Lil Shining Stars, Inc. v. Dep't of Human Servs. ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lil Shining Stars, Inc., :
Petitioner :
: No. 693 C.D. 2015
v. :
: Submitted: January 22, 2016
Department of Human Services, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: June 8, 2016
Lil Shining Stars, Inc. (Petitioner) petitions for review of the March 31,
2015 order of the Chief Administrative Law Judge for the Department of Human
Services (Department), Bureau of Hearings and Appeals (Bureau), adopting in its
entirety the recommendation of an Administrative Law Judge (ALJ) to deny
Petitioner’s appeal from the Department’s revocation of its certificate of compliance
to operate a child care center.
Petitioner was a group child care home with a certificate of compliance
located at 3880 Glendale Street, Philadelphia, Pennsylvania, and was owned and
operated by Regina (nee Guyton) Thompson (hereafter Owner). On September 27,
2012, a Department certification representative and her supervisor arrived for an
unannounced inspection of Petitioner’s facility. A worker at the facility initially
refused entry because Owner was not home. The inspection team informed the
worker that they needed access and the worker responded that she was going to call
Owner. After a few minutes, the worker opened the door and allowed the inspection
team access to the facility.1 (ALJ’s Findings of Fact Nos. 1-2.)
On October 2, 2012, two representatives of the Department,
accompanied by two police officers, conducted another unannounced inspection of
the facility. The Department representatives identified three staff persons at the
facility, including Owner, her mother, and her sister. During the inspection, the
Department representatives noted multiple regulatory violations, including, inter alia,
leaving a child in a highchair for an extended period of time with no contact by staff;
documentation missing from staff members’ files; an open and accessible window; an
uncovered electrical outlet in the child care space; an accessible bottle of hand
sanitizer; lack of a written plan of daily activities and routines; missing emergency
contact information in children’s files; lack of an emergency shelter plan; and two
recalled highchairs.2 (ALJ’s Findings of Fact No. 3.)
By letter dated October 16, 2012, the Department notified Owner of each
of the regulatory violations found during the October 2 inspection and requested that
Petitioner complete a plan of correction. Petitioner submitted two plans of correction,
each of which the Department rejected as unacceptable. After further discussions, the
Department and Owner reached an oral agreement as to an acceptable plan of
1
Nevertheless, as will be discussed below, the Department certification representative and
her supervisor never completed the inspection.
2
When told of the violation relating to the unattended child in a highchair, Owner
immediately removed the child from the chair and placed her on the floor. When told of the
violation relating to the recalled highchairs, Owner immediately placed the chairs in the trash.
2
correction for Petitioner’s facility. The Department then forwarded a written draft of
the agreement to Owner, but she refused to sign.3 (ALJ’s Findings of Fact Nos. 4-8.)
On December 3, 2013, a Department early learning program
representative and certification representative supervisor conducted a third,
unannounced inspection of the facility. During this inspection, Department
representatives again noted multiple regulatory violations, including, inter alia,
missing documentation, including required clearances, in staff member files; seven
uncovered electrical outlets in the child care space; an accessible window in the child
care space; nails protruding from the wall in the child care space; a broken toy that
created a pinch point for a child; an unlabeled bottle; and lack of proof of insurance
for the facility. (ALJ’s Findings of Fact No. 9.)
On January 3, 2014, the Department sent Owner a notice revoking
Petitioner’s certificate of compliance. Owner thereafter filed a notice of appeal and
the matter was assigned to the ALJ. From July to December 2014, the ALJ
conducted five administrative hearings and heard testimony from seven witnesses,
including Owner; Kya Thompson, an Early Learning Program Representative from
the Department’s Office of Child Development and Early Learning (OCDEL); Asia
Sheppard, a Certification Representative Supervisor for OCDEL; Don Jackle, a
retired Certification Representative Supervisor for OCDEL; Amanda Dorris, former
Chief, Division of Regulatory Administration, OCDEL; Tania Schultz, a Certification
Representative for OCDEL; and Carmen Martin, Regional Director, Southeast
Region, OCDEL. The ALJ further admitted numerous exhibits into the record from
both parties. (ALJ’s Findings of Fact Nos. 10-11.)
3
Owner would later testify that the written agreement was substantially different from the
oral agreement reached by the parties.
3
Owner testified she lives at 3880 Glendale Street, Philadelphia,
Pennsylvania, in a 1,200 square foot home which consists of Petitioner’s facility on
the first and second floors and her living space on the third floor. Owner stated that
she graduated high school, attended classes at both a community college and the
Wharton School of Business, and also attended some continuing education courses.
