State of North Carolina s25

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF RANDOLPH 03 DHR 0296

Vivian P. Bailey, ) Petitioner, ) ) v. ) DECISION ) Dept. of Health and Human Services, ) Division of Child Development, ) Respondent. )

Background

This matter was heard before Beecher R. Gray, Administrative Law Judge, on July 28, 2003, in High Point, North Carolina. Following the hearing, the undersigned asked Counsel to file a Proposed Decision. The record closed upon receipt of the Proposed Decision on December 12, 2003. Neither party ordered a transcript in this matter.

APPEARANCES

For Petitioner: For Respondent: Vivian P. Bailey Ann B. Wall 227 Liberty Road Assistant Attorney General High Point, NC 27263 N.C. Department of Justice PETITIONER, Pro Se Post Office Box 629 Raleigh, NC 27699-0629 COUNSEL FOR RESPONDENT

APPLICABLE STATUTES AND RULES 1

N.C. Gen. Stat. §§110-88, -90, -91, -93, -94, -98, -99, -102.2, -103.1, -105; N.C. Gen. Stat. §150B; 10A NCAC 9 .0205, .0302, .0401, .0508, .0509, .0511, .0601, .0604, .0701, .0801, . 0802, .0803, .0806, .0901, .1402, .1716, .1720, .1721, .1801; 15A NCAC 18A .2806, .2809, . 2820, .2821, .2824, .2828, .2831, .2832.

1 The numbering of all Division of Child Development rules changed effective August 1, 2003, due to recodification by the North Carolina Department of Health and Human Services pursuant to G.S. §150B. The Division’s rules are now found in Title 10A at Chapter 09. The recodified rule number will be used throughout these Findings and Conclusions of Law. ISSUES

Whether the Division of Child Development acted erroneously, arbitrarily, capriciously, or failed to use proper procedure or to act as required by rule or law when it revoked Petitioner’s license.

EXHIBITS

Respondent’s Exhibits 1 through 19 were admitted into evidence. No Petitioner exhibits were admitted.

FINDINGS OF FACT

Based upon the exhibits admitted into evidence and the sworn testimony of the witnesses, the undersigned makes the following findings of fact:

1. Respondent, North Carolina Department of Health and Human Services, Division of Child Development (hereafter referred to as “the Division”), is an administrative agency of the North Carolina State Government operating under the laws of North Carolina.

2. The Division’s responsibilities include regulation and licensure of more than 9,200 childcare facilities in North Carolina.

3. Respondent’s witnesses in this matter demonstrated wide-ranging and extensive knowledge, experience, and expertise relating to childcare and to regulation of childcare in North Carolina. Respondent’s witnesses are found to be credible.

4. Respondent has demonstrated knowledge and expertise with respect to facts and inferences within its specialized area of knowledge, i.e., childcare and enforcement of the laws and rules of North Carolina governing the operation of childcare facilities.

5. Petitioner, Vivian Bailey, initially operated a family childcare home called “Children’s Care Circle”, ID # 41000304, located in Greensboro, North Carolina.

6. On February 19, 2001, the Division issued a six month Provisional License to Petitioner for her Greensboro childcare facility, along with a $200.00 civil penalty. The Provisional License included a corrective action plan. The basis for the February 2001 Provisional License was for repeated violations of childcare requirements related to the licensed capacity of the family childcare home and noncompliance with children’s records requirements.

7. Ms. Bailey did not appeal the administrative action pursuant to Chapter 150B of the General Statutes. She voluntarily closed her family childcare home in Greensboro without paying the civil penalty or fully complying with the terms of the Provisional License and the corrective action plan.

2 8. Ms. Bailey moved to Archdale, North Carolina. On August 10, 2001, she applied for a license to operate a center in a residence in Archdale with a licensed capacity of 12 children.

9. A Provisional License was issued to Petitioner on February 8, 2002 for the operation of a center in a residence in Archdale, North Carolina, Children’s Care Circle, ID # 7600257. A Provisional License was issued because of Petitioner’s prior history of noncompliance. Although the license was issued in February, the facility did not open until March 18, 2002.

