STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF DUPLIN 06 DHR 2395
Petitioner, L’nette Stokes, did not appear at the hearing
L’nette Stokes, Tailored Learning Center
Petitioner,
v.
Division of Child Development Department of Health and Human Services
Respondent.
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DECISION
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Background
This matter was heard before the Honorable Joe L. Webster, Administrative Law Judge, on May 22, 2007, in Halifax, North Carolina.
APPEARANCES
For Petitioner[i]: For Respondent:
L’nette Stokes Alexandra S. Gruber
Tailored Learning Center Assistant Attorney General
PO Box 1305 N.C. Department of Justice
Rose Hill, NC 28458 Post Office Box 629
PETITIONER Raleigh, NC 27699-0629 COUNSEL FOR RESPONDENT
APPLICABLE STATUTES AND RULES
N.C. Gen. Stat. 110-88 (6), 110-93(b), 110-98 and Child Care Rule 10A NCAC 09.0401.
ISSUES
Whether the Respondent otherwise substantially deprived Petitioner of property, failed to use proper procedure, or failed to act as required by law or rule when it issued Petitioner a Provisional License.
EXHIBITS
Respondent’s Exhibits 1-18 were admitted into evidence.
FINDINGS OF FACT
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and Exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge (“ALJ”) makes the following Findings of Fact. In making these Findings of Fact, the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.
Respondent
Respondent, Division of Child Development, (the “Division”) is an administrative agency of North Carolina State Government operating under the laws of North Carolina.
The Division licenses approximately ninety-two hundred (9,200) family child care homes and centers, of which approximately forty-eight hundred (4,800) are child care centers.
The Division issued approximately five-hundred and forty (540) administrative actions in the past fiscal year. Of those five-hundred and forty (540) administrative actions, approximately twenty-three (23) were provisional licenses.
The Division may issue a provisional license for noncompliance with child care requirements, including failure to maintain sanitation classifications of “Approved” or “Superior.”
Failure to maintain adequate sanitation at a child care facility presents a serious risk of harm to children.
The Division documents the administrative action decision-making process, and the Division reviews the actions of its managers and consultants in determining whether to issue a provisional license to a child care facility.
The determination to issue a provisional license to a child care facility is reviewed by a panel of Division personnel on two (2) separate occasions. After the initial review, the child care provider is given the opportunity to respond to the Division’s proposed notice of denial. This response is considered in a second review by the Division’s panel before a final Notice of Administrative Action is issued.
1. The Division maintains a “matrix” of administrative actions statewide to ensure that administrative actions are issued consistently throughout the State of North Carolina.
2. In this case, the Division acted consistently with other provisional licenses it has issued.
3. The 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.
The Petitioner
4. Tailored Learning Center (“Tailored”), located in Rose Hill, North Carolina, was licensed as a three-star child care center, and has been operating since 2003.
5. Petitioner, L’Nette Stokes (“Ms. Stokes”), is the licensee of Tailored Learning Center.
6. Tailored had a licensed capacity of forty-three (43) children, ages 0-12, on three (3) shifts.
7. Petitioner attended at least one (1) training session sponsored by the Division, in Raleigh, North Carolina, which included a review of the applicable sanitation rules for child care centers.
8. Petitioner was not present at the hearing in the above-captioned matter, having telephoned the Administrative Law Judge’s office the morning of the hearing to say that she did not realize the hearing was set for Tuesday, May 22, 2007.
Basis of Administrative Action
- April R. Walker, an Environmental Health Specialist with the Duplin County Health Department, made twelve (12) visits to Petitioner’s child care facility between September 22, 2003 and October 16, 2006. Five visits resulted in a “Provisional” sanitation classification, and three (3) visits resulted in a “Disapproved” sanitation classification.
- Many of the demerits cited in Ms. Walker’s inspection reports for Tailored were repeated over the twelve visits. Repeated demerits included: improper storage of medications and hazardous products; food from an unapproved source; unclean food contact surfaces; improper diapering procedures; improper hand washing procedures; unclean walls, ceiling or carpets; improperly maintained lighting and thermal environment; improper labeling of children’s cots; and ineffective control of insects. A number of the violations were repeated at five (5) or more of the Environmental Health Specialist’s visits.
