The City of Cleveland v. The Health Services and Development Agency, State of Tennessee ( 2022 )

01/27/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 2, 2021 Session
THE CITY OF CLEVELAND v. THE HEALTH SERVICES AND
DEVELOPMENT AGENCY, STATE OF TENNESSEE, ET AL.
Appeal from the Chancery Court for Davidson County
No. 20-1153-I Patricia Head Moskal, Chancellor
No. M2021-00396-COA-R3-CV
This appeal concerns opposition by the City of Cleveland, Tennessee (“the City”) to an
application by Middle Tennessee Treatment Centers, LLC, d/b/a Cleveland
Comprehensive Treatment Center (“CCTC”) to operate a nonresidential, substitution-
based treatment center for opiate addiction within the City. The City filed a petition for
declaratory judgment in the Chancery Court for Davidson County (“the Trial Court”)
against the Tennessee Health Services and Development Agency (“the Agency”) seeking
to have the certificate of need granted for CCTC revoked on grounds that CCTC failed to
provide proof of service upon the City by certified mail, return receipt requested, in
contravention of Tenn. Code Ann. § 68-11-1607(c)(9)(A). CCTC intervened in the case.
CCTC and the Agency (“Defendants,” collectively) filed motions to dismiss. After a
hearing, the Trial Court granted Defendants’ motions to dismiss for failure to state a claim.
The City appeals. We hold, inter alia, that the purpose of the notice provision in Tenn.
Code Ann. § 68-11-1607(c)(9)(A) is to afford the relevant officials an opportunity to
participate in an Agency hearing on whether a certificate of need is granted; proof of receipt
is required. We, therefore, reverse the judgment of the Trial Court and remand for further
proceedings consistent with this Opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
Douglas S. Johnston, Nashville, Tennessee, for the appellant, the City of Cleveland.
William N. Helou, Nashville, Tennessee, for the appellee, Middle Tennessee Treatment
Centers, LLC, d/b/a Cleveland Comprehensive Treatment Center.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; and Sue A. Sheldon, Senior Assistant Attorney General, for the appellee, the
Tennessee Health Services and Development Agency.
OPINION
Background
On November 20, 2020, the City filed its Petition for Declaratory Judgment in the
Trial Court against the Agency. As this case was disposed of on Defendants’ motions to
dismiss, we set out the facts as alleged in the City’s petition. In its petition, the City alleged
as follows, in part:
5.) Pursuant to TCA 68-11-1602(2) a “Certificate of Need” is a permit
granted by the Agency to any person for the establishment or modification
of a health care institution, facility, or covered health service, at a designated
location.
6.) Some time prior to May 10, 2020 Acadia Healthcare and Middle
Tennessee Treatment Centers, LLC combined to own and operate an Opioid
Treatment Program which they called the Cleveland Comprehensive
Treatment Center (CCTC).
7.) CCTC is described as “a nonresidential substitution-based treatment
center for opiate addiction” and is to be located at 3575 Keith St. NW within
the municipal boundaries of Cleveland, TN.
8.) On or about May 10, 2020 the CCTC made its application for a Certificate
of Need (CON) to the Agency.
9.) TCA 68-11-1607(c)(9)(A) requires a special form of notice to be sent to
certain specified elected officials whenever a nonresidential substitution-
based treatment center for opiate addiction applies for a CON. In particular,
the statute requires notice to be sent to several enumerated elected officials,
including the mayor of the municipality within which the center is to be
located, within ten days of its application. The notice must be mailed by
certified mail, return receipt requested.
10.) TCA 68-11-1607(C)(9)(C) states, “An application subject to the
notification requirement of this subdivision (c)(9) shall not be deemed
complete if the applicant has not provided proof of compliance with this
subdivision (C)(9) to the agency.”
11.) The purpose of the requirements both for the mailing of a notice of the
CON application by certified mail, return receipt requested and for the
submission to the Agency of proof of compliance is to ensure not only that
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the notices have been sent but that the specified and enumerated elected
officials have actually received such notice, and, therefore, that those elected
officials can participate, should they choose to do so, at an Agency hearing
on the application.
12.) During the period of May and June, 2020, the City of Cleveland closed
its offices to the public due to concerns regarding COVID-19.
13.) On or about May 19, 2020 CCTC purportedly sent letters to various
elected officials by certified mail, return receipt requested, including one
addressed to Mayor Kevin Brooks, Mayor of the City of Cleveland, at his
office address.
