STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF MECKLENBURG 03 DHR 1746
1
LATIVIA L. GIBBS
Petitioner,
v.
N.C. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF CHILD DEVELOPMENT
Respondent.
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DECISION
BACKGROUND
This matter was heard before Donald L. Smith, Temporary Administrative Law Judge, on May 5 and 6, 2004, in Charlotte, North Carolina. Following the hearing, the undersigned requested Counsel to file Proposed Decisions. The undersigned also directed Counsel to address certain issues, either in the Proposed Decisions or in written arguments. The record closed upon receipt of the Proposed Decisions and written arguments on July 15, 2004.
APPEARANCES
For Petitioner: For Respondent:
Ellis M. Bragg Ann B. Wall
Attorney at Law Assistant Attorney General
500 East Morehead Street N.C. Department of Justice
Suite 210 Post Office Box 629
Charlotte, NC 28202 Raleigh, North Carolina 27699-0629
APPLICABLE STATUTES AND RULES[1]
N.C.G.S. §§110-88, 110-90(5), 110-91, 110-94, 110-98, 110-99(a), 110-102.2, 110-105; N.C.G.S. §150B; 10A NCAC 9 .0201, .0302, .0304, .0601, .0704, .0705, .0801, .0803, .1904, .2206, .2820.
ISSUES
Whether the Division of Child Development acted erroneously, arbitrarily or capriciously, or failed to use proper procedure, or to act as required by rule or law or exceeded its jurisdiction, when it revoked the Petitioner’s One Star license to operate a child care center based on falsification of information regarding two annual fire inspection reports, information regarding education and training, and violations of child care requirements?
EXHIBITS
Respondent’s Exhibits 1 through 18 were admitted in evidence. Petitioner’s Exhibits 9, 10, 61, 63, 67, 71, 73, 74 were admitted in evidence. As noted in the transcript of the hearing in this matter, certain of the exhibits were admitted subject to limitation.
FINDINGS OF FACT
Based on the exhibits admitted in evidence, the sworn testimony of the witnesses, and observation of the witnesses while testifying, 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, by at least a preponderance of the evidence, the following findings:
The Petitioner
1. Petitioner Lativia L. Gibbs is the owner and operator of Rainbow Day Care (hereafter, “Rainbow” or “the center”), a child care center, ID # 6055627, initially licensed by the State of North Carolina on August 9, 1989. Rainbow is located in Charlotte, North Carolina. (Order on Final Pre-trial Conference, Schedule A, No. 1)
2. Lativia L. Gibbs was the administrator of Rainbow at all times relevant to this matter. (Order on Final Pre-trial Conference, Schedule A, No. 2)
3. At all times relevant to this matter, Rainbow had a One Star License, indicating that it met minimum requirements of the State of North Carolina to operate a child care center. (R Ex. 13: Deposition p. 69, line 8 - 13)
The Respondent
4. Respondent, North Carolina Department of Health and Human Services, Division of Child Development, (hereafter referred to as “the Division”) is an administrative agency of the North Carolina State Government operating under the laws of North Carolina. (Order on Final Pre-trial Conference, Schedule A, No. 3 and 4)
5. The Division’s responsibilities include licensure of approximately 9,100 child care facilities, including 4,100 childcare centers, monitoring the facilities for maintenance of compliance with child care requirements, and evaluating the qualifications of child care
providers. (Order on Final Pre-trial Conference, Schedule A, No. 4; Transcript (“T”), p. 94, lines 5 - 8)
6. Respondent has been recognized for the quality and expertise of its work by outside agencies, including receiving the 1999 Innovations in American Government Award, and 2004 Finalist for Innovations in American Government Award. (T pp. 82, line 19 - 83, line 3;
7. 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.
