B. Y. Jenkins, et al. v. Department of Public Welfare (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bessie Y. Jenkins and Jenkins Group Day Care Home, Petitioners v. Department of Public Welfare, Respondent BEFORE: : : : : : : : : No. 2300 C.D. 2007 Submitted: April 18, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: June 11, 2008 Bessie Y. Jenkins (Jenkins) and the Jenkins Group Day Care Home (Jenkins Home) petitions for review of a final order entered by the Secretary of the Department of Public Welfare (DPW), which affirmed an order of the Bureau of Hearings and Appeals (BHA) that adopted the recommendation of Administrative Law Judge Scott M. Staller (ALJ) to deny Jenkins' appeal of DPW's refusal to renew Jenkins' first provisional certificate to operate a group child day care home. Non-renewal was pursuant to Article 10 of the Public Welfare Code (Code), Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §§1001 - 1087. The question involved is whether DPW's revocation of Jenkins' license constitutes an abuse of discretion. In April 1999 Jenkins began operating Jenkins Home under a regular certificate of compliance. On September 27, 2005, Richard Piehota, a DPW Office of Child Development and Early Learning certification representative, made an unannounced inspection and found many violations at the facility, including failure to comply with a plan of supervision or alternate arrangement established under the Child Protective Services Law; a front door that was locked from the inside; seven children, including three infants, a young toddler and two older toddlers, being supervised by one staff person; a rear door that was propped open without a screen; and two older toddlers who were unsupervised in an outside fenced play space. On October 11, 2005, Jenkins submitted to DPW an acceptable plan of correction, and DPW issued a provisional certificate of compliance through March 7, 2006. On January 23, 2006, Piehota made another unannounced visit and found repeated violations as well as new ones: the front and rear exit doors were locked from the inside; nine children comprising four infants, two young toddlers and three pre-school children were being supervised by two staff persons; children's cribs lacked name labels; infant bottles lacked name labels; two electrical outlets lacked protective covers; the refrigerator lacked a thermometer; three medications in the refrigerator lacked name labels; and a can of wall paint was accessible to the children. Piehota also noted that Jenkins failed to provide the weekly documentation on how many children and staffpersons were present at the facility. He cited Jenkins Home for violating several DPW regulations.1 1 Section 3280.32(a), 55 Pa. Code §3280.32(a), provides: "The operator shall comply with the CPSL and Chapter 3490 (relating to protective services)." Section 3280.91(a) provides: "Stairways, hallways, exits from rooms, exits from the facility and other means of egress serving as an exit shall be unobstructed." However, the ALJ found that the door locked from the inside is not an obstruction and did not constitute a violation. Section 3280.52(c) requires one staff person to supervise up to 4 children in mixed age group of infants, young and older toddlers. Section 3280.72(b) provides: "Windows or doors ¦ shall be screened when open." Section 3280.113(a) provides: "Children on the facility premises shall be supervised at all times. Outdoor play space ¦ is considered part of the facility premises." Section 3280.105(a) provides in part: "The rest equipment shall be labeled for the use of a specific child and used only by the specified child." Section 3280.166(4) provides: "Disposable nursers and bottles shall be labeled with the child's name." Section 3280.65 provides: "Protective receptacle covers shall be placed in electrical outlets accessible to children 5 years of age or younger." Section 3280.106 provides in part: "An operating thermometer shall be placed in the refrigerator." Section 3280.133(3) (Footnote continued on next page ¦) 2 By letter dated April 19, 2006, Jenkins was notified of DPW's refusal to renew the provisional certificate due to Jenkins' failure to comply with Section 1026(b)(1) of the Code, 62 P.S. §1026, and Section 20.71(a)(2) of the regulations, 55 Pa. Code §20.71(a)(2), and her failure to comply with the October 2005 plan under Section 20.71(a)(4).2 Following a May 2006 hearing, the ALJ concluded that DPW properly refused to renew the provisional certificate because there were repeated and new violations. He noted the violations from the September 2005 and January 2006 inspections and credited Piehota's testimony in that regard, and he rejected Jenkins' testimony to the extent that it was inconsistent with Piehota's: No individual shall operate a group day care home ¦ without a license issued by the Department. ... The Department shall have the right to enter, visit and inspect any group day care home. ¦ Every individual ¦ shall keep and maintain such records as required by the Department ¦. ALJ Discussion, p. 5 (citations omitted). The ALJ explained that Section 1026(b) of the Code directs DPW to refuse to issue or to revoke a license for, inter alia, "Violation of or noncompliance with the provisions of the act or department regulations," and that Section 20.71(a) of the regulations authorizes DPW to refuse (continued ¦) provides in part: "The label of a medication container shall identify ¦ the name of the child for whom the medication is intended." Section 3280.66(a) provides in part: "Toxics shall be kept in a locked area or in an area inaccessible to children[.]" 