14.) Neither Mayor Brooks nor any authorized agent for Mayor Brooks ever
received or signed for the letter notice purportedly mailed by CCTC.
15.) The documents submitted by CCTC to the Agency as its proof of
compliance include at least three return receipts which are blank; that is, there
is no signature either of the proposed recipient or of any authorized agent.
One of those blank return receipts is for the letter supposedly sent to Mayor
Brooks.
16.) Although Mayor Brooks was generally aware of the proposal and had
participated in some early discussions about the idea, the Mayor was not
aware that CCTC had submitted an application for a CON because he never
received the required letter providing notice and, thus, was not aware that the
Agency had scheduled a hearing on the application for its August 2020
meeting.
17.) Had Mayor Brooks received the statutorily required notice, he would
have appeared before the Agency to oppose the granting of a CON. The
Mayor was denied that opportunity because of CCTC’s failure and, therefore,
the Mayor, acting in his official capacity by and on behalf of the City of
Cleveland, was prejudiced by CCTC’s failure.
18.) In late June of 2020 Mayor Brooks was scheduled to meet with CCTC
representatives but was unable to participate because he was feeling unwell.
Mayor Brooks was subsequently hospitalized for approximately ten days
with COVID-19.
19.) On August 26, 2020, the Agency approved CCTC’s application for a
CON.
20.) Prior to September 10, 2020, Mayor Brooks became aware that the
CCTC had been approved for a CON.
21.) On or about October 2, 2020 the City submitted its Petition for a
Declaratory Order to the Agency and provided a copy by electronic means to
counsel for the CCTC on that date.
22.) TCA 68-11-1619(3) provides the Agency the power to revoke a CON
“whenever... [t]he decision to issue a certificate of need was based, in whole
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or in part, on information or data in the application which was false, incorrect,
or misleading, whether intentional or not...”
23.) The information submitted by CCTC to the Agency was, in part, false,
incorrect, or misleading in that the submissions implied that all the statutorily
enumerated elected officials had been notified of CCTC’s application, when,
in fact, they had not.
24.) The statutory language of TCA 16-11-1607 (c)(9)(A) contains nothing
that would excuse CCTC from providing proof of actual receipt of required
notices, as, for example, is contained in TN. R. Civ. Proc. 5 (“service by mail
is complete upon mailing”) or in TCA 29-26-121(a)(4) which also requires
notice by certified mail, return receipt requested but also states, “it is not
necessary that the addressee of the notice sign or return the return receipt
card that accompanies a letter sent by certified mail for service to be
effective”.
25.) On October 28, 2020, the Agency took up the City’s Petition for a
Declaratory Order but refused to issue any declaratory order.
Wherefore, premises considered, petitioner prays:
1.) For a declaration that the statutory language of TCA 68-11-1607(c)(9)(A)
means what it says, that the submission by CCTC to the Agency was not
complete because it lacked the required proof of compliance; and, that
therefore, the certificate of need to CCTC was improvidently granted and
must be revoked;
2.) For all costs and for reasonable attorneys’ fees, if applicable;
3.) For such other and further relief as appropriate.
In January 2021, CCTC filed a motion to intervene, which the Trial Court granted.
Defendants filed motions to dismiss for failure to state a claim; the Agency also moved to
dismiss for lack of subject matter jurisdiction. The Trial Court heard Defendants’ motions
to dismiss.
In March 2021, the Trial Court entered its final order. The Trial Court denied the
Agency’s motion to dismiss for lack of subject matter jurisdiction. However, the Trial
Court granted Defendants’ motions to dismiss for failure to state a claim. The Trial Court
held as follows, in relevant part:
The City’s declaratory judgment action against the Agency is brought
under the UAPA, Tenn. Code Ann. § 4-5-225. Prior to bringing an action in
chancery court for declaratory judgment relating to action taken by a state
agency, a party must first petition the agency “for a declaratory order as to
the validity or applicability of a statute, rule or order within the primary
jurisdiction of the agency.” Tenn. Code Ann. § 4-5-223(a). If the agency
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refuses to issue a declaratory order, the petitioner may apply for a declaratory
judgment under § 4-5-225. Id., § 4-5-223(a)(2).
Section 4-5-233(d) directs each agency to “prescribe by rule the form
of such petitions [for declaratory orders] and the procedure for their
submission, consideration and disposition.” Id., § 4-5-223(d). The Agency
has promulgated the following administrative rule establishing a thirty-day
deadline for filing a petition for declaratory order involving Agency action
on a specific project or issue:
(1) Any affected person may petition The Agency for a
declaratory order, as provided in T.C.A. § 4-5-223, as to the
interpretation, validity, or applicability of a statute or rule
within the primary jurisdiction of the Agency….
***
(3) In the event the petition for declaratory order arises out of
The Agency’s action on a specific project or issue, the petition
for declaratory order shall be filed within thirty (30) days of
the date of The Agency meeting a[t] which the action at issue
was taken.
Tenn. Comp. R. & Regs. 0720-13-.04 (Rev. Feb. 2017).
Applications for certificates of need for health services and facilities
in Tennessee are governed by Tenn. Code Ann. § 68-11-1607, which
provides, in pertinent part, as follows:
(a) No person may perform the following actions in the state
except after applying for and receiving a certificate of need for
the same:
(1) The construction, development or other
establishment of any type of health care institution; …
For the specific type of project at issue here, the certificate of need statute
imposes the following notice requirement:
(c)(9)(A) Within ten (10) days of the filing of an application
for a nonresidential substitution-based treatment center for
opiate addiction with the agency, the applicant shall send a
notice to the county mayor of the county in which the facility
is proposed to be located; and the mayor of the municipality, if
the facility is proposed to be located within the corporate
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boundaries of a municipality; by certified mail, return receipt
requested, informing those officials that an application for a
nonresidential substitution-based treatment center for opiate
addition has been filed with the agency by the applicant.
***
(C) An application subject to the notification requirement of
this subdivision (c)(9) shall not be deemed complete if the
applicant has not provided proof of compliance with this
subdivision (c)(9) to the agency.
Tenn. Code Ann. § 68-11-207(a)(1) and (c)(9). An agency is statutorily
authorized to revoke a certificate of need where, among other grounds, “[t]he
decision to issue a certificate of need was based, in whole or in part, on
information or data in the application which was false, incorrect, or
misleading, whether intentional or not.” Id., § 68-11-1619(3).
The City’s Petition for declaratory judgment before this Court, alleges
that the Agency’s order approving CCTC’s certificate of need is invalid
because CCTC failed to comply with the notice requirements of § 68-11-
1607(c)(9)(A), and requests that the certificate be revoked based on CCTC’s
submission of false, incorrect or misleading information to the Agency
regarding the failure to notify the City’s Mayor.
A. Subject Matter Jurisdiction
The Agency initially asserts that this Court lacks subject matter
jurisdiction because the City’s underlying petition for declaratory order
under the UAPA was not timely filed with the Agency. The timeliness
requirement for petitions for declaratory orders before the Agency are
prescribed by the Agency’s rules under Tenn. Code Ann. § 4-5-322(d). The
Agency’s rule establishes a thirty (30) day period from the date of the
Agency’s meeting within which a petition for declaratory order “shall be
filed.” Tenn. Comp. R. & Regs. 0720-13-.04(3). Based on the allegations
of the Petition, the Agency approved CCTC’s certificate of need on August
26, 2020, but the City filed its petition for declaratory order with the Agency
on October 2, 2020, more than thirty days after the Agency’s approval action.
Pet. at ¶¶ 19, 21. The Court finds that the Agency raises a facial challenge
to the Court’s subject matter jurisdiction based on the factual allegations of
the Petition that the City’s underlying petition for declaratory order before
the Agency was not timely filed. That finding, however, is not necessarily
dispositive of the issue raised as to this Court’s subject matter jurisdiction.
As the Agency notes, there are two statutory prerequisites under § 4-5-225
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for bringing a declaratory judgment action in chancery court: first, the
petitioner must have petitioned the agency for a declaratory order under § 4-
5-223; and second, the agency must have refused to issue a declaratory order.
Tenn. Code Ann. § 4-5-225(b). The facts establishing both of those statutory
prerequisites are alleged in the Petition filed with this Court. Thus, the Court
preliminarily concludes it has subject matter jurisdiction.
B. Failure to State Claims for Relief
1. Noncompliance with Notice Provision
Both the Agency and CCTC assert that CCTC complied with the
notification requirements of § 68-11-1607(c)(9)(A), based on the facts
alleged in the Petition. The Agency and CCTC contend that the Petition fails
to state a claim for relief for noncompliance with the notice provisions where
the City’s factual allegations establish such compliance.
In the Petition, the City alleges that CCTC applied for its certificate
of need on May 10, 2020, and that CCTC sent letters by certified mail, return
receipt requested, to elected officials, including the City’s Mayor, on May
19, 2020. Pet. at ¶¶ 8, 13. As a result, the Agency and CCTC contend that
the statutory notice was sent within ten days of CCTC’s application and
CCTC complied with § 68-11-1607(c)(9)(A).
In response, the City argues that the essence of the Petition presents
an issue of statutory interpretation of the statutory notice provision. The City
claims that because the legislature has specified “the method of the thing to
be done”—that is, “shall send a notice ... by certified mail, return receipt
requested”—mere proof of mailing without proof of receipt is insufficient
under the legislative intent of the statute. In support of this position, the City
compares the language in the statutory notice provision for certificates of
need with the language used in Rule 5 regarding service of process of
complaints under the Tennessee Rules of Civil Procedure and Tenn. Code
Ann. § 29-26-121(a)(4) regarding service of process of complaints under the
healthcare liability act.
Issues of statutory construction present questions of law. See Eastman
Chemical Co. v. Johnson, 151 S.W.3d 503, 506 (Tenn. 2004) (citing Bryant
v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 765 (Tenn. 2000)). Courts
are to construe statutes to ascertain and give effect to the legislative intent
and purpose. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000).
Legislative intent is to be determined based on the natural and ordinary
meaning of the language used, without a forced interpretation that limits or
extends the meaning of the language. Id. When the statutory language is
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clear and unambiguous, courts are to apply the plain meaning in its normal
and accepted use. Id.Section 68-11-1607(c)(9)(A) plainly states that within ten days of
filing an application for a CON for the type of project at issue here, “the
applicant shall send a notice” to the county mayor and, if applicable, the city
mayor “by certified mail, return receipt requested.” The City’s
interpretation would read into the statute a requirement that the applicant also
provide proof of delivery of the notice, thereby extending its meaning.
Based on the plain language of the statute, the Court finds that all that
is required under the statute is that the applicant send notice of its CON
application to the county and city mayors by certified mail, return receipt
requested, and that proof of sending the mailing be provided to the agency.
The statute does not also require the applicant to provide proof of receipt by
the intended recipients. The Court finds unpersuasive the City’s comparison
of the language of § 68-11-1607(c)(9)(A), requiring notice, to the language
used for service of legal process of a lawsuit under either Tennessee Rule of
Civil Procedure 5 or the healthcare liability act. The Court concludes that
the City has failed to allege facts sufficient to establish a claim for
noncompliance with the notice provision of § 68-11-1607(c)(9)(A) regarding
CCTC’s application.
2. Revocation of the Certificate of Need
Section 68-11-1607(c)(9)(C) provides that the CON application for
the type of facility at issue here “shall not be complete” if the applicant has
not provided proof of compliance with the notice provision. Section 68-11-
1619 empowers the Agency to revoke a certificate of need if the decision to
issue the certificate of need was based, among other grounds, on “false,
incorrect, or misleading” information. The City asks this Court to declare
that CCTC’s certificate of need was improvidently granted, for providing
false, incorrect, or misleading information regarding CCTC’s compliance
with the notification statute, and, therefore, must be revoked.
The City’s allegation that CCTC provided false, incorrect, or
misleading information is necessarily dependent upon its theory of statutory
interpretation under the notice provision that proof of receipt by the intended
recipient is statutorily required. Having rejected that argument and found
that only proof of sending, and not proof of receipt, is required under § 68-
11-1607(c)(9)(A), it necessarily follows that CCTC did not provide false,
incorrect, or misleading information to the agency regarding its compliance
with the notice provision and no grounds for revocation of the certificate are
sufficiently alleged.
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CCTC suggests that the proper remedy for the City to pursue was an
appeal of the grant of the CON as a contested case under § 68-11-1610, and
its request for a declaration that the CON “was improvidently granted and
must be revoked,” is artful pleading to avoid the fifteen-day limitations
period for a CON appeal under § 68-11-1610(a). CCTC further argues that
only the Agency is statutorily empowered to revoke a CON rather than the
Court. It [is] unnecessary to address either of these arguments, in light of the
Court’s interpretation of the notice provision and CCTC’s compliance. The
Court concludes that the City has failed to state a claim for relief for
revocation of CCTC’s certificate of need.
The City timely appealed to this Court.
Discussion
The City raises two issues on appeal, which largely overlap. We restate and
consolidate the City’s issues into the following single issue: whether the Trial Court erred
in dismissing the City’s petition on grounds that the City failed to allege facts sufficient to
establish a claim of noncompliance with the notice provision of Tenn. Code Ann. § 68-11-
1607(c)(9)(A) with respect to CCTC’s application. Defendants raise a separate issue of
whether the Trial Court erred in concluding that it had subject matter jurisdiction to
consider the City’s petition. CCTC raises an additional separate issue of whether the City
lacks standing.
Our Supreme Court has discussed the standard of review applicable to motions
to dismiss for failure to state a claim as follows:
A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. A defendant who files a motion to dismiss admits the
truth of all of the relevant and material allegations contained in the complaint,
but ... asserts that the allegations fail to establish a cause of action.
In considering a motion to dismiss, courts must construe the complaint
liberally, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. A trial court should grant a motion
to dismiss only when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief. We review the
trial court’s legal conclusions regarding the adequacy of the complaint de
novo.
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Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
(internal quotation marks and citations omitted). In addition, in Northland Ins. Co. v. State,
33 S.W.3d 727, 729 (Tenn. 2000), our Supreme Court set forth the standard of review
applicable to motions to dismiss for lack of subject matter jurisdiction. The High Court
stated:
A motion to dismiss for lack of subject matter jurisdiction falls under
Tennessee Rule of Civil Procedure 12.02(1). The concept of subject matter
jurisdiction involves a court’s lawful authority to adjudicate a controversy
brought before it. Subject matter jurisdiction involves the nature of the cause
of action and the relief sought, and can only be conferred on a court by
constitutional or legislative act. Since a determination of whether subject
matter jurisdiction exists is a question of law, our standard of review is de
novo, without a presumption of correctness.
Northland Ins. Co., 33 S.W.3d at 729 (internal citations omitted).
We first address CCTC’s issue of whether the City lacks standing. CCTC notes that
declaratory relief sought from an agency decision is limited to “affected persons.” This
Court has explained thusly:
“[U]nder the Administrative Procedures Act, a court may issue a declaratory
judgment if an ‘affected person’ seeks that relief and if the rule or order, or
its application, interferes with, impairs, or threatens to interfere with the
person’s rights.” Boles v. Tenn. Dep’t of Corr., No. M2000-00893-COA-
R3-CV, 2001 WL 840283, at *2 (Tenn. Ct. App. July 26, 2001); see also
Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 456 (Tenn. 1995)
(“The Administrative Procedures Act [ ] allows an ‘affected person’ to
petition the Davidson County Chancery Court for a declaratory judgment
regarding the legal validity of a statute, rule, or agency order in limited
circumstances.”). Persons seeking a declaratory judgment pursuant to
section 4-5-225 must allege that a private interest or personal right has been
affected by the enforcement of a statute, rule, or order. Reid v. Lutche, No.
M1997-00229-COA-R3-CV, 2001 WL 55783, at *4 (Tenn. Ct. App. Jan. 24,
2001).
Calfee v. Tenn. Dep’t of Transp., No. M2016-01902-COA-R3-CV, 2017 WL 2954687, at
*5 (Tenn. Ct. App. July 11, 2017), no appl. perm. appeal filed.
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In its reply brief, the City argues that CCTC waived this issue by failing to raise it
below. Indeed, failure to raise an issue below generally means that issue may not be raised
for the first time on appeal. E.g., Blankenship v. Anesthesiology Consultants Exchange,
P.C., 446 S.W.3d 757, 760 (Tenn. Ct. App. 2014). However, upon our consideration of
the issue, we do not find the City lacks standing. CCTC’s characterization of the City’s
interest in this action is too narrow. As pointed out by the City, “[t]he City, by and through
its mayor, had a statutory right to receive a notice of the certificate of need application and
to appear before the board in regard to the CON.” Whether the City received notice
compliant with Tenn. Code Ann. § 68-11-1607(c)(9)(A) is very much at issue. In other
words, the City is not merely an unrelated outsider to this matter—it squarely is an
“affected person” with standing. This issue is without merit.
