IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lene s Daily Child Care II, : Petitioner : : v. : Nos. 1495 and 1799 C.D. 2013 : SUBMITTED: March 28, 2014 Department of Public Welfare, : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: June 3, 2014 Lene s Daily Child Care II (Facility) petitions for review of orders of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (Bureau), denying the Facility s appeal from the DPW s revocation of the Facility s certificate of compliance to operate a child care center pursuant to Section 1026(b)(1) and (4) of the Public Welfare Code (Code), 1 which provides as follows: (b) The department shall refuse to issue a license or shall revoke a license for any of the following reasons: (1) Violation of or non-compliance with the provisions of this act or of regulations pursuant thereto; 1 Act of June 13, 1967, P.L. 31, as amended, 62 P.S. 1026(b)(1) and (4).
. (4) Gross incompetence, negligence or misconduct in operating the facility[.] [Emphasis added.] In addition, the Facility petitions for review of the order of the Secretary of DPW denying its request for reconsideration. We affirm both orders. The facts are undisputed. On July 18, 2012, a new staff member at the Facility released a child into the custody of an unknown and unidentified male who he or she had seen with the child s mother on previous occasions, without checking the child s emergency contact/parental consent form or obtaining identification. In response to a complaint about the incident, a DPW certification representative conducted an unannounced inspection of the Facility on July 27, 2012. At that time, the Facility s director admitted to the improper release. Subsequently, DPW sent notice to the Facility s owner advising her of its preliminary decision to revoke the Facility s certificate of compliance and stating that the unauthorized release of the child constituted a failure to comply with DPW s regulations and gross incompetence, negligence and misconduct in operating a facility in violation of the Code. The Facility appealed and an Administrative Law Judge (ALJ) conducted a hearing at which time both the Facility s owner and the assistant direct/supervisor of teachers admitted to the incident/violation. In determining that DPW s revocation was warranted, the ALJ concluded that the release of the child to an individual, who neither was the child s father nor listed on the child s contact sheet, was negligent and constituted a violation of 55 Pa. Code 3270.117(a), which provides as follows: A child shall be released only to the child s parent or to an individual designated in writing by the enrolling 2
parent. A child shall be released to either parent unless a court order on file at the facility states otherwise. Further, acknowledging that the staff member s actions may have been a mistake, the ALJ nonetheless rejected the Facility s argument that the situation only warranted the issuance of a provisional certificate of compliance and an opportunity for the Facility to create and execute a plan of correction. In support, the ALJ emphasized the legislature s use of the word shall in Section 1026(b) of the Code and noted that one regulatory violation was sufficient to warrant a license revocation, citing this Court s decision in Altagracia De Pena Family Day Care v. Department of Public Welfare, 943 A.2d 353 (Pa. Cmwlth. 2007). Accordingly, the ALJ concluded that DPW did not abuse its discretion in deciding to revoke the Facility s certificate of compliance, especially when the violation directly involved the safety of a child entrusted to the care of the facility. 2 ALJ s Adjudication at 7. The Bureau adopted the ALJ s adjudication and the Secretary of DPW denied the Facility s request for reconsideration in September 2013. The Facility filed petitions for review from both orders and the cases were consolidated sua sponte. 3 We turn now to the Facility s appeal. The Facility argues that the revocation constituted a violation of due process where there was only a single regulatory violation and the less onerous 2 In its preliminary decision revoking the Facility s certificate of compliance, DPW cited three regulatory violations arising out of the July 2012 incident. The ALJ, however, concluded that DPW proved only that the Facility had violated the regulation pertaining to release of a child. 3 In October 2013, this Court denied the Facility s application for supersedeas, concluding, in pertinent part, as follows: Although petitioner presents a plausible argument that a penalty less than revocation would have been appropriate in this case, given the undisputed facts, we cannot conclude that petitioner has shown a strong likelihood of success on its argument that the license revocation rose to the level of an abuse of discretion. October 18, 2013 Memorandum and Order. 3
sanction of a provisional license was available. 4 In addition, it maintains that the revocation constituted an abuse of discretion where there was only one regulatory violation and the agency did not characterize it as high risk. We reject the Facility s arguments. The Facility does not dispute the fact that a staff member released a child to someone other than the child s parent and to someone who was not designated in writing by the enrolling parent in violation of 55 Pa. Code 3270.117(a). In pertinent part, Section 1026(b)(1) of the Code unequivocally 4 Both parties seem to agree that the Facility did not preserve any proportionality of punishment issue. We find this to be somewhat perplexing, however, in light the fact that counsel for the Facility referred to and requested a conditional license at the hearing. March 27, 2013 Hearing, Notes of Testimony (N.T.) at 119, Reproduced Record (R.R.) at 216. To that