Owner said that she opened her business in 2003 and that she has employed her two
sisters and her mother since that time. 4 Owner noted that she never had any
compliance issues with inspections through 2011. However, Owner testified that she
began having problems with the Department in 2009, including confusion over the
number of different offices, both state and local, that she was required to deal with
and the different information she received, prompting her to make complaints to the
Department and visit the regional office. Following her most recent complaints
regarding unfair treatment over violations notices posted on a website maintained by
the Department and accessible to the public, as well as the filing of a complaint
against Regional Director Martin with the Office of Attorney General, Owner
indicated that the Department conducted its first unannounced inspection in
September of 2012. (N.T., 11/21/14, pp. 96-130.)
Owner recalled receiving a phone call from her mother on her way to the
store on September 27, 2012, regarding the arrival of two women at the facility to
conduct an inspection. She testified that she instructed her mother to allow the
women into the facility and that the women were inside when she returned. Owner
stated that she asked why she was being inspected at that time when she was just
4
Owner stated that her mother dropped out of school in 10th grade and later attended GED
classes and received a certificate, but has not sat for the actual GED test. (Notes of Testimony
(N.T.), 11/21/14, p. 117.) Owner noted that it was her understanding that a secondary staff person
was only required to have a minimum of an 8th-grade education. Id. at 118.
4
inspected in June of 2012, and whether it was in response to her filing of a complaint,
at which point the women exited the facility to make a call. As the women were
exiting, Owner informed them that she was calling her attorney, the police, and a few
parents. Owner noted that the women left without conducting an inspection, after
which she wrote letters to the Philadelphia Daily News, her Congressman and State
Senator, Reverend Al Sharpton, and Deputy Secretary Barbara Metzinger, voicing
her complaints and alleging that certain Department officials manipulate the rules to
their advantage. (N.T., 11/21/14, pp. 137-42.)
Owner also recalled the October 2 inspection conducted by Jackle, as he
had assisted her in the past. She noted that Jackle and another individual waited
outside for two police officers to arrive before proceeding inside. She described one
of the police officers as being nasty and threatening toward her and stated that both
officers searched her entire house, including her private residence on the third floor.
She insisted that she overheard Jackle on the phone with Regional Director Martin,
with Martin advising Jackle to find anything he could. Owner noted that the
inspection took four hours, whereas they normally take forty-five minutes to an hour.
She also noted that she placed two highchairs in the trash after she was advised by
one of the Department’s representatives that the chairs had been recalled. Owner
then proceeded to dispute each of the violations found by the inspectors. (N.T.,
11/21/14, pp. 143-82.)
Owner testified that her attorney at the time prepared and submitted
plans of corrections to the Department, but the Department rejected the same. Owner
stated that she obtained new counsel and was able to reach an oral agreement with the
Department regarding correction of four outstanding issues. However, Owner said
that she later refused to sign a written agreement meant to memorialize the terms of
5
the oral agreement because it was completely different from what she agreed to.
Following this refusal, on December 3, 2013, Owner noted that the Department sent
Thompson to conduct a third, unannounced inspection of the facility. Owner then
proceeded to dispute each of the violations found during this inspection, many of
which were included on the previous inspection summary and for which she believed
she had provided adequate supporting documentation to the Department. (N.T.,
11/21/14, pp. 182-206.)
Subsequent to this inspection, Owner testified that she sent a letter to
Thompson disputing Thompson’s observations/violations and requesting that
Thompson meet with her and her attorney to discuss the same. However, Owner
stated that her counsel was advised her request for a meeting was denied, after which
the Department initiated proceedings to revoke Petitioner’s certificate of compliance.
(N.T., 11/21/14, pp. 206-07.)
On cross-examination, Owner insisted that she attended the necessary
training and received a certificate necessary for her re-entry into the Department of
Education’s child/adult food subsidy program, despite numerous questions raised by
counsel for the Department regarding her attendance. Owner conceded that during
the September 27, 2012 inspection, there was a period of time that her mother was
left alone to watch the children in the daycare when she ran to the store. While the
files failed to indicate that her mother had first-aid training, Owner testified that all
employees, including her mother and her sister, as well as her husband who
occasionally assists her and was present at the facility at the time, had first-aid
training. Owner also alleged that Department representatives had taken
documentation evidencing this training. (N.T., 11/21/14, pp. 222-56.)
6
Owner further conceded that there were times when she had to leave her
mother with the children at the facility in order to pick up other children from a
school bus. Owner stated that she brought this issue up in one of her complaints to
Regional Director Martin. Owner reiterated that her sister or her husband, both of
whom she considered staff members, would often be at the facility when she was not
there. Owner noted that many of her purported violations were corrected onsite,
immediately after she was notified of the same. Owner refused to acknowledge that
she left any toxic substances, including hand sanitizer, in areas accessible to children
in her care. (N.T., 12/9/14, pp. 16-36.)
