Austell et al v. Sprenger et al

Filing 123

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that the preliminary injunction entered on October 8, 2009 [Doc. # 25 ] is dissolved. IT IS FURTHER ORDERED that the effect of this order is stayed until Friday, May 13, 2011, at 12:00 noon (Central Time). Signed by Honorable Carol E. Jackson on 05/09/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
T.Y.B.E. LEARNING CENTER, et al.,
Plaintiff,
vs.
KATHY QUICK, et al.,
Defendant.

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Case No. 4:09-CV-1463 (CEJ)

MEMORANDUM AND ORDER
Plaintiffs TYBE Learning Center and Carmen Austell filed suit to challenge the
decision by the Department of Health and Senior Services (DHSS) to deny their
application to renew their license to operate a child-care facility. On October 8, 2009,
the Court entered a consent preliminary injunction that allowed plaintiffs to operate
their facility while the state administrative review of the denial was pending. On
January 28, 2011, the Missouri Administrative Hearing Commission (AHC) upheld the
DHSS decision. On April 14, 2011, the Court directed the parties to show cause in
writing why the consent preliminary injunction should not be dissolved.
Defendants assert that the administrative proceedings are now concluded and
the injunction should be dissolved. Plaintiffs oppose dissolving the injunction and
argue that the administrative proceedings have not concluded because they have not
yet received “a meaningful second stage disciplinary hearing.” Plaintiffs’ argument is
based on their oft-repeated contention that their rights to administrative review are
governed by § 621.120, Mo.Rev.Stat., rather than § 210.245, Mo.Rev.Stat., the
statute under which the Commission proceeded.

I.

Background

On August 27, 2009, plaintiffs were notified that their application for renewal of
their child care facility was denied.1 Plaintiffs took two actions in response. First, they
requested from DHSS a hearing before the AHC; under § 210.245, DHSS then had 90
days within which to file a complaint with the AHC. Not content to wait that long,
plaintiffs next filed a complaint directly with the AHC, relying on § 621.120. This
section provides:
Upon refusal by any agency . . . to permit an applicant to be examined upon his
qualifications for licensure or upon refusal of such agency to issue or renew a
license of an applicant who has passed an examination for licensure or who
possesses the qualifications for licensure without examination, such applicant
may file, within thirty days . . . a complaint with the administrative hearing
commission.
On September 10, 2009, the AHC dismissed plaintiffs’ complaint filed under §
621.120. The commissioner found that administrative review of child-care licenses is
governed by § 210.245.2, which does not allow the aggrieved licensee to file a
complaint directly with the AHC.
Acting on plaintiffs’ written request for a hearing, DHSS duly filed the required
complaint pursuant to § 210.245.2. The commissioner held hearings and received
briefs and, on January 28, 2011, determined that plaintiffs were not entitled to renewal
of their child-care license. The commissioner cited TYBE’s “numerous and repeated
violations” of DHSS regulations and its “failure to prove that it is of good character and
intent and that it is qualified and equipped to render care or service conducive to the
welfare of children.” Plaintiffs filed petitions for judicial review of the Commission’s
decision in the Circuit Court of St. Louis County. TYBE Learning Center v. Missouri

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They were also informed that, since their license had expired on July 31, 2009,
they could no longer provide services to more than four unrelated children.
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Dep’t of Health & Senior Services, No. 11SL-CC00943 (filed Feb. 28, 2011); TYBE
Learning Center v. Missouri Dep’t of Health & Senior Services, No. 11SL-AC07332 (filed
Mar. 4, 2011). These actions are pending.
II.

Discussion

On September 4, 2009, plaintiffs filed suit pursuant to 42 U.S.C. § 1983,
asserting that their procedural due process rights had been violated. They sought a
temporary restraining order to allow them to operate “during the pendency of all
administrative proceedings involving the renewal of plaintiffs’ child-care facility license.”
The temporary restraining order was entered on September 21, 2009, following a
hearing. On October 25, 2009, the Court entered the parties’ consent preliminary
injunction, which allows plaintiffs to operate during the administrative proceedings, so
long as they followed all applicable statutes, rules, and regulations. The preliminary
injunction authorizes DHSS to carry out site inspections and to request dissolution of
the injunction if there is evidence of imminent harm or danger to children in plaintiffs’
care. DHSS has not sought dissolution and plaintiffs have been permitted to operate
as a licensed child care facility.
On January 28, 2011, the AHC issued its decision on the complaint filed by DHSS
pursuant to § 210.245.

Plaintiffs do not contest defendants’ assertion that this

administrative proceeding is now concluded.

Nonetheless, they argue that the

administrative complaint that they filed pursuant to § 621.110, and dismissed by the
AHC for lack of jurisdiction, remains pending.

Section 621.110 provides:

Upon a finding in any cause charged by the complaint for which the license may
be suspended or revoked as provided in the statutes and regulations relating to
the profession or vocation of the licensee, the commission shall deliver . . . to
the agency which issued the license the record and a transcript of the
proceedings before the commission together with the commission’s findings of
fact and conclusions of law. The commission may make recommendations as
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to appropriate disciplinary action but any such recommendations shall not be
binding upon the agency. . . Within thirty days after receipt of the record of the
proceedings before the commission and the findings of fact, conclusions of law,
and recommendations, if any, of the commission, the agency shall set the
matter for hearing upon the issue of appropriate disciplinary action and shall
notify the licensee of the time and place of the hearing. . . After such hearing
the agency may order any disciplinary measure it deems appropriate and which
is authorized by law.
§ 621.110, Mo.Rev.Stat. (emphasis added).
Plaintiffs characterize the AHC’s January 28, 2011, decision as “nothing more
than a ‘recommendation’” to DHSS. They claim that they are entitled to a “secondstage” disciplinary proceeding before DHSS. Until such a proceeding occurs, they
argue, the administrative proceedings remain pending and the injunction should stay
in place. This argument is unavailing: Plaintiffs’ § 621.110 action was dismissed and
the AHC acted on the § 210.245 proceeding filed by DHSS. Even if, as plaintiffs
contend, the AHC committed error in dismissing their § 621.110 proceeding, that error
did not invalidate the subsequent § 210.245 proceeding. Under § 210.245, plaintiffs
are not entitled to a “second-stage” hearing to determine the appropriate discipline.
Section 210.245 entitled plaintiffs to a hearing before the AHC on DHSS’s
decision not to renew their child-care facility license. Under ordinary circumstances,
it appears that the nonrenewal of the license would not have taken effect until the
conclusion of that hearing. In this instance, however, the nonrenewal decision was not
made until after plaintiffs’ license expired on July 31, 2009. DHSS took the position
that plaintiffs were unlicensed from that day forward. The purpose of the injunction
was to provide plaintiffs with the procedural protections created by the statute – the
opportunity to have a hearing on the nonrenewal before it took effect.

The

administrative proceedings have concluded and, thus, the purpose for which the
consent injunction was entered has been satisfied.
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If plaintiffs believe that they are entitled to an injunction to preserve the status
quo during judicial review of the AHC decision, a request for such relief may be
submitted to the state court that is conducting the review.
Accordingly,
IT IS HEREBY ORDERED that the preliminary injunction entered on October
8, 2009 [Doc. #25] is dissolved.
IT IS FURTHER ORDERED that the effect of this order is stayed until Friday,
May 13, 2011, at 12:00 noon (Central Time).

_________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of May, 2011.

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