Soriano Family Day Care, et al. v. DPW (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Soriano Family Day Care, Soriano Group Home, Angela Soriano, Petitioners v. Department of Public Welfare, Respondent BEFORE: : : : : : : : : : No. 833 C.D. 2007 Argued: April 8, 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 5, 2008 Angela Soriano, owner of Soriano Family Day Care and Soriano Group Home in Reading, PA, seeks review of the final administrative action of the Department of Public Welfare's (DPW) Bureau of Hearings and Appeals (BHA). BHA adopted Administrative Law Judge Scott M. Staller's (ALJ) recommendation to deny Soriano's appeal from DPW's revocation of her registration certificate to operate her family child day care home ("family day care") and DPW's refusal to renew her certificate of compliance to operate her group child day care home ("group day care"). Because the ALJ's findings are supported by substantial evidence and Soriano failed to demonstrate legal error by DPW, the Court affirms. Chapter 3280 of the Pennsylvania Administrative Code Title 55 regulates group day care homes.1 The purpose of Chapter 3280 is "to provide 1 See 55 Pa. Code § 3280.4, which provides: "[g]roup child day care home -- The premises in which care is provided at one time for more than six but fewer than 16 older schoolage level children or more than six but fewer than 13 children of another age level who are unrelated to the operator." standards to aid in protecting the health, safety and rights of children and to reduce risks to children in group child day care homes." 55 Pa. Code § 3280.2. To that end, on September 26, 2005, Walter Clatch, a day care licensing representative, conducted an unannounced inspection of Soriano's group day care to determine whether it met minimum levels of compliance necessary to retain DPW's certificate of compliance. Clatch cited four violations ranging from deficient paperwork and staff medical screening to insufficient staff transporting children to school.2 Soriano submitted an acceptable plan of correction for the violations and made the necessary corrections on or before September 30, 2005. On that date, however, Clatch conducted another inspection of the group day care, this time citing twelve Code violations.3 In response, Soriano immediately submitted a second plan of correction. 2 DPW cited the following violations from the September 26, 2005 inspection: (1) one staff person (E.M.) had no proof of education to qualify as a staff person; there were no references on file for E.M.; and there was no file for the cook (M.U.) in violation of 55 Pa. Code §§3280.33(a), 3280.192 and 3280.191; (2) arrival/departure times on financial agreements were listed incorrectly; some children had no arrival/departure times listed; and some agreements had not been updated within the prior six months in violation of 55 Pa. Code §§3280.123(a)(4) and 3280.181(c); (3) one staff person lacked a health assessment and tuberculosis screening in violation of 55 Pa. Code §3280.151(a); and (4) Petitioner's husband, Nelson Soriano, transported three children to school, including two pre-schoolers, alone in violation of 55 Pa. Code §3280.173(b). 3 DPW cited the following violations from the September 30, 2005 inspection: (1) no emergency plan on file in violation of 55 Pa. Code §3280.20(a); (2) Nelson Soriano had no proof of education on file to qualify him as a staff person in violation of 55 Pa. Code §§3280.33 and 3280.192; (3) ten children were in a room where the maximum permitted was nine in violation of 55 Pa. Code §3270.61(c); 2 On October 31, 2005, Clatch conducted a third inspection of Soriano's group day care, this time citing the group day care for six violations, including four of the same violations for which he cited the day care on September 30, 2005.4 (4) the hot water was 121ºF at the kitchen sink used for hand washing, 11ºF above the maximum allowable under 55 Pa. Code §3270.69(a); (5) the screen on Soriano's kitchen door was in disrepair in violation of 55 Pa. Code §3280.72(c); (6) locking gates obstructed exits in violation 55 Pa. Code §3280.91(a); (7) fire drill records showed that Soriano failed to change the hypothetical fire location for each drill conducted as required by 55 Pa. Code §3280.94(e); (8) styrofoam plates were used by the children in violation of 55 Pa. Code §3280.107(c); (9) the rest equipment (nap cots) was not labeled for use of a specific child and used only by the specified child as required under 55 Pa. Code §3280.105(a); (10) children were not supervised at all times as required by 55 Pa. Code §3280.113(a); (11) the financial agreement for child M.B. did not include a list of individuals designated by the parent to whom the child may be released as required by 55 Pa. Code §3280.123(a)(5); and (12) one staff person did not have a valid health assessment as required by 55 Pa. Code §§3280.151(a) and 3280.192. 