end, the ALJ in his decision addressed the Facility s argument that the situation warranted only the issuance of a provisional certificate of compliance and an opportunity to create and execute a plan of correction. ALJ s Decision at 7. In addition, the Facility in its petition for review certainly alluded to the fact that revocation seemed extreme in light of the fact that the release was simply a mistake and the child was unharmed. In pertinent part, the Facility made the following substantive objections to this Court: (1) The [ALJ] incorrectly applied a strict liability standard to a revocation hearing, contrary to this Court s decision in [Gibbs v. Department of Public Welfare, 947 A.2d 233 (Pa. Cmwlth. Ct. 2007)]; (2) The [ALJ] ruled against Petitioner even though the violation was a mere mistake which did not result in any harm to the child and the child was never in danger; (3) The [ALJ] ruled against Petitioner even though the mistake made did not reflect any gross incompetence, negligence of willful misconduct[.] Facility s Petition for Review at 2; R.R. at 10. While it is true that this Court in reviewing quasijudicial orders may consider only issues which were raised before the government unit and in the petition for review, Pa. R.A.P. 1551 and 1513, a petitioner s statement of objections will be deemed to include every subsidiary question fairly comprised therein. Pa. R.A.P. 1513(d). To the extent that proportionality constitutes a subsidiary issue fairly comprised in the Facility s objections, we will address it. 4
provides that, [t]he department shall revoke a license for [v]iolation of or non-compliance with the provisions of this act or of regulations pursuant thereto. The legislature used the word shall and did not make the word violation plural. Pursuant to Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. 1921(b), we may not disregard those words or phrases in a statute which are clear and free from doubt. Section 1026(b)(1) of the Code clearly provides that DPW shall revoke a license for a single violation or non-compliance with a regulation, such as the one addressing the proper release of a child. Further, we reject the Facility s attempt to narrow the holding in Altagracia regarding the sufficiency of a single regulatory violation on the ground that it involved a registered family day care home, where the issuance of a provisional certificate was not an available remedy, as opposed to the licensed child day care center at issue in the present case. 5 The complete Altagracia holding regarding the significance of a single violation is instructive: [O]ne regulatory violation is sufficient to revoke a license issued by DPW, or a registration certificate to operate a family day care home. 943 A.2d at 356. In addition, this Court has also noted the single-violation tenet in cases involving other facilities where the issuance of provisional licenses is permitted. E.g., 1st Steps Int l Adoptions, Inc. v. Dep t of Pub. Welfare, 880 A.2d 24, 39 (Pa. Cmwlth. 2005); Arcurio v. Dep t of Pub. Welfare, 557 A.2d 1171, 1174 (Pa. Cmwlth. 1989). Moreover, the option of a less onerous sanction is irrelevant. As we have previously noted: [A] provisional license is granted where the applicant has 5 The Code provides for provisional licenses for licensed facilities such as the child day care center at issue, but not for registered facilities such as the family day care center at issue in Altagracia. 943 A.2d at 356-57. 5
substantially but not completely met the applicable statutes, ordinances and regulations. Any provisional license beyond the first one is discretionary. 1st Steps, 880 A.2d at 39 (emphasis added). DPW, therefore, had the discretion to order revocation without affording the Facility the opportunity to correct and, absent bad faith, fraud, capricious action or an abuse of power, we cannot overturn DPW s discretionary decision. Id. In that regard, contrary to the Facility s suggestion, we perceive no abuse of power. As the ALJ aptly noted: [T]he violation directly involved the safety of a child entrusted to the care of the facility. ALJ s Adjudication at 7. Given the undisputed regulatory violation, DPW s decision to revoke the Facility s license in response to a single regulatory violation was neither an error nor an abuse of discretion. 6 Accordingly, we affirm both orders. 7 BONNIE BRIGANCE LEADBETTER, Judge 6 Having concluded that the undisputed regulatory violation was sufficient to warrant DPW s revocation of the Facility s certificate of compliance under Section 1026(b)(1) of the Code, we need not address whether DPW proved gross incompetence, negligence or misconduct in operating the facility under Section 1026(b)(4). In that regard, Section 1026(b) provides, in pertinent part, that, [t]he department shall revoke a license for any of the following reasons[.] (Emphasis added). In any event, the record supports a determination that the improper release of the child to an unknown male, at the very least, constituted either gross incompetence or misconduct where the mother attempted to pick up her child at his normal pickup time and the employee could not identify the male into whose custody she had already released the child. March 27, 2013 Hearing, N.T. at 101, 103; R.R. at 198, 200. 7 Based on our holding, we also conclude that the Secretary of DPW did not err in denying the Facility s request for reconsideration. 6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Lene s Daily Child Care II, : Petitioner : : v. : Nos. 1495 and 1799 C.D. 2013 : Department of Public Welfare, : Respondent : O R D E R AND NOW, this 3rd day of June, 2014, the orders of the Department of Public Welfare in the above-captioned matters are hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge