MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Petitioner-Appellant,
KELLIE DICKSON, d/b/a LIT'L BITS, Respondent-Respondent.
FROM THE CIRCUIT COURT OF BARRY COUNTY Honorable Mark A.
Stephens, Special Judge
WILLIAM W. FRANCIS, JR., J.
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.
and Procedural History
is in the business of operating an, unlicensed childcare
facility. 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.
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.
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.
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.
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
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.
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.
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.
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
prosecutorcharged Dickson with an
infraction for operating a daycare without a license.
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.
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