The Department first presented the testimony of Thompson, an Early
Learning Program Representative from the OCDEL. Thompson testified that she
conducted the December 3, 2013 unannounced inspection of the facility along with
her supervisor, Sheppard. Thompson stated that Owner, as well as Owner’s mother
and husband, were present at the time of the inspection. Thompson identified an
inspection summary she completed following the inspection and proceeded to discuss
each of the fourteen regulatory violations she found and the reasons underlying the
same. Thompson specifically denied ever being asked or coerced into finding
violations against the facility; rather, she noted that she personally observed each of
the violations. (N.T., 10/22/14, pp. 27-58.)
On cross-examination, Thompson acknowledged that the bulk of the
violations present during the October 2, 2012 inspection were not present during the
December 3, 2013 inspection. Thompson also conceded that her inspection summary
reveals that the Department accepted a plan of correction for each of the fourteen
regulatory violations. On re-direct examination, Thompson testified that the fact that
a plan of correction is accepted does not negate the existence of the violation.
7
Thompson stated that, with the exception of new employees, the failure to maintain
employee documentation in their respective files at all times constitutes a violation.
(N.T., 10/22/14, pp. 78-103.)
The Department next called Thompson’s supervisor, Sheppard, to
testify. The parties stipulated that Sheppard would testify that she observed the same
violations as Thompson during the December 3, 2013 inspection. Sheppard testified
briefly regarding the physical/health assessment records that are required to be
maintained in each employee’s file, including whether a physical was performed and
whether the employee had any communicable diseases, such as tuberculosis.
Sheppard stressed that such records are required to be on file at all times. Counsel for
Owner did not cross-examine Sheppard. (N.T., 10/22/14, pp. 107-14.)
Jackle next testified that he retired from the Department in May of 2013,
having worked for the preceding twelve years as a Certification Representative
Supervisor for OCDEL. He described himself as an annuitant, i.e., a retired
employee who returns for some temporary work with the Department. Jackle stated
that he conducted the October 2, 2012 unannounced inspection of the facility along
with another Department representative, Steven Jones, and two police officers.
Jackle noted that he was advised to contact the police because there had been a
previous issue of the Department being denied access to the facility. Jackle identified
an inspection summary he prepared following the October inspection, which lasted
for approximately five hours. (N.T., 10/22/14, pp. 116-26.)
Jackle proceeded to discuss each of the twenty-four regulatory violations
contained in his summary and the reasons underlying the same, as well as Petitioner’s
twice-submitted plans of correction and the Department’s rejection of these plans.
He later clarified that the Department accepted certain corrections offered by
8
Petitioner, but he was not aware if the corrections were actually completed. Finally,
he discussed OCDEL’s process for revoking a facility’s license, noting that the matter
is first discussed locally with inspection staff and the regional director and then the
matter is forwarded to the Department’s main office in Harrisburg where a final
determination is made. Jackle testified that he would estimate that a minimum of
three individuals review a denial recommendation before any final action is taken.
(N.T., 10/22/14, pp. 126-177; N.T., 10/29/14, pp. 10-26.)
On cross-examination, Jackle testified that Martin, his direct supervisor,
directed him to conduct the October 2, 2012 inspection and advised him to bring
police with him due to prior problems with gaining access to Petitioner’s facility.
Jackle acknowledged that Owner approached him on the sidewalk and invited him in
prior to police arriving at the facility. Jackle noted that the police officers were only
present for the first hour or two of the inspection and remained outside in the porch
area of the facility. Jackle stated that he did not recall placing a call to Martin after he
gained access to the facility and denied any knowledge of a June 2012 inspection. He
did indicate that Owner was required to abide by a handbook of regulations that
included approximately 200 individual regulations. (N.T., 10/29/14, pp. 26-41.)
Counsel for Owner then addressed multiple prior violations which Jackle
conceded were not present during his inspection. Jackle further admitted that Owner
corrected at least one of the violations on the day of the inspection, that he could not
recall why the majority of Petitioner’s plans of correction were rejected, and that he
never returned to the facility to check if other corrections had been implemented.
(N.T., 10/29/14, pp. 44-125.)
On re-direct examination, Jackle reiterated that the police officers
remained outside of the facility and were never in the same room with the children.
9
Jackle testified that the children did not appear to be upset during his inspection.
Jackle also stated that the fact that a violation was corrected, or a plan of correction
was accepted, does not negate the violation, even if he was to observe the same
during a follow-up visit. (N.T., 10/29/14, pp. 125-33.)
