JOHN F. FISCHER, Judge.
_ T1 The district court defendants, Brook-dale Senior Living, Inc., and Brookdale Senior Living, Inc., d/b/a Alterra Sterling House of Edmond (collectively, Alterra) appeal the district court's Order Denying Motion To Compel Arbitration pursuant to 12 O.S. Supp.2009 § 1879(A)(1). We find that the plaintiff's action is not subject to arbitration, and, therefore, affirm the order of the district court.
BACKGROUND
2 Alterra operates an assisted living center. On September 27, 2006, Rick Osborn, as guardian for Noel Osborn, executed Alterra's Residency Agreement securing care and treatment for his ward in Alterra's facility. The Residency Agreement provided for compulsory arbitration of all claims concerning Osborn's care. Noel Osborn resided in Al-terra's facility from November 2006 until April 2008. Through his guardians, Osborn filed this suit alleging that Alterra was negligent in providing care and that he suffered injuries as a result of that negligence.
13 Alterra moved to compel arbitration pursuant to the Residency Agreement. Al-terra argued that it was engaged in interstate commerce because it purchased supplies from out-of-state vendors and accepted residents from states other than Oklahoma. Alterra concluded that its Residency Agreement was, therefore, subject to the Federal Arbitration Act (FAA), and the arbitration provision was enforceable. Alterra also sought to avoid the statutory prohibition on arbitration provisions in the Oklahoma Nursing Home Care Act by arguing that it was an assisted living center, not a nursing home or nursing facility. Alterra appeals from the district court's order denying its motion to compel arbitration.
STANDARD OF REVIEW
T4 The de novo standard of review applies to the review of an order granting or denying a motion to compel arbitration. Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572.
ANALYSIS
{5 The Residential Care Act is codified in Article 8 of Title 68 at sections 1-819 to 1-840. The Residential Care Act governs, among other things, the licensure of "homes." A "home" is defined as a Residential Care Home. 68 O.S. Supp.2008 § I-820(11). A Residential Care Home is:
any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses [676]*676any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.
63 0.8. Supp.2008 § 1-820(12)(a).1
T 6 Residential care homes are required to comply with certain provisions of the Oklahoma Nursing Home Care Act, 68 0.8.2001 and Supp.2006 §§ 1-1900.1 to 1-1948.1, and 1-1950 to 1-1951. Section 1-1989 of that Act prohibits a covered entity from requiring the arbitration of certain disputes between the facility and its residents: "Any waiver by a resident or the legal representative of the resident of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect." 68 0.8. Supp.2008 § 19839(D). "Any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal foree or effect." 63 O.S. Supp.2008 § 1939(E). See also Bruner v. Timberlane Manor Ltd. P'ship, 2006 OK 90, ¶¶ 46-47, 155 P.3d 16, 32 (finding that the FAA does not pre-empt the Oklahoma Nursing Home Care Act and that the district court did not err when it applied § 1-1989(D) and (E) to an arbitration agreement contained in a nursing home's admission contract and rendered it unenforceable).
T7 Alterra argues that because it operates an assisted living center rather than a nursing home, its arbitration agreement is not prohibited. Alterra's argument is not supported by traditional principles of statutory construction. The Continuum of Care and Assisted Living Act, 68 0.9.2001 §§ 1-890.1 to 1-894, specifically applicable to the facility operated by Alterra, is included within Article 8 of Title 68, the same Title within which the prohibition on arbitration provisions is located. Section 1-890.2(1) of the Continuum of Care Act defines an assisted living center as follows:
"Assisted living center" means any home or establishment offering, coordinating or providing services to two or more persons who:
a. are domiciled therein,
b. are unrelated to the operator,
c. by choice or functional impairments, need assistance with personal care or nursing supervision,
d. may need intermittent or unscheduled nursing care,
e. may need medication assistance, and
f. may need assistance with transfer and/or ambulation.
63 00.98.2001 § 1-890.2 (emphasis added). The Continuum of Care Act does not separately define "home." The only definition of "home" in Article 8 is found at 63 O.S. Supp. 2008 § 1-820(11), which defines "home" as a residential care home.
18 Further, the services provided by an assisted living center are the same as the services provided by a residential care home. A residential care home is:
any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.
63 0.8. Supp.2008 § 1-820(12)(a). The "supportive assistance" provided by an assisted Tiving center is:
the service rendered to any person which is sufficient to enable the person to meet an adequate level of daily living. Supportive assistance includes, but is not limited to, housekeeping, assistance in the preparation of meals, assistance in the safe storage, distribution and administration of medications, and assistance in personal care as necessary for the health and comfort of such person.
63 0.8. Supp.2008 § 1-820(21). Finally, it is clear that the Legislature considered an assisted living center to be a residential care [677]*677home. See 63 0.9.2001 § 1-890.6(A) 2 of the Continuum of Care Act, excluding from the coverage of that Act certain, but not all, residential care homes.
{9 Nonetheless, as Alterra argues, the Nursing Home Care Act provides:
The Nursing Home Care Act shall not apply to any facility operated by the Oklahoma Department of Veterans Affairs under control of the Oklahoma War Veterans Commission residential care homes, assisted living facilities or adult compamion homes which are operated in conjunction with a nursing facility, or to hotels, motels, boarding houses, rooming houses, or other places that furnish board or room to their residents.
63 O.S8. Supp.2008 § 1-1908(B) (emphasis added). Alterra concludes that this provision excludes assisted living centers from any provision of the Nursing Home Care Act, specifically the provisions of section 1-1989 banning arbitration agreements.3
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JOHN F. FISCHER, Judge.
_ T1 The district court defendants, Brook-dale Senior Living, Inc., and Brookdale Senior Living, Inc., d/b/a Alterra Sterling House of Edmond (collectively, Alterra) appeal the district court's Order Denying Motion To Compel Arbitration pursuant to 12 O.S. Supp.2009 § 1879(A)(1). We find that the plaintiff's action is not subject to arbitration, and, therefore, affirm the order of the district court.
BACKGROUND
2 Alterra operates an assisted living center. On September 27, 2006, Rick Osborn, as guardian for Noel Osborn, executed Alterra's Residency Agreement securing care and treatment for his ward in Alterra's facility. The Residency Agreement provided for compulsory arbitration of all claims concerning Osborn's care. Noel Osborn resided in Al-terra's facility from November 2006 until April 2008. Through his guardians, Osborn filed this suit alleging that Alterra was negligent in providing care and that he suffered injuries as a result of that negligence.
13 Alterra moved to compel arbitration pursuant to the Residency Agreement. Al-terra argued that it was engaged in interstate commerce because it purchased supplies from out-of-state vendors and accepted residents from states other than Oklahoma. Alterra concluded that its Residency Agreement was, therefore, subject to the Federal Arbitration Act (FAA), and the arbitration provision was enforceable. Alterra also sought to avoid the statutory prohibition on arbitration provisions in the Oklahoma Nursing Home Care Act by arguing that it was an assisted living center, not a nursing home or nursing facility. Alterra appeals from the district court's order denying its motion to compel arbitration.
STANDARD OF REVIEW
T4 The de novo standard of review applies to the review of an order granting or denying a motion to compel arbitration. Thompson v. Bar-S Foods Co., 2007 OK 75, ¶ 9, 174 P.3d 567, 572.
ANALYSIS
{5 The Residential Care Act is codified in Article 8 of Title 68 at sections 1-819 to 1-840. The Residential Care Act governs, among other things, the licensure of "homes." A "home" is defined as a Residential Care Home. 68 O.S. Supp.2008 § I-820(11). A Residential Care Home is:
any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses [676]*676any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.
63 0.8. Supp.2008 § 1-820(12)(a).1
T 6 Residential care homes are required to comply with certain provisions of the Oklahoma Nursing Home Care Act, 68 0.8.2001 and Supp.2006 §§ 1-1900.1 to 1-1948.1, and 1-1950 to 1-1951. Section 1-1989 of that Act prohibits a covered entity from requiring the arbitration of certain disputes between the facility and its residents: "Any waiver by a resident or the legal representative of the resident of the right to commence an action under this section, whether oral or in writing, shall be null and void, and without legal force or effect." 68 0.8. Supp.2008 § 19839(D). "Any party to an action brought under this section shall be entitled to a trial by jury and any waiver of the right to a trial by a jury, whether oral or in writing, prior to the commencement of an action, shall be null and void, and without legal foree or effect." 63 O.S. Supp.2008 § 1939(E). See also Bruner v. Timberlane Manor Ltd. P'ship, 2006 OK 90, ¶¶ 46-47, 155 P.3d 16, 32 (finding that the FAA does not pre-empt the Oklahoma Nursing Home Care Act and that the district court did not err when it applied § 1-1989(D) and (E) to an arbitration agreement contained in a nursing home's admission contract and rendered it unenforceable).
T7 Alterra argues that because it operates an assisted living center rather than a nursing home, its arbitration agreement is not prohibited. Alterra's argument is not supported by traditional principles of statutory construction. The Continuum of Care and Assisted Living Act, 68 0.9.2001 §§ 1-890.1 to 1-894, specifically applicable to the facility operated by Alterra, is included within Article 8 of Title 68, the same Title within which the prohibition on arbitration provisions is located. Section 1-890.2(1) of the Continuum of Care Act defines an assisted living center as follows:
"Assisted living center" means any home or establishment offering, coordinating or providing services to two or more persons who:
a. are domiciled therein,
b. are unrelated to the operator,
c. by choice or functional impairments, need assistance with personal care or nursing supervision,
d. may need intermittent or unscheduled nursing care,
e. may need medication assistance, and
f. may need assistance with transfer and/or ambulation.
63 00.98.2001 § 1-890.2 (emphasis added). The Continuum of Care Act does not separately define "home." The only definition of "home" in Article 8 is found at 63 O.S. Supp. 2008 § 1-820(11), which defines "home" as a residential care home.
18 Further, the services provided by an assisted living center are the same as the services provided by a residential care home. A residential care home is:
any establishment or institution which offers, provides or supports residential accommodations, food service, and supportive assistance to any of its residents or houses any residents requiring supportive assistance who are not related to the owner or administrator of the home by blood or marriage.
63 0.8. Supp.2008 § 1-820(12)(a). The "supportive assistance" provided by an assisted Tiving center is:
the service rendered to any person which is sufficient to enable the person to meet an adequate level of daily living. Supportive assistance includes, but is not limited to, housekeeping, assistance in the preparation of meals, assistance in the safe storage, distribution and administration of medications, and assistance in personal care as necessary for the health and comfort of such person.
63 0.8. Supp.2008 § 1-820(21). Finally, it is clear that the Legislature considered an assisted living center to be a residential care [677]*677home. See 63 0.9.2001 § 1-890.6(A) 2 of the Continuum of Care Act, excluding from the coverage of that Act certain, but not all, residential care homes.
{9 Nonetheless, as Alterra argues, the Nursing Home Care Act provides:
The Nursing Home Care Act shall not apply to any facility operated by the Oklahoma Department of Veterans Affairs under control of the Oklahoma War Veterans Commission residential care homes, assisted living facilities or adult compamion homes which are operated in conjunction with a nursing facility, or to hotels, motels, boarding houses, rooming houses, or other places that furnish board or room to their residents.
63 O.S8. Supp.2008 § 1-1908(B) (emphasis added). Alterra concludes that this provision excludes assisted living centers from any provision of the Nursing Home Care Act, specifically the provisions of section 1-1989 banning arbitration agreements.3 Despite the language of section 1-1908(B), Alterra recognizes that a continuum of care facility is subject to certain provisions of the Nursing Home Care Act: "If a continuum of care facility's failure to comply with the Continuum of Care and Assisted Living Act or rules involves nursing care services, the Commissioner shall have authority to exercise additional remedies provided under the Nursing Home Care Act." 68 0.98.2001 § 1-890.6(D). Alterra seeks to avoid application of the Nursing Home Care Act by attempting to distinguish an assisted living center from a continuum of care facility. We find that distinction, to the extent it exists, insufficient to avoid 68 0.S$.2001 $ 1-840; "Residential care homes subject to the provisions of the Residential Care Act shall comply with the provisions of Sections ... 1-1989 ... of this title." As previously discussed, an assisted living center is a residential care home. Therefore, because the Legislature, in seetion 1-840, specifically subjected assisted living centers to the prohibition against arbitration agreements in section 1-19839, it was unnecessary for the Legislature to add a redundant provision in the Continuum of Care and Assisted Living Act, accomplishing what had already been done.
CONCLUSION |
10 Although the facility operated by Al-terra in this case is an assisted living center, it is, nonetheless, a residential care home. Alterra's facility is, therefore, subject to the provisions of section 1-1989 of the Nursing Home Care Act. Consequently, the analysis in Bruner controls, and the arbitration provision in the Osborn/Alterra Residency Agreement is unenforceable. Because the arbitration agreement is unenforceable, it is unnecessary to discuss the remainder of the issues raised by the parties in this appeal. The district court's Order Denying Motion to Compel Arbitration is affirmed.
T 11 AFFIRMED.
GABBARD, P.J., concurs, and RAPP, J., dissents.