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Missouri Department of Health and Senior Services v. Dickson

Court of Appeals of Missouri, Southern District

June 20, 2017

KELLIE DICKSON, d/b/a LIT'L BITS, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Mark A. Stephens, Special Judge

          WILLIAM W. FRANCIS, JR., J.

         The Missouri Department of Health and Senior Services ("DHSS") appeals the trial court's "First Amended Judgment, Order and Injunction" in litigation, hereafter described, involving Kellie Dickson, d/b/a Lit'l Bits ("Dickson"). In two points on appeal, DHSS asserts that: (1) the trial court erroneously applied the law in granting the Barry County prosecutor's request to intervene and denying DHSS's petition for injunction; and (2) the trial court erroneously applied the law in finding that DHSS does not have the authority to promulgate and enforce certain rules and regulations relating to the licensure applicants seeking to operate child care facilities. Because we find that the DHSS does not appeal from a final judgment, we dismiss its appeal.

         Facts and Procedural History

         Dickson is in the business of operating an, unlicensed childcare facility.[1] For the last 36 years, she operated childcare facilities without a license. For the last 22 years, she operated an unlicensed childcare facility called "Lit'l Bits" in Barry County.

         The record indicates that in all the years Dickson operated her unlicensed childcare facilities, local authorities had never compelled Dickson to obtain a license, or to comply with regulatory or statutory requirements for Missouri childcare facilities. From 2008 to 2013, there were a number of complaints filed with DHSS about Lit'l Bits.

         DHSS, from March 2011 to February 2013, conducted multiple on-site visits as part of its investigation into the complaints. Dickson repeatedly told DHSS investigators that she knew she was breaking the law by operating without licensure, but that she refused to apply for a license.

         Between April 1, 2011 and March 1, 2013, DHSS notified the Barry County prosecuting attorney-on seven different occasions-that Dickson was operating an unlicensed daycare. The Barry County prosecutor failed to act.

         On April 22, 2013, the Missouri Attorney General, on behalf of DHSS, filed a "Petition for Injunctive Relief" seeking a preliminary and permanent injunction enjoining Dickson from operating an unlicensed daycare until such time as Dickson substantially complied with sections 210.201 to 210.245.

         On October 9, 2013, DHSS waived its request for a preliminary injunction, and the matter was set for a bench trial on February 19, 2014. On December 11, 2013, the Barry County prosecutor filed a "Motion to Intervene, " pursuant to section 210.245.5, and DHSS filed a motion to dismiss that motion. On January 15, 2014, based on an agreement between the prosecutor and Dickson, the trial court granted Dickson blanket immunity from criminal prosecution for any violations of sections 210.201 to 210.245, with the corresponding agreement that Dickson answer questions under oath during discovery conducted by DHSS.

         On January 27, 2014, the Barry County prosecutor filed a "Petition for Oversight Relief." On February 18, 2014, the trial court overruled DHSS's motion to dismiss, and granted the prosecutor's motion to intervene. On December 22, 2014, the DHSS filed a "Motion for Summary Judgment, " which included a statement of uncontroverted facts. Dickson filed a timely response.

         On February 17, 2015, the trial court denied DHSS's motion for summary judgment, ordered Dickson to apply for a license, and ordered DHSS to either grant a license to Dickson, or set forth with specificity its reasons for denying the license. Dickson complied with the trial court's order and applied for a license, but DHSS denied her application after DHSS conducted a sanitation inspection on March 12, 2015, finding 12 violations; conducted inspections on March 12, 2015 and March 16, 2015, finding a total of 75 violations; and a fire safety inspection on March 17, 2015, finding 22 violations.

         The parties attempted to reach a solution by agreement, which was unsuccessful. A bench trial was scheduled for December 15, 2015. On December 14, 2015, the Barry County prosecutor[2]charged Dickson with an infraction for operating a daycare without a license.

          After evidence was adduced and the cause heard on December 15, 2015, the record was left open for the parties to file post-trial briefs on the legal issues of whether or not a section 210.245.5 oversight order should be in the form of an injunction, and which of the regulatory requirements/violations were essential to accomplish the legislative purposes for licensing daycare operations.

         On April 18, 2016, the trial court entered its "First Amended Judgment, Order and Injunction." The judgment contained extensive findings of facts and conclusions of law. The trial court denied DHSS's petition for injunction enjoining Dickson from engaging in the operation of a childcare facility until her facility was in substantial compliance with sections 210.201 to 210.245; granted the prosecutor's petition to oversee the operation of the daycare; ordered Dickson to comply with the trial court's order until the trial court determined that Dickson was in "substantial ...

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