Dorris next testified that she had served as Chief of OCDEL’s Division
of Regulatory Administration for a period of six years, during which time she
reviewed sanction referrals relating to child care providers/facilities that received
multiple violations. Dorris stated that the referrals are transmitted by the regional
offices, after a discussion between the certification representative, his/her supervisor,
and the regional director. She then discusses the matter with OCDEL’s legal counsel
and either she or her staff draft an enforcement letter, which is forwarded to the
deputy secretary for her signature. By the time it reaches this stage, Dorris noted that
the matter has been reviewed by at least seven different individuals. Dorris also
noted that she rejected revocation referrals during her tenure. (N.T., 10/29/14, pp.
136-44.)
Dorris specifically recalled that matter involving Petitioner, as she
received the revocation referral and may have actually drafted the revocation. She
testified that she believed the facts of the matter warranted revocation of Petitioner’s
certificate of compliance, especially in light of Petitioner’s repeated violations and its
failure to provide an acceptable plan of correction for the bulk of its violations.
Dorris stated that OCDEL requested three plans of correction in this case, all of
which were rejected as unacceptable. (N.T., 10/29/14, pp. 144-56.)
On cross-examination, Dorris testified that the decision to revoke is
based on criteria found in applicable statutes and Department regulations. Dorris
noted that an acceptable plan of correction would be one where a provider shows how
10
it would achieve and maintain compliance with Department regulations. When
questioned about a recalled highchair, Dorris explained that throwing the highchair in
the trash was not an acceptable correction, that Petitioner would have to state how it
will ensure that a child does not use a recalled highchair in the future, e.g., by
routinely checking the consumer product safety recall list. Dorris could not recall if
she discussed Petitioner’s revocation with staff in the local office. Dorris noted that
Petitioner had at least nine repeat violations in the 2013 inspection, which would
justify a revocation based on gross incompetence, negligence, and misconduct.
(N.T., 10/29/14, pp. 156-67.)
The Department next presented the testimony of Schultz, a certification
representative for OCDEL who, along with her supervisor Julie Merit, was to conduct
the September 27, 2012 unannounced inspection of Petitioner’s facility. Schultz
testified that she and Merit knocked on the door of the facility, that a caregiver
partially opened the door, and that they identified themselves and the purpose of their
visit. Schultz stated that the caregiver informed them Owner was not home and shut
the door, only to briefly reopen the door to advise them that she was calling Owner.
Schultz noted that the caregiver eventually opened the door after a few minutes.
Shortly thereafter, Schultz said that Owner called the facility to speak with her, that
Owner was upset and angry, questioning why they were there, and asserting they had
no business being there, after which she handed the phone to Merit. Upon
completion of the call, Merit instructed Schultz that they would wait outside for
Owner to arrive. (N.T., 11/21/14, pp. 11-15.)
Schultz testified that Owner was still upset and angry when she arrived
back at the facility, again questioning why they were there. Schultz explained to
Owner that she and Merit were there for an unannounced inspection and not in
11
response to a complaint as Owner appeared to believe. Schultz stated that Owner
then began making statements about Martin and Martin’s desire to shut down
innocent providers. Schultz noted that a parent arrived at the scene and Owner
advised that the parent was present to observe their office’s “dirty work.” Schultz
said that after a few more people started to gather around them, she and Merit advised
Owner that they needed to contact the office and began walking back to their car,
only to be followed by Owner and the group of people. Schultz characterized her
feelings at that time as unsettled, nervous, and frightened. Schultz noted that after
Merit spoke with someone at the office, Merit informed Owner they were not going
to conduct an inspection and she and Merit got back in their car and returned to the
office. Schultz testified that Owner proceeded to demand that they come back inside
and complete the inspection in front of everyone present. Schultz denied any
perceived bias against Owner by anyone at OCDEL or that she was coerced or asked
to fabricate violations against Petitioner/Owner. (N.T., 11/21/14, pp. 16-27.)
On cross-examination, Schultz admitted that she and Merit were
eventually allowed access to the facility and were there long enough for the caregiver
to identify the children that were present. Schultz denied that Owner later invited her
and Merit back into the building to conduct the inspection, reiterating that Owner
demanded that they return and conduct the inspection in front of all the individuals
present at the facility. Schultz noted that she prepared a report following the incident
and forwarded the report to human resources in Harrisburg. (N.T., 11/21/14, pp. 27-
34.)
The Department then presented its final witness, Martin, Regional
Director of the Southeast Region for OCDEL. Martin explained the role of OCDEL
and her duties as manager of an office that overseas approximately 3,100 facilities in
12
her region. Martin testified that she first came into contact with Owner in early
September of 2012 when Owner arrived at the office to file a complaint regarding a
subsidy coordinator who worked in another office. Martin stated that Owner accused
her of closing down facilities, not being a nice person, and harmful to children.
Martin later discovered that her office had previously investigated and verified a
complaint filed against Petitioner by the subsidy office regarding the capacity of
Petitioner’s facility. Martin stated that the September 27, 2012 unannounced
investigation was to ensure that Petitioner had corrected the capacity issue. Martin
recalled talking to Merit that day and advising her to return to the office, which
prompted the request for police presence during the next inspection. Martin noted
that the decision to request that police accompany an inspector is based on a variety
of factors, including prior inspection experience, and involves a discussion with staff
and legal counsel. (N.T., 11/21/14, pp. 38-47.)
Martin next discussed the revocation process, which begins with the
certificate representative and, at times, a supervisor. She testified that the failure to
remediate violations can be a basis for revocation and that a provider is generally
permitted three attempts to develop an acceptable plan of correction, although the
regulations allow the Department to proceed with a revocation after just two attempts.
She noted that a decision to revoke can be premised on a single violation. Martin
explained that the decision to revoke starts with her and her staff and involves
multiple people and levels of review, including the Division of Regulatory
Administration in Harrisburg, the Bureau director, the Office of Legal Counsel, and
the Department’s Deputy Secretary. (N.T., 11/21/14, pp. 48-51.)
On cross-examination, Martin testified that the decision to request that
police accompany an inspector is made by her, the Bureau director, and the Office of
13
Legal Counsel. Martin stated the police presence was requested for the October 2,
2012 inspection because of the experience of Schultz and Merit during the September
27, 2012 inspection. Martin acknowledged that her staff had no issue with access to
Petitioner’s facility during the October and December inspections. Martin said that,
when she first met with Owner, Owner wished to file a complaint against an
individual with the subsidy office, that she explained she had no oversight of that
office, and that she recommended that Owner put her concerns in writing, but she
never received the same. Martin noted that it was her understanding that the police
would remain onsite for the entire inspection and not participate in the inspection.
Martin specifically denied ever being disciplined for her actions toward Owner in this
matter. Martin also denied that she favored suburban owners of daycare centers or
had knowledge of any newspaper investigating such an allegation. (N.T., 11/21/14,
pp. 51-80.)
On re-direct examination, Martin testified that prior to September 27,
2012, Petitioner had overlapping enrollment where there were more than the
permitted twelve children present in the facility. Martin reiterated that this issue
precipitated the September inspection. Martin further explained that applicable
statutes and regulations permit both announced and unannounced inspections of
childcare facilities. (N.T., 11/21/14, pp. 90-91.)
The ALJ thereafter issued an adjudication recommending that
Petitioner’s appeal from the Department’s revocation of its certificate of compliance
to operate a child care center be denied. The ALJ concluded that the Department had
proved that Petitioner violated multiple Department regulations and, hence, the
Department properly exercised its discretion to revoke Petitioner’s certificate of
compliance. In his adjudication, the ALJ separately reviewed each of the thirty-eight
14
violations identified by Department representatives in both the October 2, 2012, and
December 3, 2013 inspection summaries and found that the Department had
presented sufficient evidence establishing thirty-one of these violations. The ALJ
noted that the Department’s subsequent acceptance of a plan of correction does not
negate the underlying violation. The ALJ rejected Owner’s claims that the
Department initiated the inspections in retaliation for her attempt to file a complaint
against a Department official and that the October 2, 2012 inspection constituted an
unlawful and unconstitutional search and seizure. Finally, the ALJ noted that
Petitioner’s lack of violations prior to the October 2, 2012 inspection carried no
weight in these proceedings. By order dated March 31, 2015, the Bureau’s Chief
Administrative Law Judge adopted the ALJ’s recommendation in its entirety.
Petitioner thereafter filed a petition for review with this Court.
On appeal,5 Petitioner argues that the inspections conducted by the
Department/OCDEL were unconstitutional. We disagree.
Section 1016 of the Public Welfare Code (Code), Act of June 13, 1967,
P.L. 31, as amended, 62 P.S. §1016, provides the Department with the right to enter
and inspect a licensed premises. This section states that:
For the purpose of determining the suitability of the
applicants and of the premises or whether or not any
premises in fact qualifies as a facility as defined in section
1001 of this act or the continuing conformity of the
licensees to this act and to the applicable regulations of the
department, any authorized agent of the department shall
5
Our scope of review in an appeal of an adjudication of the Department is limited to
determining whether constitutional rights were violated, whether an error of law was committed or
whether necessary findings of fact were supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa.C.S. §704; KC Equities v. Department of Public Welfare, 95
A.3d 918, 925 (Pa. Cmwlth. 2014).