2 Section 1026(b) of the Code states in pertinent part: "The department shall refuse to issue a license or shall revoke a license for ... (1) Violation of or non-compliance with the provisions of this act or of regulations pursuant thereto ¦." Section 20.71(a)(2), 55 Pa. Code §20.71(a)(2), provides in pertinent part: "The Department may deny, refuse to renew or revoke a certificate of compliance for ¦ [n]oncompliance with the Department's program licensure or approval regulations." Section 20.71(a)(4) allows DPW to refuse to renew a certificate for "[f]ailure to comply with the acceptable plan to correct noncompliance items." 3 to renew a certificate of compliance for, inter alia, "Noncompliance with the Department's program licensure or approval regulations" or for "Failure to comply with the acceptable plan to correct noncompliance items." ALJ Discussion, pp. 5 6. In upholding DPW's refusal to renew, the ALJ reasoned as follows: The Department may deny or revoke a license for even one, single violation of its regulations. Pine Haven Residential Care Home v. Department of Public Welfare, 512 A.2d 59 (Pa. Cmwlth. 1986). The Department does not need to establish that the licensee willfully violated the group day care home regulations ¦. McFarland v. Dept. of Public Welfare, 551 A.2d 364, 367 n. 6 (Pa. Cmwlth. 1988). ¦. When there has been substantial but not complete compliance ... and when the applicant has taken appropriate steps to correct deficiencies, the department shall issue a provisional license ¦ which may be renewed three times. Upon full compliance, a regular license shall be issued immediately. 62 Pa.C.S.A. § 1008. A licensee has not demonstrated the substantial compliance ¦ where ¦ the latest inspection ¦ reveals that the number of regulatory violations has ¦ remained constant since ¦ the first inspection. Additionally, a licensee has not demonstrated substantial compliance where ¦ the licensee continues to violate the same regulations that were noted in previous inspections. Burroughs v. Department of Public Welfare, 606 A.2d 606 (Pa. Cmwlth. 1992). Attorney Examiner's Opinion Based upon the totality of evidence ¦ the Appellant consistently violated staff to child ratios pursuant to 55 Pa. Code § 3280.52(c). (Exhibits C-2 and A-1). The Appellant also failed to provide the Department with documentation as to how many children and staff were present at the facility on a weekly basis. ¦ The Appellant also violated numerous other 4 regulations, including cribs not being labeled, electrical outlets missing protective covers, not having an operable thermometer in the refrigerator, infant bottles not being labeled, medications not being labeled, a paint can being accessible to the children in care, the rear door being propped open without a screen and failing to comply with the plan of supervision or alternate arrangement in accordance with the Child Protective Services Law. Although the Appellant explained how these numerous violations occurred, her explanations do not mitigate the occurrence of these violations. ¦. ¦ [S]he showed a propensity for failing to cooperate with the Department when she failed to provide the Department with weekly paperwork regarding staff to child ratios. Because she consistently and repeatedly violated staff to child ratios, the Appellant failed to show substantial compliance with the regulations. See Burroughs v. Department of Public Welfare, 606 A.2d 606 (Pa. Cmwlth. 1992). Pursuant to Section 1026(b) of the Act ¦ the Department shall refuse to issue a license or shall revoke a license for a violation of or noncompliance with the provisions of the Act or department regulations. Because the Appellant consistently and repeatedly violated the same regulations, failed to cooperate with the Department, and violated numerous other regulations, the Department properly refused to renew her provisional certificate of compliance. ALJ Discussion and Opinion, pp. 8 - 10. The BHA adopted his recommendation to deny Jenkins' appeal, and, after granting reconsideration, the Secretary of DPW, Estelle B. Richman, affirmed the BHA's order for the reasons stated. Jenkins does not dispute that DPW may refuse to renew a provisional certificate based on a single violation under Pine Haven. Rather, she asserts that an additional period should be allowed for her to bring the facility into compliance. Jenkins Home operated without any incident for six years until the new inspector conducted a routine inspection. DPW relied solely on Piehota's testimony, which 5 does not represent the substantial evidence required to support the findings to uphold DPW's decision to refuse renewal. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Chishko v. Unemployment Compensation Board of Review, 934 A.2d 172 (Pa. Cmwlth. 