4 The October 31, 2005 violations were as follows: (1) once again, staff persons did not have individual records as required by 55 Pa. Code §§3280.33(a) and 3280.191; (2) the staff persons did not have health assessments or tuberculosis screenings as required by 55 Pa. Code §§3280.151(a) and 3280.192(3); (3) the staff persons failed to have proof of training in first aid as required by 55 Pa. Code §3280.33(c); (4) the hot water continued to be 121ºF at the kitchen sink in violation of 55 Pa. Code §3280.69; (5) again the children were not supervised at all times as required by 55 Pa. Code §3280.113(a); and (6) once again, ten children were in a room that was appropriate for only nine, thus violating 55 Pa. Code §3280.61(c). 3 This time DPW gave no consideration to Soriano's plans for correction of these violations, instead considering sanctions for persistent non-compliance. On November 14, 2005, Clatch conducted a fourth inspection of the group day care, citing it, inter alia, for once again violating the supervision requirement of 55 Pa. Code §3280.113 as a staff person reportedly dropped off a five-year-old child at an elementary school, leaving the child completely unsupervised for twenty minutes on one occasion and twenty-five minutes on another while the child waited alone to be let into the school building. Clatch also cited the group day care on this occasion for violation of 55 Pa. Code §3280.34(c), pursuant to which a secondary staff person is to be supervised by a primary staff person. Again, DPW gave no consideration to Soriano's plans of correction, and by letter dated January 12, 2006 DPW refused to renew Soriano's certificate of compliance to operate the group day care due to its failure to comply with DPW regulations and acceptable plans to correct non-compliance items and for gross incompetence, negligence or misconduct in operating the group day care. In addition to her group day care, Soriano also operated a family day care at a separate location.5 Chapter 3290 of the Administrative Code Title 55 regulates family day care homes. The purpose of Chapter 3290 is identical to that of Chapter 3280: "to provide standards to aid in protecting the health, safety and rights of children and to reduce the risks to children in family child day care homes." 55 Pa. Code § 3290.2. On October 31, 2005, in light of the ongoing compliance issues with Soriano's group day care, Clatch inspected Soriano's family day care to determine whether it met minimum levels of compliance necessary to 5 55 Pa. Code § 3290.4 provides: "[f]amily child day care home -- A home other than the child's own home, operated for profit or not-for-profit, in which child day care is provided at any one time to four, five or six children unrelated to the operator." 4 retain DPW's certificate of registration. Gerald Colbaugh, a field representative, accompanied Clatch on the inspection. Clatch and Colbaugh cited multiple violations ranging from refusal to grant immediate access to the inspectors, to excessive numbers of children per age group and unhealthy/unsafe conditions.6 Soriano submitted a plan of correction on November 22, 2005, but DPW gave no consideration to Soriano's plan. By letter of January 12, 2006, DPW revoked Soriano's registration certificate to operate the family day care based on her failure to comply with regulations and her gross incompetence, negligence or misconduct in operating the family day care. Soriano appealed, and after an administrative hearing ALJ Staller recommended that the appeal be denied after finding Clatch's testimony credible and Soriano's testimony not credible. BHA adopted the ALJ's recommendation, and it denied Soriano's appeal. 6 DPW cited the following violations at the Soriano family day care: (1) the facility cared for thirteen children unrelated to the operator in violation of 55 Pa. Code §3290.51, which requires, inter alia, that the number of children in care may not exceed six at any one time who are unrelated to the operator; (2) DPW agents were not given immediate access to the facility in violation of 55 Pa. Code §3290.21, which provides that DPW agents will inspect the safety of all areas of child day care facility premises accessible to children; (3) one infant, three young toddlers, six older toddlers and three preschool children were being cared for at one time in violation of 55 Pa. Code §3290.52, which prohibits, inter alia, an operator from providing care to any more than five related and unrelated infants and toddlers at any one time (also no more than two related and unrelated infants may receive care at one time); and (4) the inspectors saw three children coming out of Soriano's basement, where the inspectors found dog feces and urine in violation of 55 Pa. Code §3290.18, which provides that conditions at a facility may not pose a threat to the health or safety of the children. 