Falsified Fire Inspections
8. Each year the Division sends annual fire inspection forms to childcare centers. (T p. 105, lines 22 - 24; R Ex. 13: Deposition p. 44, lines 2 - 15)
9. A childcare center is required to initiate its annual fire inspection by calling the local fire department to arrange for the inspection, and then forward the completed original fire inspection report to the Division within one week. (10A NCAC 09.0304(a); T p. 105, lines 21 - 24)
10. A regular fire inspection of Rainbow was conducted by the Charlotte Fire Department on August 16, 2000. (T p. 45, lines 8 - 19)
11. In December 2001, when Rainbow appeared on City of Charlotte Fire Department Inspector Steven Guthrie’s list of facilities overdue for inspection, he called Petitioner, who told him no inspection was needed. (T pp. 44, line 1 - 45, line 2)
12. On June 5, 2002, Dana Stikeleather, one of Respondent’s childcare consultants, conducted an unannounced annual compliance visit to Rainbow. ( R Ex. 13: Deposition pp. 14, line 8 - 15, line 6, Deposition Ex. 3)
13. During her June 2002 annual compliance-monitoring visit, Ms. Stikeleather cited a number of violations, including the lack of required fire drill records for three of the preceding eight months. ( R Ex. 13: Deposition pp. 17, line 15 - 18, line 6, Deposition Ex. 3)
14. Ms. Stikeleather also noted the lack of a 2001 fire inspection and instructed Petitioner to remedy the matter by obtaining a fire inspection and sending Ms. Stikeleather the inspection report. ( R Ex. 13: Deposition p. 21, lines 9 - 23, Deposition Ex. 3)
15. On October 16, 2002, Ms. Stikeleather received the Petitioner’s four-month late correction letter, along with a copy of a fire inspection report dated August 20, 2002. ( R Ex. 13: Deposition p. 24, lines 3 - 5, 20 - 22, 25 - p. 25, lines 1, 12 - 19, Deposition Ex. 6, 8)
16. Ms. Stikeleather called Petitioner and requested the original fire inspection report for the August 20, 2002 inspection. (R Ex. 13: Deposition p. 25, lines 5 - 6, Deposition Ex. 6)
17. Instead of the requested original report, Petitioner sent Ms. Stikeleather a yellow carbon of a fire inspection report form, which was dated August 16, 2002. (R Ex. 13: Deposition pp. 26, lines 1 - 4, 27, lines 11 - 20, Deposition Ex. 6)
18. Ms. Stikeleather never received an original August 2002 inspection report from Petitioner. (R Ex. 13: Deposition p. 25, lines 22 - 23, Deposition Ex. 6)
19. On reviewing the second fire inspection report, Ms. Stikeleather identified discrepancies between it and the first report Petitioner had submitted:
A. One report was dated August 20, 2002, while the other report was dated August 16, 2002;
B. On the August 20, 2002 report, “approved for daytime care only” was checked, but it was not checked on the August 16, 2002 report;
C. On the August 20, 2002 report, the signature of Fire Inspector Steven Guthrie was on the signature line, but on the August 16, 2002 report, the signature was below said line;
D. On the August 20, 2002 report, the zip code for the fire department was 28204, but on the August 16, 2002 report, the zip code was 28284.
(R Ex. 13: Deposition pp. 28, line 13 - 29, line 3, Deposition Ex. 6)
20. Ms. Stikeleather spoke with Fire Inspector Steven Guthrie, who stated he had not inspected Rainbow in 2002. (T pp. 40, line 13 - 41, line 10; R Ex. 13: Deposition p. 29, lines 7 - 11, 23 - 25, Deposition Ex. 8)
21. Inspector Guthrie sent Ms. Stikeleather documentation from the Fire Department’s records showing the lack of an inspection in 2001 and 2002. (T p. 45, lines 8 - 29; R Ex. 6B; R Ex. 13: Deposition p. 30, lines 2 - 8, Deposition Ex. 8)
22. Having concluded that the two fire inspection reports were falsified, Ms. Stikeleather and her supervisor, Patsy Bumgarner, met with Petitioner at Rainbow on December 11, 2002, and were joined by Inspector Guthrie for a discussion of the two fire inspection reports. (T pp. 245, lines 1 - 6, 247, lines 15 - 21; R Ex. 7; R Ex. 13: Deposition p. 33, lines 8 - 15, Deposition Ex. 9)
23. Ms. Stikeleather and Ms. Bumgarner pointed out the discrepancies to Petitioner and discussed the seriousness of falsification and possible consequences for Petitioner. (T pp. 245, line 21 - 247, line 12; R Ex. 13: Deposition p. 37, lines 9 - 143, Deposition Ex. 9)
24. Inspector Guthrie told Petitioner he had not signed either form. (T p. 36, lines 23 - 25, p. 37, lines 4 - 8, p. 38, lines 2, 8 - 11; R Ex. 7)
25. Petitioner denied she had falsified the forms, stated she had not been present on the day of the August 2002 inspection, but insisted Rainbow had been inspected that day. (T pp. 245, line 22 - 246, line 17; R Ex. 13: Deposition pp. 34, line 6, 35, lines 7 - 9, 13 - 14, Deposition Ex. 9)