15
have the right to enter, visit and inspect any facility licensed
or requiring a license under this act and shall have full and
free access to the records of the facility and to the
individuals therein and full opportunity to interview, inspect
or examine such individuals.
An authorized agent of the department shall also confer
with the operators of facilities regarding the minimum
standards of the department, encourage the adoption of
higher standards and recommend methods of improving
care and services.
62 P.S. §1016.
The Department’s regulations expound upon this statutory authority.
Sections 20.31 and 20.32 of the regulations provides that an authorized agent of the
Department, such as the OCDEL in this case, will conduct an annual inspection of a
facility and that the facility will be provided with advanced notice of this inspection.
55 Pa. Code §§20.31, 20.32. Section 20.33 of the regulations states that a facility
will be subject to both announced and unannounced inspections, including complaint
inspections. 55 Pa. Code §20.33. Additionally, section 20.34 requires a facility to
provide the Department with “full access to the facility or agency and its records
during both announced and unannounced inspections” as well as “the opportunity . . .
to privately interview staff and clients.” 55 Pa. Code §20.34. Section 3280.23
further discusses the Department’s inspection process, providing as follows:
(a) A staff person shall provide to agents of the Department
immediate access to the facility and, upon request, to the
children and the files and records.
(b) An inspection will be conducted during normal
business hours except when there is reasonable cause to
believe that inspections at other times are necessary to
detect violations of applicable statutes and regulations.
16
(c) An agent of the Department will inspect compliance
with this chapter in all areas of the facility premises that are
accessible to children.
55 Pa.Code §3280.23(a)-(c). Further, the Department may revoke a facility’s
certificate of compliance for even a single violation of its regulations. Section
3290.12(c) of the Department’s regulations, 55 Pa. Code §3290.12(c);6 Altagracia De
Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353, 356 (Pa.
Cmwlth. 2007) (“It is well settled that one regulatory violation is sufficient to revoke
a license issued by DPW....”).
Petitioner’s argument focuses exclusively on the Fourth Amendment to
the United States Constitution, which guarantees:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
6
Section 3290.12(c) states that the Department may revoke a certificate of compliance for
one or more of the following reasons:
(1) Noncompliance with the registration law or this chapter.
(2) Fraud or deceit in the self-certification process.
(3) Lending, borrowing or using the certificate of another operator,
or in any way knowingly aiding the improper issuance of a certificate
of registration.
(4) Gross incompetence, negligence or misconduct in operating the
facility.
(5) Mistreating or abusing children cared for in the facility.
(6) Failure to submit to the Department an acceptable plan to correct
noncompliance.
(7) Failure to comply with the acceptable plan to correct
noncompliance.
55 Pa. Code §3290.12(c)(1)-(7).
17
and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. CONST. amend. IV. Petitioner correctly notes that our United States Supreme
Court has long recognized that “the Fourth Amendment’s prohibition on
unreasonable searches and seizures is applicable to commercial premises, as well as
to private homes.” New York v. Burger, 482 U.S. 691, 699 (1987). While Petitioner
admits that it is engaged in a commercial activity that is heavily regulated, Petitioner
contends that the existence of statutes granting a governmental entity the right to
conduct an administrative inspection “does not automatically fulfill the Fourth
Amendment’s ‘reasonableness’ requirement, or always excuse the need for a
warrant.” (Petitioner’s brief at 17.)
Petitioner suggests that there must be a heightened concern for the
reasonableness requirement of the Fourth Amendment where, as here, a statute
authorizes administrative inspections but the governmental entity, i.e., the
Department, has no policies or procedures that direct its employees on the procedure
to be followed during said inspections. Furthermore, Petitioner contends that the
statute and the governmental entity’s actions “must limit the discretion of the
inspecting officers,” especially in regard to “time, place, and scope.” Burger, 482
U.S. at 703 (quoting United States v. Biswell, 406 U.S. 311, 315 (1972)). We do not
disagree with Petitioner as to the overall importance of the “reasonableness”
requirement of the Fourth Amendment or the need for some limitation on the
discretion of inspecting officers; however, we do disagree with Petitioner insofar as it
alleges that the statute and regulations discussed above fail to ensure such
“reasonableness,” fail to limit the discretion of inspecting officers, and are per se
unconstitutional.
