State of North Carolina s65

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF PITT 06 DHR 0268

Selvia Chapel Child Care Center ID# ) 74000208 ) Bishop A H Hartsfield ) Petitioner ) ) DECISION vs. ) ) Department of Health and Human Services ) Division of Child Development ) Respondent )

BACKGROUND

This matter was heard before Beecher R. Gray, Administrative Law Judge, on June 21, 2006, in Farmville, North Carolina. Following the hearing, the undersigned ordered Counsel for Respondent to file a Proposed Decision. The record closed upon receipt of the Proposed Decision on August 14, 2006.

APPEARANCES

For Petitioner: For Respondent: Bishop A H Hartsfield Ann B. Wall 400 Watauga Avenue Assistant Attorney General Greenville, NC 27834 N.C. Department of Justice PETITIONER, Pro Se Post Office Box 629 Raleigh, North Carolina 27699-0629 COUNSEL FOR RESPONDENT

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. §§110-88, -90, -91, -94, -98, -102.2, -105; N.C. Gen. Stat. §150B; 10A NCAC 9 .0201, .0302, .0304, .0508, .0511, .0601, .0602, .0604, .0605, .0701, .0707, .0713, . 2206, .2702; 15A NCAC 18A .2800.

ISSUES

Whether Petitioner acted erroneously, arbitrarily, or capriciously when it revoked Petitioner’s license. -2-

EXHIBITS

Respondent’s Exhibits 1 through 4 and 6 through 18(a)-(h) were admitted into evidence. Petitioner’s Exhibit 1 was admitted into evidence.

FINDINGS OF FACT

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

1. The parties received notice of hearing by certified mail more than fifteen (15) prior to the hearing and each stipulated on the record that notice was proper.

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

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

4. Petitioner, Selvia Chapel FWB Church, has a One Star License to operate a child care center, Selvia’s Little Angels, ID # 74000208 (hereafter, “Selvia’s” or “the center”), which is located at 400 Watauga Avenue, Greenville, North Carolina. ( R Ex. 1)

5. Child care centers are required to maintain at least an Approved Sanitation Rating. A sanitation inspection leads to a rating determined by the total number of demerits assessed for violations. The possible ratings are: superior (0-15 demerits); approved (16 - 30 demerits); provisional (31 - 45 demerits); or, disapproved (more than 46 demerits). A single six (6) demerit item being cited results in a provisional rating. (R Ex. 15)

6. Emily Robertson is a Pitt County Environmental Health Specialist who has been working in the environmental health field for more than 15 years. She is a Registered Sanitarian, certified lead inspector and holds other environmental health certifications.

7. Ms. Robertson inspected Selvia’s on July 8, 2004 and issued a Disapproved Sanitation Rating with a total of 65 demerits, including four (6) demerit items. (R Ex. 8) Ms. Robertson cited more demerits on that visit than she ever before had cited when inspecting a child care center.

8. A major reason for the July 8, 2004 Disapproved Rating was the presence of both live and dead roaches in the center, including live roaches in the sink and dead roaches in the bottom of the freezer and the diaper changing table enclosure. (R Ex. 8) In addition, the air conditioning system was not working and the temperature inside the center was 88 ". (R Ex. 8) The hot water temperature was 45 degrees below the required minimum of 130". (R Ex. 8) Ms. -3-

Robertson also cited a number of violations related to an overall lack of cleanliness throughout the facility. (R Ex. 8)

9. Beverly Moore, Respondent’s Regional Manager, has both a bachelor’s and a master’s degree in child development and family relations. Ms. Moore has been involved in the regulation of child care facilities in North Carolina for 25 years, with 20 of those years as a licensing supervisor.

10. Ms. Moore testified regarding Respondent’s procedures following issuance to a child care center of a Provisional or Disapproved Sanitation Rating. Based upon her testimony which I credit, I find that Respondent routinely issues a Notice of Proposed Revocation to a center upon receipt of a Disapproved Sanitation Rating from a county environmental health specialist. No further action is taken if, upon reinspection, the facility has corrected the problems and has been issued an Approved or Superior Rating. If the facility only has received a Provisional Rating upon reinspection, the type of administrative action to be taken is dependent upon the results of the next reinspection.

11. For reasons not clear from the record, Respondent did not issue a Notice of Proposed Revocation to Petitioner in July 2004. Petitioner was given the grace of extra time without sanction by Respondent. Even if Respondent had issued the Notice of Proposed Revocation, it would have taken no further action until a reinspection occurred.

