Printable Format65-504. Licenses; contents; limitations; posting; inspections; temporary permits; access to premises; temporary licenses; denial or revocation of license; procedure. (a) The secretary of health and environment shall have the power to grant a license to a person to maintain a maternity center or child care facility for children under 16 years of age. A license granted to maintain a maternity center or child care facility shall state the name of the licensee, describe the particular premises in or at which the business shall be carried on, whether it shall receive and care for women or children, and the number of women or children that may be treated, maintained, boarded or cared for at any one time. No greater number of women or children than is authorized in the license shall be kept on those premises and the business shall not be carried on in a building or place not designated in the license. The license shall be kept posted in a conspicuous place on the premises where the business is conducted. A license granted to maintain a day care facility shall have on its face an expiration sticker stating the date of expiration of the license.
The secretary of health and environment shall grant no license in any case until careful inspection of the maternity center or child care facility shall have been made according to the terms of this act and until such maternity center or child care facility has complied with all the requirements of this act. Except as provided by this subsection, no license shall be granted without the approval of the secretary for children and families. The secretary of health and environment may issue, without the approval of the secretary for children and families, a temporary permit to operate for a period not to exceed 90 days upon receipt of an initial application for license. The secretary of health and environment may extend, without the approval of the secretary for children and families, the temporary permit to operate for an additional period not to exceed 90 days if an applicant is not in full compliance with the requirements of this act but has made efforts towards full compliance.
(b) (1) In all cases where the secretary for children and families deems it necessary, an investigation of the maternity center or child care facility shall be made under the supervision of the secretary for children and families or other designated qualified agents. For that purpose and for any subsequent investigations they shall have the right of entry and access to the premises of the center or facility and to any information deemed necessary to the completion of the investigation. In all cases where an investigation is made, a report of the investigation of such center or facility shall be filed with the secretary of health and environment.
(2) In cases where neither approval or disapproval can be given within a period of 30 days following formal request for such a study, the secretary of health and environment may issue a temporary license without fee pending final approval or disapproval of the center or facility.
(c) Whenever the secretary of health and environment refuses to grant a license to an applicant, the secretary shall issue an order to that effect stating the reasons for such denial and within five days after the issuance of such order shall notify the applicant of the refusal. Upon application not more than 15 days after the date of its issuance a hearing on the order shall be held in accordance with the provisions of the Kansas administrative procedure act.
(d) When the secretary of health and environment finds upon investigation or is advised by the secretary for children and families that any of the provisions of this act or the provisions of K.S.A. 59-2123, and amendments thereto, are being violated, or that the maternity center or child care facility is maintained without due regard to the health, safety or welfare of any woman or child, the secretary of health and environment may issue an order revoking such license after giving notice and conducting a hearing in accordance with the provisions of the Kansas administrative procedure act. The order shall clearly state the reason for the revocation.
(e) If the secretary revokes or refuses to renew a license, the licensee who had a license revoked or not renewed shall not be eligible to apply for a license for a period of one year subsequent to the date such revocation or refusal to renew becomes final. If the secretary revokes or refuses to renew a license of a licensee who is a repeat, three or more times, violator of statutory requirements or rules and regulations or is found to have contributed to the death or serious bodily harm of a child under such licensee's care, such licensee shall be permanently prohibited from applying for a new license to provide child care or from seeking employment under another licensee.
(f) Any applicant or licensee aggrieved by a final order of the secretary of health and environment denying or revoking a license under this act may appeal the order in accordance with the Kansas judicial review act.
History: L. 1919, ch. 210, § 4; R.S. 1923, 65-504; L. 1951, ch. 358, § 1; L. 1961, ch. 285, § 1; L. 1974, ch. 352, § 86; L. 1978, ch. 236, § 3; L. 1982, ch. 258, § 3; L. 1983, ch. 147, § 2; L. 1984, ch. 313, § 93; L. 1985, ch. 209, § 2; L. 1988, ch. 239, § 1; L. 1989, ch. 188, § 1; L. 1990, ch. 145, § 37; L. 1991, ch. 184, § 1; L. 1994, ch. 279, § 7; L. 2000, ch. 137, § 1; L. 2010, ch. 161, § 5; L. 2012, ch. 99, § 2; L. 2014, ch. 115, § 249; July 1.
Revisor's Note:
Section was amended twice in the 2010 session, see also 65-504a.
Law Review and Bar Journal References:
"Administrative Law—Right to Hearing Prior to Denial of License Application," Jess J. Myers, 9 W.L.J. 141, 144 (1969).
"Administrative Law: The Kansas Commission on Civil Rights—True De Novo Review Arrives," Samuel D. Ogelby, 16 W.L.J. 161, 163 (1976).
Judicial review of administrative decisions, 17 W.L.J. 312, 329 (1978).
"Rethinking Kansas Administrative Procedure," Marilyn V. Ainsworth and Sidney A. Shapiro, 28 K.L.R. 419, 437, 444 (1980).
"Judicial Review of Administrative Action—Kansas Perspectives," David L. Ryan, 19 W.L.J. 423, 426, 433 (1980).
"Administrative Law: Findings of Fact, A Review of the Federal Administrative Procedure Act and Kansas Law," David W. Queen, 22 W.L.J. 58, 72 (1982).
Attorney General's Opinions:
Persons prohibited from employment by homes for children; effect of expungement of offense. 84-115.
KDHE does not violate due process rights for suspension of day care facility's license because of suspected child abuse by employee. 87-110.
License or temporary permit required for maternity hospital and homes for children; boarding home for children defined. 93-4.
Child care facilities; temporary licenses and permits; providing care after expiration. 1999-19.
Licensed child care facility may be used to house children ages 16 and 17. 1999-47.
Absent home rule power, multi-county joint board of health has no power to assess fees. 1999-63.
CASE ANNOTATIONS
1. Constitutionality upheld. Rydd v. State Board of Health, 202 Kan. 721, 725, 726, 451 P.2d 239.
2. Before denial of license, notice and an opportunity for hearing must be given applicant, and order of denial must set forth facts upon which board based its decision. Rydd v. State Board of Health, 202 Kan. 721, 726, 729, 730, 451 P.2d 239.
3. Separation of powers doctrine prevents trial court from substituting its judgment on certain matters for that of administrative board, but it may act on appeal if it finds the board's order arbitrary, unlawful or unreasonable; court not limited to evidence before board. Rydd v. State Board of Health, 202 Kan. 721, 729, 732, 451 P.2d 239.
4. Mentioned; testing reasonableness of ordinance under K.S.A. 12-712; admissibility of evidence. Keeney v. City of Overland Park, 203 Kan. 389, 393, 454 P.2d 456.
5. Cited; appeal from decision of administrative agency; no trial de novo. Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 205 Kan. 780, 785, 473 P.2d 72.
6. Cited in holding K.S.A. 60-2101 (a) does not permit trial de novo in district court from order of administrative agency. Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 742, 518 P.2d 377.
7. Referred to in case construing provisions of K.S.A. 44-1011 concerning trial de novo on appeal (dissenting opinion). Stephens v. Unified School District, 218 Kan. 220, 239, 546 P.2d 197.
8. Referred to in determining scope of review on appeal from school board decision limited by K.S.A. 60-2101. Brinson v. School District, 223 Kan. 465, 468, 469, 576 P.2d 602.
9. Cited; the state has a legitimate and compelling interest to protect children and may require private establishments which provide residential care for children to be licensed. State ex rel. O'Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 248, 607 P.2d 1102.