18
As noted above, Petitioner admits that it is engaged in a commercial
activity that is heavily regulated. Petitioner does not contest the need for such
regulation in an industry entrusted with the care of children. Indeed, in a recent
unpublished opinion affirming the Department’s order refusing to renew a certificate
of compliance for a day care facility, this Court stated that “[t]here is no question that
the purpose underlying the provisions of the Public Welfare Code and DPW
regulations . . . were enacted for the purpose of protecting the health and safety of the
children of the Commonwealth who enter day care facilities, and that this is a
legitimate and valid objective.” The Preschool Academy, Inc. v. Department of
Public Welfare (Pa. Cmwlth., No. 484 C.D. 2014, filed December 30, 2014), slip op.
at 13.7
Contrary to Petitioner’s arguments, the statutory and regulatory
provisions discussed above do not infringe on Petitioner’s right to be free from an
unreasonable search under the Fourth Amendment, but rather balance the
government’s need to protect these children with the extent of access necessary to
ensure the same, including specific limitations on the time, place, and scope of a
government inspection. More specifically, section 1016 of the Code provides the
necessary authority to the Department or its agent to visit and inspect any licensed
facility, including full access to the facility’s records and staff. The regulations then
advise licensed facilities that in addition to an announced annual inspection, they also
may be subject to unannounced inspections. However, the regulations generally limit
such inspections to normal business hours with a limited exception for inspections
7
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code
§69.414(a), an unreported Commonwealth Court panel decision issued after January 15, 2008, may
be cited for its persuasive value, but not as binding precedent.
19
during non-business hours when the Department believes that the facility may be
attempting to conceal violations. Additionally, the regulations restrict the scope of an
inspection to the areas that would be accessible to children.
Further, it is presumed when construing a statute that the legislature did
not intend to violate either the United States or Pennsylvania Constitutions. Section
1922(3) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(3); Hospital
Utilization Project v. Commonwealth, 487 A.2d 1306, 1312 (Pa. 1985). The party
challenging the constitutionality of a statute bears the heavy burden of establishing
that the statute clearly, palpably and plainly violates the Constitution, with any
uncertainty being resolved in favor of its validity. Reiter v. Commonwealth, 525
A.2d 446, 449 (Pa. Cmwlth.), appeal denied, 534 A.2d 770 (Pa. 1987). Petitioner
simply cannot meet such an elevated burden in this case.
First, as discussed above, the Department’s regulations adequately limit
the time, place, and scope of an inspection. More importantly, this Court has
previously refused to extend the protections of the Fourth Amendment to other
situations involving highly regulated industries. See, e.g., Holmes Constant Care
Center v. Department of Public Welfare, 555 A.2d 282 (Pa. Cmwlth.), appeal denied,
562 A.2d 828 (Pa. 1989) (denying renewal of license to operate a personal care
home); Peterson v. Pennsylvania State Horse Racing Commission, 449 A.2d 774 (Pa.
Cmwlth. 1982) (affirming ejection of vendor from a horse racing track for carrying a
firearm onto track grounds).
In Holmes Constant Care Center, we concluded that a personal care
home whose license was not renewed because of the facility’s lack of compliance
with the applicable statute and regulations failed to cite any authority in support of its
position that the protections of the Fourth Amendment applied “where a licensed
20
entity consents, either impliedly or expressly, to periodic inspections of its premises.”
555 A.2d at 285. In Peterson, we noted that the horse racing industry was widely
known to be highly regulated and concluded that an individual vendor’s entry into a
restricted area of a horse racing track, even without a valid license,8 constituted
implied consent to a warrantless search of his person and premises consistent with the
regulations of the Pennsylvania State Horse Racing Commission as well as a waiver
of his Fourth Amendment protections. Again, Petitioner admits that it is engaged in a
commercial activity that is heavily regulated and the applicable statutory and
regulatory provisions are clear that Petitioner is subject to inspections, both
announced and unannounced. Hence, Petitioner’s constitutional arguments must
fail.9
We note that, in the course of this argument, Petitioner places heavy
emphasis on the presence of police officers and their purported simultaneous search
of the facility on October 2, 2012, including a search of the private living area of
Owner and her family, at the direction of Department representatives. However,
Jackle explained that the presence of the police officers was requested due to a
previous issue regarding access to the facility and that once he and Jones gained
access, the police officers waited outside on the porch of the facility. In addition,
Martin similarly explained that a police presence was requested due to the initial
denial of access during the September 27, 2012 inspection and the situation that
8
The vendor had obtained a vendor’s license in 1979 and 1980 but never obtained a valid
license for 1981 when the firearm was found in his vehicle.
9
In light of this conclusion, we need not reach Petitioner’s argument that any evidence of
regulatory violations discovered by the Department’s representatives should be excluded from
evidence and the enforcement action enjoined because the inspections were unconstitutional and
unlawful.
