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Clonts v. State ex rel Dep't of Health9/27/2005
__ P.3d __
Title 63 O.S.Supp. 2002, §1-1914.2(C) provides that when an operator of a licensed care facility files an administrative appeal in District Court from the Commissioner of the Oklahoma Health Department's appointment of a temporary operator for that facility, the court " . . . shall conduct a hearing on the petition within five (5) working days of such action by the Department" and, when docketed, the petition for hearing . . . "shall have priority over all cases pending on the docket except criminal cases." The question is whether this provision justified the District Court's dismissal of plaintiff's petition for hearing on his appeal because he failed to present the matter for hearing within five working days after "such action by the Department. " We find it does not and we reverse the trial court's dismissal and remand the matter for further proceedings.
The record reveals the following relevant facts. Plaintiff/appellant, Junior Earl Clonts was the licensee and operator of Paden Residential Care Center in Paden, Oklahoma, a facility licensed by the Oklahoma State Department of Health. On July 19, 2004, the Commissioner of the Oklahoma Health Department issued an emergency order appointing and placing a temporary manager in charge of the care center based on the Department's determination that conditions existed which warranted that action to protect the health and safety of the residents. The Department asserted power and jurisdiction to issue the order pursuant to provisions of 63 O.S. 2001, §§ 1-106(B)(4), 1-821, 1-830, 1-840 and 63 O.S. Supp 2002, §1-1914.2(C), and the Oklahoma Administrative Code §310:2-5-16 (1999).
The order directed Mr. Clonts to cease and desist from exercising any control over the facility and prohibited him from transferring any resident without the approval of the temporary manager. It gave the temporary manager full authority to assume the control and management of the day-to-day operations of the care center, including, among other things, total financial control with access to all financial accounts necessary for its operation, although Mr. Clonts, as licensee, and any individual owners would remain responsible for any liability incurred in the operation of the facility. The order placed responsibility for the temporary manager's salary and other employment costs with Mr. Clonts, and set that salary at one hundred ninety-five dollars ($195.00) per hour.
On July 27, 2004, six working days later, Mr. Clonts filed his appeal from the administrative emergency order in the District Court of Oklahoma County. He asserted both substantive and procedural challenges to the validity of the order and to its issuance, and he challenged the applicability of the statutes relied on by the Department to his care facility.
Defendant State Health Department filed a motionto dismiss the appeal for lack of appellate jurisdiction, contending § 1-1914.2(C) is a statute of repose and that since Mr. Clonts failed to have the court hear the matter within the specified five days, the District Court had no appellate jurisdiction and the appeal should be dismissed. The Department set out the definition of a statute of repose for the trial court but cited no authority in support of its position that this provision is such a statute. On September 29, 2004, the trial court granted the Department's motion and dismissed the appeal, finding the district court lacked appellate jurisdiction because regardless of whether the appeal was timely filed, Mr. Clonts failed to set the matter for hearing within the prescribed five days.
In this accelerated appeal, Mr. Clonts challenges the correctness of the trial court's judgm
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