- The Environmental Health Specialist discussed State sanitation rules, and provided Petitioner with copies of the applicable rules on several occasions.
- The Division’s consultants also made separate, regular visits to Petitioner’s facility, and cited violations similar to those the Environmental Health Specialist observed. These included: improper hand washing; improper storage of hazardous substances; and floors which were “visibly dirty and sticky.”
- The Division’s consultants discussed Child Care Rules governing sanitation, and provided Petitioner with copies of the applicable rules on several occasions.
- Based upon the above incidents, and following a review of the case by the Division’s Review Panel, the Division determined that a Provisional License was the appropriate administrative penalty, and issued a Notice of Proposed Administrative Action on November 7, 2006. Ms. Stokes filed a response to the proposed action, which the Division received on November 27, 2006.
- On December 20, 2006, following a review of Ms. Stokes’ response to the proposed action and a second Review Panel meeting, the Division issued a Provisional License to Petitioner’s child care center.
CONCLUSIONS OF LAW
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 have been correctly designated and there is no question as to misjoinder or nonjoinder and the notice of hearing was proper.
3. The Petitioner has the burden of proof.
4. Petitioner was provided with adequate notice of the hearing in the above-captioned matter, but did not appear at the duly-noticed time and location to prosecute her case.
5. Respondent’s witnesses were credible, and demonstrated both knowledge and expertise in their respective fields.
6. The primary purpose of child care regulation in the State of North Carolina is defined as providing for the health, safety and developmental well-being of children in child care facilities. See N.C. Gen. Stat. § 110-85.
7. Petitioner’s child care center is subject to the North Carolina child care statutes and rules. Those statutes and rules require child care facilities to maintain a sanitation rating of “Approved” or “Superior” to maintain a child care license.
8. Petitioner was familiar with the applicable child care statutes and rules regarding sanitation.
9. The North Carolina Department of Health and Human Services, Division of Child Development, may issue a Provisional License of any child care facility which “demonstrates a pattern of noncompliance” with the child care statutes and rules. N.C. Gen. Stat. § 110-90(5).
10. Petitioner failed to achieve the requisite sanitation rating on eight (8) out of twelve (12) visits over a three-year period.
11. Petitioner was cited with numerous violations of the North Carolina Child Care Rules and statutes for failing to comply with sanitation requirements at her child care center.
12. Respondent’s Review Panel conducted two (2) separate reviews of regarding the appropriateness of issuing Petitioner a Provisional License. Based upon these reviews, Respondent determined that a Provisional License was the appropriate penalty for Petitioner’s failure to comply with child care sanitation requirements. The Division considered Petitioner’s response to the Notice of Proposed Administrative Action in making its determination.
13. Respondent’s actions resulting in a Provisional License did not substantially deprive Petitioner of property.
14. Respondent, at all times relevant to the actions taken in this matter, used proper procedure and acted as required by law or rule.
15. Respondent’s actions resulting in the issuance of a Provisional License to Petitioner were not erroneous, arbitrary or capricious and were in accord with law, rule and procedure.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
The Respondent’s decision to issue Petitioner a Provisional License 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)(3) 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 14th day of June, 2007.
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Joe L. Webster
Administrative Law Judge
A copy of the foregoing was mailed to:
L’nette Stokes
Tailored Learning Center
PO Box 1305
Rose Hill, NC 28458
PETITIONER
Alexandra Gruber
Assistant Attorney General
North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
ATTORNEY FOR RESPONDENT
This the ______day of ______, 2007.
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Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
Telephone: (919) 733-2698
FAX: (919) 733-3407
CERTIFICATE OF SERVICE
I hereby certify that the foregoing PROPOSED DECISION has been served on Petitioner by depositing a copy of same in the United States mail, first class, postage prepaid and addressed as follows:
L’nette Stokes
Tailored Learning Center
PO Box 1305
Rose Hill, NC 28458
PETITIONER
This the ______day of June, 2007
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Alexandra Gruber
Assistant Attorney General
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