12. During a required follow-up inspection on July 22, 2004, Ms. Robertson issued a Provisional Sanitation Rating to Selvia’s, citing 39 demerits. Although roaches continued to be a problem, the Provisional Rating resulted from other issues. (R Ex. 9)

13. On July 22, Ms. Robertson tested for and found the presence of paint chips containing lead on the windows of the facility, including a window directly overlooking a sandbox. (R Ex. 9) Ms. Robertson testified, and I find, that one way in which children ingest lead dust is by frequently putting their hands in their mouths while playing. She further testified, and I find, that if children ingest lead they are likely to suffer central nervous system impairment, including a declining IQ. (R Ex. 9) The presence of lead in a form ingestible by children is a six (6) demerit item. Ms. Robertson granted Petitioner time to do the necessary lead remediation.

14. Respondent did not take immediate action following the issuance of the Provisional Rating on July 22, 2004. Respondent’s delay in taking action was to Petitioner’s benefit.

15. When Ms. Robertson did reinspect the center, on November 29, 2004, she again issued a Disapproved Sanitation Rating, citing 60 demerits including three 6 demerit items. (R Ex. 7)

16. The lead problem had been remediated using a temporary fix, repainting the windows to seal the lead in and make it inaccessible to the children. (R Ex. 7) -4-

17. Roaches continued to be a problem on November 29, 2004. Ms. Robertson observed that the diaper changing table was infested with live roaches and saw the roaches crawling on the table. (R Ex. 7)

18. According to the testimony of Bishop Hartsfield, Petitioner’s representative, the roach problem resulted from children from a poor income background bringing contaminated bags and diaper bags into the center.

19. Ms. Robertson acknowledged that it can take time to remedy a roach problem. However, four months after the initial July inspection, the roach problem had not been resolved. (R Ex. 7 - 9)

20. On November 29, 2004, there was no hot water in the kitchen. (R Ex. 7) There was only one bottle of soap in the center to use for hand washing. (R Ex. 7) The single bottle of soap was moved from place to place as teachers and children needed to use it to clean their hands. (R Ex. 7, 16) This lack of an adequate supply of soap and the accompanying transportation of the lone bottle of soap from place to place created a serious health hazard. (R Ex. 7)

21. On December 6, 2004, Respondent issued a Notice of Proposed Revocation to Petitioner. (R Ex. 3)

22. Ms. Robertson’s next follow-up visit took place on January 11, 2005. (R Ex. 10) It resulted in yet another Disapproved Rating, with 43 demerits and 3 six (6) demerit items cited. (R Ex. 10)

23. The roach infestation had improved, in the sense that only dead roaches were observed during the January 11 inspection. (R Ex. 10)

24. On January 11, 2005, Ms. Robertson observed a teacher change a diaper on a child without appropriate hand washing. Ms. Robertson testified, and I find, that the failure to wash the hands of children and staff before and after changing diapers poses a serious risk of fecal contamination with accompanying disease transmission. (R Ex. 10) In addition, water in one compartment of the diaper changing sink was backing up into the other sink compartment, posing further contamination and health risks. (R Ex. 10)

25. On January 31, 2005, Respondent issued a Notice of Administrative Action revoking Petitioner’s license. (R Ex. 4) The revocation was issued because Petitioner twice had received Disapproved Sanitation Ratings. (R Ex. 4) Official notice was taken that Petitioner challenged the revocation by filing a Petition for a Contested Case Hearing, Case No. 05 DHR 0319. (R Ex. 5)

26. Two months later, on March 1, 2005, Ms. Robertson conducted another inspection. (R Ex. 11) On March 1, when Ms. Robertson arrived, she initially cited a 6 demerit item because the diaper changing sink had not been fixed. (R Ex. 11) However, because -5-

Petitioner immediately fixed the problem, she removed the 6 demerit item. (R Ex. 11) As a result, despite continuing violations Petitioner finally passed a sanitation inspection, receiving an Approved Rating with 22 demerits. (R Ex. 11)

27. Official notice was taken that on June 28, 2005, Case No. 05 DHR 0319 was closed at the request of Petitioner. (R Ex. 5)

28. Donna Harris has been one of Respondent’s licensing consultants for three and a half years, following 18 years in the private sector as a child care facility owner and operator. She monitors more than 90 child care facilities, including 46 child care centers.

29. Ms. Harris made an annual compliance visit to Petitioner’s child care facility on July 25, 2005. (R Ex. 17) She cited fifteen (15) violations during the visit. (R Ex. 17)

30. Among the most serious violations cited on July 25, 2005 was the lack of a current annual fire inspection. (R Ex. 17)

31. Ms. Harris also cited the center for having grouped a toddler with an older child, posing both developmental and safety risks to the younger child. (R Ex. 17)

32. Four sanitation violations were cited by Ms. Harris on July 25, 2005. Among the sanitation violations was the storage of a high chair feeding tray atop a diaper changing table. (R Ex. 17) In addition, a child’s bottle was atop the television and was neither labeled nor dated. (R Ex. 17) Ms. Harris testified, and I find, that failure to refrigerate the bottle posed a risk of bacterial growth. Unlabeled, undated bottles may result in the wrong child getting a bottle and therefore getting inadequate nutrition or allergen exposure. In addition, unlabeled undated bottles may lead to use of a single bottle by more than one child, posing a risk of cross- contamination.

33. On July 25, 2005, Ms. Harris cited violations because she saw roaches in the center. (R Ex. 17) Among the places she observed roaches were: the refrigerator of the infant/toddler room and crawling on the lunch room wall (R Ex. 17) Ms. Harris testified, and I find, that she never before had seen a center with such a serious roach problem.

34. Protruding rusty nails were found on children’s picnic tables on July 25, 2005, posing a hazard to children of cuts, scrapes and puncture wounds with the accompanying risk of infection, tetanus, or other illnesses. (R Ex. 17)

35. When Ms. Harris reviewed the center’s records on July 25, 2005, she found that criminal records check forms had not been submitted for a recently hired employee. (R Ex. 17) The criminal record forms were almost a month overdue.

36. On August 4, 2005, Ms. Robertson conducted another inspection of Selvia’s. (R Ex. 12) After citing 50 demerits, including two 6 demerit items, Ms. Robertson issued another Disapproved Rating to the center. (R Ex. 12) -6-

37. Roaches were “a big problem” more than a year after the July 8, 2004 inspection on which Ms. Robertson first cited a roach related violation. (R Ex. 12) There was a baby roach crawling on the diaper changing table. (R Ex. 12) There were roaches crawling on a high chair seat and a stand in the kitchen was infested with roaches. (R Ex. 12) There were also live and dead roaches in other places inside and outside the center. (R Ex. 12) In addition, Ms. Robertson observed live maggots in the dumpster. (R Ex. 12)

38. Once again, the refrigerator temperatures and hot water temperatures were not within the required ranges. (R Ex. 12) The hot water was 44 degrees cooler than the 130 degrees minimum required temperature. (R Ex. 12)

39. On August 9, 2005, Respondent issued an Amended Notice of Administrative Action revoking Petitioner’s license to operate Selvia’s, adding the August 4, 2005 Disapproved Rating to the basis for its action. (R Ex. 6)

40. On September 8, 2005, Ms. Robertson returned to do a follow up inspection. She issued a Provisional Sanitation Rating, citing 42 demerits with no six demerit items. (R Ex. 13)

41. The roach problem had improved slightly on September 8, 2005. (R Ex. 13) Ms. Robertson saw no live roaches, only roach droppings and an egg case. (R Ex. 13) She did, however, observe a rat burrow near the dumpster. (R Ex. 13) Other violations cited on September 8, 2005 were largely based on the same problems for which Ms. Robertson had previously cited the center. (R Ex. 13)

42. Bishop Hartsfield testified that the roach problem at the center was eventually solved after he consulted with the Greenville City Housing Department.

43. On September 15, 2005, Ms. Robertson conducted another reinspection and was finally able to give the center an Approved Rating, citing 25 demerits with no 6 demerit items. (R Ex. 14) No roaches or signs of roaches were observed. (R Ex. 14)

44. On September 30, 2005, Petitioner sent Respondent a copy of a Petition for a Contested Case Hearing but did not file it with the Office of Administrative Hearings. (R Ex. 1)

45. Given the fact that a Petition was not filed in OAH, the record is unclear as to why Respondent did not then act to close Selvia’s. However, I find that, in light of the September 15, 2005 Approved Sanitation Rating, Respondent’s failure to act was not inconsistent with its policy and procedures.

46. Ms. Robertson went back to the center on January 11, 2006 to do its January - June required inspection. She issued another Provisional Rating, citing 30 demerits including one 6 demerit item. (R Ex. 15) Because Petitioner had initially chosen only a temporary remediation of the lead problem first identified on July 22, 2004, the lead problem had recurred. (R Ex. 9, 15) Other violations cited were similar to those on previous inspections. (R Ex. 15) -7-

47. On January 26, 2006, Respondent issued an Amended Notice of Administrative Action revoking the license of Petitioner. (R Ex. 1) The Notice was amended to add the issuance of the recent Provisional Rating. (R Ex. 1)

48. In February 2006, during a follow up inspection, Petitioner received a Superior Sanitation Rating with 9 demerits.

49. Bishop AH Hartsfield testified for Petitioner in this matter. He presented photographs to demonstrate that as of two weeks prior to the hearing in this matter, Petitioner had successfully remediated all of the cited violations. (P Ex. 1) Bishop Hartsfield was a credible witness. However, he testified that the ongoing maintenance, cleaning and care of the center’s physical plant, furnishings, equipment and toys would now be done by volunteers on a more organized basis than previously had occurred. His belief in the willingness and promises of his congregational volunteers is laudable. However, his belief that the center could successfully rely upon volunteers is belied by the center’s history of failing to meet sanitation requirements. Although obviously sincere in his desire to serve needy children, Bishop Hartsfield did not demonstrate an understanding of the complexity, urgency and critical nature of compliance with child care requirements, particularly those related to health and sanitation.

50. Regional Manager Moore testified and I find, that Respondent’s action in revoking Petitioner’s license was consistent with other administrative actions Respondent has issued.

51. Respondent’s witnesses are found to be credible. Their testimony was straightforward, thorough and supported by contemporaneous documentation. They demonstrated extensive knowledge and expertise regarding child care facilities, child care and child care sanitation requirements. Their demeanor was professional. In addition, although Petitioner challenged a handful of the violations cited, most of the violations were admitted at the hearing in this matter.

Based upon the foregoing Findings of Fact, and giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within its specialized knowledge, 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 correctly have been designated, there is no question as to misjoinder or nonjoinder, and the notice of hearing was proper. -8-

3. The North Carolina Child Care Commission has authority, under N.C. Gen. Stat. § 110-88 and 110-90 to adopt, and has adopted, rules relating to the enforcement of the child care laws of North Carolina, including rules relating to inspection of child care facilities, and to administrative actions such as the revocation of licenses.

4. The North Carolina Health Services Commission has the authority to adopt, and has adopted, Child Care Sanitation Rules and Regulations under N.C. Gen. Stat § 110-91(1).

5. The primary purpose of child care regulation in the state is defined as providing for the health, safety and developmental well-being of children in child care facilities. N.C. Gen. Stat § 110-85.

6. Respondent has the authority, under N.C. Gen. Stat. § 110-90 and 110-102.2, to issue various types of administrative action against child care facilities, including the revocation of a child care license.

7. Respondent’s reliance upon the sanitation ratings issued by the Pitt County Environmental Health Specialist was not erroneous, arbitrary, or capricious and was in accordance with N.C. Gen. Stat. §§ 110-91 and 110-92.

8. As the licensed operator of a childcare center, Selvia’s Little Angels, ID # 74000208, Petitioner is subject to the provisions of Chapter 110 of the North Carolina General Statutes and rules, including environmental health rules.

9. As a licensed child care operator, Petitioner is required to achieve and maintain compliance with all child care requirements, including sanitation requirements. N.C. Gen. Stat. §110-91, - 92, - 93.

10. The violations cited and ratings issued by Environmental Health Specialist Robertson were not arbitrary, capricious or erroneous.

11. Petitioner violated Sanitation Rules Governing Child Care Centers, 15A NCAC 18A .2800, by knowingly and continuously failing to maintain a clean, healthful and safe child care facility, thereby exposing children to significant health and safety hazards.

12. Petitioner has demonstrated a pattern of noncompliance with child care requirements, including sanitation requirements, as demonstrated by four (4) Disapproved Sanitation Ratings and three (3) Provisional Sanitation Ratings in an eighteen (18) month period. N.C. Gen. Stat. §110-90(5), -93(b).

13. The preponderance of the substantial evidence supports Respondent’s finding that Petitioner did not achieve or maintain compliance with child care requirements, including sanitation requirements. -9-

14. The violations cited by Respondent on July 25, 2005 and in its Notice of Amended Administrative Action were not arbitrary, capricious or erroneously cited.

15. The identification of the source of the roach problem does not constitute a lawful excuse for the failure of the center to comply with sanitation requirements.

16. The fact that Petitioner finally acted to correct sanitation violations cannot cure the longstanding failure to maintain compliance with sanitation requirements.

17. Respondent’s Notice of Proposed Administrative Action provided Petitioner with the opportunity to submit evidence showing compliance or reasons the action should not be taken. N.C. Gen. Stat. §§150B-3, -23; 10A NCAC 09.2206.

18. The revocation by Respondent of Petitioner’s license was supported by more than a preponderance of the substantial record evidence, was correct, was in accordance with law, rule and procedure, neither was arbitrary or capricious and did not substantially prejudice Petitioner’s rights.

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

Respondent’s Revocation of Petitioner’s license is supported by the evidence and hereby is affirmed.

NOTICE

The agency that will make the final decision in this contested case is the North Carolina Department of Health and Human Services, Division of Child Development. The agency is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.

This the 21st day of August , 2006.

______Beecher R. Gray Administrative Law Judge