LIBERTY ROAD CHRISTIAN SCHOOL v. TODD COUNTY HEALTH DEPARTMENT AND CABINET FOR HEALTH SERVICES AND FAMILIESAnnotate this Case
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
LIBERTY ROAD CHRISTIAN SCHOOL
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 02-CI-00080
TODD COUNTY HEALTH DEPARTMENT
CABINET FOR HEALTH SERVICES AND
** ** ** ** **
BUCKINGHAM, DYCHE, AND TAYLOR, JUDGES.
Liberty Road Christian School appeals from
an order of the Todd Circuit Court denying its motion to
dissolve an injunction closing the school.
Liberty Road Christian School is a private parochial
school located in Todd County, Kentucky.
The building is
composed of one room that also serves as the Meadow Valley
The litigation conducted herein on behalf of
the school is through its school board members.
Thus, we will
hereinafter refer to the appellant as “the school board.”
On June 20, 2002, the Todd County Health Department
filed a civil complaint in the Todd Circuit Court alleging that
the school board had refused to comply with applicable
provisions of KRS 1 212.210 and 902 KAR 2 45:150, which govern
school sanitation standards.
The health department sought a
temporary restraining order and permanent injunction to enforce
compliance with the applicable regulations.
violations asserted against the school were that it had neither
an appropriate water system available for drinking and hand
washing nor an approved toilet or privy system including a
The school board filed a pro se response to the
complaint, in which no formal legal argument was presented.
The health department filed a motion for summary
judgment, which was heard by the court on September 19, 2002.
School board members and other individuals appeared without
counsel in opposition to the motion.
The court allowed those
present to speak openly about their concerns, and it attempted
to elicit any legal defense to enforcement of the school
Those opposing the motion explained
Kentucky Revised Statutes.
Kentucky Administrative Regulations.
that the changes sought by the health department would be costly
and in conflict with their religious beliefs and traditions.
Although the school board members did not recognize
the authority of the health department to impose regulations on
their school, they did not claim that the enforcement of the
regulations violated their right to freely exercise their
Further, they did not assert that the regulations
were void or illegal or that they were being enforced in an
arbitrary or unfair manner.
The court specifically inquired
into these matters at the hearing.
At one point, the court also inquired about the school
board hiring legal counsel, but the board members indicated
their refusal to do so for religious reasons.
board indicated its intent not to comply with the applicable
On October 9, 2002, the court granted the health
department’s motion for summary judgment.
In doing so, it
enjoined the operation of the Liberty Road Christian School
until the school board substantially complied with the
The court scheduled a hearing for the following
week to determine if the board had made any attempt to comply
with the regulations.
On October 16, 2002, the court entered an
order finding that no such attempt had been made, and it ordered
the school to be closed.
The school board did not appeal from
that order, which the court had stated was final and appealable.
On February 23, 2004, the school board, 3 with counsel
and pursuant to CR 4 60.02, filed a motion to dissolve the
The motion stated that there had been a substantial
change in conditions that warranted the dissolution of the
injunction entered by the court in October 2002.
In support of
its motion, the board asserted it had complied with applicable
state regulations, and it attached various documents, including
a letter from Dr. Rice C. Leach, Commissioner of the Kentucky
Cabinet for Health Services.
Therein, Dr. Leach set forth
“[c]ertain provisions and variances” for the “guidance and
recommendations of the Department for Public Health (DPH) to the
Todd County Health Department and others regarding the opening
of Liberty Road School.”
Dr. Leach stated that these provisions and variances
were “being offered to accommodate the unique circumstances
surrounding the establishment of this Amish School, both
recognizing the right of individuals to practice their religious
beliefs and the Department for Public Health’s statutory
obligation to ensure public health and safety by the regulation
The membership of the school board had changed between the court’s October
2002 order and the board’s February 2004 motion to dissolve the injunction.
Kentucky Rules of Civil Procedure.
of sanitation of schools.”
The variances included unapproved
sources of potable water, unapproved hand-washing methods, and a
non-flush septic system.
Dr. Leach concluded his letter by
stating that the school board “must seek approval from other
agencies, including the Division of Plumbing, Department of
Housing, Buildings and Construction, to ensure the school meets
other agency’s criteria for operating a school.”
The school board then sought an exemption under the
state plumbing code as a Special Religious Use Group from the
Office of Housing, Buildings and Construction.
On December 11,
2003, a hearing was held before a hearing officer, Frank
Dempsey, for the purpose of determining whether a Special
Religious Use Group exemption should be allowed for the school.
Dempsey concluded that based on the evidence, “the Board of
Housing, Buildings and Construction may place the project into
the Special Religious Use Group and waive the portions of the
Kentucky Building Code and the Kentucky Plumbing Code which
conflict with Petitioner’s religious beliefs.”
On February 12, 2004, the chairman of the Board of
Housing, Buildings and Construction adopted the hearing
officer’s report and specifically stated that “any provisions of
the Kentucky Building Code or Kentucky Plumbing Code or
associated referenced standards which would require the project
to include electric power, hot and cold running water, flushed
toilets or a pressurized water system are WAIVED.”
officer’s report and the order were also attached to the school
board’s motion to dissolve the injunction.
