exercise of religious belief or, if so, (2) a state interest of sufficient magnitude overrides the legitimate private interest invoking the protection of the free exercise clause. Wisconsin v. Yoder, 406 U.S. 205, 214 (1972).

71 Op. Att'y Gen. 112, 115 (1982)
1. Infringement On The Exercise Of Religious Beliefs.

71 Op. Att'y Gen. 112, 115 (1982)
  The Supreme Court has held that an indirect financial or regulatory burden does not infringe upon the free exercise of religion. "To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." Braunfeld v. Brown, 366 U.S. 599, 606 (1961).

71 Op. Att'y Gen. 112, 115 (1982)
  Similar considerations apply with regard to licensure and regulation. A free exercise claim can succeed in such a context only if it is established that the statute suppresses the exercise of sincere religious beliefs or the dissemination of religious views, as opposed to regulating the manner in which secular activities are conducted. Compare Murdock v. Pennsylvania, 319 U.S. 105 (1941); Follett v. Town of McCormick S.C., 321 U.S. 573 (1944); with Cox v. State of New Hampshire, 312 U.S. 569 (1941); Washburn v. Ellquist, 242 Wis. 609, 9 N.W.2d 121, reh. denied 10 N.W.2d 292 (1943); State v. King Colony Ranch, 137 Mont. 145, 350 P.2d 841, cert. denied 364 U.S. 817 (1960). Courts employing this dichotomy have held that the free exercise clause is not implicated in the licensure and regulation of facilities such as day care centers. Roloff Evangelistic Enterprises v. State, 556 S.W.2d 856 (Tex. Civ. App. 1977), writ ref. n.r.e., appeal dismissed, 439 U.S. 803, reh. denied 439 U.S. 998 (1978). Also see State v. Fayetteville Street Christian School, 42 N.C. App. 665, 258 S.E.2d 459, 464 (1979), vacated and remanded on other grounds 299 N.C. 351, 261 S.E.2d 908, on reh., 299 N.C. 731, 265 S.E.2d 387 (1980). Unless different considerations apply to CBRFs, no free exercise claim can arise in the context of ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code.

71 Op. Att'y Gen. 112, 115-116 (1982)
  The requirements of ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, are secular in nature and, except in unusual circumstances, do not appear to have any effect whatsoever on the exercise or dissemination of religious beliefs. Chapter 50, Stats., contains relatively few requirements that are applicable to CBRFs. Sections 50.03(5m) and 50.05, Stats., permit the Department to remove residents or to place a monitor in a facility when there is an emergency or when the facility is operating without a valid license. Chapter HSS 3 Wis. Adm. Code contains more detailed requirements. Subchapter II of chapter HSS 3 Wis. Adm. Code sets certain requirements for the administrative management of CBRFs. Certain assurance of responsibility is required. Section HSS 3.11 Wis. Adm. Code. Personnel records and written personnel policies are required. Section HSS 3.13 Wis. Adm. Code. A written statement of the programs to be offered and the individuals to be served is mandated. Section HSS 3.12 Wis. Adm. Code. There must be an admission agreement, written records concerning residents and written notice to certain parties when there are significant changes in the condition of residents. Sections HSS 3.14-3.16 Wis. Adm. Code. Certain types of services must be offered and there must be an individual service plan for each resident. Sections HSS 3.21-3.23, 3.61 Wis. Adm. Code. The individual rights of residents must be explained to them and a written complaint procedure must be instituted. Section HSS 3.31 Wis. Adm. Code. Finally, there are detailed construction, sanitation and health requirements, which are commonly called "health-safety code" requirements. See sections HSS 3.23(4), (5), 3.24, 3.49-3.57, 3.62-3.65 Wis. Adm. Code. Any of these administrative code provisions may be waived under the conditions specified in section HSS 3.08(7) Wis. Adm. Code.

71 Op. Att'y Gen. 112, 116 (1982)
  In order to trigger the free exercise protections of the state and federal constitutions, it must either be shown that these licensure and regulatory provisions prohibit the exercise of sincere religious beliefs or place a direct financial or regulatory burden upon a practice mandated by a particular religion. It might be possible for a religious organization to make such a preliminary showing if the tenets of that organization mandate the operation of CBRFs and (1) the religious tenets of the organization prohibit the provision of some kinds of care mandated by ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, (2) the religious tenets of the organization require the provision of the kinds of care mandated by ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code in some other manner than that specified in those chapters or (3) the religious tenets of the organization require the provision of the kinds of care mandated by ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code but prohibit licensure by the state.