10. Between March 18, 2002 and September 23, 2002, a number of violations of the General Statues were cited at Petitioner’s Archdale facility, including:

a. Failure to post the Provisional License, G.S. §110-99(a), cited on April 5 and July 23, 2002;

b. Failure to obtain a negative test result for tuberculosis before a new staff member began work, G.S. §110-91(9), cited on May 6 and June 5, 2002;

c. Failure to maintain accurate records for all children, G.S. §110-91(9), cited on April 19, 2002;

d. Falsification of information provided to the Division, G.S. §110-91(14), cited on April 24, 2002;

e. Failure to provide children with the opportunity to play outdoors, weather permitting, G.S. §110-91(2), cited on May 6, 2002;

f. Failure to post written schedules for each group of children and to make available written plans of developmentally appropriate activities for each group of children, G.S. §110-91(12), cited respectively on May 6 and July 23, 2002;

g. Failure to obtain medical exam documentation and immunization records within 30 days of children’s enrollment, G.S. §110-91(1), cited on May 6, June 5, and July 23, 2002.

11. In addition, during the six months after the facility opened, Respondent cited a number of violation by Petitioner of the childcare rules, including:

a. Safe outdoor environment, 10A NCAC 9 .0601(a), cited on April 5, April 19, April 24, May 6, June 5 and September 23, 2002;

b. Plastic grocery bags accessible to children under three years of age, 10A NCAC 9 .0604(r), cited on April 5 and April 19, 2002;

c. Uncovered electrical outlets accessible to children, 10A NCAC 9 .0604(b), cited on May 6 and July 23, 2002; and,

3 d. Incomplete children’s records, including lack of emergency medical authorizations, violation of 10A NCAC 9 .0801(a), (a)(1), (b), (c), cited on April 5, April 19, and April 24, 2002.

12. A number of violations of state sanitation rules also were cited by Respondent at Petitioner’s Archdale facility during the six months after it opened, including:

a. Failure to put hazardous materials in locked storage, 15A NCAC 18A.2820(b), (d), cited respectively on April 5 and 19, 2002;

b. Perishable foods not protected against spoilage, 15A NCAC 18A.2806(g)(2), cited on April 5, 2002;

c. Openings to the outside not protected against flying insects, possible disease carriers, 15A NCAC 18A.2831(c), cited on April 5, 2002;

d. Omission of hand washing, 15A NCAC 18A.2828(b), cited on April 5, 2002;

e. Individual linens not provided for children’s rest mats, 15A NCAC 18A.2821(c), cited on April 5 and May 6, 2000.

13. On April 15, 2002, Brent Herring, Randolph County Environmental Health Specialist, issued a “Disapproved” Sanitation Classification to Petitioner’s facility following a routine inspection in which more than 50 demerits were cited.

14. Following its normal policies and procedures, on April 16, 2002 Respondent issued notice of its intent to revoke Petitioner’s license due to the Disapproved Sanitation Classification.

15. On April 29, 2002, during a follow-up inspection, Mr. Herring documented 25 demerits and issued an “Approved” Sanitation Classification.

16. As a result of the now “Approved” Classification, on April 30, 2002, Respondent closed the matter of the proposed revocation based upon the “Disapproved” Classification.

17. Although Respondent’s normal procedures require immediate correction of violations cited during a visit, childcare providers are allowed two weeks to send a letter explaining how the violations were corrected. Petitioner never sent Respondent the required correction letter with regard to violations cited on April 5, 19 and 24, 2002.

18. A condition of the Archdale facility corrective action plan was that Petitioner confirm in writing within two weeks of Provisional License issuance that staff and children’s records were complete and current. Petitioner had to be reminded a number of times of the need to fulfill this corrective action plan requirement. Petitioner’s records were neither complete nor current, as demonstrated by the repeated records violations cited. Petitioner also failed to comply with a corrective action plan requirement that she develop a plan for periodic review of staff and children’s records to ensure currency and completeness.

4 19. Petitioner failed to comply with another requirement of the 2002 Provisional License Corrective Action Plan: achieving 90% compliance with childcare requirements during the first three months of the six-month license period and then maintaining that level of compliance for the remaining three months. Although Petitioner maintained that she did not understand the compliance history requirement was not for the normal three years, it is noted that the February 2002 corrective action plan clearly states that the 90% requirement is for the six-month Provisional License period.