On March 22, 2004, the court entered an order granting
the school board’s motion to add the Cabinet for Health Services
as an indispensable third party to the case.
On April 5, 2004,
the Cabinet granted a permit allowing the operation of the
The permit stated that the school was in compliance
with school sanitation law.
The Cabinet then filed a response
in the case stating it felt the issuance of a certificate of
operation was appropriate “in recognition of the efforts of the
Board to comply with the recommendations of the agency.”
Cabinet further responded that “[i]n the event of an outbreak of
a disease traceable to sanitation practices, the state and local
agencies will rely upon the statutory right to direct
improvement of safety and sanitary practices including and not
limited to the addition of equipment and practices to protect
against the spread of disease.”
The local health department responded by arguing that
the actions of the various state officials did not preempt local
enforcement of the state regulations.
Further, it argued that
the state agencies were not following their own regulations.
Finally, the health department noted that the school was still
not in compliance with applicable state sanitation regulations.
It also asserted that the Cabinet did not have the authority to
grant the proposed variances.
The court entered an order on May 26, 2004, denying
the school board’s motion to dissolve the injunction.
noted the Cabinet’s position that the sanitary regulations had
not yet been completely satisfied, but that the injunction
should be lifted because school officials were now more
cooperative and acting in good faith.
The court further noted
the health department’s position that it had the legal duty to
enforce school sanitation regulations and that neither the state
health department nor the Cabinet had the authority to choose
not to enforce the regulations as written.
The court phrased
the issue in the case as “whether the decision of the Cabinet
not to enforce school sanitation regulations preempts the local
Health Department from enforcing those same regulations.”
Based on KRS 212.210(1) and (3), the court concluded
that “a local health department has the duty to enforce state
health and safety regulations independently of, and regardless
of, whether the Cabinet chooses to do so.”
Further, the court
concluded that the Cabinet had a “clear duty” to enforce its
existing regulations and not to give “individualized special
treatment by a Commissioner and Cabinet charged with enforcing a
law, where there is no existing provision for a variance from
The court cited Hagan v. Farris, 807 S.W.2d 488 (Ky.
1991), to support its decision.
The court also stated that the
school board had the right to comply with existing sanitation
laws and that the court “stands ready to review the matter and,
upon a finding of substantial compliance, lift the injunction.”
Upon the court’s entry of its order and the denial of the school
board’s motion to alter, amend, or vacate, this appeal by the
school board followed.
The school board raises several arguments in an
attempt to persuade us that the circuit court erred in denying
its motion to dissolve the injunction.
these arguments separately.
We will address each of
First, the school board argues that
the Todd County Health Department did not have independent
standing and legal authority to initiate a legal proceeding to
unilaterally enforce the school sanitation laws.
board asserts that such authority was vested in the Todd County
Board of Health rather than the Todd County Health Department.
In support of its argument, the school board cites KRS
212.210(1) and (3).
These statutes address the powers of the
Cabinet for Health Services and local health boards, and the
statutes state that an action concerning an unsanitary or unsafe
school building may be instituted in the circuit court by the
local board of health or by the Cabinet.
See KRS 212.210(3).
We disagree with the argument that the Todd County
Health Department had no authority to bring an enforcement
action against the school board.
KRS 212.240(1) gives county
health departments the authority to administer and enforce all
applicable public health laws and all rules and regulations of
the Cabinet for Health Services.
KRS 212.245(6) provides that
“any health officer may institute and maintain mandatory or
prohibitory injunction proceedings in the appropriate Circuit
Courts of this state . . . to compel compliance with the public
health laws of this state and the rules and regulations of the
Cabinet for Health Services[.]”
KRS 212.230(2) provides that,
subject to exceptions not applicable herein, “all powers and
authority of the local board of health under existing statutes
are transferred to the county department of health.”
we conclude that the Todd County Health Department had the
authority to bring the injunction action in circuit court to
enforce the state school sanitation laws.
Second, the school board argues that the circuit court
erred in determining that the Todd County Health Department had
the duty to enforce state health regulations “independently of,
and regardless of, whether the Cabinet chooses to do so.”
school board argues that the Cabinet has “preemption” over local
health departments in matters where the Cabinet has taken a
direct position involving state regulations.
While it is true that the school sanitation regulations in 902
KAR 45:150 are regulations promulgated by the Cabinet, the
aforementioned statutes give local health departments the
authority to enforce the regulations and to pursue injunctive
action in circuit courts.
Furthermore, as we will explain
later, the Cabinet has no right to ignore or refuse to enforce
its own regulations.
The school board’s third argument is that the permit
to operate the school issued by the Cabinet on April 5, 2004,
which stated that the school was in compliance with school
sanitation laws, is substantial evidence that the school board
was in compliance with the injunction requirement that the
school be closed until such time as there was compliance with
the applicable regulations.