21
developed subsequent to Owner’s arrival at the facility on that day. During her cross-
examination, Martin further stressed that the Department does not regulate, supervise,
or have any jurisdiction over police officers, that the Department did not ask the
officers to participate in the October 2, 2012 inspection, and that their presence was
required simply to ensure the inspectors had no problem gaining access to the facility.
See N.T., 11/21/14, pp. 57-58, 73. Hence, any purported actions of the police officers
are not relevant to this case and the determination of whether the Department
established sufficient grounds justifying the revocation of Petitioner’s certificate of
compliance to operate a child care center.
Petitioner also argues that the Department’s inspections constituted an
impermissible retaliation against Owner for the exercise of her First Amendment
rights in seeking to file a complaint against a Department official. Again, we
disagree.
As Martin explained in her testimony, the official against whom Owner
sought to file a complaint worked with a different office, one that oversaw a food
subsidy program, and not with OCDEL, which conducted the inspections. Martin
also explained that the initial investigation in September 2012 was prompted by a
complaint from the subsidy office regarding the number of children at Petitioner’s
facility, which the Department had verified was in excess of the limit of twelve
children. As noted above, section 20.33 of the Department’s regulations advises that
a licensed facility will be subject to both announced and unannounced inspections,
including complaint inspections. Further, the record reveals that multiple
investigations were necessary as a result of the actions of Petitioner’s staff, including
Owner, and numerous repeated violations of the same regulations which Petitioner
failed to correct to the satisfaction of the Department.
22
Finally, Petitioner argues that it was entitled to a provisional license
pursuant to section 1008 of the Code, 62 P.S. §1008, because it made timely
corrections to the noted violations and was in substantial compliance with the
Department’s regulations. Once more, we disagree.
Section 1008 states that:
(a) When there has been substantial but not complete
compliance with all the applicable statutes, ordinances and
regulations and when the applicant has taken appropriate
steps to correct deficiencies, the department shall issue a
provisional license.
(b) The department may issue a provisional license under
this section when it is unable to assess compliance with all
statutes, ordinances and regulations because the facility has
not yet begun to operate.
(c) A provisional license shall be for a specified period of
not more than six months which may be renewed no more
than three times.
(d) Upon full compliance by the facility, the department
shall issue a regular license immediately.
62 P.S. §1008(a)-(d).10
Petitioner relies on the testimony of Owner stating that all of the alleged
violations were corrected either on the spot or immediately thereafter in the form of a
corrective plan submitted to the Department. However, Petitioner neglects that many
of the violations found during the December 3, 2013 inspection were repeat
violations and that the Department rejected Petitioner’s three proposed plans of
correction. In such cases, this Court has found a lack of substantial compliance
10
Section 20.54(a) of the Department’s regulations similarly provides that “[a] provisional
certificate of compliance is issued if the facility or agency is in substantial, but not complete,
compliance with applicable statutes, ordinances, and regulations.” 55 Pa. Code §20.54(a).
23
sufficient to warrant the issuance of a provisional license. See Burroughs v.
Department of Public Welfare, 606 A.2d 606 (Pa. Cmwlth. 1992). In Burroughs, we
noted that the number of violations at the petitioner’s facility had either increased or
remained constant since the time of the first inspection, including at least one
violation that was present at seven of the last eight inspections. Hence, we concluded
that the petitioner had not demonstrated the substantial compliance necessary to be
issued a provisional license. We reach the same conclusion in this case.
We note that Petitioner asserts that the vast majority of violations found
by the Department were ministerial in nature, such as missing paperwork, and did not
pose an immediate threat of danger to the children at its facility. Petitioner also
asserts that the Department maintains over 400 regulations and that no single
proprietor could reasonably be expected to be in compliance with every regulation.
However, Petitioner provides no authority to support how these assertions would
justify a finding of substantial compliance. Petitioner opted to engage in an industry
that is heavily regulated. Certainly, we would not expect Petitioner or any other
entity in this particular industry to maintain 100% compliance at all times during
their respective operations, but the fact remains that Petitioner received notice of its
violations, many of which continued from a previous inspection, and its submitted
plans of correction were rejected by the Department on three separate occasions.
Accordingly, the order of the Bureau must be affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lil Shining Stars, Inc., :
Petitioner :
: No. 693 C.D. 2015
v. :
:
Department of Human Services, :
Respondent :
ORDER
AND NOW, this 8th day of June, 2016, the order of the Chief
Administrative Law Judge for the Department of Human Services, Bureau of
Hearings and Appeals, dated March 31, 2015, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge