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STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 05 DHR 1465

Brookside Montessori School
Petitioner
vs.
N. C. Department of Health and
Human Services, Division of Chiild
Development
Respondent / )
))
)
)
)))) / DECISION

Background

This matter was heard before Beecher R. Gray, Administrative Law Judge, on April 24th, 2006 at High Point, North Carolina. Following the hearing, Counsel for Respondent was directed to file a Proposed Decision. The record closed upon receipt of the Proposed Decision on June 27, 2006.

APPEARANCES

For Petitioner: For Respondent:

Lynn E. Coleman, Esq. Ann B. Wall, Assistant Attorney General

Attorney at Law N.C. Department of Justice

Post Office Box 311 Post Office Box 629

Kernersville, NC 27285 Raleigh, NC 27699-0629

COUNSEL FOR PETITIONER COUNSEL FOR RESPONDENT

APPLICABLE STATUTES AND RULES[1]

N.C. Gen. Stat. § 110-88(2a); N.C. Gen. Stat. § 110-90(5); N.C. Gen. Stat. § 110-91(1); N.C. Gen. Stat. § 110-98; N.C. Gen. Stat. § 110-102.2(5); N.C. Gen. Stat. § 150B-3(b); Child Care Rules 10A NCAC 09 .2206; and Sanitation Rules 15A NCAC 18A .2834(b) (4).

ISSUES

Whether, when it revoked Petitioner’s One Star License, Respondent deprived Petitioner of property or otherwise substantially prejudiced Petitioner’s rights, acted erroneously, arbitrarily or capriciously or failed to act as required by law or rule.

EXHIBITS

Respondent’s Exhibits 1 - 13 were admitted into evidence. Petitioner’s Exhibits 1 - 6 were 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 of fact:

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

2. Respondent, Division of Child Development, (hereafter referred to as “the Division”) is an administrative agency of North Carolina State Government operating under the laws of North Carolina.

3. Brookside Montessori is a non-profit corporation and child care center located at 736 Piney Grove Road in Forsyth County, North Carolina. (T p. 104, line 25, p. 105 lines 20-25)

4. Brookside presently is licensed to care for up to twenty-seven (27) children. (T p. 107, lines 13 – 17)

5. Brookside follows the Montessori philosophy in caring for children. (T p. 106, lines 14 – 21)

6. 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.

7. The sanitation inspection rating issued to a child care facility following one of the mandated twice yearly inspections can be superior, approved, provisional or disapproved. Ratings are determined by numeric demerits. (T p. 16, lines 9-20) One six-point demerit results in an automatic provisional rating. (T p. 16, lines 17-20)

8. Child care facility inspections are documented on a North Carolina Department of Environment and Natural Resources (“DENR”) approved inspection sheet with an addendum for specific comments relating to each violation. (T p. 16, lines 5-8)

9. The Division relies upon the expertise of the local environmental health specialists who conduct sanitation inspections, and has no authority to change a sanitation rating. (T p. 78, lines 20 - 22)

10. If a child care facility receives two provisional sanitation ratings in a year, the Division takes an administrative action against the facility, typically a written warning. (T pp. 79, line 18 – 80, line 1)

11. If a child care facility receives a disapproved sanitation rating, the Division automatically issues a notice of intent to revoke the facility’s license. (T p. 80, lines 2 – 6) The notice provides the provider with the opportunity to respond in writing, showing compliance or explaining why the action should not be taken. (R Ex. 2)

12. If a child care facility fixes the problem(s) which caused the disapproved sanitation rating and gets an approved or superior rating, the revocation is not issued but other administrative action may be taken. (T p. 81, lines 1 – 6)

13. The Division proceeds with the license revocation if, following a disapproved rating, a child care provider does not get an approved rating during the follow-up inspection after receiving a disapproved rating. (T pp. 79, line 13 – 80, line 6; p. 81, lines 1-5)

14. Darrice Monk, a Registered Sanitarian (“RS”) and Forsyth County Environmental Health Specialist (“EHS”), demonstrated knowledge and expertise with respect to environmental health requirements applicable to child care facilities.

