dissenting. Because I view our decision today as being in conflict with our recent holding in Arkansas Dep’t of Human Services v. Greene Acres Nursing Homes, 296 Ark. 475, 757 S.W.2d 563 (1988), I must dissent.
As I understand the majority opinion, the court holds that appellee, Consolidated Health Management, Inc. (CHM), is entitled to a writ of mandamus to compel the Arkansas Department of Human Services (DHS) to review CHM’s application to add beds to its nursing facility pursuant to Act 593 of 1987. Act 593, which was effective when CHM submitted its application, abolished any requirement that a nursing home, such as CHM, must obtain a “permit of approval” before the commencement of the construction or enlargement of its facilities.1 That permit-of-approval requirement, as noted in the majority opinion, was reinstated with the passage of Act 40 of 1987, First Extraordinary Session of the General Assembly, whereby the Act imposed a moratorium on all requests for additional beds. The moratorium began on June 19,1987, the effective date of Act 40, and is to end on June 1, 1989.
In its opinion, the majority court acknowledges the foregoing facts and concludes that the reinstatement of the permit requirement under Act 40 was prospective and was not intended to apply to applications submitted when Act 593 was in effect. The court then affirms the trial court’s decision that requires DHS to afford CHM a review under Act 593.
Try as I may, I cannot reconcile today’s decision with this court’s ruling in Greene Acres, where we reversed the trial court’s holding that Act 40 did not apply to applications filed by nursing homes during the time Act 593 was in effect. This court related the following reason for concluding as it did:
Since appellee submitted its application during the effective dates of Act 593, it qualified for the exception to the permit of approval requirement. However, even if its application for a license was complete under Act 593 for purposes of processing and review, a license for that application still had not been granted prior to the effective date of Act 40. The clear language of Act 40 prohibits the issuance of licenses during the effective dates of the moratorium. The fact that Act 40 results in the denial of licenses with respect to applications submitted prior to its enactment does not mean that it is being applied retroactively. Rather, Act 40 is being applied from and after its effective date of June 19,1987, to impose the legislatively mandated moratorium.
Greene Acres, 296 Ark. at 478-79, 757 S.W.2d at 565 (emphasis added).
As I read Greene Acres, the court’s decision is clear. Unless CHM (or other nursing homes) actually received its license for additional beds prior to the effective date of Act 40, it is entitled to a review under the terms of Act 40, not Act 593. Unless the court chooses to reverse itself, I feel bound by what the court held in Greene Acres. Therefore, I dissent.
Hays, J., joins this dissent.Act 593 covered construction or enlargement costing less than $500,000 in capital expenditures. CHM’s proposed construction met this limit requirement.