20. Petitioner challenged violation related to a chemical, “RootKill”, containing copper sulfate, which had been applied to remove tree stumps in the outdoor play area. Contaminant removal was required by Randolph County Environmental Health, in consultation with the State Epidemiologist. Respondent cited violation when the County removal order was not followed. In the circumstances, Respondents’ exercise of its discretion to cite violations was reasonable.

21. Petitioner testified credibly that she did not understand the magnitude of the differences between the requirements for a family childcare home and for a center in a residence. However, it is noted that Petitioner’s history of noncompliance at her family childcare home in Guilford County indicates that she was unable or unwilling to comply even with the less extensive family childcare home requirements.

22. The importance of the childcare requirements had been highlighted for Petitioner by Respondent’s administrative action against her Greensboro facility ad then by the issuance of the Provisional License and corrective action plan for the Archdale facility. Respondent provided Petitioner with ample information regarding the childcare requirements for a center in a residence, both before and after the February 2002 issuance of her Provisional License. For example, on August 10, 2001, Consultant Bralley sent Petitioner a list of required documents and a three-page comprehensive checklist of requirements for a center in a residence. In visits after the Provisional License was issued in February 2002, Ms. Bralley thoroughly documented the violations cited so that it was clear what Petitioner had to fix to come into compliance.

23. Petitioner was believable in her testimony that Respondent’s revocation of her license was a wake-up call and that she has since tried to improve her knowledge and understanding of childcare requirements. Although Petitioner was credible with regard to her efforts at improvement since the initiation of the revocation, it is a case of too little, too late. Respondent gave Petitioner a second chance by allowing her to complete the Greensboro corrective action plan at her Archdale facility. Petitioner’s lack of understanding cannot serve to allow her to escape the consequences of her actions in failing to comply with childcare requirements.

24. Respondent’s witnesses testified without challenge that its procedures were followed throughout the pre-licensure period, in the issuance of the 2002 Provisional License, and in its subsequent revocation. They also testified without contradiction that Respondent’s actions related to Petitioner and her license were consistent with its actions involving other childcare providers.

5 Based upon the foregoing Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this contested case pursuant to Chapters 110 and 150B of the North Carolina General Statutes.

2. All parties have been correctly designated, there is no question as to misjoinder or nonjoinder, and the notice of hearing was proper.

3. As the licensed operator of Children’s Care Circle, ID # 76000257, a childcare facility, Petitioner is subject to the provisions of Chapter 110 of the North Carolina General Statutes and rules adopted pursuant thereto.

4. The North Carolina Child Care Commission has authority, pursuant to N.C. Gen. Stat. §§ 10-88 and 110-90 to adopt, and has adopted, rules relating to the enforcement of the childcare laws of North Carolina, including rules relating to inspection of childcare facilities, and to administrative actions such as the issuance of Provisional Licenses and revocation of licenses.

5. Respondent has the authority, pursuant to N.C. Gen. Stat. §§ 110-98 and 110-102.2, to issue various types of administrative action against childcare facilities for violations of the Child Care Act, including revocation of licenses.

6. Respondent followed its established and proper procedures throughout the process of issuing a Provisional License to Petitioner, monitoring Petitioner’s facility, citing violations, and then revoking the Provisional License.

7. Respondent acted as required by rule and law when it first issued a Provisional License to Petitioner, when it monitored Petitioner’s compliance, and when it revoked Petitioner’s license.

8. Respondent did not act arbitrarily or capriciously when it revoked Petitioner’s Provisional License, or in any of its actions leading to the revocation of the license.

9. Respondent did not err when it cited violations at Petitioner’s facility or when it revoked Petitioner’s license.

10. Petitioner’s sincerity and lack of understanding of the childcare requirements cannot excuse her history of noncompliance. It is clear from the record that the State could have revoked her license well before it actually did.

11. Respondent’s revocation of Petitioner’s Provisional License is supported by the evidence in the record.

6 DECISION

Respondent’s decision to revoke Petitioner’s Provisional License is supported by the preponderance of the evidence and is AFFIRMED.

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services.

This the 18th day of December, 2003.

______Beecher R. Gray Administrative Law Judge