15. Mr. Monk’s duties include conducting routine unannounced sanitation inspections in fifty-four (54) day care facilities, including Petitioner’s facility. (T p. 13, line 25, p. 14, lines 1-2, 5)

16. Prior to his first inspection of Petitioner’s facility, Mr. Monk reviewed the facility’s files. (T p. 18, lines 12 – 21, p. 20, lines 1 – 5) Mr. Monk found that on May 21, 2004, Brookside Montessorri received a provisional rating from Charles King, RS and EHS. (R 9; T p. 19, line 3 – 12) Mr. King cited a six-point item, appropriate equipment for sinks and refrigerators. ( R Ex. 9; T p. 18, lines 17 – 21) Mr. King attached an addendum, commenting that a hand-wash sink must be provided in the kitchen area to comply with the minimum sanitation requirements. (R Ex. 9; T p. 18, lines 18-21, p. 19, lines 7-25, p. 20, lines 1-3)

17. Mr. Monk also noted that the files contained at least one other reference to the lack of a hand-wash sink. (T p. 22, lines 3 – 8)

18. A hand-wash sink is a single basin lavatory with hot and cold running water plumbed to it for the specific purpose of washing hands. (T p. 23, lines 3-5)

19. A hand-wash sink is required pursuant to Child Care Sanitation Rules if food preparation areas and utensil wash areas are separate. (T p. 23, line 10-15)

20. Both Mr. Monk and his supervisor, Michelle Kirkley, testified that there has been no change in the requirement that there be a hand-wash sink. (T p. 40, line 24 – p. 41, line 2, 66, line 15 – 67, line 2)

21. Lack of a designated hand-wash sink in a food preparation and food serving area is a violation, specifically a ‘six-point’ demerit item. (T p. 29, lines 8-13)

22. According to the U.S. Centers for Disease Control, hand-washing is the most important method of disease prevention and transmission, preventing at least 50% of transmissions if hands are washed at the right time in the correct manner. (T p. 41, lines 21-25)

23. Food preparation involves handling “a food source that someone else is going to ingest where they could possibly transmit viruses, bacteria, or other disease-causing pathogens”. (T p. 24, lines 19 – 23)

24. Food preparation may include activities such as: helping a child open a package of chips; opening a jar of baby food; handling fresh fruit or vegetables; if hands will contact food in a child’s lunch bag; microwaving or reheating food. (T p. 25, line 2 – p. 26, line 5)

25. A utensil sink is a two-compartment sink designed for multi-use cleaning and sanitizing. (T p. 47, lines 12 – 15, p. 53, lines 9 – 22) The two-compartment sink is used for cleaning utensils used for food preparation and for activities such as immersion of submersible toys to clean and sanitize them. (T p. 47, lines 7 – 15, p. 70, lines 10 – 18)

26. On July 14, 2005, Mr. Monk conducted a routine unannounced inspection of the Brookside Montessorri facility and reported two ‘six-point’ demerit items, resulting in an automatic provisional rating. (R Ex. 4; T p. 26, lines 9-19, p. 27, lines 22-25)

27. The facility has two separate food preparation areas. (T p. 48, lines 5 – 7). The kitchen is classified as one of the food preparation areas. (T p. 34, lines 2-3, p. 48, lines 2-7).

28. The facility has a two-compartment domestic utensil sink in the kitchen with an L-shaped counter, cabinet and refrigerator but no separate designated hand-wash sink. (T p. 33, lines 17-25

29. On July 14, 2005, Mr. Monk observed food being prepared and served on the countertop of the kitchen area: portioning of carrots from a bulk commercial bag into individual ‘ziplock’ bags for the children. (R 4; T p. 31, lines 10-14)

30. On July 21, 2005, Mr. Monk re-inspected the facility and documented 21 demerits including the same ‘six-point’ demerit item regarding the missing hand-wash sink in the kitchen. Accordingly, he issued a disapproved sanitation rating under Sanitation Rule 15A NCAC 18A .2834(b)(4). (R 5; T p. 38, lines 23-24, p. 39, lines 1-5)

