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Whispering Oaks Residential Facility, LLC v. Missouri Dep't of Natural Resources

Court of Appeals of Missouri, Western District, Second Division

March 10, 2015

WHISPERING OAKS RESIDENTIAL FACILITY, LLC., Appellant,
v.
MISSOURI DEPARTMENT OF NATURAL RESOURCES, Respondent

Appeal fro the Circuit Court of Cole County, Missouri. The Honorable Jon Edward Beetem, Judge.

Ann M. Konold, Chesterfield, MO, Counsel for Appellant.

Timothy P. Duggan, Jefferson City, MO, Counsel for Respondent.

Before Division Two: Anthony Rex Gabbert, PJ., Joseph M. Ellis, Karen King Mitchell, JJ. All concur.

OPINION

Page 47

Anthony Rex Gabbert, Judge

Whispering Oaks Residential Facility, LLC., appeals the Administrative Hearing Commission's (" AHC" ) decision dismissing its appeal for lack of jurisdiction. Whispering Oaks also appeals the circuit court's decision upholding the AHC's decision, denying its requested relief under § 536.150, RSMo 2000,[1] and dismissing its petition for failure to state a claim. Whispering Oaks raises two points on appeal. First, Whispering Oaks argues that the AHC erred in dismissing its complaint because the AHC is obligated to hold a hearing in a contested matter and the Department of Natural Resources' (" DNR" ) decision to decline to issue a letter of deactivation amounted to a decision by DNR, subject to review by the AHC. Alternatively, Whispering Oaks argues that the circuit court erred in dismissing its complaint because the trial court is obligated to hold a hearing in a noncontested matter under § 536.150, and DNR's refusal to issue a deactivation letter was subject to review by the circuit court. We affirm.

Factual Background

Whispering Oaks owns a drinking water system for which DNR issued a permit. In January 2010, Whispering Oaks, which operated as a residential care facility, ceased operations as a business after DNR and the Department of Health and Senior Services complained of the quality of the water and removed all residents from the facility. Shortly thereafter, the permit was deemed deactivated.[2]

Page 48

In an email dated March 12, 2013, a DNR employee informed Whispering Oaks that its drinking water system was deactivated and was ineligible to receive drinking water training vouchers. Later, in a phone conversation with another DNR employee on December 20, 2013, Whispering Oaks asked for a letter confirming that the water system is deactivated. The employee confirmed that the system was deactivated but refused to issue a letter.

After DNR refused to issue the letter, Whispering Oaks filed a complaint with the AHC. In its complaint, Whispering Oaks asserted that the AHC " has exclusive jurisdiction to review actions of the DNR relating to certain environmental commissions, including [the] Safe Drinking Water Commission and the Clean Water Commission" and asked the AHC " to enter an order deactivating the permit, and to grant such other and further relief as is proper and just." The AHC dismissed the matter on the pleadings for lack of statutory jurisdiction.

Whispering Oaks then filed a petition in the circuit court seeking a reversal and remand to the AHC for a hearing, alleging that judicial review is authorized under § § 536.100-150. DNR moved to dismiss the petition on the grounds that DNR's refusal to issue a letter was not an appealable decision. The circuit court affirmed the AHC's order and dismissed the ...


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