26. Petitioner could not tell Ms. Bumgarner and Ms. Stikeleather which staff members had been present at Rainbow on the day of the alleged fire inspection. (T p. 246, lines 1-3, R Ex. 7)
27. Petitioner told Ms. Stikeleather and Ms. Bumgarner that the two forms she sent to Ms. Stikeleather were the only ones she had. (T pp. 245, line 22 - 246, line 17; R Ex. 13: Deposition p. 36, lines 9 - 10, Deposition Ex. 9)
28. After Petitioner stated her canceled check would prove that the inspection had been completed and paid for, she was asked to forward the original canceled check to Ms. Stikeleather along with a current fire inspection. (T p. 246, lines 7 - 17; R Ex. 13: Deposition p. 37, lines 5 - 7, 23 - 25, Deposition Ex. 9)
29. Instead of forwarding an original canceled check, Petitioner forwarded a copy of a check register, a stop payment order and a statement that she had stopped payment on the check because she learned that the check had not been cashed. Petitioner also forwarded a current fire inspection report, performed by Inspector Guthrie on December 13, 2002. (T pp. 34, lines 14 - 19, 248, line 14 - 249, line 2; R Ex. 8C; R Ex. 13: Deposition pp. 38, line 19 - 39, line 1, 40, lines 8 - 10, Deposition Ex. 10)
30. Following Respondent’s policies, Ms. Stikeleather prepared Violation Correction Documentation and sent it to Petitioner, notifying her that violations had been cited related to lack of an annual fire inspection and to falsification. (T pp. 249, line 18 - 250, line 8; R Ex. 13: Deposition pp. 41, line 3- 5, 42, lines 3 - 10, Deposition Ex. 11)
Other Violations and Falsified Education Information
31. In addition to the missing fire drills and inspection, during her annual compliance visit to Rainbow on June 5, 2002, Ms. Stikeleather cited the following violations:
A. Failure to display the license in compliance with G.S. §110-99(a) (despite technical assistance during a visit on May 2, 2002 regarding the placement of the license), (R Ex. 13: Deposition pp. 12, line 17 - 13, line 4, 15, line 18 - 16, line 8, Deposition Ex. 1 and 3).
B. Failure to post a menu one week ahead, 10A NCAC 09.0901(b), (Ex. 13: Deposition p. 16, lines 8 - 24, Deposition Ex. 3)
C. Failure to keep indoor and outdoor equipment and furnishings in good repair and usable, 10A NCAC 09.0601(a) and .0605(b). (R Ex. 13: Deposition p. 17, line 1 - 12, Deposition Ex. 3)
D. Failure to provide a safe indoor and outdoor environment, including having a piece of fence missing, thereby making a parking lot and the adjacent street accessible by children, and having the missing, sharp-edged fence piece on the playground, where a child was seen playing on it, 10A NCAC 09.0601(a). (R Ex. 13: Deposition pp. 18, line 7 - 19, line 11, Deposition Ex. 3)
E. Lack of a person certified in age-appropriate CPR, 10A NCAC 09.0705(d), R Ex. 13: Deposition pp. 19, line 12 - 20, line 5, Deposition Ex. 3)
F. Lack of notice on a child’s application of the person(s) to whom the child could be released, 10A NCAC 09.0801(a), R Ex. 13: Deposition pp. 20, line 6 - 21, line 6, Deposition Ex. 3)
32. A Staff and Training Worksheet completed by Ms. Stikeleather using information from Petitioner and Rainbow files during the June 2002 annual compliance visit states the following with regard to Petitioner’s education: “H.S. BA Elem. Ed”. (R Ex. 13: Deposition pp. 19, lines 15 - 19, 44, line 18 - 45, line 3; Deposition Ex. 3)
33. The information on the Staff and Training Worksheet was used to determine the number of hours of continuing education in the form of in-service training which Petitioner was required to complete each year. (T pp. 100, line 22 - 101, line 13)
34. On February 10, 2003, Ms. Stikeleather received an “application” for a voluntary rated license from Petitioner. (R Ex. 13, Deposition of Dana Stikeleather, Deposition Ex. 15, approx. page 12 of 32 pages, email 2/10/03 from Patsy Bumgarner to Dana Stikeleather, contained in a 12/12/03 email from Patsy Bumgarner to Ann Wall)
35. On February 19, 2003, Ms. Stikeleather and Lead Childcare Consultant Robin Stalvey went to Petitioner’s facility on a routine, unannounced visit. (T pp. 167, lines 1-2, 251, lines 1 - 17; R Ex. 10; R Ex. 13: Deposition pp. 42, lines 19 - 22, 25 - p. 43, line 1, Deposition Ex. 11)
36. Petitioner was cited for having hazardous items accessible to children instead of locked away, and for having medication for children without written parental permission to administer it. (T pp. 169, line 1 - 16; R Ex. 10; R Ex. 13: Deposition pp. 43, line 9 - 44, line 14, Deposition Ex. 11)