FAITH CENTER MISSIONARY BAPTIST CHURCH, INC. D/B/A FAITH CENTER DAY SCHOOL v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH SERVICES, DIVISION OF LICENSED CHILD CARE
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RENDERED: May 6, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000239-MR
FAITH CENTER MISSIONARY BAPTIST CHURCH, INC.
D/B/A FAITH CENTER DAY SCHOOL
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 02-CI-00157
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH SERVICES,
DIVISION OF LICENSED CHILD CARE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BARBER, JUDGE:
Faith Center Missionary Baptist Church, Inc.
d/b/a Faith Center Day School (FCDS) appeals from an order of
the Franklin Circuit Court that upheld the Commonwealth’s denial
of relicensure for its day care program.
We affirm.
FCDS was a licensed day care facility operating in
Lexington, Kentucky.
On April 6, 1999, June 24, 1999, July 6,
1999, and August 6, 1999, it was inspected and various
violations of regulatory requirements were found to exist.
The
last inspection on August 6, 1999, noted some new violations and
some violations that continued to be uncorrected from the prior
inspections.
On September 22, 1999, the Commonwealth of
Kentucky, Cabinet for Health Services, Division of Licensed
Child Care (the Cabinet) notified FCDS that it was denying
relicensure of the facility.
FCDS requested review of the decision and a hearing
officer assigned to the case recommended that the decision to
deny licensure be upheld.
FCDS did not file exceptions to the
hearing officer’s recommendation.
On December 26, 2001 the
Cabinet issued a final order denying relicensure and adopting
the hearing officer’s recommendation in full as its own order.
FCDS filed an appeal from the Cabinet’s order and the
Franklin Circuit Court affirmed on the basis that substantial
evidence of record existed to support the Cabinet’s
determination.
We now affirm the court’s ruling but for
different reasons.
O’Neal v. O’Neal, 122 S.W.3d 588, 589
(Ky.App. 2002); CR 60.03.
The failure of FCDS to file exceptions to the
recommended order of the hearing officer, while not precluding
judicial review, does limit the scope of review to any findings
and conclusions in the Cabinet’s final order that differ from
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the hearing officer’s recommended order.
Rapier v. Philpot, 130
S.W.3d 560, 564 (Ky. 2004).
In the present case the Cabinet adopted the hearing
officer’s recommendation in full and did not expand upon that
recommendation with any other findings or conclusions.
Therefore, in order for FCDS to preserve its position it was
necessary for it to file exceptions to the recommended order.
Because it failed to do so, the issues it presents are not
preserved for review.
For the foregoing reasons the decision of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William E. Peale, Jr.
Frankfort, Kentucky
Johann Herklotz
Frankfort, Kentucky
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