5 Soriano lists three issues for review: whether the ALJ misinterpreted Section 1026(b) of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. §1026(b); whether DPW erred by not finding that Soriano complied with DPW's regulations; and whether DPW erred by failing to provide Soriano with some accommodation or assistance relative to her difficulty with speaking English. The Court's review is limited to determining whether Soriano's constitutional rights were violated, whether the adjudication was in accordance with law and whether the necessary findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Burroughs v. Department of Public Welfare, 606 A.2d 606 (Pa. Cmwlth. 1992). Upon examination of the record, the Court concludes that ALJ Staller correctly interpreted Section 1026(b) of the Public Welfare Code in support of his recommendation to deny Soriano's appeal. Section 1026(b)(1) and (4) mandate: (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; ¦. (4) Gross incompetence, negligence or misconduct in operating the facility[.] Here, the ALJ found that "[b]ecause [Soriano] consistently and repeatedly violated the same regulations, the Department properly revoked [Soriano's] registration certificate to operate a family day care home and her certificate of compliance to operate a group day care home." ALJ Adjudication at 21. The ALJ cited Pine Haven Residential Care Home v. Department of Public Welfare, 512 A.2d 59 (Pa. Cmwlth. 1986), for the proposition that DPW may deny or revoke a license for even a single violation of its regulations. It is on this point that Soriano focuses her argument, stating that the ALJ incorrectly interpreted Pine Haven by applying it to 6 this case because Pine Haven is factually distinguishable. Regardless of whether Pine Haven is factually distinguishable, the finding that Soriano consistently and repeatedly violated the same regulations is supported by Clatch's testimony. Such credibility determinations lie solely within the discretion of the ALJ. Pinnacle Health System v. Department of Public Welfare, 942 A.2d 189 (Pa. Cmwlth. 2008). Soriano's consistent and repeated violations of DPW regulations is more than sufficient to justify its decisions under the plain language of Section 1026(b)(1) of the Public Welfare Code. Soriano's conduct also is sufficient to justify DPW's decision to refuse to offer Soriano a provisional certificate pending correction as contemplated by Section 1008, 62 P.S. §1008, which provides in part that "[w]hen 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 for a specified period ¦." The ALJ properly interpreted Section 1026 as well as Section 1008. The finding that Soriano failed to comply with applicable regulations likewise is supported by substantial evidence. Clatch testified in detail about the numerous violations he observed at the Soriano day care facilities. While Soriano argues that the record demonstrates substantial and competent evidence of compliance with DPW regulations, Soriano's argument on this point is completely devoid of any citation to the record. Soriano's argument consists of her excuses for non-compliance and her claims of compliance as of inspections conducted in May and October 2006. As stated above, however, the revocation and refusal to renew at issue took place in January 2006. Thus, for purposes of this appeal, compliance as of May or October 2006 is inconsequential. Finally, as to whether DPW erred by failing to provide Soriano with some accommodation relative to her difficulty speaking the English language, the 7 Court finds that Soriano failed to sufficiently develop her argument so as to allow for any meaningful appellate review. Soriano fails to cite any case law or statutory authority on this point. The only reference to legal authority is her statement that: [t]o fail to [provide some accommodation with the language barrier] could very well rise to a level of a violation of the Fourteenth Amendment of the United States Constitution, or of the Pennsylvania Constitution, which preserves the same rights. Soriano's Brief at 15. Soriano does not attempt to explain how the Fourteenth Amendment or the Pennsylvania Constitution might apply to the facts of this case, and the Court will not attempt to do so. It is well settled that arguments that are not properly developed in a party's brief are deemed to be waived by the Court. Rapid Pallet v. Unemployment Compensation Bd. of Review, 707 A.2d 636 (Pa. Cmwlth. 1998); Pa. R.A.P. 2119(a). In any event, DPW pointed out that Soriano's husband is bilingual and that he was present to translate for Soriano. Based upon its review, the Court concludes that the necessary findings of fact are supported by substantial evidence in the record and that the adjudication was in accordance with the law. DORIS A. SMITH-RIBNER, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Soriano Family Day Care, Soriano Group Home, Angela Soriano, Petitioners v. Department of Public Welfare, Respondent : : : : : : : : : No. 833 C.D. 2007 ORDER AND NOW, this 5th day of June, 2008, the Court affirms the final administrative action taken by the Department of Public Welfare's Bureau of Hearings and Appeals. DORIS A. SMITH-RIBNER, Judge
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