2007). Citing POA Co. v. Findlay Township Zoning Hearing Board, 551 Pa. 689, 713 A.2d 70 (1998), Jenkins asserts that, without substantial evidence, an agency decision constitutes an abuse of discretion. Jenkins contends that DPW placed too much emphasis on numerical comparisons of the cited violations in concluding that Jenkins Home was not in substantial compliance. Jenkins argues that some of the citations were incorrectly issued: the cribs and the infant bottles were labeled by color instead of name because Jenkins Home is a 24-hour day care and the cribs are used by more than a single person; the color system allows for proper identification of the children; an operable thermometer was placed before Piehota left Jenkins Home; and the unlabeled medications belonged to a staff member, although DPW indicated that they belonged to a staff member's child who was also in care. Considering these factors, the ALJ erred in believing that the number of violations increased when there actually was only one violation. Although DPW could refuse renewal of a certificate for a single violation, such a drastic measure is not warranted here. DPW argues that its refusal to renew was proper because substantial evidence exists to support the BHA findings of fact. The BHA found that Jenkins Home had seven violations in January 2006, and the inspector's testimony alone provides substantial evidence of the violations under Holmes Constant Care Ctr. v. Department of Public Welfare, 555 A.2d 282 (Pa. Cmwlth. 1989). The BHA explicitly found Piehota's testimony credible. DPW cites McFarland and Winston 6 v. Department of Public Welfare, 675 A.2d 372 (Pa. Cmwlth. 1996), to argue that the Court may not disturb the ALJ's credibility determinations. DPW correctly states that the standard of review for refusing to renew a provisional certificate of compliance is limited to determining whether it abused its discretion. See 1st Steps Int'l Adoptions, Inc. v. Department of Public Welfare, 880 A.2d 24 (Pa. Cmwlth. 2005) (citing Miller Home, Inc. v. Department of Public Welfare, 556 A.2d 1 (Pa. Cmwlth. 1989), for the principle that a provisional certificate issued after the first one is discretionary and noting that the standard of review is abuse of discretion where decision of a licensing agency is discretionary). Thus DPW's decision could be reversed only upon a finding of bad faith, fraud, capricious action or abuse of discretion. 1st Steps. Jenkins, however, does not make such allegations. Since a single violation would justify its refusal to renew a certificate, there is no abuse of discretion where the refusal was based on multiple violations. See Pine Haven; 1st Steps. Regarding substantial compliance, DPW emphasizes that under Miller Home the facility had to establish full, not substantial, compliance with DPW regulations to receive another certificate. Even if substantial compliance were the standard, under Burroughs Jenkins failed to meet it by repeated violations of the staff to child ratio in addition to numerous other violations. The Court recognizes that DPW may refuse to renew a certificate of compliance for a licensee's failure to comply with DPW regulations or acceptable plans to correct noncompliance items, and it may do so for a single violation. Pine Haven. Although issuance of the first provisional certificate is mandatory if substantial compliance exists, a renewal is within DPW's discretion to issue unless full compliance is achieved. Miller Home (stating that provisional license beyond 7 first license is discretionary and that repeated failures to correct noncompliance warranted revocation). In the matter sub judice, DPW committed no abuse of discretion when it refused renewal of the provisional certificate where the ALJ found repeated violations of the staff to child ratio and numerous other DPW regulations. The ALJ credited Piehota's testimony, which constitutes substantial evidence to support the findings of fact. See Holmes Constant Care Ctr. (holding that DPW inspector's credited testimony supported hearing examiner's findings). In addition, the Court is unaware of any authority that supports the explanations aimed at mitigation of Jenkins' noncompliance. She was given a chance to correct the violations but failed to do so. McFarland. Regardless, a finding of substantial compliance would not entitle Jenkins to another provisional certificate because it is within DPW's discretion to renew, see Miller Home, and Jenkins' repeated and numerous violations preclude a finding of substantial compliance in this case. Burroughs. Inasmuch as DPW committed no abuse of discretion in refusing to renew Jenkins' provisional certificate, the Court affirms the final order of the Secretary of DPW. DORIS A. SMITH-RIBNER, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Bessie Y. Jenkins and Jenkins Group Day Care Home, Petitioner v. Department of Public Welfare, Respondent : : : : : : : : No. 2300 C.D. 2007 ORDER AND NOW, this 11th day of June, 2008, the Court affirms the final order of the Secretary of the Department of Public Welfare. DORIS A. SMITH-RIBNER, Judge

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