71 Op. Att'y Gen. 112, 117 (1982)
  When no statutory exemption is available to such an organization, the state's interest in regulating CBRFs would have to be examined.

71 Op. Att'y Gen. 112, 117 (1982)
2. State's Interest In Regulating CBRFs.

71 Op. Att'y Gen. 112, 117 (1982)
  A number of courts have held that a state has a compelling interest in licensing and regulating day care facilities for minors. Fayetteville Street Christian School, 258 S.E.2d at 463; State, Etc. v. Heart Ministries, Inc., 227 Kan. 244, 607 P.2d 1102, appeal dismissed, 449 U.S. 802 (1980). In Heart Ministries, Inc., the Supreme Court of Kansas distinguished Wisconsin v. Yoder, 406 U.S. 205 (1972), a case in which it was held to be contrary to the sincere religious beliefs of the Amish to attend high school:

71 Op. Att'y Gen. 112, 117 (1982)
  The compelling interest of the State, as parens patriae, is the protection of its children from hunger, cold, cruelty, neglect, degradation, and inhumanity in all its forms. To fulfill this responsibility, the legislature has elected to impose licensing and inspection requirements. To these requirements the defendants' free exercise rights must bow; the balance weighs heavily in favor of those unfortunate children whom the State must protect.

71 Op. Att'y Gen. 112, 117 (1982)
607 P.2d at 1112.

71 Op. Att'y Gen. 112, 117 (1982)
  The purpose of the CBRF regulatory scheme is contained in sec. 50.02(2)(a), Stats., which provides:

71 Op. Att'y Gen. 112, 117 (1982)
  The department, by rule, shall develop, establish and enforce regulations and standards for the care, treatment, health, safety, rights, welfare and comfort of residents in community-based residential facilities and nursing homes and for the construction, general hygiene, maintenance and operation of those facilities which, in the light of advancing knowledge, will promote safe and adequate accommodation, care and treatment of residents in those facilities; and promulgate and enforce rules consistent with this section.

71 Op. Att'y Gen. 112, 117-118 (1982)
  Such public health and safety considerations override any claim that the licensing process itself infringes upon any religious belief or practice. Cf., Johnson v. Motor Vehicle Division, 197 Colo. 455, 593 P.2d 1363 (1979). Compare Roloff, 556 S.W.2d at 856-57. It is also generally held that even when the motivation for operating a facility is religious, the facility still must be in compliance with all zoning, building code and health regulations. See, e.g., Damascas Community Church v. Clackamas Cty., 45 Or. App. 1065, 610 P.2d 273 (1980). I therefore conclude that the "health-safety code" provisions contained in chapter HSS 3 Wis. Adm. Code may constitutionally be applied to any facility operated by a religious organization.

71 Op. Att'y Gen. 112, 118 (1982)
  In this state, CBRFs serve individuals "unable to live independently in the community." Section HSS 3.04(2)(a) Wis. Adm. Code. The CBRF regulations afford protection to adults and children for reasons similar to those advanced by the State of Kansas for promulgating its day care regulations. Like most minors, adult residents of CBRFs are unable to provide for certain of their own needs. The state has just as compelling an interest in the protection of needy adults as it does in the protection of needy children. That interest is sufficient to override any interest a religious organization may have in being exempt from regulation.

71 Op. Att'y Gen. 112, 118 (1982)
  There is an additional reason why the state's interest in regulating these facilities outweighs any constitutional claim for exemption. A number of religious organizations operate nursing homes and/or CBRFs. The rehabilitation of individuals with identifiable, treatable, physical or social handicaps is, in the common understanding, a secular activity. Ordinarily, a religious organization which purports to ritualize such secular activities enjoys no special constitutional protection as against those religions that do not purport to do so. See Heffron v. International Society for Krishna Consciousness, Inc., 451 U.S. 904 (1981); Heart Ministries, Inc.; Gospel Army v. City of Los Angeles, 27 Cal. 2d 232, 163 P.2d 704, 711, appeal dismissed, 331 U.S. 543 (1945).

71 Op. Att'y Gen. 112, 118 (1982)
  The requirements concerning CBRFs which are contained in subch. 1 of ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, do not violate the free exercise clause of the first amendment or the corresponding provisions contained in Wis. Const. art. I, 18.

71 Op. Att'y Gen. 112, 118 (1982)
B. Establishment Of Religion.

71 Op. Att'y Gen. 112, 118-119 (1982)
  The United States Supreme Court has, in recent years, moved away from a mechanistic "no-aid-to-religion" approach to the establishment clause and has promulgated a three-part test to determine the constitutionality of statutes which benefit particular religious groups. See Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Ed. and Religious Lib. v. Nyquist, 413 U.S. 756, 772-73 (1973). Under the modern test, the statute must serve a secular legislative purpose, must have a "primary effect" that neither advances nor inhibits religion and must avoid excessive entanglement by the state with religion. Walz v. Tax Commission of City of New York, 397 U.S. 664 (1970). The Wisconsin Supreme Court has applied similar tests to Wis. Const. art. I, 18. State ex rel. Wis. Health Fac. Auth. v. Lindner, 91 Wis. 2d 145, 152, 280 N.W.2d 773, 777 (1979).

71 Op. Att'y Gen. 112, 119 (1982)
  In Walz, the Supreme Court upheld property tax exemptions for real estate owned by entities operated exclusively for religious purposes, using the following language:

71 Op. Att'y Gen. 112, 119 (1982)
  The legislative purpose of a property tax exemption is neither the advancement nor the inhibition of religion, it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that fosters its "moral or mental improvement" should not be inhibited in their activities by property taxation.

71 Op. Att'y Gen. 112, 119 (1982)
  ....

71 Op. Att'y Gen. 112, 119 (1982)
  Granting tax exemptions to churches necessarily operates to afford an indirect economic benefit and also gives rise to some, but yet a lesser, involvement than taxing them.

71 Op. Att'y Gen. 112, 119 (1982)
  ....

71 Op. Att'y Gen. 112, 119 (1982)
  The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state.

71 Op. Att'y Gen. 112, 119 (1982)
397 U.S. at 672, 674-75.

71 Op. Att'y Gen. 112, 119-120 (1982)
  The same considerations apply to exemptions from licensure and regulation afforded to religious groups. Such exemptions, in and of themselves, do not advance religion. Just as the State of Wisconsin may tax or choose to exempt the property on which CBRFs operated by religious organizations is located, the State of Wisconsin may choose to regulate or exempt CBRFs operated by religious organizations. Under the rationale of Walz, almost any regulatory exemption avoids excessive entanglement with, and does not inhibit, religion by reducing church-state interaction to a minimum. When a statutory exemption from regulation is afforded to a religious organization, the major consideration is whether the exemption serves a secular purpose.

71 Op. Att'y Gen. 112, 120 (1982)
  Exemptions from regulation and/or licensure are potentially available to any religious organization under secs. 50.01(1) and 50.03(9), Stats. Section 50.01(1), Stats., provides in part: "The reception and care or treatment of a person in a convent or facility owned or operated exclusively by and for members of a religious order shall not constitute the premises to be a 'community-based residential facility.'"

71 Op. Att'y Gen. 112, 120 (1982)
  Section 50.03(9), Stats., provides:

71 Op. Att'y Gen. 112, 120 (1982)
  Nothing in this section shall be so construed as to give authority to supervise or regulate or control the remedial care or treatment of individual patients who are adherents of a church or religious denomination which subscribes to the act of healing by prayer and the principles of which are opposed to medical treatment and who are residents in any facility operated by a member or members, or by an association or corporation composed of members of such church or religious denomination, if the facility admits only adherents of such church or denomination and is so designated; nor shall the existence of any of the above conditions alone militate against the licensing of such a home or institution. Such facility shall comply with all rules and regulations relating to sanitation and safety of the premises and be subject to inspection thereof. Nothing in this subsection shall modify or repeal any laws, rules and regulations governing the control of communicable diseases.

71 Op. Att'y Gen. 112, 120-121 (1982)
  As the emphasized language indicates, sec. 50.03(9), Stats., does not provide a total exemption from regulation or licensure. Instead, the statute exempts from regulation only "the remedial care or treatment of individual patients who... subscribe to the act of healing by prayer and... are opposed to medical treatment...." Among other things, ch. 50, Stats., seeks to protect the individual rights of residents in those facilities which are subject to licensure. Sec. 50.09, Stats. Residents retain the right to meet with religious groups and participate in religious activities, i.e., to practice their religion, unless medically contraindicated. Sec. 50.09(1)(h), Stats. In a facility where all of the residents believe in healing by prayer as opposed to conventional medical treatment, the religious beliefs of residents will necessarily come in conflict with the dictates of conventional medical practice. Section 50.03(9), Stats., strikes a balance in favor of the preservation of such religious beliefs, unless they would lead to the spread of communicable disease. Even though the statute provides a partial exemption only for care provided to those holding certain religious beliefs, that exemption is carefully tailored so that only the process of healing by prayer is exempt from regulation. The failure to provide such an exemption would present a complex free exercise problem as to whether a state's interest in preserving public health may override a sincere religious belief in refusing medical treatment. Similar considerations underlie the exemption contained in sec. 50.01(1), Stats. That statute avoids the necessity of making a determination as to when the state's interest in preserving public health overrides a sincere religious belief in being cloistered from society. Both secs. 50.01(1) and 50.03(9), Stats., serve a secular legislative purpose by protecting the free exercise of sincere religious beliefs.

71 Op. Att'y Gen. 112, 121 (1982)
  Neither sec. 50.01(1), Stats., nor sec. 50.03(9), Stats., violates the establishment clause. The regulatory scheme of licensure and regulation contained in subch. I of ch. 50, Stats., and chapter HSS 3 Wis. Adm. Code, does not violate the free exercise clause. That regulatory scheme of licensure and regulation also does not contravene Wis. Const. art. I, 18. I therefore conclude that the answer to your second question is yes.

71 Op. Att'y Gen. 112, 121 (1982)
III

71 Op. Att'y Gen. 112, 121 (1982)
APPLICATION OF CBRF REGULATIONS TO FACILITIES
OPERATED BY THE SALVATION ARMY

71 Op. Att'y Gen. 112, 121 (1982)
A. Availability Of Exemption.

71 Op. Att'y Gen. 112, 121-122 (1982)
  The Salvation Army is a religious organization. See McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. Ga. 1971), aff'd, 460 F.2d 553 (5th Cir. 1972), cert. denied, 409 U.S. 896, reh. denied, 409 U.S. 1050. The function of the Salvation Army, which was founded by General William Booth in 1865, has been broadly described as "to evangelize the masses." In Wisconsin, the Salvation Army may incorporate as "a charitable, educational, missionary, philanthropic, beneficial and religious organization." Sec. 187.16(1), Stats. This statute recognizes the broad range of the Salvation Army's functions: "The corps is also called upon to do many things outside of its preaching ministry. There is a regular program for the visitation of homes. Food is provided to the needy and referrals of the sick are made to doctors and hospitals and other charitable functions." McClure, 323 F. Supp. at 1101.

71 Op. Att'y Gen. 112, 122 (1982)
  Salvation Army soldiers constitute the laity of that organization, while Salvation Army officers comprise the religious hierarchy of the organization. McClure, 323 F. Supp. at 1102. Accordingly, the statutory exemption contained in sec. 51.01, Stats., is available to any facility operated exclusively by and for officers living apart from society pursuant to the tenets of the Salvation Army.

71 Op. Att'y Gen. 112, 122 (1982)
B. Applicability Of CBRF Regulations To Adult Rehabilitation Centers.

71 Op. Att'y Gen. 112, 122 (1982)
  One of your specific concerns is whether the Salvation Army's adult rehabilitation centers are subject to licensure and regulation as CBRFs. Those facilities which are not equivalent to convents or monasteries are subject to licensure or regulation if they are "place[s] where 3 or more unrelated adults reside in which care, treatment or services above the level of room and board but not including nursing care are provided to persons residing in the facility as a primary function of the facility." Sec. 50.01(1), Stats.