We next address Defendants’ issue of whether the Trial Court erred in concluding
that it had subject matter jurisdiction to consider the City’s petition. The Agency points to
the following rule: “In the event the petition for declaratory order arises out of The
Agency’s action on a specific project or issue, the petition for declaratory order shall be
filed within thirty (30) days of the date of The Agency meeting at which the action at issue
was taken.” Tenn. Comp. R. & Regs. 0720-13-.04(3). Here, the Agency approved CCTC’s
application on August 26, 2020; the City filed its petition for a declaratory order with the
Agency on October 2, 2020, more than thirty days after approval. According to the
Agency, the City effectively failed to “petition[] the agency for a declaratory order,” as
required by Tenn. Code Ann. § 4-5-225(b) (2021). CCTC adds an additional argument
under this issue. CCTC contends that, insofar as the City’s petition amounted to an appeal
of the grant of the certificate of need rather than a petition for an order revoking the
certificate, it failed to appeal within fifteen days as required by Tenn. Code Ann. § 68-11-
1610(a). CCTC asserts further that the City failed to object during the application process
and failed to exhaust its administrative remedies. In response, the City states that it failed
to act sooner on all of these fronts because it did not receive statutorily-compliant notice.
In the first place, we disagree with CCTC that there is any ambiguity in the nature
of the City’s petition. The City’s petition states that it is a petition for declaratory judgment.
There is nothing about the petition that would lead us to disregard what it purports to be
and classify it as something else. Second, Tenn. Code Ann. § 4-5-225(b) (2021) provides:
“A declaratory judgment shall not be rendered concerning the validity or applicability of a
statute, rule or order unless the complainant has petitioned the agency for a declaratory
order and the agency has refused to issue a declaratory order.” Both of these prerequisites
were met in this case. Whether the City acted timely in its bid to oppose the grant of a
certificate of need to CCTC may be relevant to the success or lack thereof of the City’s
case, but it does not implicate the Trial Court’s subject matter jurisdiction to consider the
City’s petition in the first place because the essential statutory prerequisites were met.
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Therefore, we hold that the Trial Court had subject matter jurisdiction to consider the City’s
petition. We affirm the Trial Court’s ruling in this respect.
The final issue we address is whether the Trial Court erred in dismissing the City’s
petition on grounds that the City failed to allege facts sufficient to establish a claim of
noncompliance with the notice provision of Tenn. Code Ann. § 68-11-1607(c)(9)(A) with
respect to CCTC’s application. The City argues that proof of receipt was required.
Defendants argue, and the Trial Court held, that proof of receipt was not required. At the
time of the underlying events,1 Tenn. Code Ann. § 68-11-1607(c)(9)(A) provided:
Within ten (10) days of the filing of an application for a nonresidential
substitution-based treatment center for opiate addiction with the agency, the
applicant shall send a notice to the county mayor of the county in which the
facility is proposed to be located; the state representative and senator
representing the house district and the senate district in which the facility is
proposed to be located; and the mayor of the municipality, if the facility is
proposed to be located within the corporate boundaries of a municipality; by
certified mail, return receipt requested, informing those officials that an
application for a nonresidential substitution-based treatment center for opiate
addiction has been filed with the agency by the applicant.
Tenn. Code Ann. § 68-11-1607(c)(9)(A) (West July 1, 2016 to May 25, 2021) (emphasis
added). In addition, “[a]n application subject to the notification requirement of this
subdivision (c)(9) shall not be deemed complete if the applicant has not provided proof of
compliance with this subdivision (c)(9) to the agency.” Tenn. Code Ann. § 68-11-
1607(c)(9)(C) (West July 1, 2016 to May 25, 2021). We are presented with an issue of
statutory construction. As our Supreme Court has instructed:
Issues of statutory construction present questions of law that we review de
novo with no presumption of correctness. Martin v. Powers, 505 S.W.3d
512, 518 (Tenn. 2016). The primary goal of statutory interpretation is to
carry out legislative intent without expanding or restricting the intended
scope of the statute. State v. Smith, 484 S.W.3d 393, 403 (Tenn. 2016)
(citations omitted). In determining legislative intent, we first must look to
the text of the statute and give the words of the statute “their natural and
ordinary meaning in the context in which they appear and in light of the
statute’s general purpose.” Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368
(Tenn. 2012) (citations omitted). When a statute’s language is clear and
1
Tenn. Code Ann. § 68-11-1607 was amended in 2021. However, the amendments are not relevant to our
disposition of the issues on appeal.