31. Marjorie Carson, Petitioner’s administrator, admitted that at the time of the July 2005 inspections, the center engaged in the following activities: breaking larger bags of food items such as pretzels into individual portions; pouring milk into individual cups from gallon-sized containers; aiding children in opening food containers; peeling the metal lids off single serving soup containers, replacing the plastic lids, heating them in the microwave and delivering them to the child Ron. (T p. 131, lines 13 – 23, 132, lines 3-9, p. 123, lines 1-4, p. 147, lines 1- 24)

32. The food related activities described by Ms. Carson as being performed by the center are food preparation activities.

33. Ms. Carson also admitted that the two-compartment sink is used for actions such as submersing pitchers for water “works” (the term used by Montessori for toys). (T p. 135, lines 12 – 19, p. 139, lines 12 – 16) The two-compartment sink also is used for sanitizing washable plastic “works” or toys. (T p. 143, lines 9 – 21)

34. Ms. Carson admitted that the two-compartment sink also is used for staff to wash their hands when they are in the kitchen. (T p. 135, lines 13 – 15)

35. Mr. Monk testified that if the two-compartment sink is used for hand-washing, it may not be used for any other activities. (T p. 53, lines 14 – 22)

36. Ms. Kirkley, Mr. Monk’s supervisor, testified that at least one other child care facility in Forsyth County had received a provisional rating because of the lack of a hand-wash sink. (T p. 68, lines 7 - 18) Ms. Kirkley testified that the other facility achieved compliance by installation of a separate hand-wash sink. (T p. 72, lines 19 – 23)

37. On July 27, 2005, in accordance with N.C. General Statute 150B-3(b), the Division notified Petitioner that the Division was considering revocation of Petitioner’s License. The Division gave the facility an opportunity to state why the action should not take place. (R Ex. 2) Petitioner did not respond by the deadline in the Notice of Proposed Action. (T p. 80, lines 2-6, p. 82, lines 13-18, R Ex 2)

38. On August 25, 2005, Brookside Montessori received a notice of administrative action from the Division revoking its One Star License based on failure to comply with Sanitation Rules Governing Child Care Centers, 15A NCAC 18A.2800, a violation of NC General Statute 110-91(1). (R Ex. 1; T p. 81, line 25, p. 82 line 1)

39. Ila Teague, Respondent’s Regional Manager responsible for reviewing administrative actions for consistency, testified that she was familiar with the Division’s action against Petitioner. (T p. 81, lines 11 – 19) Ms. Teague also testified that the action was consistent with other actions which the Division has taken against child care facilities. (T p. 83, lines 5 – 13)

Credibility

40. Respondent’s employees witnesses were credible. They demonstrated extensive knowledge and expertise regarding child care facilities and child care requirements. Their testimony was straightforward, detailed and supported by the evidence.

41. Mr. Monk and his supervisor, Ms. Kirkley, were credible witnesses. They demonstrated extensive knowledge and expertise regarding sanitation requirements in child care facilities. Their testimony was supported by that of Ms. Carson and detailed, contemporaneous documentation.

42. Ms. Marjorie Carson, owner and operator of Brookside Montessori, Inc. was generally credible. Ms. Carson’s character is not at issue here. Although Ms. Carson offered rationalizations for the violation, she did admit that the facility lacked a designated hand-wash sink in the kitchen area. (T p. 126, lines 12 – 17, p. 133, lines 9 – 12) Ms. Carson also admitted that even before the 2004 provisional rating given by EHS King, Mr. King had informed her that a separate sink was needed. (T p. 104, lines 12 – 17) In addition, Ms. Carson admitted that the utensil sink in the kitchen was, in fact, used for both handwashing and other activities. (T p. 135, lines 12 – 19, p. 139, lines 12 – 16, p. 143, lines 9 – 21)

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 and there is no question as to misjoinder or nonjoinder and the notice of hearing was proper.

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 child care licenses.