In addressing this issue, the court
noted that the Cabinet’s regulations have the force of law and
that neither the Commissioner nor the Cabinet had the authority
to arbitrarily choose not to enforce its regulations.
support of its decision, the court cited the Hagan case wherein
the Kentucky Supreme Court held that “[a]n agency must be bound
by the regulations it promulgates.”
We agree with the court that the Cabinet acted
arbitrarily by issuing the permit despite the fact the school
At this point, we note that the Cabinet did not join with the school board
in appealing the orders of the circuit court. The Cabinet has filed a brief,
wherein it acknowledges that the circuit court correctly determined that the
local health department had concurrent authority to enforce the school
sanitation laws. Further, the Cabinet implicitly acknowledges that there was
no authority for its issuance of a variance from school sanitation
regulations. The Cabinet also states in its brief that its efforts to
resolve the controversy in Todd County was “undertaken at the request of
elected members of the General Assembly.”
was not in compliance with the school sanitation regulations.
See Commonwealth, Transportation Cabinet v. Weinberg, 150 S.W.3d
75, 77 (Ky.App. 2004) (“[i]t is axiomatic that failure of an
administrative agency to follow its own rule or regulation
generally is per se arbitrary and capricious”). Furthermore, as
the regulations did not provide for the issuance of a waiver,
variance, or exemption, we conclude that the permit was
improperly issued and that its issuance did not require the
court to lift the injunction.
The fourth argument raised by the school board is that
42 U.S.C. § 2000cc (Religious Land Use and Institutionalized
Persons Act of 2000, hereinafter referred to as RLUIPA)
precludes the Todd County Health Department’s insistence that it
has the continuing authority to strictly enforce compliance with
the plumbing code provisions of the school sanitation law at the
The school board asserts that the health department’s
failure to accept and apply the Special Religious Use Group
exemption granted by the Board of Housing, Buildings and
Construction was a substantial burden on the school’s religious
exercises because the health department failed to implement an
“individualized assessment” land use regulation that “is the
least restrictive means of furthering that compelling government
RLUIPA specifically prohibits any government agency
from imposing or implementing a land use regulation in a manner
that imposes a substantial burden on the religious exercise of a
person, including a religious institution, unless the government
demonstrates that imposition of the burden is in furtherance of
a compelling governmental interest and is the least restrictive
means of furthering that compelling governmental interest.
U.S.C. § 2000cc (a)(1); see also Cottonwood Christian Center v.
Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1220
The school board has not persuaded us that
requiring it to comply with school sanitation laws is a land use
regulation that imposes a substantial burden on the free
exercise of religion.
First, the statute defines “land use
regulation” as “a zoning or landmarking law, or the application
of such a law, that limits or restricts a claimant’s use or
development of land . . . .”
42 U.S.C. § 2000cc-5(5).
sanitation law is not a land use regulation.
At any rate, as the Kentucky Supreme Court stated in
Kentucky State Bd. of Elementary and Secondary Education v.
Rudasill, 589 S.W.2d 877, 884 (Ky. 1979), there is nothing that
prohibits the state from requiring private and parochial schools
to comply with health and safety standards as conditions for
The U.S. Supreme Court held in Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113
S.Ct. 2217, 2226, 124 L.Ed.2d 472 (1993), that “a law that is
neutral and of general applicability need not be justified by a
compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice.”
The school sanitation laws are neutral and of general
Therefore, the laws need not be justified by any
compelling governmental interest.
The school board’s fifth argument is that the Office
of Housing, Buildings and Construction waived any requirements
that it comply with the Kentucky Building Code or Kentucky
Plumbing Code requirements of electric power, hot and cold
running water, flushed toilets, or a pressurized water system.
The board refers to the recommended order that was signed by the
chairman of the Board of Housing, Buildings and Construction on
February 12, 2004.
The board argues that this order exempts it
from complying with school sanitation laws in this regard.
The health department and the Cabinet are charged by
statute with enforcing school sanitation laws, and we know of no
authority, nor has the school board cited any, which would allow
another state agency to grant such an exemption or waive the
regulatory requirements of the agency charged with enforcement.
Finally, the school board argues that the circuit
court committed reversible error by not finding it had complied
with the injunction issued in October 2002.
This matter was
addressed by the court in its order denying the school board’s
motion to alter, amend, or vacate the order denying the board’s
motion to dissolve the injunction.
As the court noted in its
last order, neither the school board nor the Cabinet had claimed
that the school was in actual compliance with the applicable
The court noted that the issue before it was
whether the Cabinet’s decision to issue a permit to operate the
school despite the fact that the school was not yet in
compliance preempted the ability of the health department to
enforce the applicable regulations.
analysis in this regard.
We agree with the court’s
Furthermore, the court noted that it
stood ready to review the issue of compliance and to lift the
injunction if such compliance was shown.
The orders of the Todd Circuit Court are affirmed.
BRIEF AND ORAL ARGUMENT FOR
Daniel N. Thomas
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, TODD COUNTY HEALTH
Harold M. Johns
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, CABINET FOR HEALTH
AND FAMILY SERVICES:
John H. Walker
Office of Legal Services