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unambiguous, we enforce the statute as written; we need not consider other
sources of information. Frazier v. State, 495 S.W.3d 246, 249 (Tenn. 2016).
We apply the plain meaning of a statute’s words in normal and accepted
usage without a forced interpretation. Baker v. State, 417 S.W.3d 428, 433
(Tenn. 2013). We do not alter or amend statutes or substitute our policy
judgment for that of the Legislature. Armbrister v. Armbrister, 414 S.W.3d
685, 704 (Tenn. 2013).
Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018).
The City points to certain examples where, in contrast to Tenn. Code Ann. § 68-11-
1607(c)(9)(A), a Tennessee statute or rule has clarified that proof of receipt is not required
for notice sent by certified mail. For instance, Tenn. Code Ann. § 29-26-121(a)(4) provides
that a plaintiff in a health care liability lawsuit can prove compliance with the notice
provisions by establishing that notice was filed timely by certified mail, return receipt
requested; nevertheless, the statute clarifies that “[i]t is not necessary that the addressee of
the notice sign or return the return receipt card that accompanies a letter sent by certified
mail for service to be effective.” Tenn. Code Ann. § 29-26-121(a)(4) (Supp. 2021).
Elsewhere, Tennessee Rule of Civil Procedure 5.02(1) provides that “[s]ervice by mail is
complete upon mailing.” The City observes that no such clarifying language can be found
in Tenn. Code Ann § 68-11-1607(c)(9). For their part, Defendants argue that Tenn. Code
Ann § 68-11-1607(c)(9) is unambiguous; there is no express requirement for proof of
receipt. Defendants argue, and the Trial Court held, that requiring proof of receipt would
read a provision into the statute that does not exist. Respectfully, we disagree with the
Trial Court and Defendants’ interpretation.
Our General Assembly must have meant something by including in Tenn. Code
Ann. § 68-11-1607(c)(9)(A) the language “by certified mail, return receipt requested,
informing those officials that an application for a nonresidential substitution-based
treatment center for opiate addiction has been filed with the agency by the applicant.”
(Emphasis added). Based on our reading of the statute, we conclude that the General
Assembly intended to ensure that the relevant local and state officials are informed that the
application has been filed so as to allow them to have an opportunity to have input on, and
participate in, an Agency hearing regarding whether a certificate of need is granted.2 Here,
in contrast to examples found elsewhere in Tennessee law, there is no qualifying language
to the effect that service is complete upon mailing. In order for the unqualified statutory
requirement of “return receipt requested” to have meaning, return receipt needs to be
returned. Otherwise, the “return receipt requested” language is meaningless. This is
2
This does not mean that the officials statutorily entitled to notice possess a veto over the granting of a
certificate of need.
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especially so given the statute’s stated intent of informing those officials of the
application’s filing. Furthermore, a scenario could arise where, as is alleged here, a
certificate of need is granted while an official statutorily entitled to notice is left in the dark,
a scenario contrary to legislative intent. We also note that the General Assembly provided
for the same notice sent to the “mayor of the municipality” also be sent “by certified mail,
return receipt requested” to “the state representative and senator representing the house
district and the senate district in which the facility is proposed to be located….” We have
no difficulty determining that the clear intent of our General Assembly was to ensure that
its designated House and Senate members actually received this required notice concerning
his or her district. As the same notice language applies to both the designated members of
our General Assembly and the mayor of the municipality, our interpretation of the statute
must be the same as to both. The fact that the City acknowledged being “generally aware”
of the proposal to establish CCTC is of no consequence. That is distinct from knowing
specifically that an application for a certificate of need was submitted. The City’s petition
sufficiently alleged facts that could entitle it to relief—namely, that the notice requirements
of Tenn. Code Ann. § 68-11-1607(c)(9) were not satisfied by CCTC. We, therefore,
reverse the judgment of the Trial Court, and remand for further proceedings consistent with
this Opinion.
Conclusion
The judgment of the Trial Court is reversed, and this cause is remanded to the Trial
Court for further proceedings consistent with this Opinion. The costs on appeal are
assessed one-half against the Appellee, Middle Tennessee Treatment Centers, LLC, d/b/a
Cleveland Comprehensive Treatment Center, and one-half against the other Appellee, the
Tennessee Health Services and Development Agency.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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